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Ford Claims Ownership Of Your Pictures 739

Posted by ScuttleMonkey
from the like-a-child-shouting-MINE dept.
Mike Rogers writes "In a move that can only be described as 'Copyright Insanity', Ford Motor Company now claims that they hold the rights to any image of a Ford vehicle, even if it's a picture you took of your own car. The Black Mustang Club wanted to put together a calendar featuring member's cars and print it through CafePress, but an attorney from Ford nixed the project, stating that the calendar pics and 'anything with one of (member's) cars in it infringes on Ford's trademarks which include the use of images of their vehicles.' Does Ford have the right to prevent you from printing images of a car you own?"
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Ford Claims Ownership Of Your Pictures

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  • Ford's response (Score:5, Informative)

    by microcars (708223) on Monday January 14, 2008 @02:52PM (#22037672) Homepage
    here is a copy of the letter that was alledgedly sent to another automotive club when they tried to publish calenders themselves. (I ripped this posting from BoingBoing...)

    "Although you and your members may own the Ford automobile, you do not own the rights to the trade dress. Taking pictures of any Ford automobiles, placing them on products (i.e. calendar, mugs, t-shirts, etc.) and making them available to the public for sale is an infringement of Ford's intellectual property rights."

    "Because of the cachet of the world-famous Ford name, thousands of independent businesses and people make a living from or pursue a hobby related to Ford products and services. Unfortunately, many of these businesses improperly attempt to affiliate themselves with Ford by using Ford trademarks and trade dress (for instance, the depictions or photographs of Ford's distinctively shaped vehicles) in advertising their products and services."

    "If a business not affiliated with Ford uses any Ford trademark, whether through the use of photographs, depictions or silhouettes, or any confusingly similar variation thereof, without Ford's express, written consent, then that business is violating Federal and state trademarks laws."

    "It is also not sufficient for a business to state that it is not affiliated with Ford but continue to use Ford trademarks without permission. The business is still misappropriating the goodwill and reputation developed by Ford, and attempting to capitalize on or profit from Ford's goodwill and reputation. Even with the best of intentions, unauthorized use of another company's trademark is against the law."

    "At times Ford enthusiasts question why Ford is so adamant about policing it's trademarks and preventing unauthorized uses or infringements of them. It is quite common for someone who is using a trademark without permission to say, "I'm giving Ford free advertising, so why does Ford care?" Ford cares because it is important that Ford be able to exercise control over the quality of the product or service bearing Ford's trademarks."

    "To protect the value of its trademarks, Ford is obligated to object to and pursue unauthorized uses of its trademarks and trade dress, even if the use of the trademark or trade dress does not appear offensive or objectionable."
  • Be More Specific (Score:5, Informative)

    by hardburn (141468) <hardburn@wumpus- ... OWnet minus city> on Monday January 14, 2008 @02:56PM (#22037770)

    The blanket term "Intellectual Property" covers a wide range of laws that often cover the same basic concept (creating a system of ownership for ideas), but are implemented in very different ways. When discussing these laws, it's very important to be specific about what kind of IP is being discussed.

    The summary makes it sound like Ford is claiming copyright on the pictures (which they almost certainly don't have the rights to). However, it seems that Ford is actually claiming trademark status on the car's design, and an image of that car would therefore infringe on that trademark.

    Not only that, but the tags (the most abused feature on Slashdot) cite "patent", another set of IP laws which have nothing to do with anything here.

  • Public View (Score:5, Informative)

    by airos4 (82561) * <changer4.gmail@com> on Monday January 14, 2008 @02:56PM (#22037778) Homepage
    Well, IANAL, but I was a videojournalist for ABC News for a while. The law as we were taught it was that anything visible in the public forum does not need permission to be used. This, btw, includes exteriors of houses, anything visible from the street, and people walking down the street. So by my thought, since these cars were visible in public, they are fair game for anyone to take pictures of.. and once the picture is taken, the rights generally belong to the photographer or his/her agency (unless the club put in the contract that they will own the rights to those images).
  • by falcon5768 (629591) <Falcon5768NO@SPAMcomcast.net> on Monday January 14, 2008 @03:01PM (#22037880) Journal
    the statement AND the claim are both legit and legal. This is a problem photographers have had to deal with for decades LONG before copyright claims went nutso. Basically since the Mustang is iconic, and since there is a lot of licensing involved with it, Ford is fully within their rights to tell someone they cant make their own calender to sell to people using their car, not without paying Ford a licensing fee.

