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Jane Rix

3 Years Ago

Coke & Copyright

Hi, I'm new here and still a bit confused!

When I sign in, I see a report of recently sold images and, over the last couple of days, several of them have featured Coca Cola - old vending machines and such like.

They are great images of an iconic subject but how come this is not infringing on Coka Cola's copyright?

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Gregory Scott

3 Years Ago

You're assuming that they have not licensed the use of the trade mark. They may have done so. Probably not, but it's innocent until proved guilty as far as the website rules are concerned. When Coca-Cola Company issues a cease and desist order, you can be sure those images, and perhaps artists will come a-tumbling down. They're pretty vigorous about defending their trademark, so the artists who neglect this issue are likely to regret their decision, at some point in the future.

In pragmatic terms, Coke probably doesn't care much, it's free advertising, after all. On the other hand, if you don't protect your trade mark, you lose your rights, so our legal system forces them to take action against violators. Eventually, Coke will find the violations and any particular artist in error would be wise to quickly take down such images. If they're smart, they should take them down now.

Other common problems:
Photos of celebrities
Art derived from famous photos, particularly photos of celebrities
Photos of sculptures
Photos of people without model releases
Automotive photography and other automotive art (Hubcaps, grills, and hood ornaments, for example.)

If you see a known copyright violation, report it in private email to Beth, the moderator.
Do not make a direct accusation, that could result in legal liability on your part.
I'm pretty bold, and will sometimes ask a question: "Wow, that looks like a copy of a famous photo. How did you obtain the license?"

 

Jane Rix

3 Years Ago

Thanks for your response Gregory. I know Coca Cola are pretty hot on copyright infringement, so I was just curious. I have seen a few images, in the few days I have been here, that have surprised me to say the least.

 

Dan Turner

3 Years Ago

You're only in trouble if you use Coke's logo(s) in commercial applications without permission (advertising, clothing, on other products, etc.) If you're making ART, and the only purpose of the art is to be art, you can use/do anything you like.

 

Jane Rix

3 Years Ago

Dan, I get your point to an extent. If I photograph a Coke bottle and hang it on my wall as art then no problem. However, surely the minute you offer that image for sale it becomes Commercial Usage?

 

Richard Rizzo

3 Years Ago

I may be wrong but if the coke machine (or bottle) is not the direct subject but rather used as say a background of sorts, it may be ok.
I'm thinking that's what Dan may be referring to also.

 

Mike Savad

3 Years Ago

the safest thing is not to use it. i'm not sure why coke hasn't attacked the site yet, hopefully it will just be a letter and not a site removal. zazzle removes it right away permission or not. if it's trademarked be careful with it. this site won't be immune forever, i personally don't take chances with stuff like that. even if i can make a sale from it. same goes for candy, actors faces, clips from movies and shows, etc.

---Mike Savad

 

JC Findley

3 Years Ago

Also, it is not a copyright but a trademark.....

 

Mike Savad

3 Years Ago

i had an image on zazzle of a building with a door, and a machine that had coke on it. zaz took it down because the sign had the dynamic swirl i think they called it. i'm not sure if it was the words or the line they used underneath it. in either case coke complained.

---Mike Savad

 

Mike Savad

3 Years Ago

the definition of art varies. i make art on zazzle too, but it's taken down. i don't know if a mug is considered commercial use, and a poster is not? i think anything your making money on, art or not, using their logo - which is often argued that it can confuse the customer as we aren't an official licensor of a product - isn't allowed. art or not.

---Mike Savad

 

Richard Rizzo

3 Years Ago

Zazzle is definitely quick to take things down that's for sure. I guess the idea of their merchandise (cups, dishes, postcards etc) plays a large roll in their decision in which I can understand.

 

Richard Rizzo

3 Years Ago

Yes, when they do take it down they remove it all, even posters too.

 

Mel Steinhauer

3 Years Ago

I sold this one and another one similar yesterday to the buyer in Utah who bought several images.

