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spacer
07-12-2011, 12:42 PM
But what about a sound recording of a mime?!!

Steve.

Awesome idea! Or a talking Marcel Marceau doll!

Diapositivo
07-12-2011, 03:18 PM
Some folks demanding photos not be taken might be in hiding (from the law, an abusive ex, etc.), some may be mentally unbalanced, some may just be self-important busybodies. (I'll assume diapositivos comment was meant as a joke.)

Hornby Island, a favorite place of ours, has a clothing optional beach. One cool and cloudy day I was taking LF photos at one end of the beach where there's a wonderful jumble of eroded sandstone. A fully clothed man appoached me stridently stating I wasn't allowed to take photos because it was a nude beach. My camera was clearly pointed at a rock. I offered to show him the groundglass. He repeated his assertion that no photos were allowed. There were 2 brave souls in the water at the other end of the beach - far enough away that their clothing option wasn't apparent. The camera was not pointed that away. I tool my photo, he hovered around saying I was going to get in trouble. He finally left when I folded up my tripod.

I've taken photos there many times, sometimes when the beach is well populated by sun worshippers. No one else has ever objected because I'm respectful of other's privacy. I've seen lots of P&S cameras, and no one seems bothered by them.

A photo I'd have loved to take was a birthday party for a matriarch. She was surrounded by her children and grandchildren. She was proudly, brownly, naked; all her family were clothed. Terrific scene, but my camera stayed in it's pack.

Sly, don't make assumption about what I write, that has no purpose. Mine was an openly sexist remark, and meant to be*. Maybe not totally deprived of a certain un-serious flair as obvious. This is a photographic forum not a psychology University course.

Regarding your encounter on the nudist camp, I understand the person who came and tell you that you couldn't take pictures in a nudist camp. That's very easy to understand on a let's say "moral" ground.

Although one might wonder if the place was a public one, a private one etc. and could challenge maybe the injunction on juridical ground, one might expect people don't want naked photographs of them freely circulating.

I understand you were not taking pictures of people, but the "warden", or the other persons on the place, might not feel like being on a surveillance duty specifically on you to see where you turn your camera. It certainly is something that make people feel uncomfortable that there is a guy with a camera, regardless of where he's actually pointing it.

Some people doing street photography, you know, do exactly this, point the camera first somewhere else, and then on the intended subject.

Fabrizio

* As I like saying: "I'm not anti-feminist. I'm misogynous". :)

2F/2F
07-12-2011, 04:48 PM
Regardless of what copyright law states, it has no bearing on the act of photographing, or the act of possessing photos of a copyrighted thing. You cannot legally stop someone from taking pictures of a copyrighted thing if the thing is in the public view. They are two separate issues. Photographing is separate from the act of reproducing and/or distributing. Fundamental ("Constitutional") law governs the former, and copyright law governs the latter. Something must actually be reproduced – that is printed and/or distributed/published – to be in violation of a copyright; thus citing a copyright as justification to bar someone from photographing shows a misunderstanding of what a copyright actually is. You cannot go after someone for a "copyright" violation unless they have actually "copied" something. You cannot bust someone for something you think they might do; you can only bust them for something they have done.

Aristophanes
07-12-2011, 05:26 PM
Regardless of what copyright law states, it has no bearing on the act of photographing, or the act of possessing photos of a copyrighted thing. You cannot legally stop someone from taking pictures of a copyrighted thing if the thing is in the public view. They are two separate issues. Photographing is separate from the act of reproducing and/or distributing. Fundamental ("Constitutional") law governs the former, and copyright law governs the latter. Something must actually be reproduced – that is printed and/or distributed/published – to be in violation of a copyright; thus citing a copyright as justification to bar someone from photographing shows a misunderstanding of what a copyright actually is. You cannot go after someone for a "copyright" violation unless they have actually "copied" something. You cannot bust someone for something you think they might do; you can only bust them for something they have done.

Copyright law is on the US Constitution. A single photograph of any work may be subject to copyright. It does not require reproduction. It can be a single representation.

2F/2F
07-12-2011, 05:33 PM
Copyright law is on the US Constitution. A single photograph of any work may be subject to copyright. It does not require reproduction. It can be a single representation.