    This is no different than Architects who prevent people from publishing books with photos of their latest building designs. While it seems silly its completely legal and has been enforced for decades at this point.

  • Re:EULA (Score:4, Informative)

    by Sandbags (964742) on Monday January 14, 2008 @03:02PM (#22037910) Journal
    Well, they DO have a right. The Ford emblem, vehicle design, and likenesses are registered trademarks of their company. Where they can't prevent you from printing pictures of your own vehicles for personal use, they CAN prevent an organization (in this case a car club) from printing, selling, (and thus profiting) from those images without their permission.

    Even magazines doing reviews of vehicles need the permission of the maker in order to print the article (most have standing agreements). Newspapers can, for example, show a photo of a car wreck, but were they to runa review, they'd need permission to use the images, even if they were taken of vehicles owned by the paper.

    This is not Ford saying "you can't take and print pictures of your car" It's just them saying "we're so concerned we're loosing money to the imports that we're going to sue you for trying to make even a few bucks from a fund raiser, unless you're interested in profit sharing that is..."

  • by jone_stone (124040) on Monday January 14, 2008 @03:03PM (#22037942) Homepage
    I used to work as a game programmer and one of the issues that came up is that in order to use any recognizable building design (for instance, if you based your game in Seattle and wanted to use the Space Needle as part of the landscape) you have to pay a licensing fee. The design is still copyrighted, and to use it in a commercial product amounts to infringement.

    It seems like that's the issue here -- it's a calendar they were going to sell, right? At the very least, Cafe Press was going to make money from the sale. Seems like the legality is pretty clear there.

    Now, whether Ford should exercise its rights in this instance is another issue, involving public relations and stuff like that. Seems like a bad move to me, but it's their choice.
  • Re:Fair Use (Score:3, Informative)

    by Mesa MIke (1193721) on Monday January 14, 2008 @03:04PM (#22037952) Homepage
    Fair Use applies to copyright. This is a trademark issue.
  • Re:Free Marketing (Score:5, Informative)

    by jedidiah (1196) on Monday January 14, 2008 @03:17PM (#22038352) Homepage
    Yes. This is Ford's fault.

    They could choose another option: License their trademark for a pittance.

    They don't have to "object". They can also "authorize".
  • Re:Free Marketing (Score:3, Informative)

    by onecheapgeek (964280) on Monday January 14, 2008 @03:20PM (#22038442) Journal
    But until the club actually agrees to and signs such a license, they must attack and prevent. Such is the nature of trademark law in the US.
  • Re:EULA (Score:5, Informative)

    by ivan256 (17499) on Monday January 14, 2008 @03:23PM (#22038492)
    Ford only has the right to prevent others form using their trademarks in an inaccurate or misleading manner. You are completely free to use Ford's marks to refer to Ford products and the Ford Motor Company itself. Even in a derogatory manner if it's true, or in a commercial manner as part of an original work. (For example, a book called "The History of the Ford Motor Company", or "Ford Cars from 1958-2008 in Photos")

    The pictures of the cars are copyrighted to the person who took the picture.

    The only thing Ford is in the right about here is that they are perfectly allowed to send cease and desist letters to anybody they'd like, and they can even file suit. They would almost certainly lose, though.

    This works the same way with people too. A newspaper can sell 10,000 copies with the picture of (insert your favorite NFL football player here) on the front page if their photographer took the photo out on the street where he wasn't under any NFL ticket/press contract.
  • by samkass (174571) on Monday January 14, 2008 @03:24PM (#22038552) Homepage Journal
    1. Ford is alleging Trademark violations, not Copyright, from what I've read. The distinction is pretty important when it comes to what rights you have to the pictures that you took (and therefore have copyright over).
    2. If Ford doesn't defend their Trademarks, by law they lose them. Thus, the law compels companies to act like this, whether the companies like it or not.
    3. There are exceptions in the law for works that are sufficiently derivative. If you're selling calendars of cars that look like they could have driven off the lot yesterday, that's obviously a violation of trademark even if you own the car-- you're clearly profiting directly from someone else's trademark. If the cars are heavily modified, though, they probably have a good case for the calendar.
    4. Selling photography containing trademarks is definitely a tricky business, but the damage has long-since been done. Even worse, some folks have run into minor hot water when they replaced billboards in cityscapes with alternate billboards in television and photographs-- so NOT reproducing the trademark has also been problematic. It's definitely an area of law in need of refinement.
  • Ford is full of it (Score:4, Informative)

