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Concluding with trademarks and commercial work

From: Photography and the Law: Photographers' Rights and Releases

Video: Concluding with trademarks and commercial work

Ben Long: So we've talked about my personal image, my house. What if I've got a car or motorcycle or just some object? Can someone just come up and take a picture of it and go off and do what they want? Caroline Wright: In general, yes. Again, we have to talk about what human rights are. So is there expectation of privacy? Does the car have an expectation of privacy? No. Does the car have a right of publicity? No. There are no violations. You might have a circumstance with trademark.

Concluding with trademarks and commercial work

Ben Long: So we've talked about my personal image, my house. What if I've got a car or motorcycle or just some object? Can someone just come up and take a picture of it and go off and do what they want? Caroline Wright: In general, yes. Again, we have to talk about what human rights are. So is there expectation of privacy? Does the car have an expectation of privacy? No. Does the car have a right of publicity? No. There are no violations. You might have a circumstance with trademark.

So there was, for example, there was this group who love Mustangs. Okay. I think they were, in particular, black Mustangs for some reason. Okay. But they were going to do a calendar where the group members would submit photographs of their Mustangs, maybe all "tricked out." (laughs) The Ford company hassled them and said, "No, you can't do that because it's a trademark violation." There was enough complaints about that that Ford backed off and the group got to use their own pictures for the calendar.

But it can be a trademark violation if there are trademarks in the photograph. So, you have to worry about that. Ben Long: Okay. So in general, no one can hassle you about, "This is my property. This is my car or animal or whatever." You can still shoot that? Caroline Wright: Correct. You can use the photograph in anyway you want to as long as not a person for commercial use. Ben Long: Okay. What about a situation where some of the properties you're shooting might be trademarked? What about logos and things like that, is that a concern? Caroline Wright: Well, logos are trademarks.

Trademarks can be words, symbols, colors. For example, what do you think about a pink medicine that you might take or pink fiberglass. Those are all trademarks. What they do is identify the source of the product or service. They can also be sounds and that sort of thing. As photographers, we think about having logos or words in the photograph. The question as to whether there's trademark infringement is whether the source of the product or service would be confusing to the consumer.

Trademarks protect, really, the consumer. For example, if I happen to have a soft drink here and it's in a certain shaped bottle... Ben Long: Right. Caroline Wright: We all know that that comes from the Coca-Cola company. Ben Long: Right. Caroline Wright: So, if I took a drink of it and it wasn't a Coca-Cola, we would like, "Oh, I thought I was buying a Coca-Cola, but I'm not." So it protects the consumer from what the product or service is going to be. So, if I'm taking photographs of logos, is someone looking at, let's say there's a big Coke symbol behind us.

Somebody looking at this, would they think that you and I are affiliated with the Coca-Cola company? Ben Long: Right. Caroline Wright: So it's whether somebody looking at it would be confused as to the source of the product or service. It's trademark infringement. So, when you're taking photographs of items that have trademarks in 'em, it's probably best if you try to remove the trademarks from the image or try to to keep the trademarks from being prominent in the photograph.

Because you don't want to have the implication of trademark infringement. You don't want the trademark owner coming after you and saying, "You've infringed my trademark." Ben Long: We talked that copyright there are international agreements about how we'll all share copyright laws and agree on how copyright works. Is true with this also? The things we're talking about here, do I have the same rights when I go to another country? Caroline Wright: As far as rights of privacy, rights of publicity, that sort of thing? Ben Long: And the need for releases and all that.

Caroline Wright: Even in the United States, every state's a little different. In fact, some states require the model release to be in writing. Some of 'em say an oral release of the rights is fine. Some states require consideration. So, a payment for the model release. They might say, "For a dollar, you might pay a dollar, if you'll sign this model release here." Some states require that. So, in the United States it's always safest, either you get advice from a lawyer or find out what your state requires.

Or, just get it, the model release, in writing. That's always, really, the safest thing to do. To give a little consideration would be good. A copy of the photograph, a payment of some money. That would be good. So, if every state (laughs) in the United States is different, you can imaging how different it is in other countries. So, it's always safest to get a model release. Get the model release put into the language of the country where you going so that the people who are signing the release can say that they read and understood it.

