Red Alert! These images were rejected due to elevated risk of Trademark Infringement.

As we discuss in the legal section of our Road Atlas for Photographers, a trademark is “a word, phrase, symbol or design, or a combination thereof that identifies and distinguishes the source of the goods/product.”  Some examples are the Nike “Swoosh” and the Rolls Royce symbol, or as you can see, the Rubik cube and Chupa Chups wrapper .  In order to infringe a trademark or a service mark, a photograph has to be used in a way that creates confusion about the source of the goods or services depicted or implies endorsement or association.  So you see, in itself, a photo doesn’t infringe a trademark.  It is the use of the photo which can infringe the trademark.

Determining which images could infringe trademarks isn’t an easy three step process.  It is a complex matter involving laws, image uses, intentions and levels of risk.  From this big “grey area,” a stock agency must determine a policy for their photographers.  The result is comparable to the ratings that appear in U.S. airports which use 5 different colors to reflect the possibility and gravity of a terrorist attack.  The color posted is a prediction made by the government, after analyzing information collected from many different sources.  It is no guarantee that there will be an attack on a “Red” (severe risk) day or that there won’t be an attack on a “Green” (low risk) day.

Stock agencies have a similar, daunting mission as they determine risk of trademark infringement.  Hypothetically, any image which includes a trademark could be used in a way that infringes the trademark or could be used legitimately. 

Some, notably the microstock agencies, opt for a very cautious approach for very obvious reasons.  They treat any appearance of a trademark as a “Red” level threat, and simply reject all such images.  This might be an appropriate decision for microstock because generally they have little or no contact at all with their clients and awareness or control of how the clients use their images.

age fotostock is a much more traditional stock agency that keeps a constant and open personal dialogue with photographers and clients. Every image received is reviewed by professional experts that evaluate the level of risk of trademark infringement by considering how easily an image could be misused by a client and how serious a misuse would be.  The images posted above were evaluated as “Red” level risks because they show the trademark/logo as the primary subject of the photograph.  A client might still use the image legitimately, but there is a greater chance that if they use an image showing just the “Chupa chups” candy, people might think that the client is being endorsed or sponsored by the Chupa Chups Company.  Please avoid sending us “Red” level images, such as the ones above, which show a trademark as the primary subject with no further context.
 
Below you can see examples of “Green” level (lower risk) images on our website in which trademarks do appear, but within a larger context, not as the subject of the image.  For example, images of store sales might show a number of brand names (trademarks), but they illustrate concepts such as economic activity, recovery or growth.  It is less likely that the image would be used out of context by a client, and the client would have to make an extra effort to do so, by zooming in on the trademark to remove it from its context or such.

 

Please note, that just like the Green terror alert ranking, the lowest level of trademark risk is “low risk,” not “no risk.”  When possible, eliminate risk completely by not showing logos and trademarks or removing them from the photographs. This will help you avoid receiving a letter from a lawyer some future day...


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One legend goes… that if you have paid admission to a museum, then you are allowed to photograph what’s inside, and license those photos

False.  Don´t take out the DLSR so fast!

Fact.  A museum or gallery that charges admission is a private space.  When you enter that space, you do so under the conditions or “rights of access” that they establish.  Those conditions might be things like: Don’t touch the artwork, don’t take the artwork, or don’t take photos of the artwork.  So, when you pay to enter a museum, you must check the conditions that are established in that place.  Is there a “No Photography” sign posted or is it mentioned within the conditions on the back of the ticket or on the website?  If there is, and you ignore it, then you have breached your contract of access with that museum.  Even if there is a security guard smiling and nodding at you as you take the photos.

Paying to visit a museum doesn’t give you unlimited rights of access (such as taking photos).  By choosing to buy a ticket and enter their space, you are accepting their restrictions of your rights of access.  A careful photographer will know what his or her rights of access are

Another legend goes… if you took photos in the museum without violating the museum’s restrictions of access (see urban legend # 1 for more info); than you can distribute those photos through a Royalty Free collection (such as Pixtal or easyfotostock).

Fact.  Even if you are allowed to take a photo of the artwork, that doesn’t mean that you can license that photo for any use.  If the artwork is not in the public domain*, your photos can be used to promote/discuss the artwork itself, but can not be used to promote potato chips. Here we could really complicate things by talking about the application of editorial use, moral rights, whether the creator is dead or alive, and other such issues, but we’ll keep it simple at this point.

Royalty Free images can be used by clients for whatever purpose and for as long as they wish.  Therefore, photos taken of artwork inside museums (and outside as well) should never be submitted for an RF license.  They should be submitted to RM only and clearly marked “for editorial use.”

As a photographer, when considering what legal precautions to take, you should always overprotect yourself because the receiving end of a lawsuit is a lonely place to be. 

*In many countries, a work of art falls into public domain when its creator has been dead for more than 70 years. In this case the work becomes available for wide use by the public.  Works of art that aren’t in the public domain are protected by copyright, and must be photographed and offered with caution.

[Please note that this text is intended to provide you with some general guidelines about photography in museums and should not be taken as legal counsel.]


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The opinions expressed herein are my own personal opinions and do not represent my employer's view in anyway.

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