    by Charcharodon (611187) on Monday January 14, 2008 @03:28PM (#22038642)
    Ford does not have the right to restrict the taking of or the sale of any photos of their products. Neither copyright or trademarks give them that kind of power. You might be on thin ice if you tried to sell an "Official Ford" Mustang calender, but a Mustang Club selling a calendar of their members rides is completely legit.

    Companies & cities have tried similar tactics with national landmarks and their buildings, to either gain a revenue stream or prevent anyone else from creating products that might compete with their own projects or be used in lawsuites or public criticism, but again all of them have been tossed out of court.

    Copyright only protects their original works, and Trademark only protects their products from duplication or, neither prevent you from making pictures and selling them for profit.

  • by thatseattleguy (897282) on Monday January 14, 2008 @03:30PM (#22038706) Homepage
    Most folks are missing the vital distinction here between commercially _selling_ something (with an image being a prominent portion of the value of that sale), and merely owning - or reporting on - or privately sharing - that same image.


    Look, I'm not defending Ford here - I think they've got their collective heads inserted into their nether orifices, and they're going down the RIAA's lemming cliff to be putting the hammer to their best customers - but let me give you an example of why it's not always so simple.


    Here in Seattle, there's a famous, almost iconic piece of public art. It's free for anyone to visit, view, play on, and take pictures of. News organizations can report from events and show it in the background, or the foreground - no problem.


    But that doesn't mean anyone can do anything with it they want, just because it's out in the open air - as a large shuttle-van company found out when they featured it prominently in their TV ads without asking nicely first. The original artist retained copyrights to the art, and the fact that it's visible in public didn't allow others to profit from that image without getting his approval first. Now, if people contact him in advance, he'll usually say yes at the cost of a case of beer (no kidding). Somehow I don't think the shuttle company got off so lightly, after the fact.


    So: public art: news, yes; blatant commercial exploitation, no. Where something like having the same art in a commercial movie in the background of a scene would fall, I don't know (IANAL). But I do know that - like it or not - copyright questions aren't always ammenable to simple black-and-white answers.

    /thatseattleguy/

  • Photographer here... (Score:5, Informative)

    by photomonkey (987563) on Monday January 14, 2008 @03:34PM (#22038834)

    Actually, this has always been the case.

    I'll preface this by saying that more freedom is always better, and I don't like Ford.

    However, this is not really an oddball case at all. Ford, I'm fairly certain, registers all their designs as trademark(s), thereby enabling them to legally preclude an entity from reproducing said designs for their own commercial purposes. In fact, in order to maintain their trademark, Ford has to actively defend their trademark which is likely the reason for this action. IE, if they let this relatively harmless group operate outside of fair use, they have to let everyone do so (in other words, their trademark is no longer a trademark).

    Although I wouldn't put it past them to try, they cannot stop you from taking pictures of your car to send to mom, put on your MySpace page or keep on your desk at work. They can't stop you from taking a picture of the car to put with your Auto Trader ad when you go to sell it.

    They probably can't stop you from using photos of a car in a fine art piece for sale or display (artistic appropriation is a bit touchy, but is generally allowed by the courts).

    They can't stop you from taking pictures of the car to accompany a news piece (for example, a photo of a Police Interceptor in flames or a photo of a Focus on the road for a review).

    As for printing playing cards, calendars, posters, coffee mugs, etc. and selling them, for profit or not, they will do what they can to keep you from doing so. That is pretty much in-the-clear commercial appropriation, and is not allowed.

    In other cases, usually the sports organization or the player him/herself owns the TM to their likeness to prevent me from going to an event, shooting pictures of the player and then selling prints/posters off my website. That doesn't mean that I don't still own the copyright to the photo, it just restricts what I can do to exercise my use of that photo. It doesn't stop me from publishing the photo as a news piece.

