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Ford Claims Ownership Of Your Pictures
Posted by
ScuttleMonkey
on Monday January 14, @01:47PM
from the like-a-child-shouting-MINE dept.
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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Firehose:Ford Claims Ownership Of Your Pictures by Anonymous Coward
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EULA (Score:5, Funny)
Hold on a moment. Let me get the EULA out of the glove box.
Re:EULA (Score:4, Informative)
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..."
Re:EULA (Score:5, Insightful)
I think what the United States needs right about now is a virus that kills about 80% of all litigators. You still need a few for legitimate, rational affairs, but it's clear that American civilization is going to be crushed under the weight of sheer greed, stupidity and self-destructive self-interest.
Re:EULA (Score:5, Funny)
Re:EULA (Score:5, Informative)
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.
Re:EULA (Score:5, Insightful)
Luckily, trademark is what Ford is talking about, here.
Re:EULA (Score:5, Insightful)
The original purpose of trademarks was for consumer protection. Specifically, it was to prevent consumers from being confused when buying products and services, so when they see a "Ford" branded car that they know it came from the Ford Motor Company.
That's why, for example, there is still a Domino's Pizza and a Domino's Sugar. Two firms independently have trademarks on "Domino's", but they're on two separate products (pizza and sugar). Consumers are unlikely to mistake a large pepperoni pizza for a pound of sugar, and vice versa.
If this club were making its own cars and trying to brand those as Ford using the Ford logo, or if the club were making its own cars and constructing them in the likeness of a Ford model, then trademark protection has merit — we don't want consumers mistaking Fords and pseudo-Fords. However, in this case, the club is selling a calendar. Ford is not in the calendar-making business, and it is difficult to imagine that a consumer will somehow mistake a calendar and a car.
Re:EULA; you are incorrect (Score:5, Informative)
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.)
Free Marketing (Score:4, Insightful)
Re:Free Marketing (Score:5, Informative)
They could choose another option: License their trademark for a pittance.
They don't have to "object". They can also "authorize".
Dangerous precedent (Score:4, Insightful)
Now, imagine what it's like if you have to get permission to put *any* product in *any* picture.
I have no idea what legal grounds Ford has, but this MUST be prevented from spreading to pictures of products in general.
(Of course, Ford could just be trolling for easy cash because of that whole not-funding-workers'-pensions thing...)
Re:Dangerous precedent (Score:4, Interesting)
No, I'm not talking about the ones where the car is featured prominently (Transporter, Transformers, etc.) - in those the movie studio clearly got permission (or was paid prominently for their use). I'm talking about background vehicles. The studios do not and never have paid for their use when they were filmed on a public street. If Ford tries to press this, they'll have the movie studios pressing against them.
Re:Dangerous precedent (Score:5, Funny)
no (Score:4, Insightful)
Huh (Score:5, Funny)
It's obvious! (Score:4, Funny)
heh heh (Score:4, Funny)
email your illegal pictures back the CEO (Score:5, Interesting)
Ford's response (Score:5, Informative)
"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."
Re:Ford's response (Score:5, Insightful)
The use of wording like "depictions or photographs of Ford's distinctively shaped vehicles" (emphasis added) is similarly over-reaching. By that rationale, every product is distinctive and thus cannot be used in a commercial image.
In any case, I don't think trademark law was intended to provide the blanket power that Ford is grasping for (where they inherently own all commercial endeavors that happen to include a Ford product somewhere).
Stupid (Score:5, Funny)
I've heard a lot of stupid claims over intellectual "property" before, but this one really takes the cake*.
(*used with permission from Duncan Hines, a subsidiary of Pinnacle Foods Group, LLC.)
Be More Specific (Score:5, Informative)
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)
copyrighted designs in commercial media (Score:4, Informative)
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.
Thank you, Ford (Score:4, Interesting)
rj
Barbie, too (Score:5, Interesting)
I'd guess in the instant case the publication could happen if they eschewed the use of "Ford" or any model designation. Kinda defeats the purpose if you have to leave the word "Mustang" off a calendar of Mustangs, but there you go.
This is about Trademarks, not Patents or Copyright (Score:5, Insightful)
Furthermore, trademark law requires trademark owners to respond to such acts of potential trademark infringement. If they do not so act, then later infringers may point to the inaction and claim that Ford has abandoned their trademark. Note that this is unlike copyright and patents, which give the rightsholder more discretion in pursuing individual cases.
