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Author Topic: copyrights and trademarks and infringement explained with references  (Read 2667 times)

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« on: January 02, 2017, 20:58 »
0
There are 3 forms of intellectual property that can be registered (in the US):

1. Copyrights

2. Trademarks

3. Patents

There are no other forms of intellectual property that can be registered in the US.

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Copyrights protect creative works, such as photos, art, and literature.

You cannot copyright a trademark. The USPTO will deny copyright protection to trademarks, logos, and patents.
"Copyright does not protect names, titles, slogans, or short phrases"
https://www.copyright.gov/help/faq/faq-protect.html#title

Copyrights do not take into account the method by which they were created.

Copyrights are owned by the person who created the work, or if a work for hire, by the producer of the project. if you own the equipment, paid for the session, made the creative decisions regarding the work, then the owner is you and not the person who clicks the button on the camera. the copyright office specifically states that the copyrights are transferred immediately upon creation to the producer if someone else operates the equipment, and the equipment operator is not to be mentioned on the copyright filing forms, only the creative producer who made the decision to engage in the photo session.

The WIPO and the Bern Convention are the 2 major international treaties regarding copyrights. If you have a
copyright filed in 1 country, you are eligible to file copyrights and receive protection in the signatory
countries.

You can download and read a copyright filing form from copyright.gov to see what information is required when
filing a copyright, and what it protects.

You can file a copyright for a collection of multiple creative works.

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According to Circular #41, https://www.copyright.gov/circs/circ41.pdf, you cannot copyright:

Buildings ... that were constructed, or whose plans or drawings were published,
before December 1, 1990


Structures other than buildings, such as bridges, cloverleafs, dams, walkways,
tents, recreational vehicles, mobile homes, and boats

---

The following cannot be copyrighted and have no copyright protection:

The Empire State Building (built before 1990)
The Chrysler Building (built before 1990)
most buildings in the US
cruise ships
architectural designs such as windows, doors, roofs, (architecture based on utility or function) etc
most physical objects cannot be copyrighted except for art such as sculpture

"Copyright law protects the original photograph, not the subject of the photograph. "
https://www.copyright.gov/help/faq/faq-protect.html#title

---

Copyright is regulated by the DMCA and by Fair Use.

According to the DMCA, web sites are not liable for copyright infringement if they follow the
procedures of the Safe Harbor
clause and have a designated agent on file with the copyright office.

---

section 107 of the Copyright Act

Fair Use: https://www.copyright.gov/fair-use/more-info.html

Purpose and character of the use, including whether the use is of a commercial nature or is for nonprofit educational purposes

Nature of the copyrighted work

Amount and substantiality of the portion used in relation to the copyrighted work as a whole

Effect of the use upon the potential market for or value of the copyrighted work


Almost all stock photography falls under this clause of Fair Use:
"Transformative uses are those that add something new, with a further purpose or different character, and do not substitute for the original use of the work."

For example you can drive a car, but you cannot drive a photograph of a car, so a photograph of a car cannot infringe on a copyright of that car's design. a photo of a car cannot substitute for the original use of a car.

---

Explained on the US Copyright web site: "a description of a machine could be copyrighted, but this would only prevent others from copying the description.
it would not prevent others from writing a description of their own or from making and using the machine."
https://www.uspto.gov/learning-and-resources/trademark-faqs#1931

---
Editorial Use, etc.

There is no copyright law regarding editorial use, model release forms, or property release forms.

---

the photo of a monkey taking a photo of itself is copyrighted and not public domain. a copyright was filed with the UK government and approved,
and according to the Bern Convention, is valid in the US

---
Sony Corp. of America v. Universal City Studios, Inc.
"The Court explains that a manufacturer of a product is not liable for contributory infringement as long as the product is "capable of substantial noninfringing uses"

Stock media has substantial noninfringing uses and therefor is not copyright infringement (such as the use of stock photography on blogs for commentary purposes). if your photo can be used on a blog and someone can have a discussion related to the photo, it is 100% Fair Use, 100% legal, and 100% non-infringing, and is legal for sale. if your photo has logos, trademarks, copyrighted works, and can be used on a blog and commented on in some way, then it is not infringing and falls under Fair Use.

