Ford Claims Ownership Of Your Pictures

Mike Rogers writes "In a move that can only be described as 'Copyright Insanity', Ford Motor Company now claims that they hold the rights to any image of a Ford vehicle, even if it's a picture you took of your own car. The Black Mustang Club wanted to put together a calendar featuring member's cars and print it through CafePress, but an attorney from Ford nixed the project, stating that the calendar pics and 'anything with one of (member's) cars in it infringes on Ford's trademarks which include the use of images of their vehicles.' Does Ford have the right to prevent you from printing images of a car you own?"

Comments

EULA

[gEvil (beta)]

Does Ford have the right to prevent you from printing images of a car you own?

Hold on a moment. Let me get the EULA out of the glove box.

Re:EULA

[plague3106]

No, I think Ford is going into extinction by making shitty cars.

Re:EULA

[mmurphy000]

The original purpose of trademarks was for consumer protection. Specifically, it was to prevent consumers from being confused when buying products and services, so when they see a "Ford" branded car that they know it came from the Ford Motor Company.

That's why, for example, there is still a Domino's Pizza and a Domino's Sugar. Two firms independently have trademarks on "Domino's", but they're on two separate products (pizza and sugar). Consumers are unlikely to mistake a large pepperoni pizza for a pound of sugar, and vice versa.

If this club were making its own cars and trying to brand those as Ford using the Ford logo, or if the club were making its own cars and constructing them in the likeness of a Ford model, then trademark protection has merit — we don't want consumers mistaking Fords and pseudo-Fords. However, in this case, the club is selling a calendar. Ford is not in the calendar-making business, and it is difficult to imagine that a consumer will somehow mistake a calendar and a car.

Re:EULA

[Sancho]

Consider this whole calendar thing. Of course you can't publish a Ford calendar withour Ford's consent. Right. Luckily, this wasn't a Ford calendar. It was a BMC (Black Mustang Club) calendar.

Confusion in the marketplace is one of the largest driving factors of this sort of copyright infringement. You, like so many, have confused "trademark infringement" with "copyright infringement." Confusion is not an issue with copyright--it's an issue with trademark.

Luckily, trademark is what Ford is talking about, here.

You can't go out, and take photographs of your car, and then publish an ad, a billboard, a newspaper full-page spread, and a television commercial advertising your car as the best/worst. I wouldn't say that without advice from a lawyer. Certainly I can take a picture of something I own and publish it. I can publish that it broke down 3 times in the first month. I can publish lots of things, generally. The question here is largely whether or not the picture of a trademarked object (it strikes me as weird that an object can be trademarked) can be published. It seems reasonable to me that it could be.

You can't pretend, and make people believe, that you are Ford. From what I've seen of the calendar, they weren't trying to.

Similarly, and for the exact same reason, you can't say that all Ford cars break, just because yours did. That's not entirely true. Slander and libel laws are a little bit different for public figures (in the US.) There's a much, much higher burden of proof that there was a reckless disregard for the truth. You also have to convince the judge/jury that the average person would believe that the claims are true. It's not likely that the average person would believe that "All Ford cars break," though this is a bad example anyway because all cars break, eventually. Parts simply wear out.

Huh

[pwnies]

I was going to use a car analogy to show how ridiculous this was...

Ford's response

[microcars]

here is a copy of the letter that was alledgedly sent to another automotive club when they tried to publish calenders themselves. (I ripped this posting from BoingBoing...)

"Although you and your members may own the Ford automobile, you do not own the rights to the trade dress. Taking pictures of any Ford automobiles, placing them on products (i.e. calendar, mugs, t-shirts, etc.) and making them available to the public for sale is an infringement of Ford's intellectual property rights."

"Because of the cachet of the world-famous Ford name, thousands of independent businesses and people make a living from or pursue a hobby related to Ford products and services. Unfortunately, many of these businesses improperly attempt to affiliate themselves with Ford by using Ford trademarks and trade dress (for instance, the depictions or photographs of Ford's distinctively shaped vehicles) in advertising their products and services."

"If a business not affiliated with Ford uses any Ford trademark, whether through the use of photographs, depictions or silhouettes, or any confusingly similar variation thereof, without Ford's express, written consent, then that business is violating Federal and state trademarks laws."

