Coke & Copyright

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?"

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.

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.

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?

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.

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

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

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

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

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.

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

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.

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.

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.

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

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

A recently-read blog entry on this very subject --

http://blog.timesunion.com/chuckmiller/why-my-upcoming-art-book-cant-include-this-photo/1032/#comments

Thanks Wendy, I guess that blog says it all.

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 ;)

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

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?

Jane

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

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.

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.

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.

Jeff, I'm not and attorney either but I'm pretty sure that what you just said actually perfectly illustrates the point.

'If I were to take a picture of a Coke product (as an example) and I were to sell it 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.'

Think of it this way: If I were to take a picture of a coke product and sell it, I would need a property release from Coca-cola.

Why? Because I have agreed when signing up with FAA that I, (and not FAA), am responsible for the content I upload and that it does not infringe upon anyone else's rights. I have no idea who may purchase my images but what if a fast food cafe buys some super large prints for their wall? What if a shop owner buys 25 cards to see if they sell in their shop?

It doesn't matter what the intended purpose of the purchase is - you are selling the item and you are liable in the event of any infringement.

I wonder how Pepsi uses Coke logos and such when they do their ads, when they compare the two, etc.... Fair Use? I'm sure Coke doesn't give permission....

Sorry, I'm muddling my Jeffs and Jeffreys :)

Jeff, I don't live in the USA and have never seen an example of Pepsi using Coke logos, etc. That certainly would not be allowed in the UK.

My understating of the 'Fair Use' argument is that it only applies for Non-Commercial expression. I can't seam to post a link but this article is interesting reading and the first paragraph sums it up pretty succinctly:

http://www.citmedialaw.org/legal-guide/using-trademarks-others

Oh, apparently I can post a link!

I understand, Jane.

Something to consider, then, might be all those architecture photographs you have in your galleries. Someone/company/city or government owns those buildings.

Not trying to be snide, but are you/we all in copyright violation?

fair use is very limited. i think it can be used in the news, in satire, and in the background of another image but even that has limits. it really can't be sold unless you have some kind of written and signed agreement (probably money based), to the company your working with. and even then - even without the coke ad on the building. if your images are going to be sold in a commercial way (say walmart or something), you would need a building release as well as any people and other signs and names and such. as a one of a kind type thing, even as a POD it's ok as far as i know. because your only selling a few at a time. the word commercial is also confusing.

---Mike Savad

"Not trying to be snide, but are you/we all in copyright violation?"


We're certainly in some sort of iffy grey area. I was recently asked to put my camera away while in a small, local mall. It seems management thought photographing their amazing system of skylights might go against the 'architect's original intent'. Rather than risk that, they don't allow photographs.

I think that's in line with the recent discussions, here, of photographers shooting art or sculpture created by others. I guess the same holds true for any man-made object or design . . . including landscaped gardens, etc.

I'm not sure where the line is, but I seem to be told, more and more often, not to cross it.

Jeffrey, you are right and copyright infringement is a potential problem for us all. However, under US Law, any building built prior to December 1990 is not copyrighted and is in the Public Domain, and there is a 'photographer's exception' for buildings built after that date. As a general rule of thumb, as long as you are taking your picture from a public place, you should be OK.

This article may give you further information:

http://asmp.org/tutorials/photos-public-buildings.html

Thanks for the explanation, Jane. It's much appreciated!

i never heard about the 1990 thing, and i wonder how you would find out. the public place thing applies to people - but not used for advertising or commercial purposes (which again is a gray area, because i might not sell it to walmart, but sold here to a hotel, could be considered commercial. but since we don't know what they plan on doing with it, it's a safe area maybe, but it doesn't stop people from suing you anyway). the people in public can be photographed, but to use them in a commercial way you need a release. not sure how it works for crowds of people.

pictures in private areas - such as malls, can get you in trouble. if they allow photos inside of a building, then it's ok. it's all very confusing. in the end, as said, anyone can sue you. for any reason.

---Mike Savad

"pictures in private areas - such as malls, can get you in trouble. if they allow photos inside of a building, then it's ok."

True, which is why I always head to the management office before shooting anything. What I've noticed is where the answer, even in the recent past, was almost always "yes", it's now "No" a LOT of the time.