    One could argue that if these are heavily modified cars, they are no longer identifiable as Ford's TM, and then the logo could be airbrushed out and the photo/calendar is probably a-ok.

    The problem is that Ford is likely acting completely within their rights here, and unless this group has the cash to fight it in court, it's a case-closed event.

    I'll reiterate that one of the pitfalls of trademark is that they have to be protected to be enforced, unlike (or at least less than) copyright. Some suit somewhere got wind of this and has no choice but to enforce their trademark to keep the trademark.

    Nothing to see here...

  • Re:EULA (Score:3, Informative)

    by Daniel_Staal (609844) <DStaal@usa.net> on Monday January 14, 2008 @03:36PM (#22038884)
    Just a comment: Trademark != Copyright. Allowed uses differ significantly.

    Anyone can reproduce a trademark, without limit or exception, as long as one condition is met: It's use always refers to the trademark holder's product exclusively. You can show the Ford or Mustang logo all you want, as long as you are using the to refer to Ford Motor Company and it's Mustang automobile. Using them to refer to any other product, service, or company is however forbidden.

    Copyrights are more general: You are not allowed to copy the image/text/etc. in question without permsission.

    Now, in this case, it wouldn't surprise me if Ford had both a trademark and a copyright registered on the Mustang logo (and probably a copyright on the shape of the car itself, as well as...), but that's another issue.
  • by OSPolicy (1154923) on Monday January 14, 2008 @03:37PM (#22038916) Homepage
    >Even magazines doing reviews of vehicles need the permission of the maker

    That is incorrect. Chapter 17, section 107 of the United States code clearly states that "the fair use of a copyrighted work... for purposes such as criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research, is not an infringement of copyright."

    Here, your example is perfectly on point with 17 USC 107. The review would be criticism, comment, and news reporting at a minimum, and arguably teaching.

    >they CAN prevent an organization (in this case a car club) from printing, selling, (and thus profiting) from those images without their permission.

    This is also incorrect, but not as egregiously. 17 USC 107 distinguishes commercial and noncommercial ventures as one of the factors in determining whether a particular use is fair use. However, in this case even the Red Cross (a nonprofit) could run afoul of the law by printing the calendar because of "the amount and substantiality of the portion used in relation to the copyrighted work as a whole". That means that if they print a pic of the entire car, that fact counts against them. Speaking of factors that count against them, 17 USC 107(4) raises the consideration of "the effect of the use upon the potential market for or value of the copyrighted work." Here, that means that Black Mustang Club is reducing the value of the design because nobody is going to buy a Black Mustang Club calendar and also buy a calendar from Ford. (Black Mustang Club would counter that they are raising the value of the Mustang by printing the calendar, but their claim is speculative whereas Ford's claim of reduction in the sale of Ford calendars is pretty solid. Judges don't like speculation.)
  • by SerpentMage (13390) <ChristianHGross@nospaM.yahoo.ca> on Monday January 14, 2008 @03:37PM (#22038922)
    This is offtopic I know I know... But why on earth do people call their Porsche PorSha? I never understood this.

    If you say the word Porsche in English the e is silent. And since I speak fluent German the e at the end is not an Sha, it is more like the e in wet or like the e in Good Day, eh. What I am wondering is how the e turned into a?
  • Re:Ford's response (Score:1, Informative)

    by Anonymous Coward on Monday January 14, 2008 @03:40PM (#22038958)
    FWIW, IAAL. And if this is the real letter to the BMC, then Ford is entirely within their rights to enforce their TRADEMARK. This is NOT a copyright issue.

    If you go to Disneyland and take pictures of Mickey and friends, that's not a problem - you create the photo, you own the copyright.

    However, if you take that picture and slap it onto product (calendar, mug, tshirt, etc.) for SALE, then yes it violates Disney's TRADEMARK rights - they have the sole discretion to decide how they want to sell their brand.
  • by reebmmm (939463) on Monday January 14, 2008 @04:01PM (#22039220)
    Let's be careful about what we're talking about. People like the parent and the OP are mighty confused about their intellectual property law. A quick refresher:

    Copyright = an original work of authorship fixed in a tangible medium of expression.
    Trademark = any device that associates a good with the source of that good.

