A Heads up on Infringment

JBurt · November 19, 2007

I occasionally do limited edition calendars for vintage car clubs and small groups. Small print runs.

I've been using Cafepress to print them and today I was informed Ford had sent them a Cease and Desist letter to not print any unlicensed product with their name or products on them, including vintage autos.

Where can I go to get info on product licensing. I've emailed specific mfgs with no response. So.....

Icebear · November 19, 2007

I may be (usually am) wrong but . . .
Unless those vintage autos are actually owned by Ford, they're waaaayyyy off base. Once those products are sold to someone, the person who owns them MAY have the ability to control the commercial use of the image, but certainly not Ford, who no longer owns the particular automobile. Surely there's a lawyerly type out there who can confirm or refute my opinion.

SloYerRoll · November 19, 2007

this isn't like software where you buy the license and the actual program still belongs to the manufacturer.
Once you buy a vehicle. The manufaturer no longer owns it any any respect.

There must be some other form of copyright infringement. Can you get your hands on the email or letter?

Icebear · November 19, 2007

Bfd
The trouble here is that Cafepress prolly doesn't want to spend the $$ (read: doesn't have the stones) to tell FMC to shove it. :boid These big corporations with their huge salaried legal staffs can, and do, tyrannize small entrepeneurs all the time. They know damn well they're wrong, but do it anyway 'cause they know the little guy doesn't have the wallet to win.

StevenV · November 19, 2007

Ianal
actually this is one where I think they're right - it's not that you can't photograph the Ford logo, it's that you can't use it to make money (or advertise your product/service) without a license. think of it like you would a model release - you can take my picture all you'd lke, but if you want to sell posters with my face on them (why!?) you have to get my permission to do so.

bham · November 20, 2007

StevenV wrote:

actually this is one where I think they're right - it's not that you can't photograph the Ford logo, it's that you can't use it to make money (or advertise your product/service) without a license. think of it like you would a model release - you can take my picture all you'd lke, but if you want to sell posters with my face on them (why!?) you have to get my permission to do so.

So you are saying that every car calendar sold in the past, that didn't pay a license fee to the car manufacturer was a violation of the trademark. So I can't take a photo of a porsche and sell it without paying porsche a license fee.

I disagree, ford sold the cars, and you should pay the license fee to the cars owner, just as you would pay a license fee to the owner of Rockfeller Center is you intended to sell images of the building, not to the builder of the building. But what Cafepress may be doing is overreacting to Ford claiming in can't use its name in the advertising or promotion of the calendar. If they are selling it as a Calender of Ford vehicles I can see why they would want a license fee, if they are selling it as Antique cars and some just happen to be Ford, I don't feel Ford has a right to a license fee. Now this is based on my general idea of the images of the vehicle being from a normal viewing distant that would allow you to see the entire vehicle. If closeups of Ford's name decal are used, then again Ford may have a claim. This is just my opinion using my limited knowledge and some common sense. If you are using the Ford name to sell the calendar then I think they are within their right. If you aren't then I don't believe they are entitled to any compensation.

I see this issue as a similarity to a case that is happening here in my State, where a painter is being sued by the University of Alabama over some painting. He has in the past put caption text below the painting describing the painting and used the university's name and thus licensed it. He then sold some other paintings without any text, and didn't license them, and thus got sued. He actually did this on purpose to assert his right to not have to pay a license fee if he didn't use the text/description. He did this after consulting with attorneys who had handled a similar lawsuit by another artist that eventually won a case vs another university.

So maybe the case with Ford is based on the fact that they put some text to describe the photo and used Fords name. Since it is likely that to properly describe the calendar and for Ford enthusiasts to be more likely to find it, the word Ford would more than likely be used as a keyword or in a description, which I could see being a license issue. But then again every week newspapers publish pictures and descriptions of cars in their classified section and I doubt that the newspapsers pay a license fee to Ford, Chevy, Nissan, etc.

StevenV · November 20, 2007

That's just the way I understand it. Similar to the way that TV/Movies have to be careful when they shoot in a public place where signs etc may be in the background, that that note every sign and trademark that's in the background. It's not the car that's the issue, it's the trademarked logo. But as I said, that's what I believe based on my reading, not necessarily the fact. Better to check with a trademark lawyer rather than a public forum.

zacker · November 20, 2007

funny...as im reading this thread, im looking through the vintage car calendar on my desk, although you can see the fancy hood ornament on each car, there is noting in the pics that says the cars name.. no ford, or chevy or anything. just what is on the hood ornament, it seems they shoot the car at an angle so you cant read the grill insignia... im also talking OLD cars... 30's and 40's type stuff so maybe the hood ornament were all they had.

Now on the other hand, if these car companies would start being a little modest, they wouldnt need to plaster their logo / name on their cars where ever it fits!!
Honestly, its kinda on the verge of cheesy, tacky and obnoxious!! lol

Sam · November 20, 2007

SloYerRoll, and Icebear,

You are incorrect in your assumptions. A company or individual has a right to protect their trademark, branding, or copyright.

You cannot do anything you like with the name or logo of products you buy.

Think of it this way, after you have sold a photo what rights do the purchasers have? They certainly don’t have all rights to do whatever they want. As an example they cannot legally reproduce your photo for any reason without your permission.

The problem in this instance is the blanket approach and tuning loose the legal mercenary’s. The lawyers don’t have the ability to look at the big picture, and evaluate what is fair or reasonable, their job as legal mercenary’s is to destroy everything in there perceived path, and if the innocent get in the way, too bad.

You need to hire and listen to lawyers, and accountants, but never, never let lawyers, or accountants run your business!

Oh, by the way I just did a quick search for Ford calendars, and found a ton of them for sale. The lawyers need to get cracking! The entire Ford name and reputation could be in jeopardy. Ether that or Ford lovers have some really nifty calendars.

Sam

StevenV · November 20, 2007

Sam wrote:

Oh, by the way I just did a quick search for Ford calendars, and found a ton of them for sale. The lawyers need to get cracking!

just 'cause they're out there doens't mean they're not licensed. Most companies don't say "thou shalt not," they say "thou shalt not without our consent and receipt of our licensing fee." Check the fine print on this back cover, for example: "Ford Oval and Ford Trucks are registered trademarks owned and licensed by Ford Motor Company." (btw, when they say "Ford Trucks," they don't mean the physical vehicles, they mean the trademarked name.)

Icebear · November 20, 2007

So . . .
Clone out their precious logo. This is just so stupid. Certainly Madonna's image is something she should protect from commercial exploitation. Ford's logo however . . . seems like the more it's plastered over the landscape, the more they ought to like it. "I don't care what you say, just spell my name right." Underemployed staff lawyers justifying their salaries. Sorry, just a fee association rant. I'll stop now . . . and I did say I was prolly wrong in my first post.

greenpea · November 20, 2007

Check out this (rather lengthy but readable) write up on model releases. I think it comes close to covering your situation.

As I read it, the only time a problem would occur is if you were either your calendar mis-representing Ford Motor Company or yoru calendar makes people think that you were affiliated with Ford (Note: I'm not a lawyer and I don't think the guy who wrote this up is one either, but its still an interesting read

).

claudermilk · November 20, 2007

Icebear wrote:

Clone out their precious logo. This is just so stupid. Certainly Madonna's image is something she should protect from commercial exploitation. Ford's logo however . . . seems like the more it's plastered over the landscape, the more they ought to like it. "I don't care what you say, just spell my name right." Underemployed staff lawyers justifying their salaries. Sorry, just a fee association rant. I'll stop now . . . and I did say I was prolly wrong in my first post.