None of this is to say that this is a good business decision. In its current financial state, Ford should be working with its few remaining fans to produce properly licensed calendars, shirts, etc that maintain Ford's intellectual property rights. That way, everybody wins. This sort of knee-jerk "shut 'em down" response does both the company and its fans a disservice in the long run.
An answer. (Score:4, Insightful)
This is a trademark vs copyright issue. The question asked is a red herring. The actual question is "Does Ford have the right to block one from selling, for a profit, an image that includes their trademark?"
The answer is "Yes, they do have that right. They have to protect their trademark or they lose it."
YANAL (Score:5, Insightful)
This is a misconception. They do have the right to protect their trademark and they say the logo of the group is too similar to their trademark. Trademark is not however a right equivalent to copyright. The purpose of a trademark is to distinguish the products of an individual or business from others. It does not grant a copyright interest in pictures taken of the products, even if they include the trademark on them. These are the products of the company that bear the trademark, it is not confusing in the least. Read this odd case [lsu.edu] about the Rock 'n Roll Hall of Fame which trademarked their building design and the photographer that sold a poster of the building. The appeals court specifically noted this:
So the trademark is protected only so far as it is used as an indicator of the source or sponsorship of the product. It is completely legal to take photographs of trademarked goods and to sell them. Andy Warhol's paintings [poster.net] anyone?Thus without reading the complaint itself and the reasons Ford has we are left with only two conclusions. 1) they are completely brainlessly trying to infringe on the rights of the motor club 2) there is something more to the case of the mark of the club that is used to identify the source of the calendar is too similar to Ford's own mark. In the first case the summary is correct and Ford is wrong. In the second case the summary is misleading and Ford might be right.
Oh well (Score:5, Funny)
Whisper down the lane bullshit (Score:4, Insightful)
The "article" here is on a site called "AdRants." Good start huh? Then it links back directly to BMC's web page that tells you little except their side.
Basically, BMC (Black Mustang Club), created a calendar for it's members of, well, black mustangs! They then sent this to cafepress, who then sells it to BMC members.
Ford owns the rights to it's own trademarks, the Ford Logo and the mustang emblem. These are clearly displayed on the calendar, which you have to go a few links in to find. It's your car, and you can do what you want with it, but this is a specific "mustang" calendar and it makes clear references to the Mustang and Ford. Ford at least has some complaint. To untangle this will require a lawyer steeped in trademark law, which I am not.
The statement that Ford owns the images of your car is bogus, and was an obvious tantrum reaction to having Ford put a cease and desist on cafepress' desk. The letter that Ford sent to cafepress is not anywhere to be found in the chain of articles here, and without that, whining is pointless and childish, because Ford might have a point. Trademark law protects the little guy as well as the big guys so you can't complain that Ford is being a bully here without more facts presented.
Now there are plenty of grey areas here, legally. Can cafepress sell the calendar only to BMC? Can they sell it at cost only? What's the difference between selling pictures of your own car for $5, and selling a calendar? What's protected and what's not when you take pictures of property you own? Was a line crossed when you grouped 12 people's mustangs together and sold them to a specific group of people through an unaffiliated company? I'm not a lawyer, but the "article" fails to address any of that.
Sure, Ford is being heavy handed, all the big corporations are. But you should only skip to "pounding the desk" in legal terms after you'd pounded on the law and/or the facts first.
So there is no real news here, and Slashdot yet again lets it a crap article get in.
I hope the next post defines the legal points I could not uncover.
Porsche does this too (Score:4, Interesting)
The workaround? Slap a number on the car. Viola! Instant race car; it becomes YOUR trademark, and does not infringe on theirs.
Do the same with your Ford Rustang (Yes, I am ragging on the Mustang - with this kind of action Ford deserves it. As an aside I actually LIKE the Mustang), your Ford Lightning, or whatever it is you want to include in your own original artwork.
The number need not be intrusive. Just put a small Bill Elliot "94" on your classic Mustang. No more trademark infringement. Or, just digitally add it.
This is done all the time by specialty shops which work on Porsche products.
Note to Ford: Take a hike.
Ford is full of it (Score:4, Informative)
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.
Photographer here... (Score:5, Informative)
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:Form? (Score:4, Funny)
Re:Form? (Score:5, Funny)
Who cares about a typo when the HEADLINE is wrong? (Score:5, Insightful)
It's a bit of a grey area, but I can't say I see Ford being outside the realm of reasonableness here.
