Posted by David Clapp on January 8, 2008 at 4:54 AM
Trademarks and Copyright
There are some very knowledgeable people here so please have a read an see if you can direct me to some websites or links.
The Eiffel Tower and the Louvre are registered trademarks, just like the London Underground sign. I knew this when I took the shots, but I didn't go all that way just to look at it and leave my camera in the bag, so I took whatever I felt like photographing.
I think i am correct in saying that if the image contained the Eiffel Tower but that was not the subject, say a shot of the Sienne, there is little anyone could do, but a blatent shot of the tower in the way I photographed it, specifically waiting for the flashing lights to start to capture them in specific constitutes trademark infringement unless permission is sought.
From the Eiffel Tower website -
Is the publishing of a photo of the Eiffel Tower permitted?
A : There are no restrictions on publishing a picture of the Tower by day. Photos taken at night when the lights are aglow are subjected to copyright laws, and fees for the right to publish must be paid to the SETE.
So the way I look at it is this, market the shot anyay until someone wants to use it, then seek permission (and then forget the idea more than likely!!). It stands as an example of my photography skills, but as long as I seek permission upon the point of a publication inquiry from the SETE, I see no reason why the image cannot be used to promote my skills in some context on my personal websites.
I would like to hear anyones take on this as it is such a grey area....
I would also like a UK list of what agencies will accept, as these lawas are much stricter in France than England and I am yet to see whether this holds in the UK.
Posted by Andy Astbury on January 8, 2008 at 5:15 AM
David - I doubt any agency would accept the images without you at least acknowledging existence of a valid property release.
If the rules say you need to obtain permission to market, then I would suspect, seeing as the ET is possibly the most photographed item on the planet, that agencies have been bitten so many times already over this, so I'd guess the property release would really need to come first.
I wondered how long it would be before this question was asked.. I nearly commented on your excellent image with this in mind but decided not to.
Strictly speaking, you are quite correct and that taking a photograph of the lighting display on the Eiffel Tower for commercial puposes (i.e. you intend to sell the image) is prohibited unless prior arrangement is made.
However, there are a couple of issues here. One is to do with the geographical area over which this particular 'law' extends and the other is to do with how it is enforced (or indeed, 'if').
The usage also has a bearing and I had a similar situation recently. I took a photo of a well known singer in London for a news article. For the purposes of the story, they were standing in front of one of the entrances to "Bank" underground station with the LT "roundel" clearly visible. This photo has subsequently been published in a couple of newspapers and a 'Sunday' supplement with no problem.
However, the guy's record company now want to use it for some publicity material but cannot because LT will not agree to it. Editorial usage is fine (news value) but any other purpose is deemed commercial and is not (despite the fact that the editorial usage is commercial anyway!)
You will find that regardless of the law and whether it is or is not applied, most of the reputable commercial agencies will NOT accept any images where there could be any doubt as to whether any copyright laws are broken (bearing in mind there are very few commercial borders these days and so images on sale in the UK can be bought anywhere in the world).
My advice would be not to maket the image commercially. Just by doing so you are in violation of someone's copyright (whether you agree with it or not is not the point). If I downloaded one of your photographs, would it be acceptable for me to market it commercially in the hope you didn't notice and only stop doing so if it was spotted? Same situation and the answer is, I feel, an obvious one.
Still a great photo though!
Barrie
Posted by David Clapp on January 8, 2008 at 5:33 AM
Excellent stuff guys.
I reckon its best to market then ask permission. If you were the owner Citreon and you wanted to use my shot as a backdrop, you would have the money to burn on if it meant getting the advertising you wanted and seeking permission. If I therefore withdraw the shot and confine it to my hard drive I could miss out (on £50 more than likely after all the legal crap!) Surely it could be used in an editorial capacity instead? Not for commercial use?
Can I not market the image commercial up to the point of sale and then seek the permission? Surely it is best to have all avenues open and then close them once the questions are answered. I havent stolen the building, unlike someone stealing a picture of mine and marketing it as their own? Never say never and all that....
As both Andy and I have said though, no REPUTABLE agency would market it.
If you want to make some money from it try approaching the copyright holder directly however, most companies with their resources looking for this sort of image would have it shot to order via their advertising agency so they get EXACTLY what they are looking for rather than having to 'make do'.
