Photographing trademarked items. Photog 1, Mattel 0

Phil Stripling writes:

I fear we're getting way off topic from the original post about
photographers' rights, so I'll let it go.

Being sued for publishing photographs is off topic?

--
Transpose hotmail and mxsmanic in my e-mail address to reach me directly.

"Phil Stripling" wrote in message
...
http://www.dolliedish.com/ was called The Dolls, the Dish, the Dollars,
and
it _was_ aimed at seriouse collectors. Sued by Mattel for displaying
photos
of Barbie online. See Wired's story at
http://www.wired.com/news/culture/0,1284,8037,00.html
(called Cease-and-Desist Barbie).

I suppose it keeps lawyers off the streets and in jobs. If a major law firm
ever lays off some staff, someone will have to introduce Mattel to eBay
auctions- i'm sure there are plenty of Barbie sellers there taking the Good
Girl's face in vain. They'd win, too- those people are attempting to profit
through the use of Barbie's face.

--
Martin Francis http://www.sixbysix.co.uk
"Go not to Usenet for counsel, for it will say both no, and yes, and
no, and yes...."

"Martin Francis" writes:

I suppose it keeps lawyers off the streets and in jobs. If a major law firm
ever lays off some staff, someone will have to introduce Mattel to eBay
auctions- i'm sure there are plenty of Barbie sellers there taking the Good
Girl's face in vain. They'd win, too- those people are attempting to profit
through the use of Barbie's face.

I haven't read the actual decision in the case Alan posted about; I've only
read the news report. That says that the photographer had struggled to find
a lawyer to represent him. It was done for free by some pro bono group. The
court awarded $1.8 million in attorney's fees. Mattel may appeal.

The problem is that very, very few people can afford to _win_ a case, much
less defend one against big corporations. This can lead to bullying when a
company has reason to believe they're in the wrong but know the prospective
defendants don't have the means to defend themselves in court. I'm sure we
all can think of examples of this in the last few months.

As to the use of photos on eBay, I've gotten contacted by a company or two
whose copyrighted photos were lifted from their Websites by sellers on
eBay. :- Maybe a different issue from using personal photos to sell an
item, but common it seems.
--
Philip Stripling | email to the replyto address is presumed
Legal Assistance on the Web | spam and read later. email to philip@
http://www.PhilipStripling.com/ | my domain is read daily.

"Phil Stripling" wrote in message
...
"Martin Francis" writes:

I suppose it keeps lawyers off the streets and in jobs. If a major law
firm
ever lays off some staff, someone will have to introduce Mattel to eBay
auctions- i'm sure there are plenty of Barbie sellers there taking the
Good
Girl's face in vain. They'd win, too- those people are attempting to
profit
through the use of Barbie's face.

I haven't read the actual decision in the case Alan posted about; I've
only
read the news report. That says that the photographer had struggled to
find
a lawyer to represent him. It was done for free by some pro bono group.
The
court awarded $1.8 million in attorney's fees. Mattel may appeal.

The problem is that very, very few people can afford to _win_ a case, much
less defend one against big corporations. This can lead to bullying when a
company has reason to believe they're in the wrong but know the
prospective
defendants don't have the means to defend themselves in court. I'm sure we
all can think of examples of this in the last few months.

As to the use of photos on eBay, I've gotten contacted by a company or two
whose copyrighted photos were lifted from their Websites by sellers on
eBay. :- Maybe a different issue from using personal photos to sell an
item, but common it seems.

I wonder what Mattel thinks about that lady who has had a number of plastic
surgery operations in an attempt to look exactly like Barbie......

I liked the "Trailer Trash Barbie" of the 1990's (San Francisco -- modified
Mattel Barbies with hair in curlers, a cigarette, and a beer).

"Phil Stripling" wrote in message
...
Alan Browne wrote, in part:

respond to telephone and e-mail messages on Sunday. Mattel can
appeal the award, but the company would have to appeal to the
Ninth Circuit Court of Appeals in San Francisco, which had
earlier instructed the district court to consider awarding legal
fees.

I am willing to bet that Mattel appeals.

This is a lonely victory in a long line of suits by Mattel. See
http://www.cieux.com/bizarre.html
and go directly to the bottom of the page for dead links to dead sites
shut
down by Mattel's lawyers.

I'm looking for a link to the court's decision announced today - anyone
know where it is?
--
Philip Stripling | email to the replyto address is presumed
Legal Assistance on the Web | spam and read later. email to philip@
http://www.PhilipStripling.com/ | my domain is read daily.

"George" writes:

I liked the "Trailer Trash Barbie" of the 1990's (San Francisco -- modified
Mattel Barbies with hair in curlers, a cigarette, and a beer).