"It is also not sufficient for a business to state that it is not affiliated with Ford but continue to use Ford trademarks without permission. The business is still misappropriating the goodwill and reputation developed by Ford, and attempting to capitalize on or profit from Ford's goodwill and reputation. Even with the best of intentions, unauthorized use of another company's trademark is against the law."

"At times Ford enthusiasts question why Ford is so adamant about policing it's trademarks and preventing unauthorized uses or infringements of them. It is quite common for someone who is using a trademark without permission to say, "I'm giving Ford free advertising, so why does Ford care?" Ford cares because it is important that Ford be able to exercise control over the quality of the product or service bearing Ford's trademarks."

"To protect the value of its trademarks, Ford is obligated to object to and pursue unauthorized uses of its trademarks and trade dress, even if the use of the trademark or trade dress does not appear offensive or objectionable."

Re:Dangerous precedent

[nolife]

Yes but let's use yet another car analogy here, what if Ford.... oh wait.

This is about Trademarks, not Patents or Copyright

[Grond]

Ford is making a valid trademark claim, not a patent or copyright claim as the summary, tags, and category would suggest. Ford does not claim to own the pictures, and it is certainly not making a patent claim. What Ford is doing is claiming trademark and trade dress rights in its name, logo, and the stylistic features of its vehicles. Ford is alleging that the Club's calendar trades on the good will that people associate with the Ford name, logo, etc, which is not allowed under state and federal trademark laws.

Furthermore, trademark law requires trademark owners to respond to such acts of potential trademark infringement. If they do not so act, then later infringers may point to the inaction and claim that Ford has abandoned their trademark. Note that this is unlike copyright and patents, which give the rightsholder more discretion in pursuing individual cases.

None of this is to say that this is a good business decision. In its current financial state, Ford should be working with its few remaining fans to produce properly licensed calendars, shirts, etc that maintain Ford's intellectual property rights. That way, everybody wins. This sort of knee-jerk "shut 'em down" response does both the company and its fans a disservice in the long run.

Re:Free Marketing

[jedidiah]

Yes. This is Ford's fault.

They could choose another option: License their trademark for a pittance.

They don't have to "object". They can also "authorize".

Re:Form?

[palegray.net]

Also widely known as the Ford "Crustang", "Rustang", "Mustake", and "My Little Pony" where I come from.

Who cares about a typo when the HEADLINE is wrong?

[raehl]

Ford is *NOT* claiming they own anyone's pictures. What Ford is objecting to is taking pictures of their cars, putting them in a calendar, and then marketing and selling a calendar of FORD cars.

It's a bit of a grey area, but I can't say I see Ford being outside the realm of reasonableness here.

Photographer here...

[photomonkey]

Actually, this has always been the case.

I'll preface this by saying that more freedom is always better, and I don't like Ford.

However, this is not really an oddball case at all. Ford, I'm fairly certain, registers all their designs as trademark(s), thereby enabling them to legally preclude an entity from reproducing said designs for their own commercial purposes. In fact, in order to maintain their trademark, Ford has to actively defend their trademark which is likely the reason for this action. IE, if they let this relatively harmless group operate outside of fair use, they have to let everyone do so (in other words, their trademark is no longer a trademark).

Although I wouldn't put it past them to try, they cannot stop you from taking pictures of your car to send to mom, put on your MySpace page or keep on your desk at work. They can't stop you from taking a picture of the car to put with your Auto Trader ad when you go to sell it.

They probably can't stop you from using photos of a car in a fine art piece for sale or display (artistic appropriation is a bit touchy, but is generally allowed by the courts).

They can't stop you from taking pictures of the car to accompany a news piece (for example, a photo of a Police Interceptor in flames or a photo of a Focus on the road for a review).

As for printing playing cards, calendars, posters, coffee mugs, etc. and selling them, for profit or not, they will do what they can to keep you from doing so. That is pretty much in-the-clear commercial appropriation, and is not allowed.

In other cases, usually the sports organization or the player him/herself owns the TM to their likeness to prevent me from going to an event, shooting pictures of the player and then selling prints/posters off my website. That doesn't mean that I don't still own the copyright to the photo, it just restricts what I can do to exercise my use of that photo. It doesn't stop me from publishing the photo as a news piece.

One could argue that if these are heavily modified cars, they are no longer identifiable as Ford's TM, and then the logo could be airbrushed out and the photo/calendar is probably a-ok.