Copyright of your photo is yours and yours alone - nobody has rights to it other than through you.
A Trademark is a symbol that tells you appart from your competitor, the problem with the ET is that it is in public view, there is only one of it, and it would be unreasonable (given that it can be seen for miles and can incidently be part of a photograph) to not let people show the image of it - hence the day time non-restriction. I don't feel trademark is the issue here.
Why I think they can get away with it at night is not because it is a trademark but the addition of the lights makes it a 'Design' ergo potentially a work of art, hence has copyright status.
Now all these protections are only in place if you intend 'publishing' an image ( this historically has implicitly mean you are making money) - for your own use you can do what you want - how many people have pictures of the ET at night - millions.
The grey area is websites which are used for a commercial business using the ET photo (whilst not selling it) to draw business... H'mm but I have a feeling that you will get away with it, especially if your site is just you personal photo-album. If you sell it ensure somebody pays the SETE or at least get the publishers to get some legal opinions first.
I do not know what the French system is about property, but it is worth noting that there are protections in place in the UK for certain public building and places where again it is not a simple right to photograph and commercially use the exterior of a building.
Again I stress, whilst the above is what I think, I am not a lawyer and my thoughts should be read with that in mind...
An eddition.. Barry response just re-enforces what I thought.
Just to clarify one point that Tom has made. I know Tom is talking about David's photo specifically, but just in case other people apply the points generically.
As Tom says, copyright of an image generally stays with the artist however there are a couple of exceptions.
If you work as an employee of an organisation, the copyright of photographs you take as part of your job, is generally held by your employer (same as software deisgners etc).
Secondly, photographers keen to see their work in print will sometimes hand over the images to a publication or organisation and in doing so, often give that organisation carte blanche to do whatever they wish with them (including selling them for their own benefit). You have effectively handed over copyright to them (a "rights grab"). In the UK, well known examples of this are the BBC and SKY but many national newspapers also encourage "Joe Public" to send in photographs and even though they pay for them, they also do a rights grab at the same time - beware.
one other area that can cause big problems is Competitions ... One noteable competition recently had in in rules/agreement that even if your entry(s) did not win they reserved the right to use any these images for their business purposes freely and you waivered your right to payment my entering them (whats worse you paid to enter them).... so read the small print
Just a thought - do you know how much the cost is (to SETE)? It costs nothing, apart from a little time to draft an email, to contact them, surely It's worth finding out I think, as it may not be as much as one suspects. In which case all this speculation is just academic.
Beautiful set of photos btw... it'll be a shame to not see them published/used!
Agree Tom - competitons are another area to be very wary of.
Des - not speculation I'm afraid - statements of fact but yes, approaching them is worthwhile but you usually find with things like this that it's not about the copyright owner (of the lights) making money as such, but rather that they like to have control over usage and that is where the problems often arise as when images are placed with an agency or the like, you get very little control over end usage
Barrie
Posted by David Clapp on January 8, 2008 at 6:23 AM
Des has got my angle. I realise selling these shots through an agency will be complicated, but what about direct sales to UK greeting cards and calendar clients etc?
The end result is that if one of my clients requests the ET image, I can then contact SETE and ask what the situation is rather than keeping them out of my 2008 business image portfolio. With a simple sentence to prospective clients explaining the situation, if an interest is generated I can then get in contact. OR like Des says, simply do it anyway WHICH IS WHAT I SHALL DO just as an experiment to back up this thread!
Stay posted, I'll draft something up and we'll see what happens.
Offer it up for use by agencies - with the proviso that you make no claims to having any releases. Then, if anyone is interested in the photo, they know there is no release currently held and it is then up to them to obtain any necessary clearances/releases - as the record company has attempted with Barrie's shot.
A useful link to photographers rights can be found here.
FWIW Barrie, just offer to photoshop the logo out for them instead - it'll be cheaper for everyone
Tom, I'm interested to know what buildings you think are excluded from being photographed. (with the common sense exclusions of sensitive military and nuclear sites...).
As far as I understand, no copyright or design protection exists to stop a building or landscape being photographed in the UK. You can be excluded from doing so contractually by agreeing to terms when being admitted to the building/property ... but not otherwise.
Yes .. but it's the name on the roundel that I wanted
Posted by Brian Phipps on January 8, 2008 at 8:34 AM
Tom mentions be wary of competitions, I work for a Government company with over 14000 employees and 100`s of millions of pounds to spend each year.