Congress is generally authorized to enact copyright law by the U.S. Constitution. It does not mean that the specifics of copyright law are in the Constitution. It simply states that the power to make such laws is granted to Congress. The copyright laws themselves are not Constituational. And it certainly does not mean that one may not photograph copyrighted works, which was my point. When it comes to copyright law, it is what one does with the photographs that matters in court, not whether or not they are taken in the first place.

A single unit is a reproduction (or a "print" in photographic terms). The number of copies made does not define something as a reproduction or not; number of copies is related to distribution, not reproduction.

Monito
07-12-2011, 06:23 PM
Copyright only prohibits certain kinds of publication of derivative works.

You are free to make as many photos of an object (or objet d'art or artwork including a painting or even another photographer's photos) as you like, but not necessarily free to publish it wherever you like.

A work such as a photograph is copyright the instant it is created, which is when the shutter is clicked. That includes any derivative works made by the same author from it, such as scans or files or prints or silver gelatin prints, etc.

2F/2F
07-12-2011, 06:25 PM
Copyright only prohibits certain kinds of publication of derivative works.

You are free to make as many photos of an object (or objet d'art or artwork including a painting or even another photographer's photos) as you like, but not necessarily free to publish it wherever you like.

Exactly!

zsas
07-12-2011, 10:48 PM
Exactly and to bring it back to buildings, for e.g., you are free to photograph every McDonalds restaurant exterior you wish. But you can't sell a coffee table book called "My Tour Across America Documenting McDonalds' Restaurants". The logo and brand name are trademarked and therefore you would need consent from McDonalds. I think it gets more complex when logo's and/or trademarks become centerstage as opposed to say a cityscape with a golden arch way in the background and the intent if the book is to document skylines or something benign.

jordanstarr
07-12-2011, 11:34 PM
Somebody argued with you in NYC? That's hard to believe.

You'd be surprised...because it's such a hyper-photographer city, there's plenty of people who are paranoid of getting their photo taken. I can take pictures in my small town of 1500 more discretely than in NYC.

"if you want privacy, stay at home" -that is gold. I think people would be surprised at how much privacy they give up in NYC from surveillance video as opposed to the average street shot.

Way to stand your ground. You weren't doing anything wrong.

Diapositivo
07-13-2011, 09:21 AM
Exactly and to bring it back to buildings, for e.g., you are free to photograph every McDonalds restaurant exterior you wish. But you can't sell a coffee table book called "My Tour Across America Documenting McDonalds' Restaurants". The logo and brand name are trademarked and therefore you would need consent from McDonalds. I think it gets more complex when logo's and/or trademarks become centerstage as opposed to say a cityscape with a golden arch way in the background and the intent if the book is to document skylines or something benign.

Trademark and copyright are different things.
Copyright protects the work of invention and its author from copying.
Trademarks protect the identity of a business or product. Something different (not copied) but which uses the "identity" of another product to sell.

You can publish a book devoted solely to McDonalds restaurant, and it would not infringe copyright nor trademark, it's a book of photographs, there is no "copy" and there is no attempt to steal identity of the McDonald's franchise.

You can't open a fast food and adopt a similar brand, or logo, in such a way that it could create confusion between McDonald's and your business.

When Andy Warhol used Coca-Cola bottles, or logo, or Campbell soup cans, or logo, in his body of work he was not violating trademarks, nor copyrights.

Certain stock agencies do exclude images having trademarks just because they understand that their typical users don't know the laws about trademarks and would find a way to violate it, and then it could be argued that it was the duty of the agency to educate the client/user, hence the "paranoia" of certain agencies, and of certain photographers, about trademarks, copyright, property etc.

It's all much simpler and, to simplify, it's basically always fair game unless there is commercial use (promotion of a good or service) or defamation (of a person, even a paid model, and of a firm).

Steve Smith
07-13-2011, 09:54 AM
I agree with Diapositivo's points which could be summed up quite simply by saying that in order for something to be an infringement, the infringing article must be a copy of the original.

A photograph of a building is not a copy of the building. A building which is built to significantly resemble another building is a copy.

A photograph of a can of Coca Cola is not a copy. A red and white can of Pokey Polar fizzy drink could be seen as a copy of the Coca Cola product.


Steve.

BrianShaw
07-13-2011, 10:08 AM
You can't open a fast food and adopt a similar brand, or logo, in such a way that it could create confusion between McDonald's and your business.

