Interesting Copyright Issue

[Greg P]

I post some of my photos on Zazzle.com for people to buy. I've actually made about 50 bucks doing it.

I got an email today about this photo

PhotoID: 350198 Photograph © Greg Primrose

Design contains an image or text that may infringe on intellectual property rights. We have been contacted by the intellectual property right holder and we will be removing your product from Zazzle’s Marketplace due to infringement claims.

[miningcamper1]

So there you have it. Anyone selling a train photo or video is a potential infringer!

Copyright extremists tried to ban VCRs, tried to ban the resale of used CDs and DVDs, tried to extract license fees from model train manufacturers, etc, etc. Some would love to shut down YouTube.

Why would anything these nice people do surprise anyone?

[jnohallman]

Did you happen to contact them to ask who was claiming the rights? Perhaps someone else was trying to claim rights to your photograph.

Jon

[Greg P]

Yeah, I'm waiting for a reply.

It reminds me of the time Youtube took down a video of me and my friend riding a ride because one of the theme park boots was playing a song and Youtube said it was copyright violation.

[Greg P]

According to Zazzle, it was BNSF who filed the take down. Very interesting.

If I had more money, I'd consider talking to a lawyer to see if they can be challenged.

I hope this isn't going to be a pretense for an attack on the railroad photo industry.

[miningcamper1]

We need to be thankful for the "fair use" exemption. But I suppose once we sell an item with copyrighted content, fair use no longer applies.

[miningcamper1]

Maybe the official BNSF Store ("Official accessories, apparel and collectibles") doesn't like competition!

[JRMDC]

What, you didn't have the engine sign a model release????

[bigbassloyd]

The issue isn't with you. It's what the potential buyer can do with it that required them to pull it down.

Loyd L.

[Joe the Photog]

Were you selling it on merchandise such as shirts or cell phone cases. Otherwise, the complainer should not have a leg to stand on. I sell in Pixels.com (through my joethephotog.com site) and have not had a problem.

It wouldn't be a copyright issue though, but a trademark issue.

[John West]

Another person who sells rail stuff on Zazzle posted about this issue on Altamont Press. Two VP's at BNSF responded. In short, here is what Zac Anderson posted:

"Hello everyone. I'm responsible for licensing and trademarks here at BNSF. I think there's been a bit of a misunderstanding of our intentions in this case and we by no means are trying to shut down the operation. BNSF has established extraordinary goodwill in its trademarks through long-time use and substantial promotional efforts and expense. We also have an obligation to protect our reputation. Having said that, BNSF doesn’t object to people making and selling items featuring BNSF predecessor trademarks if a licensing agreement is in place before using the trademarks.

"Anyone interested in a licensing agreement should let me know and I will have the appropriate party from BNSF contact you. Only a small, one-time fee of $1.00 is necessary to execute the agreement for the use of BNSF trademarks and royalty payments are not required. I can be reached at zak.andersen@bnsf.com

"Thanks and I apologize for any misunderstanding."

Clearly this does not answer some of the more interesting copyright and trademark questions about publishing or selling photographs, etc., but it does indicate some good will (and good sense) on BNSF's part.

John West

[RobJor]

I think generally trademarks need to be "protected" or they can be lost if they are just used by others and the owner makes no attempts to enforce them???.

http://www.inta.org/TrademarkBasics/...FactSheet.aspx

Not sure if it makes a difference but the photo shown is not a photo where the BNSF logo is one of many elements in a larger scene but it is really the primary one.

Bob

[Noct Foamer]

A dollar is there just to establish there is a value. Wasn't it BNSF, or was it UP, that once was hassling makers of model trains?


Kent in SD

[Dennis A. Livesey]

Originally Posted by Noct Foamer

A dollar is there just to establish there is a value. Wasn't it BNSF, or was it UP, that once was hassling makers of model trains?


Kent in SD

Indeed. UP figured all railroad model makers were little guys and would just roll over and die if they said "Boo!" They didn't count on Mike Wolf of MTH. (MTH makes outstanding, and high volume sale O and HO gauge models.)

Mike has shown repeatedly he knows what he wants and is not afraid of anyone.

He won.

Love that. Plaintiff 1, UP Lawyers 0.

[Greg P]

Now it's interesting it says predecessor trade marks.

The way I read that, the dollar fee wont' cover the current logo.

[John West]

Originally Posted by Greg P

Now it's interesting it says predecessor trade marks.