    Ford has LOTS of trademarks when I search for "Mustang" at the PTO. Since a trademark could arguably cover the look of the Mustang (I did not go through the huge list), they could either have federal trademark protection in the look. Even if there weren't a federal mark, Ford probably has common law rights in a trademark for the look.

    This, though, has NOTHING to do with the ownership of the photographs. The copyrights to the photographs will belong to the photographers. This does not mean that the copyright owner can use the photographs for whatever purpose they want. There may be other intervening laws (privacy, publicity, decency, trademark, etc.). By way of example, if I took a picture of a Gucci logo I would own the photograph (if it met the criteria for copyright), but I can't freely paste that picture on to a purse and claim a defense of "well I own copyright."

    So the real question here is, is whether the use of Ford's trademark (perhaps even more than one) covering the Mustang infringed by the sale of the calendar. The test is whether such a use is likely to cause confusion as to the source of the calendar. And, frankly, it seems pretty clear that it could: if you saw a calendar, you'd probably think that either Ford or Ford's authorized licensee put out the calendar. So you have a trademark infringement. The only question then is whether there is fair use here, and I don't see it.
  • Scale models... (Score:3, Informative)

    by aitala (111068) on Monday January 14, 2008 @04:01PM (#22039222) Homepage
    Similar suits are killing the scale model industry along with massively overinflated licensing fees.

    I had a longer post, but it got eaten by the server.

    Dr E
  • by i.r.id10t (595143) on Monday January 14, 2008 @04:04PM (#22039266)
    In one of my '60s vintage Porsche Panorama mags (magazine from the PCA) there is a quote from Ferry along the lines of "I don't care how they pronounce my family name, as long as they buy my cars"

    FWIW, I learned that it is more of an "uh" sound than a "ah" sound...
  • Re:An answer. (Score:1, Informative)

    by Anonymous Coward on Monday January 14, 2008 @04:12PM (#22039392)
    Actually, the answer is "No they don't" (certain exceptions apply).

    Trademark law is consumer protection law, not 'protection of my ideas' law. It is there to protect consumers from buying something that they think is a Ford car when it really isn't a Ford. It has nothing to do with pictures of the Ford brand.

    Since the calendar is not an automobile claiming to be made by Ford, trademark law doesn't apply. If this went to court Ford would get a beat down if the defense lawyer had any merit.

    This is a flagrant abuse of something masquerading as IP law that really amounts to being control freaks.
  • Re:An answer. (Score:1, Informative)

    by Anonymous Coward on Monday January 14, 2008 @04:23PM (#22039598)

    The actual question is "Does Ford have the right to block one from selling, for a profit, an image that includes their trademark?"
    And the correct answer is maybe. They may have this right if the trademark is a prominent feature of the picture and the picture could be mistaken by a reasonable person for something that was made or authorized by Ford. If there's just a 1 pixel blue speck in the background of a picture, there's obviously noting they can do about it. There's probably also nothing they can do about it if the cars were sufficiently modified from their factory appearance (a little should be enough, no need to make then not recognizable as a Ford). I'm wondering if Ford would still protest if all the badges read "Fnord" or "Fuck".
  • Re:Nope. (Score:5, Informative)

    by reebmmm (939463) on Monday January 14, 2008 @04:32PM (#22039788)
    First, what you're describing isn't an estoppel, it'd be a laches defense.

    Second, nothing stops someone from using the name Ford or Ford Mustang nomatively. You don't have to refer to the company as "That car company with the blue oval logo that sells the pony car named after a wild horse."

    Third, not every use is going to be unlicensed. Many of those hits are probably dealerships.

    Fourth, to the used cars, remember the question is whether a consumer is likely to be confused as to the source of the product. If you're calling a ford mustang a ford mustang, you're probably safe. If you're trying to sell a Datsun as a mustang, you've got a different problem.

    Finally, NONE of this has to do with the case here. Using Ford's marks to sell a calendar is VERY different than using Ford's marks to sell a Ford car that you was lawfully acquired.
  • by byteherder (722785) on Monday January 14, 2008 @04:54PM (#22040240)
    The legal issues in this case have been settled long ago. Ford holds the trademark on the image and likeness of its cars. The photographer hold the copyright on the pictures he took. For Ford to uphold its trademark, it has to contest all unlicensed use of its intellectual property.

