Legality considerations

[gunnar3000]

Hi,

I just checked some stock-agencies for pictures containing bicycles. I wonder that you can see on many of these images brand names (like Scott, Kona, Giant...).  Even at the parts of the bike (Fork, shifters, breaks...) you can see band names.
whats your opinion? is this legal? what is the worst thing which could happen to the submitter of such an image? any other thoughts? 

thanks a lot...   

gunnar

[Seren]

It's perfectly legal to sell pictures containing brand names.

The onus is on the buyer to use them correctly.

However, most royalty free sites insist that you remove the brand names so that the buyers can't claim some sort of ignorance and the stock library is protected.

It's really a microstock phenomenon though.

[RT]

It's perfectly legal to sell pictures containing brand names.

It all depends where and how you sell those images.

The onus is on the buyer to use them correctly.

Actually no the onus is primarily on you as the photographer, the buyers have a duty dependant on the information you've provided and the license terms.

However, most royalty free sites insist that you remove the brand names so that the buyers can't claim some sort of ignorance and the stock library is protected.

All royalty free sites insist on this because if you sell the image as RF you are declaring under the license terms that the image can be used commercially, but this doesn't just apply to RF sites, Inmagine for example don't do editorial and if you upload an image there under a RM license you have to declare that the image contains no trademarks, branding or copyright content.

It's really a microstock phenomenon though.

Microstock sites are more paranoid than the macros because the majority of the contributors don't understand the legal issues involved and as such microsites, well all sites for that matter, have an obligation to perform checks to ensure the contributor is not beaching any legal issues.

Stock agencies are just a marketing tool for us to sell our images under license, but each time you upload an image to a site no matter who it is it is YOU the photographer that is responsable for providing the correct information as to how and where it can be used depending on the license terms of each site, if a buyer then uses an image contrary to the license it is then and only then that they face the music.

[Sean Locke Photography]

RT, I think you're incorrect.  It is the responsibility of the buyer, from what I've read.

All royalty free sites insist on this because if you sell the image as RF you are declaring under the license terms that the image can be used commercially, but this doesn't just apply to RF sites,

THE CONTENT IS PROVIDED �AS IS� WITHOUT REPESENTATION, WARRANTY OR CONDITION OF ANY KIND, EITHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO THE IMPLIED REPRESENTATIONS, WARRANTIES OR CONDITIONS OF MERCHANTABILITY, OR FITNESS FOR A PARTICULAR PURPOSE. ISTOCKPHOTO DOES NOT REPRESENT OR WARRANT THAT THE CONTENT WILL MEET YOUR REQUIREMENTS

... from the iStock license.  Nothing about copyrights or anything.

[phildate]

I hate editing logos off bikes 

[RT]

RT, I think you're incorrect.  It is the responsibility of the buyer, from what I've read.

All royalty free sites insist on this because if you sell the image as RF you are declaring under the license terms that the image can be used commercially, but this doesn't just apply to RF sites,

THE CONTENT IS PROVIDED �AS IS� WITHOUT REPESENTATION, WARRANTY OR CONDITION OF ANY KIND, EITHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO THE IMPLIED REPRESENTATIONS, WARRANTIES OR CONDITIONS OF MERCHANTABILITY, OR FITNESS FOR A PARTICULAR PURPOSE. ISTOCKPHOTO DOES NOT REPRESENT OR WARRANT THAT THE CONTENT WILL MEET YOUR REQUIREMENTS

... from the iStock license.  Nothing about copyrights or anything.

That's the site protecting itself, and all sites will have something similar, it would be impossible for any stock site to say that every image is totally free from any branding, copyright, trademark, patent etc no matter how thorough their review process for obvious reasons, the same applies to a potential buyer, I'll give you an example, say you submit an image of a model wearing a wedding dress you purchased on eBay that from the lamens point of view appears to be an odinary looking dress, a buyer in all good faith purchases that image to use for an advert that appears in a fashion magazine, then the dress designer spots the advert and takes legal action, who do you think will be the one who will ultimately be responsible, it will be you the photographer which is why iStock have this in their contributor agreement:


The Supplier acknowledges that iStockphoto prohibits any Content or any other material that infringes on any patent, trademark, copyright, trade secret, right to privacy, right to publicity, or any other applicable law or proprietary right to be uploaded to the Site.

By uploading Content, you are warranting that you own all proprietary rights, including copyright, in and to the Content. In addition, to the extent that the Content contains images of people or persons, you represent and warrant that you have obtained a valid and binding model release from all required parties in substantially the same form as http://www.istockphoto.com/docs/modelrelease.pdf that will permit the uses for such Content contemplated in the Content License Agreement. You also warrant that where required by applicable law, you have also obtained a valid and binding release in substantially the same form as [property release] relating to any identifiable property contained in the Content that might sensibly lead to the identity of or be required by the owner of such property to permit the uses under the Content License Agreement.

