photo/copyright question

[Dennis Kotlowski]

I am hoping somebody might have an answer to this question and it might lead to a lengthy thread. If I had a customer give me a photo that he had taken at a Nascar race of his favorite driver next to his car and wanted this engraved on a plaque......could this be considered copyright infringement? I have a customer that owns a sports bar and he wanted a bunch of his photos engraved on plagues to put on the walls of bar. Any input here would be greatly appreciated.

Dennis
JD Laser Gifts

[Cecil Arnold]

Dennis, some of the lawyers may be able to give you a better answer, but it comes down to who owns the picture. If the customer owns it then he is free to do with it as he pleases, have a million copies made, etc. If a professional photographer took the picture and has stamped it with his imprint, then the customer only owns his (one) copy. To complicate matters more, depending on who is in the picture, there may be a question of a model's release for using a famous image in promotions for his bar. Somewhere in the past I seem to recall, the Elvis Priestley estate filed on a bar called "The Velvet Elvis" for using the image in their promotions, and won. Sorry if that complicates your life.

[Dennis Kotlowski]

These are pictures that he or family members had taken with their own camera at race events. No Nascar logos would be put on the plaques. I recall seeing people at flea markets selling hundreds of actual photos of celebrities, bands, Nascar drivers...etc, so I am going with the assumption that once you take a photo you are free to make as many copies that you want and/or sell them.


Dennis

[Nick Zentena]

Depends really on how much they want to sue.

1) Will they decide the image limits the sale of authorized product?

2) Will they decide it hurts the image of the driver?

3) Will they just sue to make sure nobody else does it?

Moderator removed direct link to another public forum - TOS violation

Not exactly the same issue but I think it touches on things.

The actual forum is down so you'll have to go with the google cache.

You might want to check out the photo related forums. Likely more info on copyrights.

[Joe Pelonio]

I'll agree that the photographer owns the photo and can reproduce it at will. The driver was in public and in fact posed which could be taken as an implication of consent for being photographed. That takes care of posting the photo on the wall. When it comes to advertising that's a different issue. Using that picture in advertising will give the impression that the driver endorses that business, which he does not, and if he did, would like to be compensated for it. I'd speak to a lawyer, or at least go to one of the free legal advice forums.

In my opinion it's your customer who has the primary risk here rather than you but you never know what lawyers will do, they could go after both of you. It seems reasonable that if all you do is reproduce the photo, without putting the company name or any other advertising on items, you'd be OK.

[Dave Jones]

I recall seeing people at flea markets selling hundreds of actual photos of celebrities, bands, Nascar drivers...etc, so I am going with the assumption that once you take a photo you are free to make as many copies that you want and/or sell them.

A dangerous assumption. There are plenty of people at flea markets, on the web, and on places like ebay that are selling images they have no legal right to sell. Even at NASCAR events there are people selling shirts with company logos on them illegally (there are legal ones there too). Often when they are small fish they get away with it (at least for a while).

[Joe Pelonio]

I found this covered in a California state law enacted to protect actors.

The law says:

"3344. (a) Any person who knowingly uses another's name, voice, signature, photograph, or likeness, in any manner, on or in products, merchandise, or goods, or for purposes of advertising or selling, or soliciting purchases of, products, merchandise, goods or services, without such person's prior consent, or, in the case of a minor, the prior consent of his parent or legal guardian, shall be liable for any damages sustained by the person or persons injured as a result thereof. In addition, in any action brought under this section, the person who violated the section shall be liable to the injured party or parties in an amount equal to the greater of seven hundred fifty dollars ($750) or the actual damages suffered by him or her as a result of the unauthorized use, and any profits from the unauthorized use that are attributable to the use and are not taken into account in computing the actual damages. In establishing such profits, the injured party or parties are required to present proof only of the gross revenue attributable to such use, and the person who violated this section is required to prove his or her deductible expenses. Punitive damages may also be awarded to the injured party or parties. The prevailing party in any action under this section shall also be entitled to attorney's fees and costs."

Obviously this law applies only in CA but I bet that many other states have the same law, if there isn't a federal version.

[Mitchell Andrus]

Good find, Joe.

But... I'll betcha the board of directors at Coke and Marlboro will sooner eat broken glass than have news of a lawsuit against a mom and pop storeowner hit the front page of the Times. They confiscate containers full of that - unlicenced - stuff at the ports. A few picture plaques of Waltrip posing beside his Budwiser car isn't what they're after.

Mitch

[Steve Schoene]

Was the driver in public? Wasn't he in a venue where the picture taker had to pay admission to go. What terms come along with the admission ticket? Seems a complicated issue to me. Why doesn't he just buy a licenced photo from Nascar? Or ask for free photos to put in his bar.

And, by the way, Coke does threaten small sellers (who provide Pepsi when the customeer asks for a Coke) regularly, in order to vigorously defend their trademark. If they didn't they could lose it--like Otis lost "elevator", or Frigidaire lost "refrigerator". Publish the word coke in the context of a soft drink and you may well get a letter from Coke's attorney pointing out that Coke is a big C word.

[Dave Jones]

Well, actually Disney sued a daycare center for painting Micky Mouse symbols on the wall. The larger the company, the more relentless they can be.

[Frank Corker]

I am hoping somebody might have an answer to this question and it might lead to a lengthy thread. If I had a customer give me a photo that he had taken at a Nascar race of his favorite driver next to his car and wanted this engraved on a plaque......could this be considered copyright infringement? I have a customer that owns a sports bar and he wanted a bunch of his photos engraved on plagues to put on the walls of bar. Any input here would be greatly appreciated.