The problem is that Ford is likely acting completely within their rights here, and unless this group has the cash to fight it in court, it's a case-closed event.

I'll reiterate that one of the pitfalls of trademark is that they have to be protected to be enforced, unlike (or at least less than) copyright. Some suit somewhere got wind of this and has no choice but to enforce their trademark to keep the trademark.

Nothing to see here...

Re:EULA; you are incorrect

[OSPolicy]

>Even magazines doing reviews of vehicles need the permission of the maker

That is incorrect. Chapter 17, section 107 of the United States code clearly states that "the fair use of a copyrighted work... for purposes such as criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research, is not an infringement of copyright."

Here, your example is perfectly on point with 17 USC 107. The review would be criticism, comment, and news reporting at a minimum, and arguably teaching.

>they CAN prevent an organization (in this case a car club) from printing, selling, (and thus profiting) from those images without their permission.

This is also incorrect, but not as egregiously. 17 USC 107 distinguishes commercial and noncommercial ventures as one of the factors in determining whether a particular use is fair use. However, in this case even the Red Cross (a nonprofit) could run afoul of the law by printing the calendar because of "the amount and substantiality of the portion used in relation to the copyrighted work as a whole". That means that if they print a pic of the entire car, that fact counts against them. Speaking of factors that count against them, 17 USC 107(4) raises the consideration of "the effect of the use upon the potential market for or value of the copyrighted work." Here, that means that Black Mustang Club is reducing the value of the design because nobody is going to buy a Black Mustang Club calendar and also buy a calendar from Ford. (Black Mustang Club would counter that they are raising the value of the Mustang by printing the calendar, but their claim is speculative whereas Ford's claim of reduction in the sale of Ford calendars is pretty solid. Judges don't like speculation.)

YANAL

[jgoemat]

This is a trademark vs copyright issue. The question asked is a red herring. The actual question is "Does Ford have the right to block one from selling, for a profit, an image that includes their trademark?"

The answer is "Yes, they do have that right. They have to protect their trademark or they lose it."

This is a misconception. They do have the right to protect their trademark and they say the logo of the group is too similar to their trademark. Trademark is not however a right equivalent to copyright. The purpose of a trademark is to distinguish the products of an individual or business from others. It does not grant a copyright interest in pictures taken of the products, even if they include the trademark on them. These are the products of the company that bear the trademark, it is not confusing in the least. Read this odd case about the Rock 'n Roll Hall of Fame which trademarked their building design and the photographer that sold a poster of the building. The appeals court specifically noted this:

It is well established that "[t]here is no such thing as property in a trademark except as a right appurtenant to an established business or trade in connection with which the mark is employed." United Drug Co. v. Theodore Rectanus Co., 248 U.S. 90, 97 (1918).

When we view the photograph in Gentile's poster, we do not readily recognize the design of the Museum's building as an indicator of source or sponsorship. What we see, rather, is a photograph of an accessible, well-known, public landmark. Stated somewhat differently, in Gentile's poster, the Museum's building strikes us not as a separate and distinct mark on the good, but, rather, as the good itself.

So the trademark is protected only so far as it is used as an indicator of the source or sponsorship of the product. It is completely legal to take photographs of trademarked goods and to sell them. Andy Warhol's paintings anyone?

Thus without reading the complaint itself and the reasons Ford has we are left with only two conclusions. 1) they are completely brainlessly trying to infringe on the rights of the motor club 2) there is something more to the case of the mark of the club that is used to identify the source of the calendar is too similar to Ford's own mark. In the first case the summary is correct and Ford is wrong. In the second case the summary is misleading and Ford might be right.

Re:people own the *cars*, too, and their pics

[reebmmm]

Let's be careful about what we're talking about. People like the parent and the OP are mighty confused about their intellectual property law. A quick refresher:

Copyright = an original work of authorship fixed in a tangible medium of expression.
Trademark = any device that associates a good with the source of that good.

Ford has LOTS of trademarks when I search for "Mustang" at the PTO. Since a trademark could arguably cover the look of the Mustang (I did not go through the huge list), they could either have federal trademark protection in the look. Even if there weren't a federal mark, Ford probably has common law rights in a trademark for the look.

