Is taking a digital photo of a copyrighted work infringement

Manufacuters product images are all copyrighted and trademarked

[lgn1]

Back in 2006, I heard of a company which only sells it's goods in Beauty Salon's trying to sue for copyright and trademark infringement, for somebody that was listing their products on eBay. I could not find a resolution to the case.

I know that First sale doctrine, would allow the eBay'er from posting a text listing of genuine products.

However when you take a digital photograph of a manufacturer's product, couldn't the manufacturer claim that they own copyright on the artistic design of the bottle and company artistic logos, and also trade name infringement, if the companies trade name is also shown in the picture ?

Some manufacturer's are extremely protective in enforcing their distribution channels, and I'm wondering if these Cease and desist letters are just frivolous and vexatious, or if they have merit in US case law.

[not2easy]

A disclaimer here is that for solid advice in legal affairs you would need to consult a lawyer, but as a discussion I know of cases that indicate Trademarks are seriously protected under US law. I have seen ecommerce sites lose their domains and the goods they sold because they were proven to be look-alike "copies" of Trademarked brands. The FBI gets involved in cases and has been known to seize shipments of goods entering the country. Cases I have seen do not involve genuine brands, but pirated knock-offs. There is a separate layer of legal trolls that seek "finders fees" for reporting suspects and some of these folks are not paid representatives of the Brands they claim to represent in hopes of a gratuity for a big catch. If in doubt I would suggest to visit the trademark owner's website and look for their page of limitations, they are usually quite clear about what is and is not allowed regarding their trademarks and copyrights - so they can point to these pages in prosecution.

[lucy24]

couldn't the manufacturer claim

Wrong question. It's not what the manufacturers could claim, it's what a court has ruled. If you own the international chain of apDavyd stores,* it's not enough to claim that you own the "ap-" prefix in all situations everywhere. You have to get a court to agree with you.

If nobody challenges the claim, it endures forever (witness the Happy Birthday song).


* Details altered.

[tangor]

However when you take a digital photograph of a manufacturer's product, couldn't the manufacturer claim that they own copyright on the artistic design of the bottle and company artistic logos, and also trade name infringement, if the companies trade name is also shown in the picture ?

Short answer, they could, if the infringer was deliberately misleading and fraudulently selling fakes. That, however, may not apply to an individual taking a picture of say, a car they own and are selling, or any other product.

In what context is this query about? Is this an eCommerce site where the desire is to photograph product for sale?

[lgn1]

Ok, trademark/name is not an issue if you are selling genuine goods in the original packaging, and you don't misrepresent yourself as an authorized distributor, if you are not. To be on the safe side, you should probably offer the same warranty as the manufacturer.

The copyright issue, could be interesting. A company could copyright it's product, and in theory take a picture of a copyright work and using it as a sales aid (ie help make money), could be a violation if used without permission. I only heard of one case, and it was dropped by the plaintiff.

I'm sure it will probably comes up again in the future. It's just that I have no interest in being a test case.

[edited by: lgn1 at 11:44 pm (utc) on May 24, 2014]

[lgn1]

Tangor

We wish to photograph products for resale. We are not an authorized distributor. To be an authorized distributor (and to sell online), we would have to sell the products from the manufactures portal site. Their portal site is slow and has serious usability issues, and we have no control over the message.

Since we cross-sell from our other network of websites, we want to give our customers the best experience, so we plan on photographing the product and building a well designed website for this product line. We have no problem obtaining the genuine product, in new condition at favorable pricing (and I'm not going to explain why or how).

It looks like I have one vote (for taking pictuures of products) being fair use.

[tangor]

One vote, if you are selling one car (see above), not setting up a deealership!

As the old hack goes IANAL (I am not a lawyer), but do cross your t's and dot your i's. Might consult one if you are attempting to set up a distro network for a specific manufacturer's product WITHOUT consent or agreement. It is one thing to sell what you bought, it is another thing to sell another's products outside their normal distribution in their product name and implying it is okay. Again, not legal advice, but you might want to check this marketing plan very closely. There is case law which supports my comments.

[lgn1]

I will definitely contact a laywer. However since IP rights lawyers, charge a fortune, I tend to do a little research, so I know to ask the right questions. Tangor, do you have the case law citation (ie Mothra v Godzilla, 1964, Japan), that supports your statement. Thanks

[tangor]

As I am an NOT a lawyer (with no access to West Law), the precise answer is NO. What will help is a sporting goods case in the Midwest circa 1977, an electronics gear case on the West Coast circa 199?ish. A German case (cosmetics) sometime in 2000-2002. The first two involved brick and mortar catalog sales of a manufacturer's product(s), the latter was done on the Internet. These may constitute precedents to be explored.

Once again, CONSULT AN ATTORNEY! (And maybe more than one as this is not just Intellectual Property, it is Product-based which might lead to criminal charges, and certainly is outside the manufacturer's established distribution). ONE MORE TIME: This is not legal advice. But it certainly suggests some serious pucker promise in my opinion as a layman.

[not2easy]

There is some quick specific case information at [chanelreplica.com...] (links toward the bottom of the page)- this is a site owned by Chanel that details cases against replica goods. I understand that the widgets you wish to sell are not copies or knockoffs, but some of the terms used and laws quoted that refer to Trademark protection apply even to genuine products sold through unauthorized channels. To quote the best advice: Once again, CONSULT AN ATTORNEY!