Ford Claims Ownership Of Your Pictures

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?"

EULA

Does Ford have the right to prevent you from printing images of a car you own?

Hold on a moment. Let me get the EULA out of the glove box.

Re:EULA

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..."

Re:EULA

And thus yet another American industry is suing itself into extinction.

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

No, I think Ford is going into extinction by making shitty cars.

Re:EULA

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.

Re:EULA

Consider this whole calendar thing. Of course you can't publish a Ford calendar withour Ford's consent.

Right. Luckily, this wasn't a Ford calendar. It was a BMC (Black Mustang Club) calendar.

Confusion in the marketplace is one of the largest driving factors of this sort of copyright infringement.

You, like so many, have confused "trademark infringement" with "copyright infringement." Confusion is not an issue with copyright--it's an issue with trademark.

Luckily, trademark is what Ford is talking about, here.

You can't go out, and take photographs of your car, and then publish an ad, a billboard, a newspaper full-page spread, and a television commercial advertising your car as the best/worst.

I wouldn't say that without advice from a lawyer. Certainly I can take a picture of something I own and publish it. I can publish that it broke down 3 times in the first month. I can publish lots of things, generally. The question here is largely whether or not the picture of a trademarked object (it strikes me as weird that an object can be trademarked) can be published. It seems reasonable to me that it could be.

You can't pretend, and make people believe, that you are Ford.

From what I've seen of the calendar, they weren't trying to.

Similarly, and for the exact same reason, you can't say that all Ford cars break, just because yours did.

That's not entirely true. Slander and libel laws are a little bit different for public figures (in the US.) There's a much, much higher burden of proof that there was a reckless disregard for the truth. You also have to convince the judge/jury that the average person would believe that the claims are true. It's not likely that the average person would believe that "All Ford cars break," though this is a bad example anyway because all cars break, eventually. Parts simply wear out.

Re:EULA

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

>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.)

Free Marketing

And they wonder why their stock is in the toilet. They're trying to stop free marketing of their products. How dumb is that?

Re:Free Marketing

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".

Dangerous precedent

Wow, this is bad. Just the other day I was wondering about IP rights in taking pictures of products, and if arguments about IP in pictures of other stuff carried over.

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

Fortunately this one has been easily solved years ago. Think about all of the movies that have, as background vehicles, a Ford, GM, Chrysler, etc., vehicle.

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

Yes but let's use yet another car analogy here, what if Ford.... oh wait.

no

they own the design of the car. but the photographer owns their picture.

Huh

I was going to use a car analogy to show how ridiculous this was...

It's obvious!

All your images are belong to us.

heh heh

Bold moves indeed.

email your illegal pictures back the CEO

I did. Wouldn't want to gain the benefit of my ill gotten gains. No - better to send them all back to the CEO where they'll be safe. You should too.

Ford's response

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."

Re:Ford's response

Ford's letter is quite well-written and even includes answers to genuine questions. However I think they are over-reaching beyond what the law allows. In particular, they claim:

"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."

IANAL, but my understanding of trademarks [wikipedia.org] was that "likelihood of confusion" really was the central criterion. That is, you can indeed captialize on someone's else's reputation (e.g. you can publicly say "Ford company purchased product XYZ!" if that happens to be true), as long as you do not claim official endorsement. If you make it sufficiently clear that you are not affiliated with Ford, then you are not infringing their trademark. I can use the word "Ford" and I can use the Ford logo, as long as it is for legitimate purposes and there is no consumer confusion (e.g. in commentary, parody, etc.).

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

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

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

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).

copyrighted designs in commercial media

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.

Thank you, Ford

With enough publicity in the right places, this could expose IP trolling for the absurdity it is. Stewart, Colbert, Leno, Letterman, listen up...

rj

Barbie, too

I've been down this road before. My sister was a dealer in collectible Barbie dolls. She wanted to do a calendar showing dolls in various settings. Mattel threw a fit. Ultimately, Mattel agreed that she could use pictures of things she owned (the dolls) but that she couldn't use the text "Mattel" or "Barbie" except in a small disclaimer. So the calendar got published as a "11.25-inch Fashion Doll" calendar. In the Barbie world, "11.25-inch Fashion Doll" is code for "Barbie."

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

Ford is making a valid trademark claim, not a patent or copyright claim as the summary, tags, and category would suggest. Ford does not claim to own the pictures, and it is certainly not making a patent claim. What Ford is doing is claiming trademark and trade dress rights in its name, logo, and the stylistic features of its vehicles. Ford is alleging that the Club's calendar trades on the good will that people associate with the Ford name, logo, etc, which is not allowed under state and federal trademark laws.

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.

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?"

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

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."

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:

It is well established that "[t]here is no such thing as property in a trademark except as a right appurtenant to an established business or trade in connection with which the mark is employed." United Drug Co. v. Theodore Rectanus Co., 248 U.S. 90, 97 (1918).

When we view the photograph in Gentile's poster, we do not readily recognize the design of the Museum's building as an indicator of source or sponsorship. What we see, rather, is a photograph of an accessible, well-known, public landmark. Stated somewhat differently, in Gentile's poster, the Museum's building strikes us not as a separate and distinct mark on the good, but, rather, as the good itself.

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

I'll just have to return to my previous hobby, taking pictures of Chevy trucks sporting a window sticker with Calvin peeing on the Ford logo.

Whisper down the lane bullshit

This isn't a new article, this is small time operations going "oh the big bad company pooh poohed our idea they should be ashamed. Let's slam them by posting something negative!"

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

Porsche claims this too and they are notorious for filing IP suits based on trademark infringement, etc.

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

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.

Photographer here...

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?

Yeah, you know, maker of the dustang!

Re:Form?

Also widely known as the Ford "Crustang", "Rustang", "Mustake", and "My Little Pony" where I come from.

Who cares about a typo when the HEADLINE is wrong?

Ford is *NOT* claiming they own anyone's pictures. What Ford is objecting to is taking pictures of their cars, putting them in a calendar, and then marketing and selling a calendar of FORD cars.

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

These cars aren't copyrighted. They may contain patents, but the image of them doesn't violate a patent, as images can't be patented. This is not a grey area in the copyright law.

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

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

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.

Nope.

If you extend copyright and/or trademark to Ford for let's say, the Mustang, then the theory of estoppel trumps Ford.

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.

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.

Re:Nope.

Sigh... so much for the days when the average slashdot user wasn't a lawyer ;-)

Re:Nope.

What's even funnier is that none of them seem to agree on whether it's legal or not. :)

  (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.

Here's how they're different:

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.

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.

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....

Profits?

We're talking about ford, right?

I think you mean hit them with more losses.

Re:This is a Joke, Right?

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:Seems good news

They don't sell the image for profit, but they absolutely are using the images as a source of revenues. Where do we draw the line?

Re:Just Boycott Ford!

Staples just called. You'll need to retract your 'That was easy' post.