    All that being said there is an easy way to resolve this. I work for a company that sells aftermarket car parts. On our website, we wanted to use the Ford blue oval trademark image to guide people who were looking for Ford car parts. We asked Ford for a royalty-free license to use there trademark and were granted permission. We included mockups of how we were going to use it so their lawyers didn't freak. Everythings was businesslike and professional. Businesses do this all the time.
  • Re:Free Marketing (Score:3, Informative)

    by wytcld (179112) on Monday January 14, 2008 @05:05PM (#22040494) Homepage
    If it were sold as a Ford brand calendar, and if Ford sells calendars, then Ford has to enforce the ownership of its mark in the category of calendars. But if Ford is loyal to its core business, its car business, and if the calendar isn't marketed as "Ford brand," then Ford certainly doesn't lose its "Ford" trademark for cars, and doesn't even lose the Ford trademark for calendars. Ford need do nothing.

    Write this one up to stupid lawyers who don't know jack about marketing and good will. Good will, by the way, is treated as a very real thing, a dollar-denominated asset, in business. Ford should hire other lawyers to sue these lawyers for the loss they have caused the corporation.
  • Re:EULA (Score:3, Informative)

    by dgatwood (11270) on Monday January 14, 2008 @05:28PM (#22041016) Journal

    They're making money explicitly off the Ford name/products, which I'm sure is prohibited somehow.

    Nope. Making money by selling pictures of somebody else's product or even their mark is not a trademark violation.

    First, a trademark violation generally requires at minimum reasonable probability of confusion. To my knowledge, Ford doesn't sell calendars, so you might even be able to get away with starting the Ford Calendar Company, though the famous mark laws might still come back to bite you in the ass. However, if you are simply a company "My Calendars" selling a calendar called "Historical Fords" or some such, there is no possibility whatsoever that anyone would confuse your calendar with an automobile, as A. it is a calendar, and B. the use of the term "Ford" is ancillary and constitutes nominative fair use.

    So basically, unless Ford is also a calendar company, they have no possibility of a case, and even if they do, they would still have to show that someone would have a reasonable chance of confusing your calendar with theirs. I'm fairly certain that calling it something like "Black Mustang Club Calendar 2008" would be sufficient to eliminate any possibility of such confusion.

    IANALBIPOOSD.

  • Re:Not really. (Score:3, Informative)

    by edwdig (47888) on Monday January 14, 2008 @05:30PM (#22041082)
    Last time I looked (a few years ago), Consumer Reports reliability ratings were focused on the first few years of owning the car. Essentially, the warranty period. I'm much more interested in the reliability after the warranty period ends.
  • Re:EULA (Score:3, Informative)

    by caitsith01 (606117) on Monday January 14, 2008 @06:07PM (#22041750) Journal

    The only thing Ford is in the right about here is that they are perfectly allowed to send cease and desist letters to anybody they'd like, and they can even file suit. They would almost certainly lose, though.

    Actually, in many jurisdictions it is an abuse of the court's processes to threaten legal proceedings when you know you have no basis to do so and with a collateral purpose (that is, not to assert genuine legal rights but to obtain some commercial or other advantage). I'd say this satisfies both of those criteria.
  • by schwanerhill (135840) on Monday January 14, 2008 @06:52PM (#22042566)

    It's "Domino's" Pizza and "Domino" Sugar.
    Which only serves to further distinguish them.

    No, that's not relevant. I can't go out and start a pizza company called "Domino Pizza" or a sugar company called "Domino's" -- the names are close enough so that they could be reasonably confused.

    There are a number of other examples -- Delta Airlines and Delta Faucets comes to mind -- where the names of two non-competing companies really are identical and both trademarked. (Apple, Inc., formerly Apple Computer, and Apple Records is another example, but that's a different barrel of wax.)
  • by thdexter (239625) <dexterNO@SPAMsuffusions.net> on Monday January 14, 2008 @07:19PM (#22043070) Journal
    Yeah, you're pretty much right on. They can publish their calendar without having to license anything at all or get any permission from Ford, so long as they don't market it with Ford's corporate logo and the Mustang logo. An analogy that occurs to me is third-party iPod or Nintendo (etc.) stuff: they can include pictures of the Wii, or the iPod, on their packaging, and they can say "Compatible with Nintendo Wii" or "Works with the Apple iPod," they just can't use the Apple logo or the Nintendo font and red oval. So long as it's clear that it isn't Ford creating or selling this calendar, the group has very broad rights.
  • The creators of the calendar are not selling Ford calendars, nor are they using a trademark in a way that would be likely to make a purchaser of the calendar believe that Ford Motor Company created the calendar.
    I think that what you meant to say is: "They're selling calendars, not Fords".