---

copyright law has to do with perception made by the general public.  people who buy stock photos are not the general public, they are industry insiders. you cannot violate copyright laws by selling a photo to an industry insider including the media, graphics designers, ad agencies, stock agencies, etc. infringement only occurs based on the perception of the general public, when they see the image in advertising and marketing. selling stock photos on stock media web sites is not advertising or marketing to the general public.

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TRADEMARKS

Trademarks identify sources of goods or services, such as company names, brand names, and product names.

you cannot copyright a trademark.

you cannot trademark a physical object such as a building, sign, car, or other product.

you can only trademark the name of the product or service or provider/manufacturer (source).

in the court case Daniel Moore vs University of Alabama, the courts upheld the photographer could sell photos
containing logos without the permission of the trademark owner.


Andy Warhol famously painted logos and trademarks without infringement or lawsuit.

you can sell stock photos of trademarks and logos, and photos that contan trademarks and logos, without
infringing on trademarks or copyrights, and profit from it, according to US trademark law.

trademarks must be filed for specific classes of commerce. for example, Ford files its trademark for "Manufacture of Automobiles"
and it is only valid for automobile manufacturing. this permits other businesses to us ethe Ford trademark, such as
Ric Ford, Ford Theater, etc.
Sample Ford trademark classification: IC 012. US 019 021 023 031 035 044. G & S: Motorized golf carts. It only protects their trademark
in the industry of Motorized Golf Carts, for this specific registration. it does not prohibit you from selling photos of Ford motorized golf carts as explained
under Fair Use, it only prohibits other golf cart manufacturers from using the Ford name on their own golf carts.

Apple ran into trademark problems because it was selling music online while Apple Records held
a trademark for music using the Apple name, they were in the same trademark classification, and Apple Music had substantial
tradmark rights and protection.

photographers never have to worry about trademarks. trademark infringement can only be made by people using trademarks
in commerce to identify the source of their goods or services
. photographers are making creative works and are not
using trademarks in commerce.

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What I have discovered in years of researching copyrights and trademarks:

- sporting events cannot be copyrighted. you are free to film sporting events and sell the videos according to
US law. See NBA v. Motorola, Inc., 105 F.3d 841 (2d Cir. N.Y. 1997) I contacted the US copyright office by email and this is what they said:
"The sport itself the game being played is not protected by copyright." source: an email response from copyinfo@loc.gov

- the Hollywood Sign is not protected by trademark or copyright. physical objects (except sculpture) cannot be trademarked or copyrighted. the Hollywood sign is a sign denoting the neighborhood made by a housing developer. anything made for a utilitarian or functional purpose is not a creative work and cannot be copyrighted.

the Hollywood Sign is a public landmark owned by the State of California, and through legislation, they have granted the
Hollywood Chamber of Commerce the rights to the grounds surrounding the sign. The Hollywood Chamber of Commerce does
not own the sign, they have attempted to file many trademarks for the sign with the US Patent and Trademark Office all
of which have failed
, and only have trademarks for gift items and imprints on gift bags for the 'hollywood' sign. I contacted
their attorneys (cmsovich@sovichminch.com) and here is what they said:
"your statement that these registrations somehow preclude you from exploiting your rights as a photographer of the Sign couldn't be further from the truth.", which means that the Hollywood Chamber of Commerce attorneys have stated to me that i may sell photos of the Hollywood sign if I wish without their permission and without paying them any fees. The Hollywood Sign is an architectural structure built before 1990 and is not eligible for copyright protection. See Circular 41. 2 41.0912.

- Buildings such as the Empire State Building are not protected by trademarks or copyrights. There is no registered trademark on USPTO.gov owned by the owners of the Empire State Building for the building itself (they have 3 registrations for real estate services and events). The same is true for other alleged protected objects such as the Chrysler Building or cruise ships. See Circular 41. 2 41.0912.