The Supplier agrees that neither iStockphoto nor any of its directors, officers, employees, partners, affiliates or agents shall be liable for any damages, whether direct, indirect, consequential or incidental, arising out of the use of, or the inability to use any Content.


You'll notice on the artist supply agreement they've specifically mentioned our (meaning contributors) responsibility concerning property rights, whereas on the part you've quoted they've just stated they don't give any guarantees, no mention of any buyers responsibilities.

Also don't forget that microsites in particular are not aimed at professional picture buyers, so some buyers could use the 'any person' defence, contributors whether part time or full time would be expected to fully understand the legalities.

[Karimala]

I hate editing logos off bikes 

You're not kidding!  I can't ever seem to get the curvature right.

[travelstock]

Seems to be a range of "legal" opinions out there from people who aren't qualified to give advice one way or another. The problem with giving any advice about these issues is that you're dealing with so many jurisdictions and so many areas of law that there aren't really any hard and fast answers that will apply al the time.

My own view about trademarks is that the risk of being sued for violating trademarks or copyright by the inclusion of a trademark as an incidental aspect of an image is negligible. I am yet to find an example where a photographer is sued for violating a trademark. In a practical sense there are many practical and legal barriers that would prevent trademark owners from suing a photographer. On top of this you also have to remember that many trademarks are prominently placed so that people actually see it - including a brand name increases the prominence of a brand and is of benefit to a trademark owner, not a threat. Why do companies pay millions of dollars to put trademarks out there? So that people see them. If they make their way to publications, this is extra free advertising in most cases. What company is going to sue a photographer for taking a photo that includes their logo and what possible benefit could it be to that company?

Having said that my images won't get accepted  with trademarks except by accident, so I remove them. Yes its inconvenient, yes I hate cloning them out and yes most agencies could make their (and our) lives easier by explicitly placing the onus regarding trademark violation on buyers through the terms of service.

[RT]

Seems to be a range of "legal" opinions out there from people who aren't qualified to give advice one way or another.

Well I trained in law so I think that makes me qualified, however you don't have to be trained in law to read and understand it.

What company is going to sue a photographer for taking a photo that includes their logo and what possible benefit could it be to that company?

Umm, well how about every single company that see's a photo of it's product portrayed in a way that they don't want!!!

Or do you think it should be OK of me to say take a photo of an iPod and sell it RF so that another company can use it in an advert for drug abuse.

Do you think all these companies pay a lot of money to trademark, patent and copyright their products, logos etc just for fun?

.....most agencies could make their (and our) lives easier by explicitly placing the onus regarding trademark violation on buyers through the terms of service.

That already exists for the RM images if you state that the image may require a property release for commercial use, RF is a different thing altogether, unless it was blatently obvious how would you expect a buyer to judge whether an image would violate any property rights, only you the photographer knows where, and what you used in the photo and that is why the onus is on you if you license an image as RF.

[travelstock]

Seems to be a range of "legal" opinions out there from people who aren't qualified to give advice one way or another.

Well I trained in law so I think that makes me qualified, however you don't have to be trained in law to read and understand it.

What company is going to sue a photographer for taking a photo that includes their logo and what possible benefit could it be to that company?

Umm, well how about every single company that see's a photo of it's product portrayed in a way that they don't want!!!

Or do you think it should be OK of me to say take a photo of an iPod and sell it RF so that another company can use it in an advert for drug abuse.

Do you think all these companies pay a lot of money to trademark, patent and copyright their products, logos etc just for fun?

.....most agencies could make their (and our) lives easier by explicitly placing the onus regarding trademark violation on buyers through the terms of service.

That already exists for the RM images if you state that the image may require a property release for commercial use, RF is a different thing altogether, unless it was blatently obvious how would you expect a buyer to judge whether an image would violate any property rights, only you the photographer knows where, and what you used in the photo and that is why the onus is on you if you license an image as RF.

Well I studied law, am admitted to practice, have practiced for a number of years, yet am still not qualified to give specific legal advice on an open slather basis. And I'm sorry but you do have to be qualified in law to get a proper understanding of it. Even with an exceptional knowledge of the law it there is rarely a simple answer that applies in all contexts. The answer to a  given question will be very different if you're talking about a dispute in the US to the same issue Canada or in Australia. Throw in non-English speaking and civil law jurisdictions (where images are also potentially used) that have very different legal foundation and the problem becomes even more difficult.

Your ipod example isn't a trademark or copyright violation by the photographer. Disputes between company A and the use of their trademarks do not commonly involve photographers - it is the use of an image that violates a trademark, not the existence of an image with a trademark on it.

The issue with trademarks isn't related to RM as oposed to RF in any way. If that were the case, presumably Getty wouldn't offer RF images that have trademarks in them in their collection. (try doing a Getty RF search for "Coca-Cola").