It was my understanding that if the trademark was not the primary subject in the image ( like a sign on a building with other subjects included ) that it was acceptable and not a problem.

Art Prints

 

Jane Rix

3 Years Ago

JC Findley, you are right - I should have said Trademark rather than Copyright.

However, I can still find over 900 images here when I search Coca Cola. I assume all of these are for sale as posters, prints, greetings cards, etc.? It is my understanding that, even if it is just in the background somewhere, a Trademark shouldn't be included in an image that you intend to sell commercially.

 

Jane Rix

3 Years Ago

Hi Mel, sorry - didn't mean to stir up a hornets nest and I love the image :)

You may well be right about it being acceptable if the trademark is not being the primary subject. It isn't my understanding of things but I started the thread for clarification.

 

JC Findley

3 Years Ago

I really am not sure of the answer BTW.... I like Dan's take on it so use that one....

 

Mel Steinhauer

3 Years Ago

No problem Jane as you did open up a good discussion. That's what this forum is for.

 
 

Jane Rix

3 Years Ago

Thanks Wendy, I guess that blog says it all.

 

Jeff Kolker

3 Years Ago

I'm not sure Coke is legally right, after all, they probably don't own the building, and I'm sure the building owner might have something to say. And there is something about fair use, and how the book is documenting these "ghost signs". I'm not a lawyer, but that isn't the point I'm making. It is the mere threat of legal action that is causing this guy to replace the image. Once you print a 1000 copies of a book, you can't remove just one page, so the entire print would have to be destroyed. And Coke has deep pockets, so even if they're wrong, they'll probably win by outlasting this poor guy. Much easier for us here to take down just the one offending image....

I wonder if whoever owns the building can send a bill to Coke for advertising?

I had a supervisor at one time who said "It is easier to beg forgiveness than to get permission." Words to live by ;)

 

Mike Savad

3 Years Ago

what the people in the blog don't understand is, it doesn't reflect their current marketing efforts. saying that it used to be 5 cents or something like that might reflect poorly on the company or something like that. though i wonder if it said the date written on the building if that would be ok. in either case while we see it as advertising it really isn't. it's just like the printerest site, we call it advertising for the other artist, but the artist calls it theft of property. so like if this ebook was made, and on his page he also had things about nazi's, white supremacy, anti everything, and there is his book, or an advertisement - with coke on it - well that's another angle that one would like to avoid.

---Mike Savad

 

Jane Rix

3 Years Ago

I think the whole point is that Coca Cola own the trademark, and you can't use it for commercial purposes without permission. How the usage may or may not reflect on the Company, or what the building owner may have to say about it, are not really relevant - Coca Cola have created a Trademark and they have full right to dictate how it is used.

I've been trying to include a link, to an interesting article on Fair Use, without success and can't even copy and paste some of the text. Can anyone please tell me how I can do this?

 

Jeffrey Campbell

3 Years Ago

Jane

Understand your concerns. What I am trying to better understand is where commercial purposes comes into play with regards to FAA?

 

Jane Rix

3 Years Ago

You are selling your work for profit - that's 'commercial purposes'. It doesn't matter where you sell it from. You can make actual prints and sell them in a store or you can use a virtual store, (such as FAA or your own website), to sell you items online. Bottom line is that this is a commercial venture.

 

Jeffrey Campbell

3 Years Ago

I understand your concerns much better now, thanks for explaining.

My understanding of commercial purposes (and by no means am I an attorney) is that if I were to take a picture of a Coke product (as an example) and were to sell if to a soft drink magazine, who in turn put it as their cover shot to sell products, both of us would need a property release from Coca-cola (or whoever owns them) in order to do so.

Same as if I sold a photo of a Ford Mustang to a car magazine who sells car products. A property release would be requred.