'Shoot first, ask later' no longer applies.

so what about the state of New Mexico suing buisnessess over the use of the Zia(the sun symbol on the state flag) I've noticed alot of them are using a three pronged zia instead of the traditional 4 pronged zia

I never use anything identifiable, logos, buildings, people, cars etc., just to be on the safe side but then since I do exclusively natural landscapes I'd rarely have any problem. I know zazzle is really firm about this issue.
My profile picture is from a painting by a 19 century Polish artist- Jozef Brandt, but I checked and it's in the public domain. I'm not using it for commercial purposes either.
How do some artists sell works of identifiable cars or even celebrities? I never understood that.
What if you photograph a city skyline, there might be dozens of known landmarks in such a photo?

Images are sold as Coco-cola related. Coke is copyright protected, and buyer found these searching for Coke. Coke gets paid by other licensees for selling their trademark, so this is most likely a blatant copyright/trademark infringement.

Mike, there is no grey area with regard to people, even if the image is taken from a public place. What a purchaser chooses to do with the image is immaterial - if you are selling images here with people in them, you need a signed model release from everyone in the image. Selling here IS 'Commercial Purposes'.

Wendy, I'm not sure of the rules within malls as other things tend to blur the edges. Often, the 'no photography' rule is nothing to do with copyright but is blamed on security.

"What a purchaser chooses to do with the image is immaterial"

That's incorrect. It's the opposite. The only material objection is in fact what the purchaser does with the image.

http://www.danheller.com/biz-trademarks

Excerpt below:

"If that's what you're wondering, understand that the need for a "property release" is not triggered by the subject of the photo. It depends entirely on how the photo is published. Releases of any kind (whether a model release for people, or a property release for things) are only necessary if the publication of the photograph implies an "association" between the subject and the publisher. The photographer is not the publisher. Photographers can take pictures of anything they want—people, buildings, works of art, anything—provided they are not violating other laws, like trespassing or using hidden cameras.

So, the rumor that "you can't take pictures" of buildings or monuments or people is entirely wrong. you can always take pictures. What's more, you can always sell pictures. Selling in itself does not imply an association between the subject and you or the publisher. The act of selling is merely a transactional act, which doesn't imply "association" at all. More information about this can be found in model-primer, where I discuss the case of Corbis vs. James Brown, where the court ruled that sales is "a vehicle of information" and that "consent is not required by the subject" for the transaction to take place."


Another good read (mainly last of the 3 FAQ's):

http://asmp.org/articles/trademark-faq.html#3

Hi Wingsdomain Art and Photography,

Firstly, just to clarify, perhaps my statement was a bit too sweeping when I send that the end use of an image is immaterial. The point I was trying to make is that, as you can never know what the purchaser will use the image for, you have to cover all possibilities to protect yourself and always consider worst case scenario. I come from a 'stock' background so I am used to very strict rules in this instance but I concede that rules may not be so strict for fine art prints.

I've had a quick skim of both the articles you provided and they make some very interesting reading. I'm afraid I don't know who Dan Heller is and I will have to give more time to digesting and researching his writings before passing comment.

However, the second article, from the American Society of Media Photographers says the following regarding trademarks on buildings:

'What can I do with photographs that show trademarks, logos, or buildings or props that are themselves registered trademarks?
Generally, such photographs should be safe for editorial uses. You should make sure, however, that you specifically point out in your paperwork that you do not have any releases or permissions and, if possible, have the client indemnify you against any claims arising out of their use of the photograph. Remember that violations of third-parties rights come primarily from the use of the photograph, not the photograph itself, and you have no control over that use once you have agreed to license it.'

What would help to resolve a lot of these issues would be any contract, written or implied, between the purchaser and FAA and, ultimately, the Artist. I have looked but can't find anything restricting use of a purchased image. Maybe I am missing something and, if the T&C's specifically state that the purchase is only for personal use, perhaps much of this thread doesn't apply.

It's always better to be safe than sorry. But I think stock photography is an entirely different monster. The primary intent of stock photography is to have the image be used as part of a commercial campaign like company brochures and websites. There are other uses for it too but at least it is explicitly known that such commercial use is a large part of the industry, and the association with any trademarks used to benefit or promote that company can readily be argued.


-W

As I understand it, "commercial use" of a trademark is the use of it to sell something else. If you put it on a useful item, such a a t-shirt or coaster, you are using the trademark image to sell that item.