Re:people own the *cars*, too, and their pics (Score:5, Insightful)
There are three main types of intellectual property. You forgot the one that's relevant to this case.
Rob
Re:people own the *cars*, too, and their pics (Score:5, Interesting)
Trademark isn't relevant either.
Trademarks exist in order to prevent one company from marketing something that appears to be a product of another company.
There are two potential trademarks at issue. One is "Ford", and the other is "Mustang".
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.
The creators of the calendar are also not selling Mustang calendars, nor are they using the trademark in a way that would be likely to make a purchaser of the calendar believe that the owner of the Mustang trademark (the Ford Motor Company) created the calendar.
The calendar is clearly associated with "BMC" (aka, the "Black Mustang Club"), and the Club's title did not apparently raise the ire of Ford's trademark lawyers (as it shouldn't have). If they were taking pictures of cars on Ford dealership lots, then maybe Ford would have a point on copyright, since they nominally own the vehicles on those lots, but not on trademark, at least not as the calendar is currently composed.
Yes, the OP failed to mention trademark, but that doesn't make Ford's move any less bone-headed. Ignoring the fact that they are alienating a group of people who are (or were, at least) fans of one of the company's cars, they are opening themselves up to countersuit, and a whole bunch of bad PR...all over a fan calendar. The lack of immediate reaction from their PR department (legal did WHAT??? Our bad...go ahead and print the calendar...Chevy sucks!) is staggering.
Re:people own the *cars*, too, and their pics (Score:5, Informative)
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.
Nope. (Score:5, Insightful)
Here's why and how:
google image search this term: "ford mustang for sale". Look at the mind-boggling number of hits.
Now tell me the use of a pic of a Mustang in a for-sale ad is different than putting them into a calendar on a website.
It is not. It's an image, used for the gain of the advertiser. In one case, to sell a used or new Mustang. In the other case, to exemplify the characteristics of ownership of the car. No diff. Estoppel says that 80-90 years ago, Ford should have made a claim
Fie.
Re:Nope. (Score:5, Informative)
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.
Re:Nope. (Score:5, Funny)
Re:Nope. (Score:5, Interesting)
(As a part time photographer who sells his pictures I have an interest in this, and *my* lawyer tells me that as long as there isn't any brand confusion - that is, as long as I'm not selling my pictures as "official" photographs, I have nothing to worry about. I'm currently going round and round with the local city council over the same issue, ie photographs of historical city landmarks which the city seems to think they have the rights to limit photographs of. They even have that printed on the landmark info posts. Sigh. Can anyone point me to relevant cases? )
tic
Re:Nope. (Score:5, Insightful)
On the one hand you are selling the actual good (the car itself) that you legally acquired from Ford under the name that you purchased it. So an ad saying "Buy my Ford Mustang" is safe so long as it's a Ford Mustang. Even taking a picture of the Ford you're selling will likely be safe.
On the other hand, you're selling a different good (a calendar) using the mark owned by Ford.
As I've now said in a bunch of posts, the issues are: 1) was the use of the marks on the calendar a use in commerce; and 2) is the use likely to cause confusion.
The answer to the first question is very clearly yes--they are/were SELLING a calendar by exploiting the the Ford marks. In some sense, it doesn't make sense for them to do it any other way.
The second answer also seems to be likely "yes." A consumer picking up the calendar about Ford Mustangs might think that the goods originated with Ford or someone authorized to use.
Re:Nope. (Score:5, Insightful)
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.
Or let's say I like old Jags and put together an old Jag calendar. Or perhaps a nice picture book of old Jensens, or Harleys or whatever.
It's not up to any of the aforementioned brand/trademark owners to claim anything. They ought to be blessed that we bought their pieces of crap to begin with. 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.
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.
To reiterate: I own this stuff, and do what I want with it. If someone buys my image, so much the better. That trademark law should extend to contours is hilarious, but probably has been tested by some idiot judge somewhere. That Nike swoosh looks just like a check mark to me. Hmmmmm. These bonds are tenuous at best. Ford overstepped them with a big foot. Oh wait......
Re:Boycotting Ford.... (Score:5, Funny)
We're talking about ford, right?
I think you mean hit them with more losses.
Re:This is a Joke, Right? (Score:5, Informative)
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:Seems good news (Score:4, Funny)
Re:Just Boycott Ford! (Score:4, Funny)