 

Harry Lamb

3 Years Ago

Commercial intent is putting up a product or service for sale and you expect a profit from your offering. So if I take a picture of someone on the beach and place it on my wall for my own pleasure, there is no Commercial purpose intended. However the minute I submit that image to any Microstock site or anything similar to FAA, then a Commercial purpose is implied. That is why folks dealing with Microstock sites submit something in Rights Managed vs. Royalty Free. If you photograph an individual and get a model release, but then forget to clone out the "Nikon" name (Trademark) from the camera strap hanging around his neck - you could have a problem. Rights Managed means it can be sold if used for "Editorial" purposes only. Selling prints is not Editorial use; placing the image in a text, newspaper or magazine is considered Editorial use.

You may say that Editorial usage generates a profit so it should be no different, but we didn't write the law. Apparently it was actually a ploy to give the media and the press a little freedom.

Attorneys on the Microstock sites are getting very strict with this application of law. It used to be acceptable if you had someone in your photograph, but their face was not showing and there were no marks (special clothing or tatoos) that could be used to identify the individual. Now we need Model Releases for anything with a person regardless of whether we see the face or not; even if they are not the prime subject.

I'm not as smart as most of you more experienced folks; I'm just passing on something I heard along the way.

Do as you please; it is your life. Some like to live on the edge; others like to use caution.

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John Crothers

3 Years Ago

There may not be "real" definitions of child porn, so does that mean we should be allowed to do whatever we want with children?

SOPA was dangerous to sloppy artist and websites. I have seen my share of Hollywood movies and I thinke verything contained in the movie was SUPPOSED to be there. But I agree, it WOULD be a harder world. But it SHOULD be. Poeple have been "allowed" to be sloppy for too long on the internet. It is easier to say "it is too hard to do this right" so people take the easy way out and hope they aren't caught or try to play ignorant.

As far as people, again we get into a subject that needs clarification by somebody somewhere. Public or private it is my understanding that a person has a right to publicity. You and I have a right to make money from our mugs. I can't make money from your face unless you say it is ok (sign a release). Now, I believe I can legally TAKE your picture in a public place, but selling it is another story. Commercial does not mean a literal commercial, it means profit.

The problem with researching this subject on the internet is the source. Places like answer.com may have the answers but one must question the source. I found a place that seems a more accurate source (but who can say for sure)

http://www.wipo.int/sme/en/documents/ip_photography.htm#3.1

But read section 3 that talks about people. What it says does make sense...

 

Mike Savad

3 Years Ago

there needs to be definitions of things as a guide. i remember a lady that was arrested at a walmart because she was picking up pictures of her naked baby in a bathtub. because it was open to interpretation they were able to do that. i'm betting nudists have the same problems.

the problem with SOPA is - where would it end? you would get the sloppy ones first. when those are gone you go to the next level and so forth. for all we know there will be a time when we hum a jingle and a lawyer pops out of a bush.

and yes you can make money off of my face if i'm in public, i wouldn't like it, but there isn't anything much i can do about it unless your using my image for something unethical. like associating me with something evil or using me as an example of what people should not be. releases lets you off the hook, but taken in a public place, you have every right to sell it. just not as a commercial or for advertisement. and no commercial does not just mean profit, it means advertising. you can look it up if you want. it's not just making money - when spoken as commercial it usually means - done so commercially to advertise something. not for small things like pictures or mugs... but then the line blurs when it's mass produced on a larger scale - then you do need a release.

and the problem still comes down to - there is set definition. hire a copyright lawyer, ask them to write a contract, hire 100 of them, and get a different set of definitions each time.

and even if you got the release, depending on how it's worded, you can still get into problems depending how the image is used. like one person was sued after he took the image of a person, who he paid, as a model and with a release used the image for stock. that stock image took the mother and i think a child, placed them on a billboard for welfare or something like that. she sued everyone, not sure if she won, but it made her life worse for the people that knew her and saw that sign on their block.

---Mike Savad


 

John Crothers

3 Years Ago

I guess you didn't look at my link...

