Unexpected copyright issue

[Meta4]

I've been approached by legal and PR reps of a cruise line about photos I've taken of some of their ships.
One is advising me that the logos on their ships and the ship's names are copyright and they are concerned that putting the photos on my website is somehow violating their copyright.
The other is telling me that they like my photography and perhaps the solution to the problem might be to buy my offending photos.

This is not an issue I anticipated ... I really can't see what the issue is.
I know they like my photos because last month they paid me very well for sole rights to one of my images to use in advertising.

I'm waiting to see what kind of offer they make.
Any thoughts or ideas?

 

[BigAl07]

Sounds like a create position to be in. Definitely sell them but make sure you get your fair share.

Congrats

 

[Rodger]

I've been approached by legal and PR reps of a cruise line about photos I've taken of some of their ships.
One is advising me that the logos on their ships and the ship's names are copyright and they are concerned that putting the photos on my website is somehow violating their copyright.
The other is telling me that they like my photography and perhaps the solution to the problem might be to buy my offending photos.

This is not an issue I anticipated ... I really can't see what the issue is.
I know they like my photos because last month they paid me very well for sole rights to one of my images to use in advertising.

I'm waiting to see what kind of offer they make.
Any thoughts or ideas?

The question is, did they engage you to take the photos? Their logo is copyrighted material and so is the FORD emblem on their products. The photo that they paid for sole rights is now theirs. You cannot use it without their permission. If that is the photo on your website I would remove it from the website.You will need a release from them to use it.

 

[MapMaker53]

Interesting. Sounds like their lawyers aren't sure about it either and are trying to figure out the legalities. I would point out the craziness that would ensue if you couldn't sell a photo of Times Square in NYC if every store or business seeing their name in the photo could sue for copyright infringement. I understand your focus was on their ship, but their ship is available for the world to see. It isn't like you are using their logo (or Photoshopping it) onto a different ship. Interesting legal question.

 

[MapMaker53]

I would think the cruise line would WANT a beautiful photo of their ship circulating out there, if only for the sake of free advertising - especially if they really like the photo.

 

[Outta Control]

First questions I would like to know is if the cruise company's lawyer sent you a cease and desist letter. If not tell them you'll sell those photos to them for $$$$$.

 

[Rodger]

Interesting. Sounds like their lawyers aren't sure about it either and are trying to figure out the legalities. I would point out the craziness that would ensue if you couldn't sell a photo of Times Square in NYC if every store or business seeing their name in the photo could sue for copyright infringement. I understand your focus was on their ship, but their ship is available for the world to see. It isn't like you are using their logo (or Photoshopping it) onto a different ship. Interesting legal question.View attachment 261

My point exactly, Ford, GMC, Dodge, Jeep, etc.

 

[MapMaker53]

The purpose of a trademarked logo or name is to identify a specific item or company with no confusion. And I do not believe it entitles the registered owner any copyright to any and all photographs that include it in an image that is taken of it when it is openly displayed to the public. I'm not a lawyer, but have had a logo of mine officially trademarked in the past through the USPTO. I'm sure I would not own all rights to all photographs taken of that product - with the exception of photos that I personally take of it -- and they would be the limitation of my own copyright. What the cruise line is doing (I believe) is overreaching with their trademark. I'm surprised their lawyers don't know that. Or maybe they do and are just trying to make you squirm a bit to get your selling price for your photo lower. That being said, I would still remain friendly with them for future business opportunities with your photos.

Put differently, you are NOT using their logo or name on a different product and you are NOT causing any confusion when it comes to identifying their company (like calling your cruise line company "Royalty Caribbean"). You are also NOT selling one of their photos taken by one of their photographers. You are selling your own piece of photographic art, much like Andy Warhol sold his Campbell Soup Can painting. The photo you took is your own creation and only you can copyright it. At least I think that is the way the law works. But I'm not a lawyer.

 

[Rodger]

I think the question is if he has the photo that he sold to the cruise line on his website. If they bought the rights to the photo, only they can use that photo as they wish.

 

[MapMaker53]

I think the question is if he has the photo that he sold to the cruise line on his website. If they bought the rights to the photo, only they can use that photo as they wish.