The last time Louise and I were in LA, the Museum of Jurassic Technology
had a a trailer trash section in their exhibit. Absolutely knocked my socks
off. Those guys are good.
--
Philip Stripling | email to the replyto address is presumed
Legal Assistance on the Web | spam and read later. email to philip@
http://www.PhilipStripling.com/ | my domain is read daily.

Phil Stripling wrote:
Alan Browne writes:


But those were "Barbie" centric sites (right?), if I have Barbie
in my shot as an element of the shot, at what point do Mattel go
balistic? A photo of a little girl combing Barbie's hair seems
natural enough? What if I make a photo essay about a girl and
her collection of Barbie's and accessories? The photo essay is
about the girls life, not the doll. Where is the line?

GM won't sue me if I have a GM auto in the shot...


I see your point, but have you googled car clubs?
http://www.chevyclub.com/
http://westcoastfalcons.com/
http://www.rosecitycorvettes.org/
http://www.car-list.com/carclub.html

All these are "car centric" sites with tons of photos of whatever car the
club is interested in. They _haven't_ been sued, as you say. _Barbie_ fan
clubs have been.

http://www.dolliedish.com/ was called The Dolls, the Dish, the Dollars, and
it _was_ aimed at seriouse collectors. Sued by Mattel for displaying photos
of Barbie online. See Wired's story at
http://www.wired.com/news/culture/0,1284,8037,00.html
(called Cease-and-Desist Barbie).

See my links at
http://www.civex.com/bizarre.html
for links to sites with photos of Barbie as an element of the shot which
have been sued off the Web.

I fear we're getting way off topic from the original post about
photographers' rights, so I'll let it go.

I don't see where this is so off topic. The contast between the
two situatons above is startling.


--
--e-meil: there's no such thing as a FreeLunch.--

Mxsmanic wrote:

Alan Browne writes:


GM won't sue me if I have a GM auto in the shot...


They might.

One of the weird things about trademarks in the U.S. is that you must
actively defend them, otherwise they might pass into the public domain.
Some companies have learned this the hard way, including Xerox,
Coca-Cola, and Kimberly-Clark (makers of Kleenex). Not defending a
trademark implies that you don't mind if it ceases to be a trademark.

Fair enough. However, the mere presence of a trademark or
trademarked item in a photograph does not mean the trademark is
being violated. Isn't "claiming" the trademark enough (eg: in
magazines the little TM mark appears regualarly)?



--
--e-meil: there's no such thing as a FreeLunch.--

In article , Alan Browne
writes
Mxsmanic wrote:

Alan Browne writes:

GM won't sue me if I have a GM auto in the shot...
They might.
One of the weird things about trademarks in the U.S. is that you
must
actively defend them, otherwise they might pass into the public domain.
Some companies have learned this the hard way, including Xerox,
Coca-Cola, and Kimberly-Clark (makers of Kleenex). Not defending a
trademark implies that you don't mind if it ceases to be a trademark.

Fair enough. However, the mere presence of a trademark or trademarked
item in a photograph does not mean the trademark is being violated.
Isn't "claiming" the trademark enough (eg: in magazines the little TM
mark appears regualarly)?

As with all such issues, it is essential to quote a jurisdiction.

In the UK, for a trade mark to be infringed, the owner must show that
the alleged infringer has used the mark as a trade mark in the course of
a trade. Use means

affixing to goods or packaging,
offering or exposing goods for sale or stocking them for that purpose
importing or exporting goods under that sign
use of the sign on business papers or in advertising.

Any private sale not by way of trade cannot therefore be an
infringement.

The situation is considerably more complex for sales by way of trade,
but unless the B*****s (I won't give them free advertising if they wish
to be b******s) were imported from outside the EU by someone other than
the trade mark owner, the owner's chance of success in an infringement
case is probably minimal.
--
David Littlewood

Alan Browne wrote:
Mxsmanic wrote:

Alan Browne writes:


GM won't sue me if I have a GM auto in the shot...


They might.

One of the weird things about trademarks in the U.S. is that you must
actively defend them, otherwise they might pass into the public domain.
Some companies have learned this the hard way, including Xerox,
Coca-Cola, and Kimberly-Clark (makers of Kleenex). Not defending a
trademark implies that you don't mind if it ceases to be a trademark.

Fair enough. However, the mere presence of a trademark or
trademarked item in a photograph does not mean the trademark is
being violated. Isn't "claiming" the trademark enough (eg: in
magazines the little TM mark appears regualarly)?


There are basicly two answers, one for North America and the second for
the rest of teh world.

--
Sander

+++ Out of cheese error +++