- Cruise Ships (including Carnaval Cruise Lines) are not protected by copyrights or trademarks See Circular 41. 2 41.0912.

- Photographers can legally sell anything that is not expressly prohibited by law (child pornography and filming in a person's private residence without their knowledge)

- stock agencies, their customer service, curators, and management, do not understand copyright and trademark law.

- you can take photographs of lights shows and sell them without infringing the copyright of the light show, as explained under Fair Use Copyright Law. "Copyright law does not protect sightings. However, copyright law will protect your photo (or other depiction) of your sighting" https://www.copyright.gov/help/faq/faq-protect.html#title

- if someone puts up a sign, or has a no photography policy on their premises, they have absolutely no legal bearing and you as a photographer
are under no obligation to follow anyone's photography rules even if you paid for a ticket, etc, with the exception of photography prohibited
by property owned by the US government such as military facilities. there is no federal law that says you have to abide by a sign posted by a private party or individual.

- they are virtually no lawsuits against photographers or stock media agencies listed in online case search web sites regarding copyright infringement.

- the news media and corporations portray copyright law as if copyright owners have 100% of the rights and photographers have 0% of the rights,
but it is not true.

- the long list of 'copyrighted' or 'trademarked' materials found on stock media web sites are almost all legal to photograph and resell as royalty-free stock.
the lists are not accurate and do not reflect US copyright and trademark law.

- most of the major countries have similar copyright and trademark laws. some have none because they do not have media companies.

- in most countries, anything made by the government is owned by the general public and cannot be copyrighted or trademarked. there are organizations in the US government who claim they have copyrighted or trademarked material but it is a violation of US laws and is not permitted and is not true if it is paid for with taxpayer money.

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the concept of Fair Use in regards to copyrights is US federal law as explained above. it is not someone's personal opinion.

do not use general knowledge, the news media, forums, customer support, corporations, stock media agencies, cease and desist letters as
replacements for copyright or trademark law. the only valid source for copyright and trademark law is the US government. most copyright
lawyers will repeat what I have said, you have more rights than the media (and 'common knowledge') leads you to believe

almost all copyright infringement risk and trademark risk, in the stock media industry, is the responsibility of the buyer of the
media and how he uses it. photographers and stock media agencies have almost 0 liability, with the exception of a person directly
copying the creative work of another (such as photographing another photograph).

if someone claims they have a registered trademark, search for it on uspto.gov. it must say 'live' and the classification must be for the exact product or service claimed. if they do not have a trademark listed as live, they do not have a trademark. and the classification has to match, and it won't affect stock photography anyway because trademarks cannot be registered for creative works.

the Hollywood Chamber of Commerce's trademark for the Hollywood logo on paper bags only prevents other people from making paper bags with the Hollywood logo on it. It does not prevent you from selling stock photography of the Hollywood sign.

being able to 'self identify yourself' in a photo does not grant you any rights whatsoever. being able to prove you are a person in a photo does not grant you any rights. you only have rights of likeness if the general public can identify you in the photo and that you are a prominent or substantial portion of the photo. a person would not have to prove in court that they were the person in the photo, but they would have to prove that the general public would recognize that they are the person in the photo. if it could have been another person, whether it is true or not, the actual person has no rights.

a person who can be identified by his clothing would be someone such as Michael Jackson, a sports athlete with his uniform, Liberace, or Elvis. Their clothing is famous enough that their clothing is linked to the person. The average person cannot be identified by their clothing. the average person does not wear special clothing that has become famous and associated with themselves as a person to the general public. agencies that claim that people  are being identified by their clothing are often doing so completely wrongfully with a complete lack of understanding of the law. being identified by your clothing, for legal purposes, means that the general public has to be able to recognize the clothing and associate it with a famous person. if they cannot do that, then there is no infringement.