Dennis
JD Laser Gifts


I cannot see any copyright infringement here. The company are advertising on the car, they do not have the copyright on the individual person, it is at the end of the day, a picture of a man standing next to a car. If you take a picture of a man standing next to his Rolls Royce, is that copyright offence against the Rolls Royce motor company because the 'Spirit of Ecstasy' is visible? No it's not. This is because it is just a part of the car, digitally alter the emblem on the car and you probably will be infringing on Rolls Royce.

If the picture at Nascar race was taken by Joe Bloggs a professional photographer and you used it, then you may be stepping on Joe Bloggs' copyright, because he took the photograph and you are using it as your own.

If the photograph of the car contains a Malboro sticker and you had a bit of text underneath saying 'don't smoke Malboro because they are crap', then you would be copyright infringing on Malboro as their logo might be 'smoke Malboro because they are better than crap!' you would be using that as a means of bringing the company into disrepute.

Disney stuff is different, it is neither a photograph or a person, it is a copyrighted character which is owned by the Disney corporation and you would be infringing on the copyright.

Every golfer in the world has advertising on their clothing, it is what makes them money. If you had a photograph of Tiger Woods wearing the Nike logo, there is no copyright issue. If you take the Nike logo off and put your own on, then you would infringe on Nike because you removed it and replaced it. You would also have problems with Tiger Woods because you were using him to advertise your own products.

Imagine a movie director creating a movie where the main character is poisoning people, the poison is being carried in a coke bottle with or without the logo on it. CocaCola would flip! Their bottle shapes are copyrighted shapes. Their font is a particular shape only associated with CocaCola. Use it to try and make it your own and you would be looking a long court battle because the world over it is recogniseable as CocaCola and only CocaCola.

Dennis' engraving on whatever, is of a picture of a man standing next to his favourite car which is covered in advertising, there is no infringement on any item until such time as the photograph itself is used as a means of causing a copyright issue.

[Ray Mighells]

Well said.

[Rick Maitland]

There are people making thousands on taking pictures of famous people and selling them. I think they are called "poperotzy".

[Dennis Kotlowski]

Thank you everyone for their replies. I knew this would start a good thread.....copyright questions always do. I think I am going to take my chances here but I agree with what Frank had to say. I think that if somebody is posing in a public place for photos that you would have the right to do whatever you want with that photo. If this is a false statement then I guess we would not have any tabloids to read....they get the photos from somewhere. Thank you again for the input.

Dennis
JD Laser Gifts

[Dave Jones]

As I mentioned earlier, "editorial" use (printing photos in magazines or showing them on the news) is covered by different laws than using photos on commercial products. You can take a photo of a person standing in a public place and hang it on your wall at home or print it in a magazine or tabloid. But you can not legally use it in advertising or on commercial objects that you sell without having written permission from the person in the photo.

And don't confuse trademarks with copyrights. They are completely different and covered by different laws.

[Steven Wilson]

You're fine with regards to copyright and trademark of people/products depicted in the picture. The only question would regard having a proper model release. Since the driver is posing for the picture the consent would be implied for personal non-commercial use. Making a few copies of this plaque wouldn't be a problem either. If the picture owner wanted to sell a bunch of copies of this picture (or plaque made from them) then he would need to obtain model release forms and negotiate payment with all persons in the picture. Of course is the picture is published as a news story then the model release wouldn't be needed. I use to do nude photography (art stuff not porno) and model release forms are part and parcle of the trade.

[Joe Pelonio]

On a related issue, just had a request to do cermark on brushed stainless
flasks for wedding groomsman gifts. He wants their college logo on them
I'm inclined to say no unless he gets written permission from WA State.

[Dave Chase]

I would think that there is power (or in this case, concern) in numbers. If you were to take a logo, famous name, image, etc and print (or engrave) thousands of reproductions and openly market them without some type of permission, royalty, or other type of recognition than you are certainly taking chances. However, in the case(s) that we have presented here, I feel that the violation, if any, would be so minute and miniscule that the chances of "the big shots" coming after you are slim to none. In the instance of the bar owner, those are his/her pictures which he/she took with their own film on their own camera. They are using their pictures to develop a theme or mood that will cater to the crowd that they hope to attract. To me this would be no different than displaying baseball cards that an individual has collected.

As far as the couple with the college logo, I wouldn't hesitate to engrave the logo for them. For one, it is such an isolated use of the logo, I hardly think that the university would find out. And even if they did find out, I hardly think that they would invest the time and resources necessary just to destroy someone's wedding gift. Second, If either the bride or the groom are students or alumni of the university, it could be argued that the tuition which they paid to attend the university has given them partial ownership in the logo and the ability to use the logo for personal reasons.

Bottom line is go with your gut instinct and use your best judgement. If you don't feel comfortable with a situation than it probably isn't the right thing to do. Just some food for thought....

[Joe Pelonio]

As far as the couple with the college logo, I wouldn't hesitate to engrave the logo for them. For one, it is such an isolated use of the logo, I hardly think that the university would find out. And even if they did find out, I hardly think that they would invest the time and resources necessary just to destroy someone's wedding gift. Second, If either the bride or the groom are students or alumni of the university, it could be argued that the tuition which they paid to attend the university has given them partial ownership in the logo and the ability to use the logo for personal reasons.

Bottom line is go with your gut instinct and use your best judgement. If you don't feel comfortable with a situation than it probably isn't the right thing to do. Just some food for thought....
I'd agree with you in alot of cases, but . . .

I went to the WSU website, and their copyright statement specifically says that it applies to students and alumni. Normally with an item that I engrave for display in someone's house I would think the chances are slim of ever getting caught, but young recent college graduates with a flask are likely to use it at football games and other events, and the item that I engrave could end up in court in a DUI case.

It may not be common knowledge nationwide, and may not even be true, but around here that particular college has a reputation for their partying.:eek: