Dmca And Trademark

Honestly if it doesn't pass muster, you *could* challenge it. The only real recourse to a counternotice is a lawsuit. Which I'm not convinced is worth it on their part. If they don't seem to know the proper US law, they may not even have the proper copyright and/or trademark registrations necessary to make bringing a case worthwhile.

I've had it done several times to me before where someone has filed a bogus counternotice to have my copyrighted content re-instated on their page. It's well known that challenging a counternotice is very difficult, often requiring intervention of the courts. In one case I had to hire an attorney to challenge a counternotice, in the end it was a messy and expensive process with questionable gain for me and no cost for the other party (who turned out in the end to be a 19 year old kid with no respect for anything whatsoever running a business from his parent's basement).

It's definitely not a perfect system, abused by both sides. But I guess it's better than what most other countries have.

I know this sounds absurd, but there are corporations that don't go after copyright infringement of their images - they see any use of their images as free advertising, unless it's a serious hack job.

PS I got a similar DMCA notice once, ignored it and never heard from them again. I wanted to see how far they would go and nothing ever came of it.

From Macedonia for a German company? That sounds very very strange. Macedonia is not known for being a partner of big international companies nor for being a country with special interest in legal services.
Just ask S.... , if this really comes from them. I doubt.

I've noticed that a few corporations have been abusing the DMCA to enforce perceived trademark infringements. You're correct, there is no DMTA. Thus trademark owners can only get their way if they intimidate website owners into thinking the DMCA does apply to trademarks. I've been thinking of writing my congresscritters to ask them to add some language the DMCA to make it clear that it does not apply to trademarks.

It troubles me, though, that FAA's lawyers are letting corporations get away with this abuse of the DMCA.

-James
http://www.montereypeninsula.info

I don't think it's FAA's business to decide if a DMCA is legal or not. As long as it is properly formatted with the right language, they act on it and that relieves them of any liability in the matter.

You're right that DMCA is often abused for reasons other than copyright, including censorship and removal of unfavorable or unflattering content.

As I've said it's a system abused by both sides. I've seen it abused the other way to keep copyrighted content up when there is a legitimate claim to be made. The abusers have learned over time that their counternotices are difficult to overcome, especially when they are out of reach of US courts.

I have had Deere do a few on me. Really are we that big a threat to their sales? I even had Ducks Unlimited file one because I used it as a title to an image no logo just two words. So I reversed the words. I really don't think much of corporations when they do this. Some actually hire people to look for these "infringements". What it all comes down to is money/greed. Money they can make by marketing their logo on merchandise. Like they really need it and some how I doubt any of our sales would even put a dent in theirs. A few Deere took down were not even about the tractor but the scene of a farmer in his field. Anything new like this now I will remove the logo if I see it and not use their name in the titles or keywords.

I went so far on DU to contact them and gave him hell. Then I got into the financials of the outfit and was shocked at how much the top dogs were getting paid. Non-Profit organization year, but boy do they sure profit. Well things calmed down and it got to the point he asked to see my image because he was interested in seeing if they could use it. I never responded and would not do business with them after all that.

I am UK and trying to make sense of legal differences between straight forward stock photography and the work I am putting here - which is manipulated photographs. This thread does not help my confusion any lol.

As I understand it in gross stock companies trade in licences for images as opposed to copies of images and here (and other PoD sites) trade in copies of images (I will ignore licencing through pixels for now)

The law regards licences and copies is different to an extent.

There is also (at least in the US) also a difference between "artistic creation" and straight forward photography.

That proving any of these points definitively would be very very expensive and nobody wants to take them on so both sides seem to rely on scaring the willies out of the other guy and hoping he concedes and does what they want.

Much easier for FAA to just go along with any request than evaluate the merits. These companies have to enforce their trademark otherwise they lose it. In a court case they have to show what they have done to enforce their rights.

Unfortunately, they do it using a wide net.

Editorial usage has nothing to do with this since this is not a magazine or newspaper writing a story. There is never anything illegal about taking a photograph, only it's usage.

Trademarks are issued for specific products such as t-shirts. Art is allowed via fair use laws.

Don't offer products with the image and don't use keywords that attract aggressive companies.