 

Mike Savad

3 Years Ago

it sounds like it agreed with everything i said.


---Mike Savad

 

John Crothers

3 Years Ago

From the site...


Using someoneís image for commercial benefit

Many countries recognize that individuals have a right of publicity. The right of publicity is the direct opposite of the right of privacy. It recognizes that a personís image has economic value that is presumed to be the result of the personís own effort and it gives to each person the right to exploit their own image.

Under this right, you could be liable if you use a photograph of someone without their consent to gain some commercial benefit.

Although the right of publicity is frequently associated with celebrities, every person, regardless of how famous, has a right to prevent unauthorized use of their name or image for commercial purposes. However, as a matter of practice, right of publicity suits are typically brought by celebrities, who are in a better position than ordinary individuals to demonstrate that their identity has commercial value. You should, therefore, act with special caution before using a photograph of a celebrity for your own commercial gain. If you consider selling photos of celebrities or using them in advertisements or on your website, then you should certainly obtain photographic releases (that is, permission to do so) from the people portrayed in your shots.

Example: Putting an unauthorized photograph of the tennis star Kim Clijsters on the cover of a sports magazine after she wins a grand slam final, would probably not be considered an infringement of Kimís right of publicity, since the use is mainly informative. Conversely, if you print that same picture on posters and market them, you are simply trying to make money by exploiting her image. Kim Clijsters would have grounds to file a lawsuit for infringement of her right of publicity. This can result in monetary damages against you, and/or forced removal of the posters.

Example: A photographer who displays someoneís portrait, without having first obtained the permission, in his shop window or on his website to advertise portrait services, may in some countries be liable for violating the privacy rights of the portrayed person.xiii

While an individualís right to privacy generally ends when the individual dies, in many countries, the publicity rights continue many years after death.xiv This means, for example, that it is illegal in some countries to use a photo of Marilyn Monroe or Elvis Presley for commercial purposes without the consent of their estates. As a matter of fact, many representatives of well-known authors, musicians, actors, photographers, politicians, sports figures, celebrities, and other public figures continue to control and license the uses of those personsí names, likenesses, etc.

 

Dan Turner

3 Years Ago

"Simply...FOLLOW THE LAW. If you don't know what it is, find out. If you can't find out...don't do it! "

The law is very clear on "art", John, which is...anything goes, no permissions needed.

If you are speaking commercially, statutes and laws vary quite widely, so it is often difficult (or impossible) to tell when one is crossing into commercial territory or rules become muddy. From an article I cited in another thread: "For example, California and New York - two states with large populations, large television, stage, and movie industries, and a propensity for abundant litigation - fall at the opposite ends of the spectrum, with California statutes protecting a person's image for decades beyond their death, and New York denying nearly all protection of publicity rights."

Those laws ó in the same country! ó contradict each other. So what is an artist to do? Make art and don't worry about it! The chances of artists getting caught up in a corporate witch hunts are still slim to none.

 

Dan, please stop telling people to break the law.

There are laws which may have blurred edges but they do exist. Artists should read up on them and make themselves as aware as possible. Yes, if they break the laws after knowing them, then they only have themselves to blame if they are caught. It is not right that you should tell them to do it, however.

 

John Crothers

3 Years Ago

Dan,

You haved used the "art" excuse a few times, yet I haven't found anything that supports it. Can you show me an "official" link to the art defense? It sounds like hearsay evidence to me right now.

Commercial seems pretty obvious to me. If it makes money or helps you make money it is a commercial venture.

"Make art and don't worry about it"? Why not make art you don't have to worry about?

I do not disagree that the chances of getting caught are slim, but are YOU willing to put every image you have for sale here on the line? I ask this without even knowing what images you have for sale. Are you 100% certain that if you have images of people or places for sale that NONE of the people in those images, if they found out, would be willing to let you make images from their images?