Here in LA there was a wannabe fast food entrepeneur who turned the Golden Arches upside down and used it as a "W" in the name of his restaurant, Wimpies. The guy never even had a chance to open his doors before McD's shut him down.

2F/2F
07-13-2011, 10:11 AM
Here in LA there was a wannabe fast food entrepeneur who turned the Golden Arches upside down and used it as a "W" in the name of his restaurant, Wimpies. The guy never even had a chance to open his doors before McD's shut him down.

There is a "Michelle's" donuts here in L.A. It is hilarious. The silhouette of the sign is a take off on the classic Winchell's shape, and the font is almost identical. It is somewhere on the eastern part of Santa Monica Blvd, on the south side of the street. My initial thought was the it was a modified Winchell's sign, but looking at pix on the Internet, I am not so sure.

http://www.santabarbara.com/dining/after_hours/originals/dsc01046.jpg

http://laist.com/attachments/tony/michellesdonuthouse.jpg

zsas
07-13-2011, 09:23 PM
I respectfully disagree with some of the above comments re using trademarks and copyrighted material. In the US there are many cases recently where an artist had someone appropriate his or her piece of art and subsequently sued due to copyright violations - and won. What are really talking about are those who try to make the “fair use” claim. Back in the Warhol day, the trademark holders (Coke, Campbell’s Soup, etc) could have made a claim saying that Warhol’s works were not transformative enough for Fair Use. I don’t know if they did or didn’t make those claims, but today we have a bunch of claims being made and upheld re art and fair use (i.e. the original copyright holder’s work protected).

First example, Glen Friedman vs Thierry Guetta (aka Mr. Brainwash)

Orig from Friedman
http://www.boingboing.net/Run-DMC.jpg

Thierry Guetta’s appropriation (aka Mr. Brainwash):
http://www.boingboing.net/mbwinvite.jpg

Per the article cited below:
“Judge Pregerson has ruled that Guetta can't defend his work as transformative fair use.”
Article
http://www.hollywoodreporter.com/thr-esq/artist-at-center-oscar-nominated-195544

Second case of recent memory is the case involving the photographer Patrick Cariou suing Ricard Prince (artist), Gagosian Gallery, Lawrence Gagosian and Rizzoli International Publications.

Orig Ricard Prince’s piece and fair use claim to the right
http://www.aphotoeditor.com/wp-content/uploads/2011/03/patrick2-1024x689.jpg

Per the below linked article:
“Defendants Richard Prince, Gagosian Gallery, Inc., and Lawrence Gagosian seek a determination that their use of Plaintiff’s copyrighted photographs was a fair use under the relevant section of the Copyright Act, 17 U.S.C. 107(1)-(4), and that Plaintiff’s claim for conspiracy to violate his rights under the Copyright Act is barred by law. Plaintiff seeks summary judgment in his favor on the issue of liability for copyright infringement.
She found that the use by Prince was not Fair Use, the conspiracy claim was found to be barred by law and Patrick’s issue of liability for copyright infringement was granted in its entirety. In other words, Patrick won.”
Article
http://www.aphotoeditor.com/2011/03/19/richard-prince-loses-fair-use-argument

Last, one of the most famous of all recent cases is the Obama Hope poster that Shepard Fairey used with out the AP’s consent. The AP and Fairey subsequently settled.
http://www.wired.com/images_blogs/threatlevel/images/2009/03/11/picture_6.png

Article
http://articles.boston.com/2011-01-15/ae/29335296_1_shepard-fairey-obama-hope-obama-image


I guess all I am saying, is that this isn’t black and white all the time. There are protections in some instances, especially when $ is being made, and I still believe if one made that McDonalds Restaurant coffee table book that I described earlier, the McDonalds could come knocking on the door for a cut of the pie (baked apple pie...he he). Especially if the book were defamatory in any manner. I am not a lawyer and could be wrong, but based on the fair use claims I have seen in street art and other art circles, I think my example of McDonalds not allowing a coffee table book of their stores to be allowed due to the logo and term McDonalds being trademarked. Last when you shoot a motion picture, you cant put your actor in a Gap logo shirt without Gap's consent. My example was specific to 'for profit'.

Steve Smith
07-14-2011, 03:01 AM
when you shoot a motion picture, you cant put your actor in a Gap logo shirt without Gap's consent. My example was specific to 'for profit'.

Sure you can. There is nothing to stop you. What about those shots in movies of cars driving down a street? You don't see all the manufacturer's logos covered up or the shop signs blanked out.