They have yearly competitons with many catergories, all enties even if they don`t get anywhere are entered into the image library with the agreement that the images can be used for unlimited business purposes with no payment to you.
whats more each section in the competition has a top prize of a £10 Gift Voucher!
FYI.....they get lots of entries.
Posted by Mike Smith on January 8, 2008 at 2:48 PM
Nick
All the London "Royal Parks" are subject to commercial photographic limitation as are National Trust Properties, as is the London Underground, there are lots of examples in the UK where commercial photography (ie selling an image) is barred except without prior permission.
while they may state that it is barred, unless you have entered into some form of contract with them (ie by purchasing admission), then they can do nothing other than ask you to leave their property if you are on it. There is nothing to stop you using or publishing any image that you take. In the case of NT, LU etc you will generally have entered into an agreement by purchasing a ticket when you entered their property. Even then, you can move off their property and continue to photograph. Admittedly, you will then have far less chance of working with that organisation at a later date...
If you can point me to an explicit by-law, statute or case law where photography has been barred without an effective contract being entered into then I'll happily stand corrected.
On private property open to the public my view is the same as Mikes, namely that any 'private property' where the photograph in question can not be obtained from a truely public space (and even then you may fall fowl of 'Design'), and, if the premise states that commercial photography is not permitted on its premises (inside or outside), then said photograph cannot be used for any commercial activity without subsequent permission.
The physical act of being on private property is reason enough to assume you have accepted these conditions and subsequent breaking of these conditions would be treated as an act of trespass.
You are right to say that, in addittion to the above, the purchase of a ticket you move the trespass offence to one of breach of contract - the contract being that entered into by purchase of the ticket.
The likelyhood of prosecution is small, but dependant upon the final public exposure of the image. Editorial use being a grey area, but posters etc are a definate issue.
There is so much myth and mythconception over this..
My point is that (unless someone can point us to the actual statute) there is no legal impediment to you taking a photographanywhere, even private land (excluding some militarily sensitive areas). The legal remedies that people have are for trespass or possibly some sort of defamation/slander where damage to reputation or character of a person or business would need to be proved.
Anyone can come onto your land & take a photograph. The only thing you can legally do is ask them to stop and move off your property. You have no lawful right to any control over, or recompense for, any photograph taken while that person was on your land, nor do you have a right to confiscate equipment or delete photographs.
Having said all that, it is always wiser to work with, rather than against, people and organisations as it can open doors to new opportunities rather than slam them in your face.
NB one of the few places it is illegal to take a photograph is in a courtroom, and there was a case a year or two back when someone did get slapped hands for doing so. That's why you always see artists impressions of courtroom drama on the news and why such a big fuss was made around allowing TV cameras into courts.
Posted by Steve Marple on January 9, 2008 at 5:08 AM
There's an interesting discussion of photographers' rights in the UK at http://www.sirimo.co.uk/ukpr.php. I keep a printout of the PDF version in my camera bag at all times.
Discussion
21 repliesThere are some very knowledgeable people here so please have a read an see if you can direct me to some websites or links.
The Eiffel Tower and the Louvre are registered trademarks, just like the London Underground sign. I knew this when I took the shots, but I didn't go all that way just to look at it and leave my camera in the bag, so I took whatever I felt like photographing.
I think i am correct in saying that if the image contained the Eiffel Tower but that was not the subject, say a shot of the Sienne, there is little anyone could do, but a blatent shot of the tower in the way I photographed it, specifically waiting for the flashing lights to start to capture them in specific constitutes trademark infringement unless permission is sought.
From the Eiffel Tower website -
Is the publishing of a photo of the Eiffel Tower permitted?
A : There are no restrictions on publishing a picture of the Tower by day. Photos taken at night when the lights are aglow are subjected to copyright laws, and fees for the right to publish must be paid to the SETE.
So the way I look at it is this, market the shot anyay until someone wants to use it, then seek permission (and then forget the idea more than likely!!). It stands as an example of my photography skills, but as long as I seek permission upon the point of a publication inquiry from the SETE, I see no reason why the image cannot be used to promote my skills in some context on my personal websites.
I would like to hear anyones take on this as it is such a grey area....
I would also like a UK list of what agencies will accept, as these lawas are much stricter in France than England and I am yet to see whether this holds in the UK.
