Legalities of photographing vehicles and cityscapes?

[sk66]

So do car magazines pay a royalty?

Generally no, not that I'm aware of. If it is a "brand only" magazine, then they probably do because it is the brand specifically that gives a large portion of the value to the magazine.

Technically, you could make a calendar of different vehicles and sell it commercially without trademark infringement because the value of the product is not dependent on any one trademark. Conversely, they could all sue you saying at least some of the value of the product is dependent.... fat wallet...

Trademarks being obscured is usually for one of two reasons. Either they just want to avoid any potential headaches; right/wrong not being a major consideration. Or they wanted to get paid for "product placement" and didn't get paid by that company.

 

[KmH]

Trademarks are different from copyright in that they MUST be filed for/registered/awarded or they do not exist.

This seems to say otherwise: (page 7 of - http://www.uspto.gov/trademarks/basics/BasicFacts.pdf)

SHOULD I REGISTER MY MARK?

Is federal registration of my mark required?
No. You can establish rights in a mark based on use of the mark in commerce, without a registration.
However, owning a federal trademark registration on the Principal Register provides a number of advantages, including:
• A legal presumption of your ownership of the mark and your exclusive right to use the mark nationwide on or in connection with the goods/services listed in the registration (whereas a state registration only provides rights within the borders of that one state);
• Public notice of your claim of ownership of the mark;
• Listing in the USPTO’s online databases;
• The ability to record the U.S. registration with the U.S. Customs and Border Protection Service
to prevent importation of infringing foreign goods;
• The right to use the federal registration symbol “®”;
• The ability to bring an action concerning the mark in federal court; and
• The use of the U.S. registration as a basis to obtain registration in foreign countries

 

[skieur]

Simply put, a car or a building are not copyrightable. The architectural plans to the building may be copyrightable but in US law, a photo does not infringe the copyright of any piece of architecture. Trademark requires "passing off" to be an infringement. That means that you can take a photo of a bottle of coke with the trademark and still be legal, BUT if you have copied the trademark and put it on a bottle to "pass off" some other brown liquid as being coke, THEN you have violated the trademark and of course also committed fraud depending on the specific circumstances.

 

[apaflo]

Trademarks are different from copyright in that they MUST be filed for/registered/awarded or they do not exist.

This seems to say otherwise: (page 7 of - http://www.uspto.gov/trademarks/basics/BasicFacts.pdf)

SHOULD I REGISTER MY MARK?

Is federal registration of my mark required?
No. You can establish rights in a mark based on use of the mark in commerce, without a registration.
However, owning a federal trademark registration on the Principal Register provides a number of advantages, including:
• A legal presumption of your ownership of the mark and your exclusive right to use the mark nationwide on or in connection with the goods/services listed in the registration (whereas a state registration only provides rights within the borders of that one state);
• Public notice of your claim of ownership of the mark;
• Listing in the USPTO’s online databases;
• The ability to record the U.S. registration with the U.S. Customs and Border Protection Service
to prevent importation of infringing foreign goods;
• The right to use the federal registration symbol “®”;
• The ability to bring an action concerning the mark in federal court; and
• The use of the U.S. registration as a basis to obtain registration in foreign countries

What it means is you have the right to use the mark, but no right to sue anyone else that also uses it. Hence if you have been using a given mark and someone else starts to also use it, you have no way to stop them. If they then register the mark and sue you, you can establish your prior use, and even with out having registered your use of the mark you are protected! (You are probably also bankrupted by the legal maneuvering, but...)

 

[sk66]

Trademarks are different from copyright in that they MUST be filed for/registered/awarded or they do not exist.

This seems to say otherwise: (page 7 of - http://www.uspto.gov/trademarks/basics/BasicFacts.pdf)

I stand corrected...
I know that having used the trademark in commerce prior to application makes it both easier to get awarded, and cheaper to file. (I own a trademark...)

I guess it's more like copyright in that sense... i.e. you own copyright but you cannot file for breach of copyright unless the work is registered. The primary difference being that an original artistic work (photograph) is always granted copyright status (i.e. copyrightable). But a trademark may be much more in question (i.e. it's not certain that it qualifies unless you've applied and it's been granted).
If it doesn't qualify, you can't defend it; and if does qualify, you can't defend it unless it's registered.

 

[apaflo]

I guess it's more like copyright in that sense... i.e. you own copyright but you cannot file for breach of copyright unless the work is registered. The primary difference being that an original artistic work (photograph) is always granted copyright status (i.e. copyrightable).

Under US law if it is copyrightable it is copyrighted, automatically. But "breach of copyright" is actionable in court whether the copyright is registered or not. The difference is that if it is registered there are statutory damages (which can be substantial), and if it is unregistered one can sue to force a cease and desist and/or for actual damages (which are hard to prove).

 

[KmH]

US copyright is federal law and federal laws are only actionable in US Federal court.

See USC Title 17 § 411 - http://www.copyright.gov/title17/92chap4.pdf - Registration and civil infringement actions

The DMCA statutes (various USC 17 sections) provide for 'takedown' notification to ISP's and other provisions codified in the DMCA statues if a copyright has not been registered. https://nppa.org/page/5617
If an alleged infringer files a counter notice, the only way to stop the infringement is to file a lawsuit in federal court seeking an injunction to stop the infringement.

DMCA maximum statutory damages ($25,000 - see USC 17 § 1203) are substantially less than the maximum statutory damages allowed for registered copyrights ($150,000).
What's An Infringement Worth? | Photo Attorney
Help! I've Been Infringed! | Photo Attorney

 

[sk66]

Not quite.
I agree that copyright exists upon creation (if applicable).
The difference is if it was registered prior to the violation of copyright. In either case, the copyright must be registered prior to bringing a lawsuit to trial. Section 411(a) of the copyright act requires registration for trial except in the case of a suit for the violation of moral rights (section 106).
Section 411 does allow for "pre-registration" (application filed/fees paid) and that without a completed registration (or ,in fact, with a refusal of registration) you can proceed with a suit. But then a large portion of the case will depend upon the determination of copyright ownership/validity.