Nobody here can give legal advice. Please look on legalese sites for any, and all, legal help

THey also provide a means to contest it, which I will not do in this case.

So why not? You make a pretty good argument. It's not going to cost you anything but your time. In the time it took you to write this up you could have contested it. If they don't agree, they don't agree.

Personally, I would fight it.

The German company may hired the Macedonian company to search for infringement and may not even know why DCMA's are being issued.

They may be paying by the takedown or a flat fee and the Macedonian company may just issuing takedowns on everything just to justify their fees,

Another possibility is that this might be an extortion attempt by the Macedonian company.

They may be trolling sites like this looking for trademarked keywords, issuing a DCMA on "behalf" of those companies and then will offer to settle with you if you object to the DCMA.

It costs you nothing to object to the takedown and see what the response is.

David Smith. I think it is in fact a scam. If it is FAA walked right into it by sending me the notice and taking my image down. The attached DMCA clearly said trademark and nothing at all about copyright. I mean how obvious can it get? That said I can see why FAA does not want to get caught in the middle and leaves artists to fight their own battle. The problem is that the images are already down. I am sure if I pursued it the troller would offer a settlement payment. Thanks for pointing it out David. I didn't want to take it to that level of accusation but the shoe fits

Scams like this could do a lot of damage. Interestingly the only other long lens photographer on the beach at this race was from the local newspaper. They sell prints of any photos used in their paper as is their right, apparently.

Again none of this is legal advice. I am just pointing out what happened and the reasoning for my own action or lack of action. Trademark law is complicated and there is a lot written on it and many cases of artist vs trademark. I one is interested they can look further. One thing that is clear to me is a DMCA order is for infringements of copyright not trademarks.

I also work for Getty images
They will only accept a photo with a logo on or trademark ect if it is for editorial purpose only other wise you need a property release signed by the owner
so if you were to use the same photo for here on fine art where it could be sold you would have to remove logo numbers names ect legal to copyright and trademarking rules unless you have a property release signed by the ownerof said boat or other property
unfortunately our hands are tied

"I don't think it's FAA's business to decide if a DMCA is legal or not. As long as it is properly formatted with the right language, they act on it and that relieves them of any liability in the matter."

1000% correct...

Most of the large selling platforms will not challenge the DMCA. It is up to you as the seller to do it. Amazon, eBay, Bonanza, and most of the POD's that we can not mention will honor the DMCA, no questioned asked.

Here is the question you need to ask yourself.

Is the Deer tractor, Micky Mouse, or the Harly Davidson motorcycle bein in your image making your photo more sellable, more attractive to the buyer? If it is, and in all likelihood it is, then those people have a right to enforce "their" copyright or "their" trademark, in my non-lawyer opinion.

Are they going to abuse or misuse the methods available them... sure they are... or at least they are going to push the envelope. That's what they do. That's what they pay lawyers to do for them.

You want to waste a lot of time and money, get a lawyer and fight them. You may win some and lose some. But will it be worth the time and money?

Does the image generate enough money to pay the legal fees?

They are going to run that bluff and they know the average guy is not going to challenge them.

For my own knowledge, can someone clarify? If you have a copyright or trademark infringement, FAA is contacted by (whomever) and then FAA sends you a notice? Not (whomever)?

FAA removes the image(s) and sends you a notice that they received the DMCA. They do no send you the DMCA. eBay and others send you the DMCA and a notice that they took down the image in question.

Alison, if you have an infringement you could be contacted directly by the person who owns the copyright or trademark, or they will send what is known as a "DMCA Notice' to FAA which FAA should then forward to you. It can work either way, however usually it is easier to simply contact FAA with the DMCA and have them remove the image.

I usually send DMCA notices when I find my work on a print on demand site or photo sharing site. Why? Because it is easier and faster than arguing with some user on the intricacies of copyright law and how they found the image on Google and it was free and I didn't watermark it and I shouldn't have posted it on the internet if I didn't want it used and so on and so on.

However, if I can clearly identify someone (with a name and mailing address) who is clearly making money with my work, they will be contacted directly by an attorney as I will be seeking damages and lost profits

Thanks Tom. That really clears it up. Do you proactively look for your images on these other POD sites or do you get alerts? How does that work? I have a pixsey account and check it every so often.