Hah, beat me to it. It's mainly their logo that's the problem. Look at some of the car cleaning product ads running right now (IIRC, Armor-All). You will see that there is a Mustang and Corvette included, both with the badges carefully removed. No question what car it is, but no manufacturer logo appears.

jdryan3 · November 21, 2007

I know they need to protect their identity, but...
Insert Snarky Response Here --->

(such as "Gee, I'm glad Ford has so much market share and extra time to pursue this rather than, oh say, developing products people want to drive around with that pretty blue oval logo on it".)

JBurt · November 21, 2007

Thanks for the responses people.

I'm still looking for how/who to contact to license products with their TMs. I've gotten no response from FoMoCo yet.

A phone call to CafePress was where I got the information about the letter. The CS rep I talked to said they were going to block all automotive related items. A knee jerk reaction IMHO. But... I still see items, including calendars, listed.

My stance is:
I was commissioned by, and have taken pictures of my clients' customized vehicles. The make is secondary to their personalization of them. (Court cases have ruled that is legal) The calendars are for their personal use. (Not for resale)

An update on my problem.
CafePress had blocked all my stored images including those that were not available to the public. I only had one item in my "store". A clock with the image of a 59 Cad tail fin and lights.

I deleted all my images and the clock, then ordered the calendars re-loading the images fresh. So far, the order is being processed. I won't know until I get the shipped notice if the order is actually going to happen. (And I'm certainly not going to ask them.)

I know the appearance of logos in photos could always be construed as an infringment. I have always "felt" (no legal leg to stand on) it was good PR on the part of mfgrs to have pics and art of their vintage vehicles out there. (Self serving... yes) I also know they must aggressively pursue infringments to protect their TM.

There was a thread a while back where someone said something to the effect; "Sometimes it's better to ask forgiveness than permission."
I think I will plead ignorance when the **** finally trickles down to my level.

JBurt · November 21, 2007

greenpea wrote:

Check out this (rather lengthy but readable) write up on model releases. I think it comes close to covering your situation.

As I read it, the only time a problem would occur is if you were either your calendar mis-representing Ford Motor Company or yoru calendar makes people think that you were affiliated with Ford (Note: I'm not a lawyer and I don't think the guy who wrote this up is one either, but its still an interesting read ).

I took a copyright law course offered by the University of Indiana hoping to get a working knowledge of copyright law. Believe me, it is so convoluted, even the lawyers don't understand it.

I believe CafePress' response was/is overkill and may be what they are doing until they have a chance to review their options. I don't know.

However, I believe I see an alarming trend happening. The responses to Peter Wolf's patents by smugmug and others, CafePress' reaction to FoMoCo, and others. The "offending" parties will bow to demands because it is cheaper than fighting it.

Edit to add: There are really two parts to these situations. The original cease and desist letters and the responses to the requests. You can request anything. It's the response to that request that affects the outcome.

bham · November 21, 2007

What's next smugmug blocking sale of Ford Motor Co images.

I'm exaggerating of course. I don't think that will happen but I think it is about an equivalent to what CafePress has done. Maybe you should try Zazzle for the calendars if it doesn't make it through CafePress.

JBurt · November 21, 2007

bham wrote:

What's next smugmug blocking sale of Ford Motor Co images.

I'm exaggerating of course. I don't think that will happen but I think it is about an equivalent to what CafePress has done. Maybe you should try Zazzle for the calendars if it doesn't make it through CafePress.

Zazzle looks interesting and I'll probably set up an account for hard product. But... considerably more expensive than CafePress when buying my own images on product. Especially for volume sales.

Stormdancing · November 21, 2007

A long time ago Andy posted a website of one of the professional associations that had a list of prohibited trademark/logo/historic sites where photography was prohibited or images were restricted. I can't find the bookmark, but here's a site that has a pretty extensive list and explanations.

http://www.imagecatalog.com/copyright_and_trademark.php

I'll keep searching for Andy's link.

xris · November 21, 2007

I'm no expert either, but ...
... I think you'll find that, as with model releases, if a brand-identifiable product is the focal point of a commercial image, releases are required.

