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Re: Copyright of images



At 02:29 PM 5/21/2001 -0400, Tom Berry wrote:
One of our members, a professional photographer and published author, raised
an intriguing issue with me. He says that some corporations are taking legal
action against certain usages of images of their products. Not action
against the copyright to the photograph itself, but rather against showing
their product in the image without licensing fees or royalties being paid -
licensing the appearance of their product in an image, so to speak..

This is an interesting issue, but I don't think copyright is involved.  My
guess is that the corporations are asserting their trademark rights in
objects depicted in the scene.  In a few cases (and probably with
Disneyland, though I don't know for sure), a specific representation of a
building has been trademarked.  You are not allowed to use someone else's
trademarks if it will cause confusion, suggest an affiliation, or disparage
the trademark owner.  There are, though, fair use and first amendment
considerations that apply with trademarks, and my uninformed guess is that
most "scholarly" use of the images would fall within those exemptions.

There are a few things you can do to protect yourself.  First, you should
bring the matter up with legal counsel for your institution.  Lawyers
usually know more about trademarks (since your institution is likely to
have them) than they do about other IP issues (such as
copyright).  Secondly, you might read the chapter on trademarks in the
"Museum Guide to Copyright and Trademark" (though the bulk of the chapter
is about protecting your own trademarks, rather than using other
people's).  Another good resource would be the chapter on "Traps for the
Unwary: Trademark and Publicity Rights" in Steven Fishman's excellent new
book on the public domain.  Thirdly, you may want to make sure that the use
that someone makes of the material is purely for informational,
educational, non-commercial purposes - and that your duplication of the
photograph is not for commercial purposes (i.e., you're not trying to make
money on it).  Fishman makes a strong First Amendment case for the use of
trademarked material; but I don't know if I would want Disney suing me.  Of
course, I am not a lawyer.

Peter Hirtle
---------------------------------------------------------------
Peter B. Hirtle
Co-Director                                pbh6@cornell.edu
Cornell Institute for Digital Collections     607/255-4033 (ph)
2B Kroch Library                                   607/255-9524 (fax)
Cornell University                <http://cidc.library.cornell.edu/>
Ithaca, NY  14853
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