This, though, has NOTHING to do with the ownership of the photographs. The copyrights to the photographs will belong to the photographers. This does not mean that the copyright owner can use the photographs for whatever purpose they want. There may be other intervening laws (privacy, publicity, decency, trademark, etc.). By way of example, if I took a picture of a Gucci logo I would own the photograph (if it met the criteria for copyright), but I can't freely paste that picture on to a purse and claim a defense of "well I own copyright."

So the real question here is, is whether the use of Ford's trademark (perhaps even more than one) covering the Mustang infringed by the sale of the calendar. The test is whether such a use is likely to cause confusion as to the source of the calendar. And, frankly, it seems pretty clear that it could: if you saw a calendar, you'd probably think that either Ford or Ford's authorized licensee put out the calendar. So you have a trademark infringement. The only question then is whether there is fair use here, and I don't see it.

Re:Nope.

[reebmmm]

First, what you're describing isn't an estoppel, it'd be a laches defense.

Second, nothing stops someone from using the name Ford or Ford Mustang nomatively. You don't have to refer to the company as "That car company with the blue oval logo that sells the pony car named after a wild horse."

Third, not every use is going to be unlicensed. Many of those hits are probably dealerships.

Fourth, to the used cars, remember the question is whether a consumer is likely to be confused as to the source of the product. If you're calling a ford mustang a ford mustang, you're probably safe. If you're trying to sell a Datsun as a mustang, you've got a different problem.

Finally, NONE of this has to do with the case here. Using Ford's marks to sell a calendar is VERY different than using Ford's marks to sell a Ford car that you was lawfully acquired.

Re:Nope.

[merc]

Sigh... so much for the days when the average slashdot user wasn't a lawyer ;-)

Re:Nope.

[reebmmm]

Here's how they're different:

On the one hand you are selling the actual good (the car itself) that you legally acquired from Ford under the name that you purchased it. So an ad saying "Buy my Ford Mustang" is safe so long as it's a Ford Mustang. Even taking a picture of the Ford you're selling will likely be safe.

On the other hand, you're selling a different good (a calendar) using the mark owned by Ford.

As I've now said in a bunch of posts, the issues are: 1) was the use of the marks on the calendar a use in commerce; and 2) is the use likely to cause confusion.

The answer to the first question is very clearly yes--they are/were SELLING a calendar by exploiting the the Ford marks. In some sense, it doesn't make sense for them to do it any other way.

The second answer also seems to be likely "yes." A consumer picking up the calendar about Ford Mustangs might think that the goods originated with Ford or someone authorized to use.

Re:people own the *cars*, too, and their pics

[drakaan]

Trademark isn't relevant either.

Trademarks exist in order to prevent one company from marketing something that appears to be a product of another company.

There are two potential trademarks at issue. One is "Ford", and the other is "Mustang".

The creators of the calendar are not selling Ford calendars, nor are they using a trademark in a way that would be likely to make a purchaser of the calendar believe that Ford Motor Company created the calendar.

The creators of the calendar are also not selling Mustang calendars, nor are they using the trademark in a way that would be likely to make a purchaser of the calendar believe that the owner of the Mustang trademark (the Ford Motor Company) created the calendar.

The calendar is clearly associated with "BMC" (aka, the "Black Mustang Club"), and the Club's title did not apparently raise the ire of Ford's trademark lawyers (as it shouldn't have). If they were taking pictures of cars on Ford dealership lots, then maybe Ford would have a point on copyright, since they nominally own the vehicles on those lots, but not on trademark, at least not as the calendar is currently composed.

Yes, the OP failed to mention trademark, but that doesn't make Ford's move any less bone-headed. Ignoring the fact that they are alienating a group of people who are (or were, at least) fans of one of the company's cars, they are opening themselves up to countersuit, and a whole bunch of bad PR...all over a fan calendar. The lack of immediate reaction from their PR department (legal did WHAT??? Our bad...go ahead and print the calendar...Chevy sucks!) is staggering.

Re:Nope.

[tic!lock]

What's even funnier is that none of them seem to agree on whether it's legal or not. :)

  (As a part time photographer who sells his pictures I have an interest in this, and *my* lawyer tells me that as long as there isn't any brand confusion - that is, as long as I'm not selling my pictures as "official" photographs, I have nothing to worry about. I'm currently going round and round with the local city council over the same issue, ie photographs of historical city landmarks which the city seems to think they have the rights to limit photographs of. They even have that printed on the landmark info posts. Sigh. Can anyone point me to relevant cases? )

tic