Perhaps that is why we so often see car calendars with pretty girls as the focal point? There are collateral reasons, sure. But it sure makes it easy to say the girl is the reason for the photo and the car 'just happened to be there.'

JBurt · November 22, 2007

Stormdancing wrote:

A long time ago Andy posted a website of one of the professional associations that had a list of prohibited trademark/logo/historic sites where photography was prohibited or images were restricted. I can't find the bookmark, but here's a site that has a pretty extensive list and explanations.

http://www.imagecatalog.com/copyright_and_trademark.php

I'll keep searching for Andy's link.

Thanks for the link. Some interesting info on there.

xris wrote:

... I think you'll find that, as with model releases, if a brand-identifiable product is the focal point of a commercial image, releases are required.

Perhaps that is why we so often see car calendars with pretty girls as the focal point? There are collateral reasons, sure. But it sure makes it easy to say the girl is the reason for the photo and the car 'just happened to be there.'

Good point. However, these are/were for the individual club members' personal, non-commercial use.

Edit for obvious reasons.

Happy Thanksgiving Everyone!

xris · November 22, 2007

JBurt wrote:

... these are/were for the individual club members' personal, non-commercial use.

I not so sure it matters (to the lawyers) just what the customer does with the shots. YOU are SELLING the images (that's commecial use) and it seems Ford thinks that its brand-recognizable product is the main subject of those commercial images.

My guess is that permission to use would not be withheld as long as you asked, the images aren't demeaning to the product, and you agree to include the requisit disclaimers and rights notices.

That's usually all these things are about. "don't step on my toes or I'll bite" sort of stuff. You show them you are sensitive to their rights and they respond more positively.

JBurt · November 22, 2007

xris wrote:

I not so sure it matters (to the lawyers) just what the customer does with the shots. YOU are SELLING the images (that's commecial use) and it seems Ford thinks that its brand-recognizable product is the main subject of those commercial images.

My guess is that permission to use would not be withheld as long as you asked, the images aren't demeaning to the product, and you agree to include the requisit disclaimers and rights notices.

That's usually all these things are about. "don't step on my toes or I'll bite" sort of stuff. You show them you are sensitive to their rights and they respond more positively.

Edit to Add: FoMoCo didn't send me personally the Cease and Desist letter. It was sent to CafePress and, as far as was told to me, was a blanket no images of any FoMoCo products or TMs. A typical shotgun approach to TM protection.

I understand your points.
I wish I could talk to someone at the companies with the authority to give clarification. Underlings don't cut it.

My stance is I was commissioned by the club members to compile the calendar of their customized, vintage vehicles. (The vehicle make is secondary to their personalization.) I didn't make the calendar and then say "Here buy this." It is for their personal use and not for sale to the general public.

I personally think custom calendars are a waste of time and money and tried to talk them out of it. Definitely not worth it to me. I doubt I'll do another.

xris · November 22, 2007

Call In The Feds?
In that light the entire thing sounds rather squirrelly to me. In fact, I'm right with ya!

Seems CanPress and you have been both been put in a very delicate position. Either Ford or one of their law firms seems to want CanPress to do their police work for them. And if that hurts their clients? So be it.

Doesn't that fall under something like restrictive trade practices or something? Sounds literally like a case for the feds. (Elliot Ness even.)

If CanPress is a real business they should not be bending over to that kind of high-handed, shotgun, goon squad, business practices. (And, by the sounds of it they have reconsidered.) And for that matter, neither should Ford.

In fact I wonder if Ford even knows about it -- officially? Perhaps it's just another high-handed law firm out to squeeze the horse, and someone at Ford needs to hear about it through a business practices channel.

JBurt · November 23, 2007

Well... it looks like my reasoning is wrong.

Until yesterday afternoon, I thought I had a pretty good handle on what I could and couldn't do. I have spent the last week doing nothing but research and yesterday was quite the eye opener for me.

