Hi Guys.
Recently my legal team has been working overtime battling a case against us made by a company manufacturing glasses. I can't mention their name here until the case opens to the public. The problem is that quite a few of the models that we have shot over the years have used their own glasses on shoots, which then turn out to of this particular brand and are "design trademarked". (There are no trademarks or logos on these glasses, just a shape of that particular design series from that year for that brand). These models have paid prices in the range of 800 USD for just one pair of glasses so they are quite expensive.

The problem is, that if this case goes into court and I lose, it will have a huge effect on the rest of the industry and we estimate that about 100000 images (at least) needs to be removed from all the online stock libraries, because as you know stock agencies don't want content online where their customers risk a lawsuit if using the images. Istock has done several of these "mass take downs" in the last few years. So if you shoot people like I do, and you have 10000 images in your portfolio, you should expect to have to remove 50-200 images.
Another effect we might expect, is that other brands of glasses will follow suit or that the agencies themselves will request you to remove all images with XXX brands, at which point we are looking at having to remove about 30-50% of all images on all stock sites with glasses. For me personally about 1500-3500 images. Potentially the biggest take down in stock history.

However. Is this fair?
1. Glasses are by the very nature something you wear on your face in all circumstances and thus are almost imposible not to take pictures off. Brands making glasses are aware of this and make them for this very purpose. Cars, computers and other everyday items are similarly recognisable, but are part of every day life. We can remove the logo, but can't remove the car.
2. Is it fair that a photographer that removes all trademarks, now have to risk being sued because of "design"in something as generic as glasses?
3. Is it fair that a photographer has to research into patent registrations prior to a stock shoot or a portrait series of a client? And in fact remove the model's/clients own glasses if they are of a particular brand? Even when this client has paid top dollar for them?

I think this case is ridiculous as you can probably hear, but it could become quite a big problem for us and all other photographers especially portrait photographers or other commercial photographers doing client work.

Any advice that we can use in our case preparations are very welcome. Good arguments, links to similar cases, reflections, law experience. Whatever you think is relevant is very welcome. If this case becomes a reality (which it looks like it will, because they are now already expanding their demands to more images) we want to take it to supreme court. Our lawyers are however not positive about our chances.

Best Yuri Arcurs

No advice, just sympathy.
These lawsuits are total b*llshit.
You can't wear a photo of glasses.

I can understand lawsuits against other glasses manufacturers that copy their designs, but suing over a stock photo with someone incidentally wearing your glasses is just plain copyright trolling.

The law must depend on the country involved and the actual image/s.
For example, incidental use of even a logo on an object is OK in the UK (so that old iStock chestnut of a YKK logo possibly distinguishable on a zipper on a full body person in an evironment would be fine in the UK). So if the glasses were on a model who was doing something and they were quite small in the photo, you'd be OK in the UK. But if the image was a close-up of the model looking like a specs ad, that might be problematic.
To be honest, they're probably just rattling your cage, as you have a very high profile and they think they can fleece you. They'll no doubt be hoping that you'll settle out of court, like Getty did when they sent these huge bills out to people who had illegally used their files for e.g. educational or charitable purposes. Damages awarded by a court, at least in the UK for these misuses would (probably) have been much lower than the amount demanded.

Let's face it: everything man-made has a designer. So if they are still alive, they could theoretically sue us for use of their product in a photo. I can sometimes recognise the brand of a generic-looking item of clothing in UK model shots, and I'm not remotely a fashionista. There's one US basics brand which has a different shoulder seam type than normal. (It's a standard seam type, I learned it at school; but it's not usual to do t-shirt shoulders that way.) So if I spot that on a photo, it's easy enough to look at the colour, length and other small details.

I'm sure your own lawyers have a far better handle on international law that I have, and they'll have seen the photos concerned. It's worrying if they think you have little chance.

Good luck. If you lose this, the world of stock will be reduced to nudes, nature and editorial.

IANAL

PS: wonder if you might get some unexpected support from some sort of (theoretical, I have no idea) organisation that promotes glasses. They are not going to want the idea reinforced that attractive people don't wear glasses.

If you loose this case Yuri, all future model photos will have to be in the nude. Clothes manufacturers will sue you for not having property releases, so will manufacturers of any jewelry the models might be waring.
Do not know American law, but in South Africa there is a principle that no interpretation of law will lead to a ridiculous (inapplicable) outcome and this will be utterly ridiculous!

The case will be on Danish Jurisdiction at first trying to hit us in our own country. Then it will obviously expand to other countries to make sure we are forced to remove the images from all countries at which point all major stock sites will be forced to do the same. It will be a game changer yes and unfortunately limit the types of images we can produce quite a lot because if a generic everyday item such as a pair of glasses can be the subject of an infringement, then everything can. All recognisable car brands, all furniture, household items, computers, electronics... you name it.

Might be worth contacting Getty and asking for their advice on this.  If you lost a case like this, how many images would Getty have to take down?  As they're the big stock images site, it's going to hit them the hardest.  If this would set a president, they might want to use their resources to make sure you don't lose this action.  And they must be used to dealing with cases like this.

The glasses company ''smelled'' the chance to make some money without selling any glasses... embarrassing 

Yuri will be very helpful to post a link/photo of the sunglasses type/model that you talking about.

Can't post brand name at this point. That would conflict with the case.

Only isolated nudes from now on Yuri! 

They sue you because of your "deep pockets" thats all.
I would settle out of court, the eyewear company want money thats all, they don't really care if you use them on stock photos or not.
In court not only will you probably loose you will also pay hefty lawyer fees.

Settle!

This is about every single commercial photo in the world. Apple successfully patents rectangle with rounded corners. I would never guess that it is possible. Is it time to produce triangle tablets? What's next? No more isolations because someone's going to register white background patent? Will all the models wear plain white t-shirts and lying on grass in the future? Well - maybe there will be special triple upside down reversed stitching on the shoulder visible patented by Stitchers Worldwide Inc. and particular color of lawn grass cultivar registered by United Grass Artists.
I hope that this patent madness has some limits.

The differance is Apple is a multi billion corp. They can afford to fend off almost anybody. In a situation like this,  you chose your battles.

Wow. What a S**th*l* company. Whatever happens when the name of this company comes to public I will never ever buy from them again anything. I get increasingly intolerant about this type of stupid behavior.

From the legal side: I am afraid they might get through with that since I know of other cases like this, but it might simply depend on the particular judge. As I remember you are based in Denmark (?) and this countries are much more sane than the US when it comes to legal stuff but who knows...

Sean is right as usual about incidental use.  Of course this is a crazy scenario but it�s happened with cars and shoes and now gonna happen with shades.  However, there is an element of swings and roundabouts here - producers of stock imagery are very protective, even paranoid, about their intellectual property which makes it hard to make a case against someone else defending theirs.

http://www.microstockgroup.com/general-stock-discussion/wow-have-you-guys-seen-this/