Microstock Photography Forum - General => General Stock Discussion => Topic started by: unnonimus on February 17, 2016, 18:26

Title: is my stock footage infringing someone's trademark?
Post by: unnonimus on February 17, 2016, 18:26
in almost all cases, stock photos and footage will never infringe anyone's trademark. I cannot think of 1 single case where a stock photo or stock video will infringe a trademark.


trademarks are *NOT* granted copyright protection in the US. stock photos and footage are artistic works. trademarks are not artistic works, they are identifiers of source.

if you try to register a trademark with the copyright office, it will be rejected.

trademarks identify the source of the good or service. they can only be infringing if they are used in advertising, to promote products or services to the general public via mass media. stock footage and stock photography is not 'advertising' because the footage does not promote specific products or services for a specific manufacturer or service provider.

have there been court cases proving that third party trademarks can be sold by photographers for profit?



"Moore's depiction of the University's uniforms in his unlicensed paintings, prints, and calendars is not prohibited by the prior licensing agreements.   Additionally, the paintings, prints, and calendars do not violate the Lanham Act because these artistically expressive objects are protected by the First Amendment, by virtue of our application of the Rogers balancing test.   The uniforms in these works of art are artistically relevant to the underlying works, Moore never explicitly misled consumers as to the source of the items, and the interests in artistic expression outweigh the risk of confusion as to endorsement."
http://caselaw.findlaw.com/us-11th-circuit/1603066.html#sthash.5uxkyXUP.dpuf (http://caselaw.findlaw.com/us-11th-circuit/1603066.html#sthash.5uxkyXUP.dpuf)

the Lanham Act is the law that regulates trademarks. if he infringed on the university's trademarks, the judge would have said that the Lanham Act was violated, which in this case it was not.

note that it says he never misled consumers as to the source of the items. that means that if Moore was claiming to be the University of Alabama, he would have infringed their trademark, because trademarks protect the source, not the product itself.

what is trademark protection?

trademark protection means that no other business can use your logo or name in the same class of business to identify the source of the goods or services (manufacturer). when you apply for a trademark, you have to list 1 or 2 classes of business (such as Internet Search Engines or Automobile Manufacturing) so you can have Apple Computer and Apple Records and they can both use the name Apple without infringing on each other's rights, as long as they sell separate goods or services. you can have IBM for computers and IBM for laundry services and IBM for a grocery store and they do not infringe with each other.

if I take a photo of a trademark, such as the Ford logo, does it infringe the Ford trademark?

*NO*. a photo is an artistic work. a trademark is not. the logo cannot be offered copyright protection, even if it is a design. Artist Andy Warhol painted Coca Cola logos, campbells soup logos, and other popular logos and did so legally.

what does infringe a trademark?

you infringe a trademark when you claim to be the business named in the trademark. for example, if you started your own IBM computer company, customers might be confused and think you are the famous IBM, and buy your services, and that would infringe the IBM trademark. trademarks protect the *SOURCE* of goods, meaning the manufacturer or service provider.

why doesn't a stock photo infringe on a trademark?

stock footage does not infringe on trademarks because when you take the photo, and sell it, you are not claiming to be the business identified by the trademark. for example, if I take a photo of a Ford logo, and sell that photo, I am not claiming to be the Ford Motor Company. I identify myself as a photographer. there is no trademark infringement.

how might a stock photo infringe on a trademark?

stock photos will never infringe trademarks as far as the photographer is concerned, or as far as any stock footage marketplace is concerned. the media can only be infringing if the buyer uses it to compete against the trademark owner, by luring away customers to a similar product that is produced by another manufacturer.

so if you have a photo of a computer on a table for your law form, and the computer has the Dell logo, it is *NOT* trademark infringement. it would only be infringing if the person using the photo is in the computer business, sells desktops, claims to be Dell, but isn't. in all other cases it is not infringing, and in all cases the photographer has no liability.

US Supreme Court rulings have upheld that copyrighted works that have substantial legitimate uses can be sold legally (Sony Corp. of America v. Universal City Studios, Inc. ). So if you have a logo in your photo, and the photo can be used without competing against the owner of the logo, then it is a legal use as defined by the US Supreme Court. so a law office can have a logo of Dell Computer in its advertising without infringing on intellectual property rights owned by Dell Computer.

trademarks need to be used  in commerce in order to receive protection. that means that a business must use the trademark in advertising in order to be registered (or it must file an intent to use the trademark in advertising). selling stock footage is not 'use in advertising' any more than selling any other product because the footage itself does not advertise a specific product or service.

in order to be granted trademark registration, you have to submit multiple samples of use in advertising which includes the trademark. this means you have to show a page of a newspaper that has your ad in it along with the rest of the newspaper content, a flyer that you distribute which contains your services and the logo, a page from a magazine that has the logo, a print out of a web page that has the logo, or a photo of product packaging that has the trademark. if you cannot provide these samples of use in advertising, then the trademark registration will be denied. a stock photo is not proof of use in advertising, nor is a stock video, even if it contains a logo.

all liability of trademark infringement falls upon the buyer of the stock footage and how he uses the media in advertising. trademark infringement can only occur in advertising (being shown to the mass public for the purpose of promoting a product or service identified by the logo). selling stock footage to industry professionals is not infringing because stock photos are not advertisements.

In the case of University of Alabama vs Daniel Moore, the court ruled that the photographer Daniel Moore had the right to sell photos and prints of University of Alabama football games, including the logos and the likenesses of the players.

it is legal in the United States of America to sell stock photos and videos which contain the trademarks of other companies, according to US Copyright Law.

Title: Re: is my stock footage infringing someone's trademark?
Post by: Microstockphoto on February 17, 2016, 18:38
agree but agencies protect themselves from buyers not sticking to the rules. simple as
Title: Re: is my stock footage infringing someone's trademark?
Post by: unnonimus on February 17, 2016, 18:41
the agencies are not protecting anyone or anything, they are merely restricting commerce.

the laws are very specific in that trademark infringement can only occur during advertising. the stock media companies and photographers do not create advertisements. they have 0 liability.
Title: Re: is my stock footage infringing someone's trademark?
Post by: fotorob on March 09, 2016, 08:06
Since stock images or footage will be sold almost worldwide, agencies seek to cover all their bases and are going far beyond US and EU legal restrictions just in case in some countries a specific use is forbidden...