This CafePress forum thread pretty much explains what is going on.
http://forums.cafepress.com/eve/forums/a/tpc/f/504104/m/292108581

Rantings of "it's not fair" or any such will not help. It is perfectly legal.

Can it be fought? ...Absolutely.
Can it be won? ...Maybe.
I don't have the resources to do it.

I believe Ford is shooting themselves in the foot PR wise, but it is their foot to shoot.

cdonovan · November 23, 2007

While it seems unfair, think of it this way.

How would you feel if you created an image that was unbelievable....something so unique that everyone loved it, people bought it to hang on their walls, you sold t shirt, hats, stickers, billboards etc etc etc...it became famous.....the one day, you find that a bunch of people are out there using your image or a reasonalbe facisimilie would you think...well I should be flattered because people are trying to copy me, or would you be pi$$ed because that's your image they are using.

Regardless of how it's being used, They own the tm....they own the copyright....they can do as they wish...and have the money to fight anyone who wants to stand up to them.

I personally think it's a pain in the butt, but am happy to see that copyright actually does mean something!

bham · November 23, 2007

cdonovan wrote:

While it seems unfair, think of it this way.

How would you feel if you created an image that was unbelievable....something so unique that everyone loved it, people bought it to hang on their walls, you sold t shirt, hats, stickers, billboards etc etc etc...it became famous.....the one day, you find that a bunch of people are out there using your image or a reasonalbe facisimilie would you think...well I should be flattered because people are trying to copy me, or would you be pi$$ed because that's your image they are using.

Regardless of how it's being used, They own the tm....they own the copyright....they can do as they wish...and have the money to fight anyone who wants to stand up to them.

I personally think it's a pain in the butt, but am happy to see that copyright actually does mean something!

That isn't a good analogy. People aren't creating other cars from the Fords. I think a better anaology is ABC construction built a house, your house, and then you hired a photographer to take a picture of it and put it in a calendar and he chose to use CafePress. Well now ABC construction is saying that CafePress can't make the calendars because they had a trademark design somewhere on the house.

JBurt · November 23, 2007

bham wrote:

That isn't a good analogy. People aren't creating other cars from the Fords. I think a better anaology is ABC construction built a house, your house, and then you hired a photographer to take a picture of it and put it in a calendar and he chose to use CafePress. Well now ABC construction is saying that CafePress can't make the calendars because they had a trademark design somewhere on the house.

Exactly. I can't take a formal photo of your remodeled/restored 57 Ford, and sell you a print of it because Ford holds the copyright of the body design, whether it is on a calendar or not.

Like it or not that is what they claim. I can't fight it so you lose.
I'll go do something else.

Today I feel like shark bait.

xris · November 23, 2007

Wow. Good thread!

JBurt wrote:

...This CafePress forum thread pretty much explains what is going on.
http://forums.cafepress.com/eve/forums/a/tpc/f/504104/m/292108581

Wow. What an eye-opener! Sounds like the days of good ol' Al Capone: Except the guns have become lawyers.

Brings to mind that old adage:

All are created equal. It's just that some were created more equal than others!

Good luck on this one. But I still say the Feds should look into it. Restrictive Trade Practices.

JBurt · November 23, 2007

xris wrote:

Wow. What an eye-opener! Sounds like the days of good ol' Al Capone: Except the guns have become lawyers.

Brings to mind that old adage:

All are created equal. It's just that some were created more equal than others!

Good luck on this one. But I still say the Feds should look into it. Restrictive Trade Practices.

... Apparently the Feds are the ones that gave them the power.

Care to take in another weary expat up there? I believe the inmates have overrun the asylum down here.

xris · November 23, 2007

JBurt wrote:

Care to take in another weary expat up there? I believe the inmates have overrun the asylum down here.

Come on up! The beer's cold, the folks are friendly and you won't be the first one...

A Heads up on Infringment

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