If all you're selling is art, you're probably ok. If you take a picture and only wish to sell prints, and there are billboards in it, you don't have to edit the logos and brands out unless they offend your artistic sensibilities.

That's not to say someone couldn't still sue you. People sue people all the time who have done nothing illegal. (I think there needs to be laws that force plaintiffs bringing frivolous suits, or who otherwise should know better, to pay all the defendant's legal expenses plus damages, and for their lawyer to forfeit anything they were paid to bring suit. I think that would put a damper on, and minimize the impact of, BS suits while preserving the right to sue when justified.)

Agreed! I always err on the side of caution but, perhaps to much so for FAA? Maybe I will need to modify my way of thinking and change hats to suit either 'stock' or 'fine art'. I'm not at the moment where the line is and I don't want to step over. I don't see a difference between printing an image on a birthday card or poster or mouse mat but maybe there is one, (legally speaking)?

Does anyone know if there is anywhere that stipulates that images bought are for personal us only? If I could find the terms of sale somewhere it would certainly help to clarify matters.

Thanks everyone for an informative and interesting discussion :)

When the winners of the tv contest are announced I will be interested to see if any trademarks are visible in the photographs.

Dean - So would trademarks as keywords cause a problem?

i think keywords create the most problems, because people can find you image with them, without them it's hit or miss if your seen.

i have a diving helmet, one of my keywords was oceaneering, a perfect innocent though unusual word i found in that snappy.com place. zazzle flagged it said that the word used is trademarked. i had two pumpkins that i named googfus and gallant. according to the lawyer that contacted me, highlights magazine doesn't want me using the name because it confuses the readers looking for the cartoon, so i had to rename it and remove the keywords there. i have a lego thing where one is be set on fire, redbubble had no problems keeping it, but the keywords got me on cafepress, and zazzle didn't want to know from the image.

---Mike Savad

Mike, I think that what you have said is part of what is confusing me. I don't get why it is acceptable to do certain things when selling a fine art print that are unacceptable when selling a mouse mat? BTW, I just googled 'oceaneering' and it is a huge company.... (i've never heard of them)! I guess it's like using Coca-Cola as a keyword - it is OK here but most places would flag it immediately and make you use the more generic 'cola'

I have some images ,and there are many more here, named after a song. I wonder what the copyright act says about that? If you have an image of Chirstmas and snow, and you title it 'white christmas' for example?

I have some on zazzle titled the same as some popular songs and they have never removed them.

i never knew that was even a company when i put it in. in fact over at zazzle there was a thread of how the word MO came out of words due how they set it up. what made it problematic was that mother's day became ther's day and so forth. mo is apparently something in germany. nautica was the same way. and anyone having that word, even if it had an L in it, was pulled anyway.

i never really understood how it works here. i know in redbubble there are similar things posted, they are in australia, and mostly have posters and cards. cafe and zazzle on the other hand have useful items (not just art). but i'm not sure how it works for art. why is it ok for art and not other things is the question i always ask when i see the crew of the enterprise here, coke, snickers, clips from movies etc. i still like to sell some coke things, i hate to be one of those left behind, this is the second time someone cleaned out the coke isle. i guess you could say it's a coke addiction? badum bum...

every place i go online says certain things.

one site says that if you shoot people in public, as long as you don't put them in a bad light or suggest the people in the scene is advertising something, then it's ok to display and to sell without release. it's only when you want to do it commercially - as in advertisement when it's not ok. but the rule fluctuates.

i'm still looking for art based rules, at least for this site. i've skipped over images of coke and candy fearing i might get the dreaded letter to stop it. maybe beth can chime in here, and find out what the rules are to these things. it would expand my line a bit if i could sell those things.


---Mike Savad

i think songs have to do with age, and there are expiration dates, like the birthday song they tried to collect for but failed, just expired. and i'm guessing white christmas is kind of old. i'm not sure how lyrics would work - but in the end they need to find them. and while lawyers look, those two words are very common.

---Mike Savad

I've also seen more than one song and movies too with the same title. (ie Different song and different movie with same title). I don't think one can copyright words unless it's unique and made up for the product like 'coke' ??