Because if it's in English and they only speak French, the model release may not be effective. It's always best to have the model release and to, maybe, do a little research into the country where you're visiting, what kind of release you might need. Ben Long: So what do you recommend getting? Where can I go get releases to use? Are there any particularly good locations? Caroline Wright: Well, there's plenty of them on the Internet and there's some that you want to have a more complete model release. But if you're just, in general, a photographer who's shooting on the street and you're not going to use it in risky ways.

Then just a general model release that you can get off the Internet. There's a lot of different sources. If you're a member of a photography organization, then they probably have one. There's lots of models you can use. Or, if you're a stock photographer, check with your stock agency because they may have forms. Ben Long: Right. I've noticed there are smartphone apps that are little release apps. What do you think of those? Caroline Wright: Excellent, excellent. It's very easy to use. You've got it right there with you. So what we're talking about is having the model release on your phone, so if I take your photograph I can just walk up to you with my phone and you sign with your finger on the dotted line.

It's effective in the United States. Electronic signatures are effective throughout the United States. So that's valid, it's easy. People are less intimidated, by the way, then when I ask you to sign a piece of paper. So I think the apps are a great way to have a model release with you at all times. Ben Long: So what do you say to someone when you're asking them to sign a model release? Caroline Wright: I think ... Ben Long: And let's talk of 2 situations because I assume you do it after you've taken the picture. Or, do you do it before or do you mix it up? Caroline Wright: It doesn't matter.

It's really the circumstance that you have. I've done it both ways, personally. Especially if I'm on a shoot and I know I'm going to be photographing a lot of people, I'll get it in advance because they may run off before [laughing] I'm able to catch up with them. Ben Long: Right. Caroline Wright: Afterwards I might see a great scene. I was photographing some whitewater kayakers one time. I got some really great shots. So I walked up to the guys afterwards and I said, "Hey guys, I'd love to send you a copy and would you sign this model release for me?" There's an argument to say that you don't tell 'em really what's in the release because they could rely on what you said rather than what's in the release.

That's an argument if it was challenged in court. So, you just say, "Hey, I took your photograph and would you sign this release for me?" And let them read it so that you're not giving them an opinion about what they're signing. See what they say and then also if you get their name and their address, email address is fine, and then you can send them a copy of the photograph. Ben Long: Great. Do you typically find that people understand what you mean when you say "model release" or do have to explain what its for? Caroline Wright: I think most people do, sort of, understand that these days.

Ben Long: Okay, okay. Then, same thing for your property releases? Caroline Wright: Oh, property releases are a different thing. I think that people get a little, in some weird way, they get a little more upset about photographing property, it just seems kind of personal. "This is my property, you can't." Or, "This is my hairbrush, you can't photograph my hairbrush." Ben Long: But take all the pictures of "me" that you want. Caroline Wright: Yeah. (laughing) It is a little weird. They get very weird about dogs and pets too.

(laughing) They feel a real ownership of this puppy that happens to be playing in the park. So, I think with property releases, again, different attorneys disagree about this, but I'm an advocate for saying a property release is to get permission to be on the property taking phographs or if there's a copyrighted work in the photgraph, getting permission from the copyright owner. Or, if there's a trademark in there, the trademark owner might give permission for it although that causes some other problems.

Property releases, really, I like to use them as, "I have permission to be on your property taking photographs." That's a great way to use a property release. So that can't later claim that you're trespassing. Ben Long: Okay. Is there a time limit of some kind? Do I have to get the release right then or could I track them down later? Caroline Wright: You absolutely can track them down later. You want to do it (laughs) before you use the photograph. Ben Long: Of course. Caroline Wright: You can get permission afterwards but you're really asking for forgiveness rather than permission.

Ben Long: Of course. Caroline Wright: Yes, you can the model release at any time. Ben Long: I guess I'm thinking about the situation of shooting the kid through the window, "Oh, I should, maybe, send a release to his parents or something." So, I can't get it right then because there's no one around who can sign it. So it's okay to get it later? Caroline Wright: Absolutely. Ben Long: Okay. Caroline, this is actually, as with copyright, much easier than I thought it was. Actually, this is a little more commonsensical than copyright is. You want to basically be nice to people (laughs) is what it sounds like.

Caroline Wright: Sounds like a good plan of action. Ben Long: Thank you, very much. Caroline Wright: You're welcome.

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