BUSINESS AND MARKETING: Business and Marketing Forum Business and Marketing Articles

Copyright/Trademark Question

COW Forums : Business & Marketing

<< PREVIOUS   •   FAQ   •   VIEW ALL   •   PRINT   •   NEXT >>
Aaron Cadieux
Copyright/Trademark Question
on Mar 12, 2012 at 3:15:05 pm

Hello Everyone,

In my new gig, I am the Multimedia Coordinator for a large automobile dealership in RI. I have just been asked to come up with some creative for a branding spot that will be aired during a certain high-profile Boston baseball team's games. We are not an official sponsor of Boston's professional baseball team. This year is special, however, because Boston's professional baseball team's stadium is 100 years old. The dealership for which I work is over 70 years old. The idea for the spots is a loose comparison between the age of the ballpark and the age of the dealership.

My question is this. Since Boston's stadium is 100 years old, there are many images of the stadium that were taken prior to 1924. Those images are in the public domain. Can those images be used in a commercial as long as we do not mention the team or the stadium by name? If we used a generic term like "Boston's Baseball Team", and showed images of the stadium, would we be treading on any trademark law?

Thanks,

Aaron Cadieux



Return to posts index

Wayne Keyser
Re: Copyright/Trademark Question
on Mar 12, 2012 at 7:18:54 pm

Only an attorney can answer the question the way you posed it.

Wouldn't it be so much simpler just to get the dealership (in a gesture to "partner" with the team) to get the team's permission?

=============

There is no "way to peace." Peace is the way.


Return to posts index

Nick Griffin
Re: Copyright/Trademark Question
on Mar 12, 2012 at 8:14:22 pm

[Wayne Keyser] "Wouldn't it be so much simpler just to get the dealership (in a gesture to "partner" with the team) to get the team's permission?"

With all due respect, Wayne, that sort of thing costs a fortune in major cities with major teams. "The official car dealer of (team name)" is not an inexpensive or simple thing to get.

I think Aaron was on the right track thinking of using out of copyright photos and referring to the team in generic terms, but how is one to know which photos have expired copyrights, which weren't renewed, without a lot of research?

I do agree with Wayne that you really need a legal opinion and you're unlikely to get that here. My guess however is that you might be able to get away with the highly generic path described at the risk of getting a nasty cease and desist letter.


Return to posts index


Mark Suszko
Re: Copyright/Trademark Question
on Mar 13, 2012 at 2:37:58 pm

You see a lot of football-related spots that can't afford to use the copyrighted phrase: "Super Bowl", so instead they say something like "Big Game".

The question centers on the actual photo, and how fast you can get it confirmed as Public Domain. Remember you have two rights holders to worry about: the team and the estate of the original photographer.

A reckless strategy would be to go ahead and run the spot with the old photo. When the team sues, proving ownership will be up to them. But that's no way to run a business.


Return to posts index

Al Bergstein
Re: Copyright/Trademark Question
on Mar 13, 2012 at 2:59:33 pm

I used a historical society locally for my old photos from 100 years ago. It turns out that they have incredibly reasonable rates, and might be an even better source of photos. That way, you've at least signed a contract with a legitimate business that deals in this. I bet the Boston Historical society is a treasure trove of old photos.

But barring that, a lawyer that specializes in rights would be a must see.

Al


Return to posts index

Aaron Cadieux
Re: Copyright/Trademark Question
on Mar 13, 2012 at 4:47:58 pm

Al,

Were the images taken before 1923?

If so, was the society charging you just for access to the images, or were they trying to charge you for permission to use the images as well?

Thanks,

Aaron



Return to posts index


Al Bergstein
Re: Copyright/Trademark Question
on Mar 13, 2012 at 4:55:18 pm

Aaron, obviously the lawyers need to be consulted. But the historical society charges a fee to use their photos and, as I understood it (and this was true in two different historical societies) once the photos are donated to them, regardless of who owns the rights, the photos are now the property of the historical society and they may charge for use. Why this is, I don't know. And I have no idea of whether the photos matter as to when they were taken. They are the property of the society.

The costs were small. I have a document that states I had the rights of use of the images from the historical societies. But likely there is a lawyer somewhere that might argue that they didn't have the rights to sell. Would love to hear clarity on this. But call up your historical society and see what they say. There were different fees for commercial use vs. non profit.

Al


Return to posts index

Jonathan Ziegler
Re: Copyright/Trademark Question
on Mar 13, 2012 at 3:38:29 pm

Yeah, you really need to talk to a lawyer on this one. You are risking potentially a million dollar lawsuit on guesses from this board (especially if a photo is seen on national TV with millions of viewers). Also, 1924 is not in the cutoff - if it got a copyright and was renewed between 1922 and 1978, it automatically got a longer duration and may be current now. It might be. Maybe not... It actually depends on whether or not the photo was published ever, had received a formal copyright and whether it has been renewed or not... Copyright law has changed many times over the years extending some copyrights into the present and leaving others behind, orphaned, or in the public domain. I've heard the cutoff for all public domain works is 1885 - anything before that date is public domain, but I really don't know for sure. Check Duration of Copyright circular: http://www.copyright.gov/circs/circ15a.pdf (US Copyright office). I'm pretty good with technical stuff, but copyright law is ridiculous.