I had thought that song titles were able to be used but not the lyrics. In books anyway. I am quite confused now!

i think you can brand name Coca-Cola - but not coke (because i think it's a blacksmith term), or cola, because i think it's a nut and other soda's use it. and i think coca is probably ok also by it self, because it's probably a root word of something else.

the law is very confusing.

---Mike Savad

Titles can't be copyrighted, which is why so many creative projects have the same name. Neither can most sentences or phrases.

They are sometimes trademarked, though. Like using 'Kleenex', instead of tissue.

and trump did his own name. i don't remember the details but he once brought an old man to court because his last name was trump and he was using it for his own business. donald sued the guy, even though this trump has his name way longer. not sure who one, but or how much money was lost for the old guy. it was a long while back.


---Mike Savad

wait, let me get this right, Donald Trump sued another Donald Trump for use of the name Donald Trump?

@Gregory....Good list of images that may be copyright infringements, and/ or need release forms signed, etc......
also add
licensed characters, like The Simpsons, Mickey Mouse, Charlie Brown, Spongebob Squarepants, etc...
This comes up a lot when dealing with artworks targeted for children.


@Dan, not quite that simple these days...even a painted portrait may be an infringement....especially with celebrities
@Mel...beautiful artwork, but the coke logo is a problem- focal point or not....
@Jane...yes, if you are selling it, it is commercial

Cheers!

jrr

if i remember right it was like 15 years ago, i don't think the guy's name was donald but i remember his last name was trump. unless i heard it wrong it was on fox.


---Mike Savad

If I built a multi-billion-dollar empire around my name I'd try to trademark it too! Though the Catholic church and half the hospitals, children's homes and shelters in the world would come after me. ;-)

In case anyone is interested:

Regarding older photos, where 1. photographer is unknown, and likely deceased 2. photo looks older than 1978 (when copyright laws changed)

I was looking into this copyright issue a while ago as I wanted to use some 1920's era
photos of my grandparents.
It is a grey area in copyright if you cannot find the legal designation of the original photos.
Sometimes a photo may still be property of an estate, sometimes not(.....and almost impossible to determine,
in many cases, people being dead and all.)
Since the photos I was using were not professionally made, I could have domain if I
"made the image my own".......ie: adding new artistic elements to alter the image enough to make it a new
distinct piece of art. >> All general terms and very subjective. But that's the legal bar as I understand it.
So, I digitally enhanced and added digital effects, and the images are now clearly my artwork.
There is a good article in the Artist's Magazine about this specifically;
www.artistsmagazine.com page 82 of issue May 2011 >> public domain after 70 years after death if image is created on or before
January 1978.....unless of course, there are estate copyrights already in place, that may go beyond the 70 year time frame.

Just a related note to the whole copyright /commerical use limits...

Cheers! jrr :^D

i don't think adding stuff on op of an image will make it yours. but if your own family shot your grandparents then it's ok. if it was a studio, they would have to prove it was theirs, and i doubt they would be able to do that.

---Mike Savad

@Mike- it is not 'adding stuff on top of an image'- it is an art treatment, just like what you do....regardless of what art tool is used in the
new artwork is irrelevant in legal terms......
You can tell a professional photo because there is usually a stamp or studio identifier on the back.
You can try to locate the studio if they still exist- most times they do not, pre 20th century. But one needs to try.

And since I did research on this BEFORE I used the photos, I have created a separate artwork according to all the definitions I found.
Please read the article I cited to see what the legal definition of 'derivative ' is and what 'original' is.
...what YOU think, Mike, will not stand up in a law suit alone, unless you are the supreme court.... ;^}
Your photos are digitally HDR done by you with added digital touch-
Do you consider that "adding stuff on top of"? You sound condescending. Do you mean to be?
(Besides-- collages are a process of 'adding stuff' and that is a valid art style/medium.)

i still don't know about that. it's like me going through your folder, taking your shot, putting my own treatment on it, and calling it my own. the base image is still your and belongs to you. at least as far as i know.

i've gone through my grandparents photo albums, not all are dated, but i have stuff from the 1900's - not all have a makers mark, but you know it was done in one.

when one says, "adding new artistic elements" it suggests something was overlayed.