I found this http://www.imagecatalog.com/copyright_and_trademark.php which has some info, but its American so who knows what the situation is in the UK??
Many thanks
If the rules say you need to obtain permission to market, then I would suspect, seeing as the ET is possibly the most photographed item on the planet, that agencies have been bitten so many times already over this, so I'd guess the property release would really need to come first.
Strictly speaking, you are quite correct and that taking a photograph of the lighting display on the Eiffel Tower for commercial puposes (i.e. you intend to sell the image) is prohibited unless prior arrangement is made.
However, there are a couple of issues here. One is to do with the geographical area over which this particular 'law' extends and the other is to do with how it is enforced (or indeed, 'if').
The usage also has a bearing and I had a similar situation recently. I took a photo of a well known singer in London for a news article. For the purposes of the story, they were standing in front of one of the entrances to "Bank" underground station with the LT "roundel" clearly visible. This photo has subsequently been published in a couple of newspapers and a 'Sunday' supplement with no problem.
However, the guy's record company now want to use it for some publicity material but cannot because LT will not agree to it. Editorial usage is fine (news value) but any other purpose is deemed commercial and is not (despite the fact that the editorial usage is commercial anyway!)
You will find that regardless of the law and whether it is or is not applied, most of the reputable commercial agencies will NOT accept any images where there could be any doubt as to whether any copyright laws are broken (bearing in mind there are very few commercial borders these days and so images on sale in the UK can be bought anywhere in the world).
My advice would be not to maket the image commercially. Just by doing so you are in violation of someone's copyright (whether you agree with it or not is not the point). If I downloaded one of your photographs, would it be acceptable for me to market it commercially in the hope you didn't notice and only stop doing so if it was spotted? Same situation and the answer is, I feel, an obvious one.
Still a great photo though!
Barrie
I reckon its best to market then ask permission. If you were the owner Citreon and you wanted to use my shot as a backdrop, you would have the money to burn on if it meant getting the advertising you wanted and seeking permission. If I therefore withdraw the shot and confine it to my hard drive I could miss out (on £50 more than likely after all the legal crap!) Surely it could be used in an editorial capacity instead? Not for commercial use?
Can I not market the image commercial up to the point of sale and then seek the permission? Surely it is best to have all avenues open and then close them once the questions are answered. I havent stolen the building, unlike someone stealing a picture of mine and marketing it as their own? Never say never and all that....
If you want to make some money from it try approaching the copyright holder directly however, most companies with their resources looking for this sort of image would have it shot to order via their advertising agency so they get EXACTLY what they are looking for rather than having to 'make do'.
Barrie
H'mm one part is obscure, one part is not.
Copyright of your photo is yours and yours alone - nobody has rights to it other than through you.
A Trademark is a symbol that tells you appart from your competitor, the problem with the ET is that it is in public view, there is only one of it, and it would be unreasonable (given that it can be seen for miles and can incidently be part of a photograph) to not let people show the image of it - hence the day time non-restriction. I don't feel trademark is the issue here.
Why I think they can get away with it at night is not because it is a trademark but the addition of the lights makes it a 'Design' ergo potentially a work of art, hence has copyright status.
Now all these protections are only in place if you intend 'publishing' an image ( this historically has implicitly mean you are making money) - for your own use you can do what you want - how many people have pictures of the ET at night - millions.
The grey area is websites which are used for a commercial business using the ET photo (whilst not selling it) to draw business... H'mm but I have a feeling that you will get away with it, especially if your site is just you personal photo-album. If you sell it ensure somebody pays the SETE or at least get the publishers to get some legal opinions first.
I do not know what the French system is about property, but it is worth noting that there are protections in place in the UK for certain public building and places where again it is not a simple right to photograph and commercially use the exterior of a building.
Again I stress, whilst the above is what I think, I am not a lawyer and my thoughts should be read with that in mind...
An eddition.. Barry response just re-enforces what I thought.
As Tom says, copyright of an image generally stays with the artist however there are a couple of exceptions.
If you work as an employee of an organisation, the copyright of photographs you take as part of your job, is generally held by your employer (same as software deisgners etc).
