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  1. #71
    Steve Smith's Avatar
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    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.

  2. #72

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    Quote Originally Posted by Diapositivo View Post
    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.

  3. #73
    2F/2F's Avatar
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    Quote Originally Posted by BrianShaw View Post
    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.



    Last edited by 2F/2F; 07-13-2011 at 09:21 AM. Click to view previous post history. Reason: to add pix
    2F/2F

    "Truth and love are my law and worship. Form and conscience are my manifestation and guide. Nature and peace are my shelter and companions. Order is my attitude. Beauty and perfection are my attack."

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  4. #74
    zsas's Avatar
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    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


    Thierry Guetta’s appropriation (aka Mr. Brainwash):


    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...minated-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


    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/...r-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.


    Article
    http://articles.boston.com/2011-01-1...pe-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'.
    Last edited by zsas; 07-13-2011 at 08:25 PM. Click to view previous post history. Reason: clarity

  5. #75
    Steve Smith's Avatar
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    Quote Originally Posted by zsas View Post
    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.

  6. #76
    Jesper's Avatar
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    " - What about copyright?"
    " - What are you talking about? I copied it right."

  7. #77
    Diapositivo's Avatar
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    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.
    Fabrizio Ruggeri fine art photography site: http://fabrizio-ruggeri.artistwebsites.com
    Stock images at Imagebroker: http://www.imagebroker.com/#/search/ib_fbr

  8. #78
    Steve Smith's Avatar
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    Quote Originally Posted by Diapositivo View Post
    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.

  9. #79
    zsas's Avatar
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    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/comm...abiz/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-...ces-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)

  10. #80
    Steve Smith's Avatar
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    Quote Originally Posted by zsas View Post
    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.

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