According to the OP's opening post, they are objecting to photos he has of their ships on his website that display their company logo. They have not purchased those photos yet but may buy them if both parties can work out a deal. But if the one he sold them is still on his website, that photo would now be their property (unless the bill of sale stated that the photographer retains rights to it) and (I believe) would have the right to prevent him from displaying it further on his website.

 

[RNCotton]

What it boils down to is a "Property Release" because you are using the photo on your web site as advertising, and potentially making money from their property. It makes perfect sense that if you were *selling* the photo, then you would need a property release. But you're simply using it on your web site, as a photo you took, in a public place. Depending on the mood of the judge ... it could go either way as advertising, and hence the confusion from their legal / PR folks. It's not editorial use, since you aren't the press.

==========


Q: How do I know when I need a property release?

A: The answer to this question can be reached by asking a series of questions about the subject and use of the photograph. A property release is advisable and may be needed from each property owner whose property appears in a photograph that is used for advertising or trade (business) purposes when the property owner is clearly identifiable by the property. (Note that the owner can be a corporation as well as an individual.)



Look at the photograph and the property in it, and ask these questions:

1. Could the owner of the property in the photograph be identified by anyone just by looking at the photograph of the property?
   
   If the answer to question #1 is No, then you do not need a release.
   
   
   
2. Is the photograph to be used for an advertisement? (In law, “advertisement” is very broadly defined.)
   
   
   
3. Is the photograph going to be used for commercial purposes, like a brochure, calendar, poster, web site or other use that is intended to enhance a business interest?

If the answers to question #2 and question #3 are both No, then you do not need a release. Otherwise, you do need a release.

*SOURCE - Frequently asked questions about releases | American Society of Media Photographers

==========

More info: When Do I Need a Property Release?

 

[MapMaker53]

Interesting. If I have an old photograph of the Titanic, and it is clearly identified as the Titanic, am I required by law to obtain a property release from The White Star Line before I can sell it at auction? What about a photo of the Empire State building? (Just playing Devil's advocate here.) And while we are at it, let's go back to the above photograph of Times Square. Do I need a release from all of those companies in order to sell this hypothetical photo I took of it?

 

[Meta4]

Interesting. If I have an old photograph of the Titanic, and it is clearly identified as the Titanic, am I required by law to obtain a property release from The White Star Line before I can sell it at auction? What about a photo of the Empire State building? (Just playing Devil's advocate here.) And while we are at it, let's go back to the above photograph of Times Square. Do I need a release from all of those companies in order to sell this hypothetical photo I took of it?

My reading suggests it's complicated.
In the Titanic case, it would depend on whether the White Star Line and/or their successors had copyrighted the logo or the ship's name.
And the the issue of copyright of the original photographer is a separate issue again.
Trademarks are a different issue and would only be a problem if you were misusing them to sell a competing product as outlined in the Campbells Soup post above.

Bringing in their lawyer to scare me seems a very strange thing to do when they want to buy my work.
I'm wondering what this might mean for me in the future as the cruise line leaves their copyright logos out in public on attractive ships that make for good photos.
They don't worry about the hundreds of photos of their ships taken every day, but are concerned with mine?

Here's an example of the kind of image involved.
Their copyrighted logos etc take up about 1-2% of my image.

 

[embayweather]

I wonder if it is some form of scam to get You to lower your price for the images they want? They tell you they are copyright, but they will buy them from you to ‘take them off your hands’. Were there any notices displayed on board or on their website the ship about restricting photography? Has the area in which you took the images been signed with no photography signs? I doubt any of it. In the U.K. at least, any images taken in a public place are not copyrighted by including any logos, signs, or other identifiers. I guess the high seas would be the same. The images you took I would guess are in the territorial waters

 

[embayweather]

Of a country, whose laws are the ones to be concerned about.. I have never heard of any country which enforces such copyright.
Stick out for a good price and let everyone be happy, but keep copies for your own use too.

 

[Russ Still]

First of all, sounds like they're confusing copyrights with trademarks.

