Question on copyright

[Flyboy]

I am a little confused about the copyright issue.

I can understand that if I took a design by somebody else and palm it off as my own, I would infringe on that person's copyright. But if I were to include a representation of a branded product (a can of soft drink, for instance) in one of my own designs, would I still be in violation? Wouldn't it be sufficient to include something along the line of "XYZ Cola is a trademark of the XYZ Soft Drink Corporation"?

In my work, I do proprietary designs only, so the question has never been an issue. But after reading Ross Macintosh's cautionary note to Newton Florentino's "Lilies" post in the Xara Gallery, I started wondering about it.

Would someone care to enlighten me? Ross? Gary? Anyone??

Mike.

[Flyboy]

I am a little confused about the copyright issue.

I can understand that if I took a design by somebody else and palm it off as my own, I would infringe on that person's copyright. But if I were to include a representation of a branded product (a can of soft drink, for instance) in one of my own designs, would I still be in violation? Wouldn't it be sufficient to include something along the line of "XYZ Cola is a trademark of the XYZ Soft Drink Corporation"?

In my work, I do proprietary designs only, so the question has never been an issue. But after reading Ross Macintosh's cautionary note to Newton Florentino's "Lilies" post in the Xara Gallery, I started wondering about it.

Would someone care to enlighten me? Ross? Gary? Anyone??

Mike.

[tonylondon]

Copyright and trademark registration are two different things and are unrelated. Copyright is copyright and the law on this is not affected by being a registered trademark.
You may find that owners of trademarks registered or unregistered may allow you to use their mark in this way if acknowledged as theirs but as far as I am aware that is up to them and the copyright legislation in the country concerned. I understand that copyright is something particular to the English speaking countries but I am open to correction on this.
Tony

[Ross Macintosh]

I'm certainly not well versed in copyright and tradmark law. I do know that they are not particular to English-speaking countries. The problem is there are many developing and third-world countries where enforcing such laws has a very low priority.

Newton's design that I had commented upon featured Clinique products. Certainly the logos (and likely even the bottle designs) are registered tradmarks and therefore should not be used without permission. Noting, as Flyboy suggests, that they are registered tradmarks could likely be the next best thing (and might keep you out of court). But doing that is no guarantee that the proper owner will approve of how you are using them.

I've heard it said that the same companies that pay Hollywood big bucks for product placements in movies will sue producers who go ahead and include products without proper arrangements being made. These days if you see brand name products in a Hollywood movie you can bet that Hollywood received payment to place the products.

Newton's situation is perhaps a little different than most of us. Seeing in his resume who his clients are suggests he might have produced those designs for paying clients. I wonder what his agreements say about his using his work to promote himself.

Regards, Ross

<a href=http://www.designstop.com/>DesignStop.Com</a>

[gwpriester]

If this is a "one off" piece of art, you are probably OK using likenesses of commercial products.

If on the other hand, you wish to produce a series of posters for sale, you would need to get permission to use the likenesses of the products.

Always best to check with a copyright attorney.

There are several volunteer Lawyers for the Arts organizations that are listed in the back of my wife's book, Electronic Highway Robbery - An artist's guide to copyrights in the digital era

Gary

Gary Priester

Moderator Person

<a href="http://home.earthlink.net/~garypriester">
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[standay]

Trademarks are usually more vigorously protected by their owners than copyrights (probably more money involved), but the owners of trademarks and copyrights are compelled by law to actively protect them or lose them. So the short answer is yes, if you "include a representation of a branded product" in your creation you would be "violating" trademark and/or copyright.

As an example, let's say you take a photo of a Coke can. Here's what happens.

Even though you would hold the copyright on your photo automatically upon its creation, Coke still holds any and all trademark(s) and/or copyright(s) on the Coke name and can graphics. Therefore, you could legally do *nothing* with your photo even though you hold the copyright on it because Coke holds the trademark and/or copyright on the item depicted in your photo. Their trademark(s) and copyright(s) supercede your rights in your own photo (or artwork as the case might be).

Even if the Coke company didn't have a problem per se with your usage of their can and name in something you created, if they found out about it later they would have no choice but to "protect" their rights in the matter, otherwise they could lose their claim to their own name. This usually just takes the form of a cease and desist "nasty-gram" from their legal department but could be much worse if there was any money involved. Personally I think the laws on all this should be revamped, but that's another thread...

There can sometimes be exceptions to all this in the "fair use" doctrine and for news organizations doing a story, but don't assume this will protect you! It's all very complex and you are best off always getting permission before including anything in your creation that might be trademarked or copyrighted by someone else.

BTW, "Coke" is (r)(c) & t.m. etc. by somebody and is only used here for illustrative purposes. ;-)

Stan

[Ross Macintosh]

Stan - your comments sound right on the mark to me...

Regards, Ross

<a href=http://www.designstop.com/>DesignStop.Com</a>

[Flyboy]

Thanks for your responses — I found them very enlightening. Although I won't claim to fully understand the issue, you gave me some pointers as to what to avoid.

Thanks again,
Mike.

[tonylondon]

Can I just clarify, Ross, that when I said that copyright is something particular to the English speaking countries, what I meant was that they follow common principles in common law that are different from other countries, not that other countries do not afford their own protection in one way or another.
Registration of a trademark does not confer copyright. Nor is that trademark necessarily protected worldwide. If Flyboy creates a logo for an organisation then the copyright may be understood to have passed to the organisation as part of the terms for contract between Flyboy and that organisation, either explicitly or implicitly unless the contract states otherwise.
Tony

[This message was edited by tonylondon on November 01, 2001 at 02:08.]