if it were true that products (such as clothing and automobiles) have protected copyrighted designs in regards to stock photography, then you would not legally be able to sell photos of any man made product including clothing, toys, furniture, interiors, exteriors, all manufactured goods, etc,  you would only be able to sell photos of nature and naked people, which is clearly not the case.

 anything that is a functional purpose cannot be copyrighted such as windows, door locks, phone headsets, tires, remote controls, sunglasses, because copyrights only cover creative works and not anything that people use out of necessity. their copyrights protect them from other competing manufacturers and do not prevent you from selling photos of their copyrighted designs, as explained under Fair Use (photos cannot substitute for the use of original product)

companies will lie and claim they have copyrights and trademarks that they really don't have.

companies are taking advantage of the fact that defending lawsuits is expensive, and by doing so, are denying you your rights.

model release forms are important because if your work becomes popular, models will lie and claim that they were verbally promised a portion of the royalties even though they may not have been. if the model becomes famous, he may demand you take the work down because he feels you should not profit from his fame.

if you take a photo of a logo or trademark, you own the copyright to your photo because you made the creative decision as to how to film the logo or trademark. no on else can claim copyright ownership of your creative work, no matter what the content is.

a photo that contains a painting on a wall as part of the scene is not infringing because the photo does not prevent the general public from enjoying the original artwork (as explained in Fair Use). the same is true for ads that appear in photos.

copyrights can be searched at copyright.gov but are no longer required to be registered in the US.

instead of marking stock media as 'royalty free' or 'editorial', stock media should be marked as 'including release forms' or 'not including release forms', and the buyer should make the decision on his own as to whether his use may be infringing. this solves the problem.

only a federal court of law can make a decision as to whether someone's rights have been infringed.

the only proof that the US government recognizes that you are the owner of a creative work is a copyright filing registered with the US copyright office.

the Safe Harbor provision of the DMCA proves that there is no liability when you upload any photo to a stock media agency in regards to copyright infringement. in other words, any web site that tells you that there is a potential copyright infringement or liability in regards to your work is not abiding by the Safe Harbor provisions of the DMCA, which specifically states that web sites such as stock media agencies cannot be sued as long as they follow the procedures outlined by the DMCA in Section 512(c).

when I had a question regarding copyrights, I sent an email to the copyright.gov contact address and they answered my questions promptly and informatively, and they clarified the copyright laws. you can do the same. they publish circulars every few years where they discuss copyright law and changes.

Your photo is your creative work and you have the right to sell it. From the US Copyright Office: "Copyright law does not protect sightings. However, copyright law will protect your photo (or other depiction) of your sighting".
https://www.copyright.gov/help/faq/faq-protect.html#title

Your rights as a photographer have been taken away from you by people and companies that are ignorant of the laws.
« Last Edit: January 02, 2017, 23:21 by unnonimus »


« Reply #1 on: January 02, 2017, 21:19 »
+10
Please stop.

« Reply #2 on: January 03, 2017, 01:34 »
+3
Yes please do. No one has taken your rights away. A stock agency is a business and can refuse to sell your work if they want whatever the law says. If you want to sell work you believe to to be legally saleable agencies are refusing you can set up your own site.

SpaceStockFootage

  • Space, Sci-Fi and Astronomy Related Stock Footage

« Reply #3 on: January 03, 2017, 01:38 »
+3
You should start a blog.

FlowerPower

« Reply #4 on: January 03, 2017, 09:52 »
+1
You should start a blog.

Where nobody will read except fools.

dpimborough

« Reply #5 on: January 05, 2017, 05:44 »
0
what!  ;D




« Reply #6 on: January 05, 2017, 07:53 »
+2
Lots of valid points but lots of oversimplifications. Simple "you cannots" or "you cans" in law are rare for a reason. Or, as any lawyer will tell you (no matter your question): "It depends."

« Reply #7 on: January 05, 2017, 08:09 »
+3
Lots of valid points but lots of oversimplifications. Simple "you cannots" or "you cans" in law are rare for a reason. Or, as any lawyer will tell you (no matter your question): "It depends."
Or for a suitable fee "what opinion would you like?"


 

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