My personal view is that the sites are actually creating a potential problem for themselves if they provide the impression that images are carefully screened etc. to ensure that there are no trademarks. If some material slips through that does contain such content and becomes a problem, a customer would naturally look to the agency as the first port of call to sue. They have a direct contractual relationship with that agency, and that agency has effectively represented that it has screened the content. They're unlikely to sue a contributor who may well only be known to them by a screen-name, possibly lives in Uzbekistan and most probably doesn't have any assets in the first place. On top of that there are legal barriers to suing such as privity of contract. While there may be scope for an agency to claim indemnity from a contributor by virtue of the representations made in the supply agreements, I can't really see that as being a realistic option for any of them. An agency suing a contributor would be commercial suicide.

[Aetherial]

Do you think all these companies pay a lot of money to trademark, patent and copyright their products, logos etc just for fun?

they do it so competitors couldn't make a product that is similar in function and appearance to their own and get a free ride on somebody else's marketing. I suppose you're from US and have never seen cheap chinese Reabac or Reebac shoes, Pioneir stereo, Panasoanic telephones or Smatch watches...
Most of the companies would sell their *sses to get free marketing of any sorts.

[RT]

Well I studied law, am admitted to practice, have practiced for a number of years, yet am still not qualified to give specific legal advice on an open slather basis. And I'm sorry but you do have to be qualified in law to get a proper understanding of it. Even with an exceptional knowledge of the law it there is rarely a simple answer that applies in all contexts. The answer to a  given question will be very different if you're talking about a dispute in the US to the same issue Canada or in Australia. Throw in non-English speaking and civil law jurisdictions (where images are also potentially used) that have very different legal foundation and the problem becomes even more difficult.

For someone that studied law you should be well aware of the terms and conditions of the sites you submit to, and you should also be aware of the legal implications of submitting images that contain content subject to property ownership legislation, irrelevant of where you live or sell your images.

Your ipod example isn't a trademark or copyright violation by the photographer. Disputes between company A and the use of their trademarks do not commonly involve photographers - it is the use of an image that violates a trademark, not the existence of an image with a trademark on it.

Actually it's not the use of an image that violates a trademark, it's the use of the trademark that violates trademark legislation. An image is just that an image.

The issue with trademarks isn't related to RM as oposed to RF in any way. If that were the case, presumably Getty wouldn't offer RF images that have trademarks in them in their collection. (try doing a Getty RF search for "Coca-Cola").

I was surprised by your comment so I did a check, there are five search results for coca cola on Getty RF, two don't feature any branding, two are archive street scenes that have a coca cola billboard in them which I suppose could be considered incidental and the last is of some hats in vietnam made from old drinks cans some of which are coca cola.

My personal view is that the sites are actually creating a potential problem for themselves if they provide the impression that images are carefully screened etc. to ensure that there are no trademarks. If some material slips through that does contain such content and becomes a problem, a customer would naturally look to the agency as the first port of call to sue. They have a direct contractual relationship with that agency, and that agency has effectively represented that it has screened the content. They're unlikely to sue a contributor who may well only be known to them by a screen-name, possibly lives in Uzbekistan and most probably doesn't have any assets in the first place. On top of that there are legal barriers to suing such as privity of contract. While there may be scope for an agency to claim indemnity from a contributor by virtue of the representations made in the supply agreements, I can't really see that as being a realistic option for any of them. An agency suing a contributor would be commercial suicide.

Most sites make it clear in their buyers agreements that they make no representations as to content, whether a buyer reads those terms or not is their choice, and most agencies make it very clear that the contributor is responsible for the content they provide.

One thing we do agree on is that cases such as these are very rare and are littered with legal obstacles, whether or not a photographer would ever get sued is something we could all argue about for a long time, and this was not the original point anyway, the original point was whether you can submit images featuring branding as RF and whether it is the buyers responsability to check the image.

I'm quite clear on both these points and I still say that it is the photographer who is responsable for the content of the image they submit and if it is sold as RF branding should be removed.

[RT]

they do it so competitors couldn't make a product that is similar in function and appearance to their own and get a free ride on somebody else's marketing. I suppose you're from US and have never seen cheap chinese Reabac or Reebac shoes, Pioneir stereo, Panasoanic telephones or Smatch watches...
Most of the companies would sell their *sses to get free marketing of any sorts.

I'm sorry you've lost me, what's selling fake goods got to do with stock photography.

And no I'm not from the US

[crazychristina]

I'm not a lawyer, but here in Australia the main issue has nothing to do with copyright. Under our Trade Practices Act using a brand name in a commercial image can imply that that company (brand) endorses the product or service being advertised - I think its called passing off.

[RT]

I'm not a lawyer, but here in Australia the main issue has nothing to do with copyright. Under our Trade Practices Act using a brand name in a commercial image can imply that that company (brand) endorses the product or service being advertised - I think its called passing off.

A bit off topic but 'pasing off' would actually be what the person above described in relation to the fake goods, for instance someone selling a watch branded Smatch, it would be considered to be similar to the registered trademark and product of Swatch.

What you describe here in the UK would be 'false endorsement' under trademark laws, but then there are lots of laws that cover this sort of thing, either way you're right.