 

[Meta4]

I'm not sure what to do about this.
They have come back with an "offer" that's sounds more like a threat:

**** considers that you have infringed its copyright by reproducing, publishing and selling photographs containing images of **** ships which include images of their logos and ship names. As the owner in the copyright it each of their logos, it is the **** brands alone who are entitled to commercially exploit images embodying that artistic work. We understand that it was not your intention to infringe ****'s copyright and that you were unaware of the legal situation surrounding the taking and selling of images of our ships. We acknowledge that your photographs are artistic works in themselves and think they are great. We would like to use them in our marketing materials and therefore put the following proposal to you:

- **** agrees not to take any action against you for infringing its copyright, including seeking licence fees that it may be entitled to collect on the value of sales made by you of images featuring **** ships
- You cease to publicise the "**** images" in any media
- You grant to **** an exclusive licence to use all images containing **** owned or operated ships, in any way it sees fit (and you sign a short contract reflecting this)
- **** pays you a fee of $xxxx

It's crazy when the only image of their ships that I've sold was to their advertising agency.
Their offer for the rest of my photos values them at about 3% of what they paid for the original image.

 

[Electronick]

Personally I'd (politely!)... tell them to go swing round their anchor. I certainly wouldn't be signing anything like what they've hinted at...

Shipping companies are notoriously tight-fisted, I know from family experience - my father was an officer in the Merchant Navy, as was my Uncle who, incidentally, worked for P&O containers in the 80's & 90's.

There are plenty more photos of the Pacific Aria and her sister vessels on the web... Photo of PACIFIC ARIA, Taken on Aug 13, 2013, 3.1k views, IMO: 8919269 - Passenger (Cruise) Ship; Place: La Coruna | Gallery | VesselFinder. I'm sure if you googled hard enough you could find sites that sell images of shipping to shipping enthusiasts, just as there are sites that sell aircraft photos and motorcycle photos etc etc. The shipping unions and press also wouldn't be able to include photos of any ship in their publications such as https://nautilusint.org/en/what-we-say/telegraph/ , in fact she appears on page 15 of Nautilus Telegraph January 2016 back in 2016.

So long as you where not a passenger standing on their ship (& flying from it) when you took the images, the photos are your copyright and yours alone. They do not have the right to control your use or distribution of them in any way. If there was such a copyright, then you'd not see any photos of any ships, cars, trucks, buildings etc. Even the French can only go so far & can only manage to copyright the *lightshow* on the Eiffle Tower, and then only within France. (If you where a passenger, then the terms & conditions of your ticket would dictate what rights you had).

Their logo is not the main subject of the photograph, the ship is. There is no overarching copyright of image in the ship (they might have a design right, but that would be to stop another company making the same design of ship). Effectively their logo is 'incidental inclusion' - i.e. it's not the main subject of the photo. Yes, the logo is also their trademark, but so long as you're not trying to pass yourself off as P&O or as being officially sanctioned by P&O, you're not infringing their trademark.

(Standard internet disclaimer... I'm not a lawyer, so if they continue to threaten you, you might want to talk to one qualified in Copyright and Trademarks. And somewhere like Photo Attorney might be a useful starting point for further info if you're based in the US)

 

[Russ Still]

The simple fact that they are misusing the concept of copyright on an issue involving trademark (in my opinion, and I'm not an attorney), makes me skeptical about their claim. Sounds like they're trying to intimidate you with smoke and mirrors.

Here's what you do. Use images of their ships, but Photoshop their logos into something else. Maybe even a competitor's logo. Then tell them to heave ho. If would take an attorney to address whether or not their logo in an image falls under copyright/trademark protection (I doubt it). But they sure as heck cannot extend that protection on to their ship.

 

[MapMaker53]

"We acknowledge that your photographs are artistic works in themselves" is what shoots down their ridiculous argument. You are entitled to copyright your own artistic work. In addition, they would have to prove in court that you are or would be causing them damage in some way buy selling or publishing a photo of their ship. I would tell them you have spoken to a copyright attorney and he has advised you that they are clearly overreaching when it comes to U.S. Copyright Laws and that you should sign no such agreement. I would also add that you will be speaking to the local news stations regarding this unusual threat by the cruise line. And I would c.c. all communications to the CEO of the cruise line. This is a ridiculous fight no CEO in his right mind would want to publicize. Remain friendly and offer to sell them any photo they like in the future for an agreed upon price.