---Mike Savad

@Mike
That is where you are wrong.
If an artwork is altered enough(- a general term, and legal gray area)....look at the research...
it is yours!! Yes!! Beware! This is something we should know about how our own artwork gets stolen and used...
AND this is how artists get away with taking famous images and altering them into a new artwork, and yet the original may be
legally protected...but NOT for that! There are clear legal precedents determined about this idea of
the 'new' artwork....something that would be argued in court-
like the music case of Queen vs Vanilla Ice song legal battle...art is subjective in court too.
Err on the safe side and be original in everyway......

Shocking maybe, yes. True, too.

Don't get too hung up on semantics here on the blogs Mike...I think you know what the word 'alter' means
in the context of this discussion. And if you really don't, to help you out, think of the term as meaning- created, or create
or the semantics of 'adding new artistic elements' as 'creating a new artwork using elements from another'
Does that help you understand?
I hope so.

Keep making beautiful art Mike!

jrr :^D

What Gregory is summing up goes for stock sales with RF. If its to hang on your wall, different rules apply

Zazzle get pretty heavy handed sometimes. they will remove your work if some clicks the violation button. Anyone can click on that including fellow store owners. It is then up to you to fight it. I have, I fought Volkswagen over a painting I did of a camper van in part of a country scene. It took 6 weeks and VW checked with their legal department also with their commercial truck division. eventually got an e-mail from them saying they had no problem with it. Now I just do what I want until someone shouts at me lol. Ford shout a lot lol. Chevrolet are very nice people.
General Motors actually follow me on twitter so they either like me or are watching me lol.... ;0) Its a nasty commercial world out there take care.

you can say it if you want, but i'm betting that if you were brought to court, you would have a leg to stand on, no matter what the definition might be. it would have to be so different....

many famous images, like paintings are expired and can be made. stuff taken from this site and repainted and sold on ebay - not so much. the work would have to be so different that the original couldn't be pointed out. in either case i don't plan on hiring a lawyer to find out either way. people will sue no matter what.


---Mike Savad

@Mike
Too true!!
Yes, but I would have two legs to stand on :^DDD.......I don't go just by what I hear....
I research and I get my advice from legal sources...not just rumor.

Also, For example, Warhol's artworks get ripped off all the time...and I am guessing that they are not public domain yet.
It would be up to the Warhol estate to chase all the rip offs.......
Mona Lisa, different story since the image...not the artwork itself...is currently in public domain. And yet,
there may be a image copyright won in court on that someday...the law is like the weather...

Do you remember the court case against John Lennon/The Beatles and copyright on the order of particular musical notes?
Good example of how gray the law is with regards to art.

:^D jrr

What does confuse me is I use a Ford Mustang picture of my OWN car. Ford whinge and moan. Yet there are others on Zazzle who get away with it. Now the problem is either the Word Ford or The word Mustang. It surely cant be the Image, unless they spied the chrome horse on the grill. I will remove the pony and see what occurs. Then again Ford are reknown for being a pain in the ass with everything from warranty claims to whinging. LMAO. ;0) Sorry Ford but my Next car will Chevrolet. It doesnt pay to upset potential customers.

the people in zazzle that get away with it do so, because they haven't been caught yet. do a search for it today, and they magically vanish by the next day. i did a tweety pie search like that. 150 finds today, juat a few the next day. some car stuff gets kicked faster, like BMW and some other luxury car. the company's have to protect their trademark or they may lose it. if you put the keywords into zazzle, they will find it. if they review it for stamps, they may find it there. or it can stay there until a ford lawyer just happens by or someone reports them, then they will find it.

like i had a cabinet of homeopathic drugs. i had no idea that this company was still in business like a 100 years later. it was there for years and sold a few times. until i got the dreaded note that said we just erased it (without asking me if i got permission to use it mind you), because the company complained.

---Mike Savad

I'm not too smart myself, just an artist who paints what he sees, or perhaps remembers, and so I think I'll leave this and my other images up on display for the time being.

http://fineartamerica.com/featured/1-mays-transport-cafe-mike-jeffries.html

Andy Warhol (1928-1987)
Campbell's Soup Can (Tomato)
Price Realized: $9,042,500

Andy Warhol’s Campbell’s Soup Cans transformed him into an overnight sensation. He faced, fought and settled lawsuits throughout his career, although never from the makers of Campbell's Soup.

Paint what you will. Follow your heart. Make art and forget about corporate boogiemen. If you have money you WILL be sued for something. It may as well be for something fun, for something you believe in, and for which you can leverage media controversy. If you have no money you are judgment-proof. Either way, no worries!

great post Dan!