To repost from the WIPO

"Although the right of publicity is frequently associated with celebrities, every person, regardless of how famous, has a right to prevent unauthorized use of their name or image for commercial purposes. However, as a matter of practice, right of publicity suits are typically brought by celebrities, who are in a better position than ordinary individuals to demonstrate that their identity has commercial value. You should, therefore, act with special caution before using a photograph of a celebrity for your own commercial gain. If you consider selling photos of celebrities or using them in advertisements or on your website, then you should certainly obtain photographic releases (that is, permission to do so) from the people portrayed in your shots"

 

John Crothers

3 Years Ago

Thank you Beth.

Again I am not trying to be a wet-blanket. I am trying to help people avoid the major first-class headache that would come from a lawsuit. There is no reason for it.

 

Tatiana Iliina

3 Years Ago

Here's another take on the question. I for one agree with Dan.

http://copyright.columbia.edu/copyright/fair-use/case-summaries/#summaries5

It looks like they evaluate the question on the basis of a few distinct criteria. Based on this, I don't think coke would have a leg to stand on.

The real problem would be the cost and stress of defending yourself from a lawsuit. But I don't know, would it be possible to turn the tables and go after them on some basis? No clue on what.

 

Roger Swezey

3 Years Ago

Jane,

First of all, I'm guilty of not reading all the posts that have gone before me....

But I'm going to continue to type anyway.

These 2 suggestions may seem contradictory:

1. For any "Icon", go ahead ( as long as Sean doesn't says No) to your heart's content.....And if there's any legal action against you ,."What can it Be??".....it only means that you have Made It

2. BUT,BUT if you use an image of anyone else's output, the ethical thing to do is give CREDIT
.

 

Kathleen Stephens

3 Years Ago

There is something called Safe Harbor which offers pods and servers protection against lawsuits on the condition that, should a DMCA take down notice be issued, they remove the work immediately. The reason this came about is because it would be impossible for owners to have knowledge of all the vast numbers if files uploaded. Which is why you do see violations on PODs-and they are violations. The idea that as long as its art nothing applies is total BS. Derivative works, copyrights and TMs belong solely to their respective holders. Without their permission you are in violation and that include publicity etc.

You are selling images that derive their value from someone else's work or TM and that can be a basis for a lawsuit. It is a moral issue as well. Fan art is a violation. How it is defined - the violation - varies with countries but the Borne Convention is one where all member countries agree to honor the laws of other member countries.

Some, and McDonalds, and HD are among them will demand their name be removed from Tags as well since that is the means by which the images are found.

 

Kathleen Stephens

3 Years Ago

Another thought - you copy someone's work that is for sale and you are open to be sued for interfering with commerce since you could be depriving me of sales. So you might well have that to deal with along with the Copyright violation - i have seen this happen and the amount of the reward in the lawsuit was considerably higher.

 

Kathleen Stephens

3 Years Ago

2. BUT,BUT if you use an image of anyone else's output, the ethical thing to do is give CREDIT

Publishing someone elses work without their permission, whether you give credit or not, is a violation of their copyrights.

 

Roger Swezey

3 Years Ago

Kathleen,

Copying is not only an unethical but definitely an illegal activity...And to me an activity of a very lazy practitioner.

That's not what, I believe Jane is talking about

 

John Crothers

3 Years Ago

If all you have to do is give "credit" why have copyrights at all?

 

Kathleen Stephens

3 Years Ago

Giving credit has no bearing on copyrights. It doesn't erase the violation or the fact that you are making money off of their work.

 

John Crothers

3 Years Ago

That is what I was saying Kathleen. If "giving credit" was a free pass there would be no need for copyright protection because everyone would just steal, then give credit.

 

Kathleen Stephens

3 Years Ago

I can only assume that those who are looking for excuses to incorporate violations in their work for added value see their work as something that can stand on its own merit.