The way I read that, the dollar fee wont' cover the current logo.

Why don't you email him and ask.

[John West]

Originally Posted by Dennis A. Livesey

Indeed. UP figured all railroad model makers were little guys and would just roll over and die if they said "Boo!" They didn't count on Mike Wolf of MTH. (MTH makes outstanding, and high volume sale O and HO gauge models.)

Mike has shown repeatedly he knows what he wants and is not afraid of anyone.

He won.

Love that. Plaintiff 1, UP Lawyers 0.

I have heard bits and pieces about these settlements, but no details. Both Mike and Nils say "they won". But I can only guess that whatever settlement was reached was subject to a confidentiality agreement. Details about the settlements might be helpful in understanding the rules of the game, but of course the lawyers don't want clarity.

[Joe the Photog]

About the current OP, if you re selling photographs and not merchandise, you should be fine. Don't rush into pulling stuff off of Zazzle until you get some good legal advice, eve if it;s just you doing your own research. i believe Zazzle thinks it's just easier to put it on you than in their mind risk a lawsuit. Again, my understanding is no merchandise, but people, including me, sell train photography all the time with visible logos.

And my understanding is that selling the image for commercial purposes, the onus is on the ones buying the image to make sure they are in accordance with the law. Ever notice ads in Trains with blurred logos? Someone has bought that image and blurre it themselves. However, I typically don't offer this option at all on images with logos through my web site.

[KevinM]

Class 1 Railroads aren't the only ones doing it. I'm sure that you've all heard about the recent effort by the Virginia Museum of Transportation to trademark everything related to Norfolk & Western 611. I would love to hear some lawyers weigh in on just how far they can take that. I can certainly see them prevailing on issues related to merchandise such as collectibles, souvenirs, etc. I am not so sure about photography, particularly images captured in public settings.

I recently participated in the heavily advertised "Fired-up Photo Charter" run by Trains Magazine down at the North Carolina Museum of Transportation. There were perhaps 125 people who each paid close to $280 (including taxes and fees) for the privilege of photographing the engine in a closed, captive setting. At no time was I asked to sign any kind of licensing agreement with regard to my use of the photos, nor were we ever cautioned about any potential commercial use. Typically, if the holder of the trademark has any issues with usage, they're not shy about telling you that right up front. The Durango & Silverton Narrow Gauge Railroad, for instance, requires all participants on their Fall/Winter Photo Trains to sign a usage agreement.....which is one reason why I haven't done their trips in several years.

Like most of you, I don't shoot for money, and I don't actively hawk my pictures as a commodity, but I'm not about to turn away requests to license my pictures, particularly when the requester is offering me a few bucks to help finance what can be a rather expensive hobby.

[miningcamper1]

Originally Posted by KevinM

The Durango & Silverton Narrow Gauge Railroad, for instance, requires all participants on their Fall/Winter Photo Trains to sign a usage agreement.....which is one reason why I haven't done their trips in several years.

What are the participants forced to agree to?

[KevinM]

Originally Posted by miningcamper1

What are the participants forced to agree to?

Someplace, I have a copy of the agreement. It basically says the images you shoot are for your personal use and may not be used for commercial purposes without the express written consent of the railroad. Their PA person told me you would probably be allowed to sell your image, but both the image and the usage were subject to review before consent would be considered. She didn't say whether or not the RR would want a cut of the usage fee. With decent magazines and calendars paying perhaps $200-300 at most for a train photo, whatever cut they might get wouldn't buy them much, other than a feeling of control.

[Noct Foamer]

I would not sign such an agreement if I was giving them money.


Kent in SD

[Rich K]

I sell all sorts of photographs through stock agencies online. They will not accept any photograph that includes a logo or trademark unless I can send them a signed release from the company who's logo or trademark is visible. This even extends to images of John Deere equipment because of the shade of green used by them.

Another example is an image of a city skyline. I must clone out every logo on every building, ship, commercial truck, etc. visible in the image or it will be rejected.

The exception is if that photograph is submitted for editorial use only, and even then there are additional guidelines.

It's all rather confusing at times.

Rich

[RobJor]

Stock photos are a different animal???? If company X wants to buy a photo for an ad they can't have the logo of another company in their ad. So a company selling software couldn't use a photo with a Microsoft logo. In the original post some one is selling a photo to an individual for personal use, as was mentioned the responsibility lies with the buyer.

Bob