    If these guys were selling japanese made cars under the hoods of pseudo-fords, then they'd be violating Fords trademarks. Other than that, I think that Ford's legal department has been drinking too much left-over rum/eggnog since the new year, and their PR department is still suffering a holiday hangover.. not realizing what's happening yet.

  • by Estanislao Martínez (203477) on Monday January 14, 2008 @11:50PM (#22045900) Homepage

    There is no hard-and-fast rule that tells you what are the permissible uses of a trademark, a copyrighted work, or the image or likeness of a person. There's a family of statutes (i.e., laws passed by legislature) and case law (court decisions about specific cases in the past, that establish precedent about how future cases ought to be decided).

    Let's say I go out and buy a Scion xB. It's square boxy vehicle like the Honda Element. Then I fiberglass it up, making it round, but don't take off the xB or Scion logo. It's my addition to the 'work' of that vehicle. I take a picture of it, like a million modders the world over might do, and post it, because I'm proud of my work. Let's say someone takes notice of it, and wants to include it in their calendar. Think of all the van and old pickup truck modders, the VW modders, and so on. Someone makes a buck from the calendar; after all, calendar makers aren't a not for profit group.

    In this case, you have an argument that this is a permissible use of a photo of a Scion xB, because the value of the photo is the fact that it depicts that one particular, heavily modified vehicle. Does this argument mean that the use is permissible? That's a question for a judge to decide, and the way you convince a judge is by having your lawyer persuasively fit this argument within the context of relevant statutes and precedents.

    This is why serious non-lawyers will disclaim their legal opinions with "IANAL," and why there are so many disclaimers that "X does not constitute legal advice"; when law proceeds by the adjudication of individual cases by appeal to precedent, it's not a question of "what does the law say" but of "how is this one specific case likely to be decided, given precedent," and that may require a lot of research.

    Invoking image ownership is a sure ticket to hell. I own the vehicle; I took the photo, and I'll do whatever I want to do with the photo, without the onus of some vendor's spin control hanging over me. It's mine, baby, no one else's.

    You're confusing two things:

    1. Your copyright over any photos that you take.
    2. The rights of other parties to control the uses to which their trademarks, their likeness, or the likeness of their products or copyrighted works are put to use.

    Trivial example: I can take a recognizable photo of you in a public place, and by doing so, I have automatic copyright on that photo. However, even though I own the copyright on that photo, I may well not have the right put that photo in an ad for the American Nazi Pinko Party without your permission, much less if I caption it with "Hi, my name is postbigbang, and I endorse the American Nazi Pinko Party."

    Should a vendor cite a vendor for infringement of a trademark or marque (think of putting a Bentley grill on a BMW--whoops-- BMW owns Bentley so a Rolls grill on a Subaru) and there might be some contention were it to be problem.... then what of the Rolls grills that were put on VWs as an aftermarket add-on? I see them around now and again.

    What makes you think that the body of law in question, which you clearly fail to understand, forbids any of this?

    If I own a VW, of course I can put whatever the hell grilles I want on it (that I've otherwise legally acquired). I can take a photo of the modified car. I can transfer copyright of the photo, and I can be paid for that. There are a lot of uses people can make of that photo without infringing on any trademarks. Things only start getting legally suspect when somebody sells photos of the car, and the only value the photos have seems to be derived from the fact that they depict those trademarks.

    Though even in that case, you can argue that your photos of VWs with BMW grilles have serious artistic merit. For example, this work of art [wikipedia.org] is a fair use of the Campbell's Soup trademark.

  • Photographers rights (Score:2, Informative)

    by thinkahead (1147575) on Tuesday January 15, 2008 @08:31AM (#22048794)
    This lawyer http://www.krages.com/bpkphoto.htm [krages.com] has some information on photographers' rights (including a nice summary pdf) and probably also info relevant to the case at hand.

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