The current law basically requires your due diligence: you need to research every single photo you want to use and be absolutely certain you can have the copyright. If there are any legal claims at all, you need to be sure you contact the present copyright holder and license or buy the rights. If you can't prove you did the work, research, and have no paperwork for it, you could get stuck with a nasty lawsuit.

Might be a whole lot cheaper to contact someone like Getty and have them do a photo search for you. You will pay for the photo licensing, but you will be assured you have the rights to use them.

I wound up researching this when trying to find the present copyright holder for some publications I have from the late 1800s (American Century). Unfortunately, some of the works are still under current copyright law, but I can't get some information because the original publisher doesn't have all of the information any longer - it's been over 100 years. Anyway, I wanted to use the gorgeous illustrations - detailed, hand-drawn, hand-etched images, ads, etc., but I can't so I went with some from a stock agency which worked just fine.

Jonathan Ziegler
http://www.electrictiger.com/
520-360-8293


Return to posts index

Aaron Cadieux
Re: Copyright/Trademark Question
on Mar 13, 2012 at 4:47:01 pm

From what I know about copyright law, in the US, any work produced before 1923 is in the public domain. As far as I know there are no exceptions to that rule. In this case, there are pictures of the ballpark dating back to 1912. If I had access to such a photo, I don't believe anyone can stop me from using it. The issue is if there are any recognizable trademarked logos in the picture from 1912.

On another note pretty much unrelated to my original post, I get frustrated with the whole "who owns the collection of photos" issue. If a historical society just happens to own a collection of original photos that were taken before 1923, they can't and don't own the copyright. I don't understand how these organizations can charge people a "per-use" rate for "permission" to use the photos. If I walked into a historical society and paid them for access to a public domain image, and then scanned the image, all bets are off as to how many times I could use that image, and what I can use that image for. So if anyone out there is reading this, and a historical society charges you for permission to use an image in addition to paying for access to that image, the historical society is full of crap. Even if you physically own a pre-1923 work, YOU DO NOT OWN THE COPYRIGHT FOR THAT IMAGE. Historical societies and libraries may be able to get away with charging people for permission to ACCESS and scan the image, but once someone has that image, they can use it as much as they want, as often as they want, and in whatever capacity they want.

Thanks,

Aaron



Return to posts index


Richard Herd
Re: Copyright/Trademark Question
on Mar 13, 2012 at 6:25:00 pm

[Aaron Cadieux] "If a historical society just happens to own a collection of original photos that were taken before 1923, they can't and don't own the copyright. I don't understand how these organizations can charge people a "per-use" rate for "permission" to use the photos. "

You're factually mistaken. That's why you don't understand. That's why you need to pay a lawyer to explain it to you. I did.


Return to posts index

Aaron Cadieux
Re: Copyright/Trademark Question
on Mar 13, 2012 at 7:09:18 pm

Richard,

I agree that in order to avoid trademark issues, a call to a lawyer is in order, but I have to respectfully disagree with you regarding your interpretation of copyright law and the possession of pre-1923 images. Saying that a historical society owns the copyright to images in its collection that were created before 1923 is like saying that the Louvre in France owns the copyright to the original Mona Lisa. It's simply not true. You cannot own the copyright to something created before 1923. It's impossible. If somebody out there can provide me with an example of a specific creative work that was finished and released prior to 1923 that is not in the public domain, I'd love to see it. Because if it exists, then my college Comm Law professor, and all of the subsequent sources that I've read are wrong.

Best,

Aaron



Return to posts index

Richard Herd
Re: Copyright/Trademark Question
on Mar 13, 2012 at 7:40:08 pm

How are you going to get the Mona Lisa out of the Louvre?


Return to posts index


Mark Landman
Re: Copyright/Trademark Question
on Mar 13, 2012 at 8:56:15 pm

http://blog.librarylaw.com/librarylaw/2009/07/the-myth-of-the-pre1923-publi...

Mark Landman
PM Productions
Champaign, IL


Return to posts index

Jonathan Ziegler
Re: Copyright/Trademark Question
on Mar 13, 2012 at 9:29:05 pm

Okay, why are you asking us if you already have the answer?

Jonathan Ziegler
http://www.electrictiger.com/
520-360-8293


Return to posts index

Aaron Cadieux
Re: Copyright/Trademark Question
on Mar 14, 2012 at 12:58:45 am

Well, I think me bringing copyright law into the thread was a mistake. I think Trademark law is more of a concern here. I will consult an attorney on this. Thanks guys!



Return to posts index

Mark Landman
Re: Copyright/Trademark Question
on Mar 19, 2012 at 1:40:23 pm

"Only one thing is impossible for God: To find any sense in any copyright law on the planet."

~Mark Twain

Mark Landman
PM Productions
Champaign, IL


Return to posts index

<< PREVIOUS   •   VIEW ALL   •   PRINT   •   NEXT >>
© 2017 CreativeCOW.net All Rights Reserved
[TOP]