As to including TMs etc in an image - at what point do they become a violation - that depends on the amount of value they give the image. The phrase 'arguable in a court of law'. Its not cut and dried. If it looks like an ad for the product then it is most likely a violation whether it is the total focus or not.

 

Roger Swezey

3 Years Ago

Kathleen,

I really do love this powerful image , and happy that you gave credit to those that created the vehicle...The Dodge Motor Company

Photography Prints

 

Kathleen Stephens

3 Years Ago

If you use Fender - guitar - logo as the focus of an image they will issue a take down notice. If you publish a photo of guitar player holding a Fender guitar, even if the Fender logo is showing they won't require you to remove it. That is not a blowup of the Dodge logo.

 

Roger Swezey

3 Years Ago


Kathleen,

I have to apologize, I guess it's the Chrysler Corporation not the Dodge Motor Company

( I have a feeling, though it's longer that)

 

Kip DeVore

3 Years Ago


I've wanted to do a painting of a Hostess Twinkie, so I contacted them using their drop-down menu at the Hostess website. They responded with an email address, to which I sent the following:

To: Marketing
Subject: Painting of Twinkie

Marketing at Hostess Brands

Dear Marketing at Hostess Brands:

Monica Bryant, Consumer Response Representative, Ref: N460981, for Hostess Brands, suggested that I contact your address regarding the following.

I'd like to do a watercolor painting of a Twinkie or, groups of Twinkies, for display on my web site and at FineArtAmerica.com, for purchase by my customers there at FAA as a print and/or greeting card. The image's title would probably include the word Twinkie or Twinkies, as possibly would the image itself on any of the wrapping and/or label included in the painting. Following is an example online of an unbranded food item I posted recently:

http://fineartamerica.com/featured/all-beef-ballpark-hot-dog-with-the-works-to-go-in-broad-daylight-kip-devore.html

If preferred, I can leave any reference to the brand out of title and image, titling the art merely, "Famous Cream-Filled Sponge-Cake Treat", or similar.

Thank you for any attention to this query.
______________________________________

The response from Hostess:

Hi Kip,

We approve your usage of a Twinkie(s) in your painting, as long as the product is not used in a disparaging way. I don't believe this is your intent after viewing your piece featuring the ballpark hot dog.

Thanks,
Amy

 

John Crothers

3 Years Ago

Kip,

Good for you!

You are now golden (and spongey and creame filled) as far as copyright is concerned.

Perhaps when you finish the work you could send it to them? Maybe they will pay you for the rights to use it in an ad.

 

Mike Savad

3 Years Ago

i wonder if that would be the reaction if you did it without permission. it's good advertising for them, so it's ok.

---Mike Savad

 

Jane Rix

3 Years Ago

Haven't been at a computer for a day or two but really grateful for all the input here, although some areas still remain as clear as mud!

John, thank you for the link. It confirmed some point I knew and gave me some additional information that I didn't know.

Here is another link that I found which is a 'plain English' article and seems to lay out the dos and don'ts quite succinctly:http://www.bobatkins.com/photography/tutorials/photography_law_rights.html

However, I'm not sure of the accuracy of any of these articles, as they are either written by fellow photographers, and therefore simply an interpretation of the law, or are riddled with disclaimers.

Coming at this from a 'stock' background, I would always err on the side of caution, and get model releases/property releases, etc. for anything that I think would need it. I'm also used to cloning out any visible trademarks on anything that I intend to sell.

However, I am coming round to the conclusion that my understanding of 'commercial use', (I am selling an item for profit, therefore it is commercial use), is not necessarily the case when selling Fine Art prints? I am beginning to believe that, as the images are sold as 'Art' and not licensed in any way, if the purchaser the uses the image commercially and this infringes copyright/trademark/right of privacy, etc. then the purchaser is liable and I am not. Perhaps a disclaimer or my own in my biography is all I need?

 

Kip DeVore

3 Years Ago


Thank you, John Crothers. lol

Yes, might have to do that.

 

This discussion is closed.