Let me reiterate. A DMCA order is not for trademarks!! It is strictly for copyrights!! Let's not conflate the 2. I received a DMCA order for a perceived trademark infringement.


Debra Angel. To be clear I upload all my ship photos with images or names of ships to Getty as editorial. Stuff like races is editorial content and I have every right to license it and to sell prints. And yes I was on public property. Let's not bring stock commercial use into the picture. These photos have been licensed and sold as editorial and passed legal muster for Getty on inspection. Getty is worldwide and tends to have a high bar for what they allow as far as trademarks go, even on editorial content.

Tom I respectfully believe you are wrong about procedure. See the link on my opening post. A DMCA order is for copyright only. Not trademark.

I am not saying that all photos of trademarks are legal. I am saying a DMCA order is not for that. And I maintain that the use of trademarks in photos is not automatically illegal. I also believe that any photo used in an editorial context is also legal as an art print is purchased from the artist and not mass produced( large production runs). I realize that FAA can make its own choices. And I am not offering legal advice. Just explaining why I do what I do.

Bradford, I see and note your point. But trademarks and logos are still protected. I guess they sent you the wrong type of notice? My son does acting/modeling and when he gets to a set they inspect his wardrobe from head to toe - he is not allowed to be on camera with any logos anywhere.

https://www.nolo.com/legal-encyclopedia/when-your-photographs-could-violate-copyright-or-trademark-law.html

"A trademark owner would not be happy with the idea that an unaffiliated person is selling calendars, T-shirts, or other products with its trademark. In other words, the mere fact that you photograph a trademark does not necessarily give you the right to take that image and reproduce it. This is particularly true if you intend to sell the items onto which you reproduce the image."

There's a big difference if the image is used for editorial vs. commercial purposes.

DISCLAIMER - none of that was legal advice. Just an opinion. And an educated one to boot.

Alison I was not selling any of those products for that reason. And I also don't allow my models to have logos when shooting. In fact one totally ruined my shoot once with a very suble HD logo once. I am taking about editorial use and art prints. Photographers have rights to and those are very much acknowledged. Birnging in facts that do not pertain to my situation just muddied the water.

And yes they sent the wrong type of notice. And that is a big tip off they are not lawyers but might be scammers.

To be clear I do not consider that sale of art prints as commercial use. Artists need to know that they have protected rights and editorial use and art prints generally come under the idea of free speech. There is not any difference between a magazine photo in a news item and an art print in my opinion. And to be clear it is a photo of a boat with the trademark used as the sponsor and name of boat. Not a photo of the trademark.

Semantics

What I will say now is not legal advice and should not be construed as being such.

Semantics. It really does not matter if it is a DMCA, or a lawyers letter, a court summons, or anything else. The fact of the matter is that people should not upload trademarked items or copyrighted work for commercial use. (To myself as an artist, I construe 'commercial' as 'selling'. So yes, to me prints is a commercial use.)

That is the crux of the matter, It just so happens that FAA/Pixels work on the DMCA system. A member uploads work they shouldn't, and the only recourse we have in the first instance is telling them they must issue a DMCA. Us admin here are not lawyers. We are not copyright agents, nor are we trademark enforcers.

If you wish to then get into the semantics of HOW they asked you to take something down, please do get back in touch with our copyright agents (who ARE lawyers) and get into it with them. But, know that we will remove anything that does not actually legally belong to you, such as a copyright or trademark, if we are asked to by the holder of said copyright or trademark. Each artist is asked to check their own legal status on each image they upload before they upload it. It is in the terms of using this site https://fineartamerica.com/termsofuse.html

That is all I have to say.

As I said, if it were me, I'd check the legitimacy of the company that filed the DCMA on behalf of the trademark holder and it they're a legitimate representative I'd contact the trademark holder directly.

They may not be aware of what the actual image is.

The Macedonian company may just be issuing blanket DCMAs and FAA would have no way of determining that.

Mystic Seaport used to send out blanket DCMAs for anything keyworded with the word Mystic whether the product had anything to do with the museum or not.

I might do that. if I find the company is not legit and if this is a known scam I will contest it. .