This does happen on TV but it's nothing to do with copyright, it's just to avoid upsetting advertisers who have paid for their advertising time and would see it as unfair for other manufacturers to have their products on TV for free.

Manufacturers put their logos and trademarks onto their product so that they get seen by people. None would complain about an appearance on TV or in a movie.

You can't go on TV and say "this GAP shirt is no good as it falls apart after you wear it for an hour" as that would be defammation and/or mis-representation. Unless it does fall apart after an hour and then it's fair game. Nothing to do with copyright or trademark infringement though.

As for the book of MacDonalds restaurants. MacDonalds might come after you for a share but they wouldn't be entitled to anything if all it did was document things which actually exist. As long as the MacDonalds logo is not use to promote the book.


Steve.

Jesper
07-14-2011, 03:11 AM
" - What about copyright?"
" - What are you talking about? I copied it right."

Diapositivo
07-14-2011, 06:41 AM
About coffee table books (in a coffee shop?), and the coffee table book rather than merely (as I say) reproducing pictures of McDonald's restaurants, going to reproducing the logo, that certainly is an infringement of trademark if there is no permission. The word McDonald's can never be copyrighted or become a trademark. I didn't see the book in question. If it reproduced the logo (outside of the pictures, I mean) it is probably meant to have people think that it is a McDonald's publication, and in case reproduction of the logo itself is an infringement. If the book is used by a coffee shop to hint that there is a relation between the coffee shop and McDonald's it certainly constitutes a violation of trademark as well.

Derivative works of pictures are often considered not fair use and the pictures shown in post #74 are typical cases. A derivative work supposes a sufficient amount of creative work by somebody and it is up to the judge, in case of controversy, to establish if the derivative work is creative enough to be warranted a copyright. Besides, the original author doesn't lose its own copyright, there might be another copyright on top of it. It's a bit like in performing arts: there's the composer's copyright, the curator's copyright, the publisher's copyright, the performer's copyright and the producer's copyright.

So, I think we respectfully agree :)

PS Taking a picture of a restaurant with McDonald's sign is not a reproduction of a logo. Taking a picture where the McDonald's sign occupies most of the picture can certainly be seen, if used in a certain way, as a reproduction of the logo.

Steve Smith
07-14-2011, 07:47 AM
About coffee table books (in a coffee shop?).

The term coffee table book is used to represent the sort of book which people leave randomly on their coffee tables (small tables in the living room - you might call it something else).

Either so you can pick it up and look at it when you like or (more often) so you can impress your visitors when they see it and judge what an intelligent, cultured person you are!

EDIT: tavolino da salotto (possibly!)

In reality, just read coffee table book as book.


Steve.

zsas
07-14-2011, 09:49 AM
Re logos in films, I am talking about fiction for profit shows.

Using a trademark is a gray area in the states, in 2006 NBC produced a fiction show that showed a garbage disposal cut a teenager. The garbage disposal maker whose trademark was used in the NBC production sued, it settled out of court but this is not cut and dry anymore:

Article: "
http://money.cnn.com/2006/10/17/commentary/mediabiz/index.htm



Here is another great read re product placement and use of trademarked items in a film (I believe the answer in the below is written by an attorney)
http://www.filmindependent.org/news-and-blog/i-want-to-use-iphones-logos-and-movie-posters-in-my-film-what-clearances-do-i-need/


I guess I am concerned that there could be some fellow APUG'ers reading this thread who might unwillingly expose themselves if they don't know the law or the impact of using copyrighted/trademarked items for profit - my advice is to know the law in your country and be prepared to suffer the consequences if not observed. Speak to your attorney is really my advice because patent law is different by country and very gray (maybe 18% gray he he) when it comes to for profit endeavors like motion pictures or photo books (aka coffee table books)

Steve Smith
07-14-2011, 10:02 AM
in 2006 NBC produced a fiction show that showed a garbage disposal cut a teenager. The garbage disposal maker whose trademark was used in the NBC production sued, it settled out of court

But that's not trademark or copyright infringement, it's defamation. The company was worried that people would associate their product with people getting hurt. If the injury did not occur and the garbage disposal unit just happened to be in the scene, the company would not have taken legal action. Quite the reverse probably. I expect they would have been pleased to see their product get some free TV placement.


Steve.