Whoo Hooo I sold a Buick fridge magnet. ooops no I didnt. Image removed. Sorry Mr Buick. Whooo Hooo Sold a keyring for 3 times more. Sale goes through.It was the same image.Has Mr Buick begun to like me?.
Nowt so queer as copyright. Its ok I have moved house so lawyers cant find me ;0).

I suggest people quit going on "what they hear" and contact the governement office of trademarks and copyrights. There is a lot of information there and you can contact them. If that doesn't work, contact a copyright attorney. Find the real definition of "commercial" (for profit) find out if altering someone else's image makes it yours (it doesn't) find out what "public domain" means. Create a model release or find one on the internet you can use. 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 misinformation on this subject blows my mind. Especially among artist, the people you would think would respect other people's work. I see so many people basically defending their belief that it is ok if they STEAL other people's art! I doubt they would be as relaxed about it if it were the other way around.

I, for one, WANTED to see SOPA pass. The internet has been the wild-wild west of theft for far too long and something needs to be done...today!

Why take a chance? Contact the copyright holder, get a model or property release. If you can't..don't do it! Come up with your very own creation. Maybe the chance of YOU getting caught in the sea of theft is slim, but if you do...you WILL lose. My understanding is that the MINIMUM amount you will lose is $750.00 even if you didn't sell a single image that violated the copyright. It goes up from there...way up.These people probably have a team of lawyers that make more than $250.00 an hour and have been practicing law for a long time. You do not want to go against these people.

So, if you get lucky and sell 100 prints of an image you stole and get caught you will lose all the money you made and probably more. Is it worth it? Is it so hard to create original work or at the least get permission. Some say asking forgiveness is easier than asking permission. That gives us all a black eye. I have asked numerous people if I could take pictures and have yet to be told no. But if I am, I will move on and find something else.

Doing it right IS hard...deal with it in a way in which you would want other's to treat your art.

i don't think there are real definitions. just like there are no real definitions in porn, or what is considered child pornography. the line is pretty wide there. all places i go define commercial as advertising - to make money off the picture from the contents of said picture. the image sells another product. and it's not a copyright thing, it's a trademark thing, and they probably have other laws.

SOPA was dangerous, and they still want to release another version. it would be impossible to stop them once they start arresting people that have music on in the background of a movie when you never intended there to be some. where you post a picture of time square, and there are a million ad's there, and only one attacks you because you took a picture of it - it would be a much harder world, and only the ones with money would succeed in making that work for them. i'm sure that if i told a company that i'm freezing your assets and closing your company, shutting down your website - it wouldn't work as easy as it would for a large company to do for you - that's what sopa was.

the facts as i know it, as written on law websites - if a person is in public you can sell that image. but not in private. you can't always get a release. if you plan on selling it in advertising, to walmart, etc, then you do need the release to cover yourself. and that includes any faces that are recognizable, buildings, name brands etc. and even then if brought to court (and it still can be even with the release), it's a case by case basis.

and in most cases against the artist - the artist almost always WINS, because they want to support the arts. but you still have to pay lawyers and such. it depends on what you did with the image to be fined like that. like if you claimed the product was yours, or it put down the product in some way that's bad for the image of that company - like don't drink coke it rots your teeth - bad press.

a case a while back where a guy set up a special rig to capture candid shots of people on the sidewalk. he shot a hassidic guy, it was a great picture. sells them for $10,000 or more each. the guy took him to court. and that guy lost. he was in public, and because of that he didn't need to get a release signed. the image was good, didn't harm him in any way, artist won, still had to pay lawyers. basically anyone can take you to court for any reason, but they have to have certain amount of money themselves.

---Mike Savad

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...

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

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

it sounds like it agreed with everything i said.


---Mike Savad

From the site...


Using someone’s 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 person’s image has economic value that is presumed to be the result of the person’s 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 Kim’s 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 someone’s 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 individual’s 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 persons’ names, likenesses, etc.

"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 — in the same country! — 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.

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"

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.

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.

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
.

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.

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.

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.

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

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

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.

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.

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.

Kathleen,

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

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.

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)

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

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.

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

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?

Thank you, John Crothers. lol

Yes, might have to do that.