We tend to believe "we took the photograph we own the copyright" but that may not be the case. In the case of a completed registration, or a rejection, the bias goes towards the copyright office's decision (which can be questioned/argued, but with limited probability). Without a decision (statement) from the copyright office you open yourself up to many questions as to the validity of your claim...

If there are 20 identical images from 20 different photographers, are they all "original?"
If the photo in question was a re-creation of someone else's work (i.e. you recreate the Mona Lisa almost exactly), is it a derivative work?
If the photograph is largely dependent on another copyrighted piece, do you own the copyright? (i.e. statue, billboard, etc etc)

Without a completed registration the bias is not in your favor. Honestly, I would probably expect most of these questions to go in our favor as the standard for "original" is pretty low. But I wouldn't bet on it in any one case. There have been cases which were decided completely contrary to what I would have expected. I can remember one (which was UK based so less relevant) where the image was completely different but included a portion of the same building and a red bus of the same type as were in another photograph. The second was determined to be a derivative work and copyright infringement of the first. There have been US cases as well, but I don't recall specifics.

And then, once you get done with all of that and your wallet is thinner, you can proceed w/ C&D and actual damages.

 

[sk66]

DMCA maximum statutory damages ($25,000 - see USC 17 § 1203) are substantially less than the maximum statutory damages allowed for registered copyrights ($150,000).

Yes, but also greater than what you can get for an unregistered copyright...
That's one great reason for "watermarking." It can also make an infringement of a registered copyright "willful" rather than "innocent."

 

[apaflo]

If an alleged infringer files a counter notice, the only way to stop the infringement is to file a lawsuit in federal court seeking an injunction to stop the infringement.

DMCA maximum statutory damages ($25,000 - see USC 17 § 1203) are substantially less than the maximum statutory damages allowed for registered copyrights ($150,000).
What's An Infringement Worth? | Photo Attorney
Help! I've Been Infringed! | Photo Attorney

Note however that DMCA statutory damages are NOT for copyright violation or infringement. Damages for infringement are only available under copyright law, and are limited to actual damages if the copyright has not been timely registered. DMCA statutory damages are for actions such as removing a copyright notice that was attached to a copyrighted work. A distinct difference.

 

[bribrius]

I have a headache

 

[sk66]

Note however that DMCA statutory damages are NOT for copyright violation or infringement.

I see them as being "parallel." DMCA is not "only" for removal of copyright notice as such. "Part of it" is removal of CMI (i.e. exif)... it also includes the removal of watermark (doesn't have to be a "formal" copyright notice) as that is owner identification information (there was a recent ruling in this regards)...and it also includes misrepresenting the work as to ownership. i.e. displaying on your site as yours with copyright information (exif) left in tact.
Both the removal of the watermark and display of the image are *also* copyright infringements.

 

[apaflo]

Note however that DMCA statutory damages are NOT for copyright violation or infringement.

I see them as being "parallel." DMCA is not "only" for removal of copyright notice as such. "Part of it" is removal of CMI (i.e. exif)... it also includes the removal of watermark (doesn't have to be a "formal" copyright notice) as that is owner identification information (there was a recent ruling in this regards)...and it also includes misrepresenting the work as to ownership. i.e. displaying on your site as yours with copyright information (exif) left in tact.

They are parallel, but they are not the same. There is a distinction between copyright infrinement and DMCA violations. Two very different things, with two very different sets of actual and statutory damages.

Copyright infringment essentially is illegal distribution, DMCA violations are for hiding the infringement.

Both the removal of the watermark and display of the image are *also* copyright infringements.

Removal of copyright management information is not a copyright infringement. And Exif data is not necessarily CMI either!

It is a violation of the DMCA to remove copyright management information (that includes watermarks, ownership statements, identifying numbers, etc etc). That is not a copyright infringement. Note that 17 U.S. Code § 1202 (c) provides definitions (and exemptions) for exactly what is CMI. It does not list "Exif data", and hence removing exposure information about an image is not a DMCA violation. In fact one specific exemption is personal user data; thus the identifying information such as camera model, image serial number, a title, and the author's name qualify as CMI, but a copyright license for one specific user does not, nor does contact information for the copyright owner qualify.

 

[sk66]

Editing/modifying/making a "derivative work" or copying is a copyright infringement. Therefore, editing an image to remove the watermark is both.
Displaying the image as your's is also both as "display" is an exclusive right under copyright, and false representation is a DMCA violation.

But you are correct in saying the Exif is not necessarily CMI... You have to add the CMI to the Exif (IPTC), it's not there by default.



I think we are plenty far off topic now....

 

[Gavjenks]

Copyright should be a non-issue. It's POSSIBLE that a stock agency would reject photo #2 for being a recognizable building with a specific owner, and claim it is the "focus of the scene" (the one in the foreground), and request a property release. But ehhh, dunno if they would.

Trademark is an issue, and I don't think you're going to be able to do anything at all to photo #1 to make it acceptable, short of taking a picture of an entire street with the ferrari sitting in one of 20 parking spots and not doing anything special. It doesn't matter if you throw "some extra stuff" in the frame or whatever. If it's the focus of the photo or can be argued to be, it matters potentially, as they might claim you're trying to advertise ferraris or use them to advertise you or whatever.

The Chase bank trademark ... no. If you're really concerned about it, you could clone stamp it pretty easily though and I doubt any viewers would notice, even residents of that city.