Secondly, photographers keen to see their work in print will sometimes hand over the images to a publication or organisation and in doing so, often give that organisation carte blanche to do whatever they wish with them (including selling them for their own benefit). You have effectively handed over copyright to them (a "rights grab"). In the UK, well known examples of this are the BBC and SKY but many national newspapers also encourage "Joe Public" to send in photographs and even though they pay for them, they also do a rights grab at the same time - beware.
Barrie
one other area that can cause big problems is Competitions ... One noteable competition recently had in in rules/agreement that even if your entry(s) did not win they reserved the right to use any these images for their business purposes freely and you waivered your right to payment my entering them (whats worse you paid to enter them).... so read the small print
T
Beautiful set of photos btw... it'll be a shame to not see them published/used!
Des
Des - not speculation I'm afraid - statements of fact but yes, approaching them is worthwhile but you usually find with things like this that it's not about the copyright owner (of the lights) making money as such, but rather that they like to have control over usage and that is where the problems often arise as when images are placed with an agency or the like, you get very little control over end usage
Barrie
The end result is that if one of my clients requests the ET image, I can then contact SETE and ask what the situation is rather than keeping them out of my 2008 business image portfolio. With a simple sentence to prospective clients explaining the situation, if an interest is generated I can then get in contact. OR like Des says, simply do it anyway WHICH IS WHAT I SHALL DO just as an experiment to back up this thread!
Stay posted, I'll draft something up and we'll see what happens.
Thanks for all your thoughts so far!
A useful link to photographers rights can be found here.
FWIW Barrie, just offer to photoshop the logo out for them instead - it'll be cheaper for everyone
As far as I understand, no copyright or design protection exists to stop a building or landscape being photographed in the UK. You can be excluded from doing so contractually by agreeing to terms when being admitted to the building/property ... but not otherwise.
They have yearly competitons with many catergories, all enties even if they don`t get anywhere are entered into the image library with the agreement that the images can be used for unlimited business purposes with no payment to you.
whats more each section in the competition has a top prize of a £10 Gift Voucher!
FYI.....they get lots of entries.
All the London "Royal Parks" are subject to commercial photographic limitation as are National Trust Properties, as is the London Underground, there are lots of examples in the UK where commercial photography (ie selling an image) is barred except without prior permission.
Mike
while they may state that it is barred, unless you have entered into some form of contract with them (ie by purchasing admission), then they can do nothing other than ask you to leave their property if you are on it. There is nothing to stop you using or publishing any image that you take. In the case of NT, LU etc you will generally have entered into an agreement by purchasing a ticket when you entered their property. Even then, you can move off their property and continue to photograph. Admittedly, you will then have far less chance of working with that organisation at a later date...
If you can point me to an explicit by-law, statute or case law where photography has been barred without an effective contract being entered into then I'll happily stand corrected.
On private property open to the public my view is the same as Mikes, namely that any 'private property' where the photograph in question can not be obtained from a truely public space (and even then you may fall fowl of 'Design'), and, if the premise states that commercial photography is not permitted on its premises (inside or outside), then said photograph cannot be used for any commercial activity without subsequent permission.
The physical act of being on private property is reason enough to assume you have accepted these conditions and subsequent breaking of these conditions would be treated as an act of trespass.
You are right to say that, in addittion to the above, the purchase of a ticket you move the trespass offence to one of breach of contract - the contract being that entered into by purchase of the ticket.
The likelyhood of prosecution is small, but dependant upon the final public exposure of the image. Editorial use being a grey area, but posters etc are a definate issue.
There is so much myth and mythconception over this..
My point is that (unless someone can point us to the actual statute) there is no legal impediment to you taking a photograph anywhere, even private land (excluding some militarily sensitive areas). The legal remedies that people have are for trespass or possibly some sort of defamation/slander where damage to reputation or character of a person or business would need to be proved.
Anyone can come onto your land & take a photograph. The only thing you can legally do is ask them to stop and move off your property. You have no lawful right to any control over, or recompense for, any photograph taken while that person was on your land, nor do you have a right to confiscate equipment or delete photographs.
Having said all that, it is always wiser to work with, rather than against, people and organisations as it can open doors to new opportunities rather than slam them in your face.
NB one of the few places it is illegal to take a photograph is in a courtroom, and there was a case a year or two back when someone did get slapped hands for doing so. That's why you always see artists impressions of courtroom drama on the news and why such a big fuss was made around allowing TV cameras into courts.
Well worth reading.