BMW own your photos...so they say...help!!!

[marchyman]

BMW, like other companies, peruses sites like zazzle, flicker, smugmug, youtube, etc. It is NOT a high priced person doing the scanning . When they see something the low paid guy scanning the web thinks might be infringing they send a DMCA takedown notice to the site.

The site then removes the image. That simple. The notice may be bogus and the site will still remove the image because that is part of the safe harbor provision that protects Zazzle et al from being sued. It is why youtube/google won won Verizon's lawsuit against them. When ever Verizon complained youtube pulled the image.

Part of the safe harbor provision is that the site notifies you that the image was removed. Now it's your turn to play the game. You can reply with a "put back" counter notice to the site stating, under penalty of perjury, why the material should not have been taken down. The put-back is sent to zazzle, who will forward it to BMW. BMW then has 10-14 days to file a suit (that's where the lawyers get involved). If they do NOT file the suit than Zazzle has to put the image back up.

So, if you think that BMW is wrong in this instance you have to send the appropriate put-back papers to Zazzle then wait.

 

[rocketman]

BMW, like other companies, peruses sites like zazzle, flicker, smugmug, youtube, etc. It is NOT a high priced person doing the scanning . When they see something the low paid guy scanning the web thinks might be infringing they send a DMCA takedown notice to the site.

The site then removes the image. That simple. The notice may be bogus and the site will still remove the image because that is part of the safe harbor provision that protects Zazzle et al from being sued. It is why youtube/google won won Verizon's lawsuit against them. When ever Verizon complained youtube pulled the image.

Part of the safe harbor provision is that the site notifies you that the image was removed. Now it's your turn to play the game. You can reply with a "put back" counter notice to the site stating, under penalty of perjury, why the material should not have been taken down. The put-back is sent to zazzle, who will forward it to BMW. BMW then has 10-14 days to file a suit (that's where the lawyers get involved). If they do NOT file the suit than Zazzle has to put the image back up.

So, if you think that BMW is wrong in this instance you have to send the appropriate put-back papers to Zazzle then wait.

these days its more likely a robot (program) doing the scanning looking for keywords that then sends a notice to a real person. No need for humans to waste thier time scanning at all. Same thing they now do with many of the resume sites which is why wording has become so important, if the bot doesn't find the key words is searching on it ignores and move on.

And they did put it back up it seems after the OP contacted them.

RM

 

[PeoriaMac]

Humm, I see a lot of Harley Davidsons in pictures. I wonder if they are suing left and right?

Well, yes they are. They have shut down Mom and Pop repair shops that showed the Bar & Shield, They copyrighted "Hog", Hawg" and other words connected to motorcycles. They hit Dayton Tee-shirt shops which were selling Harley shirts and belt-buckles without company approval. You may remember they were going to try to copyright the "sound" of a V-Twin engine.

Here's an extended article on that question of rights:
http://www.bc.edu/bc_org/avp/law/st_org/iptf/articles/content/1998101101.html

What follows is a quote--probably illegally if H-D (c) has anything to do with it....

Trademarks
On this web site the words and logos: Bar & Shield Logo, Dyna Glide, Dyna Wide Glide, Eagle Iron, Electra Glide, Evolution, Fat Boy, HD, H-D, Harley, Harley-Davidson, Harley Owners Group, HOG, HOG Logo, Heritage Softail, Hugger, Ladies of Harley, Low Glide, Low Rider, Roadster, Screamin' Eagle, Softail, Sport Glide, Sportster, Springer, Sturgis, Super Glide, Tour-Pak, Tour Glide, Ultra Classic, Wide Glide, and Road King are registered trademarks of Harley-Davidson, Inc. , Milwaukee, Wisconsin. The words: Convertible, Duo Glide, Hydra Glide, and V-Fire III are trademarks of Harley-Davidson, Inc., Milwaukee, Wisconsin.

As I understood the origional questions about this, BMW AG is reticent to be seeming to endorse/be represented by/be connected to an aftermarket commercial enterprise without specifc permission.

Mac

 

[PeoriaMac]

That's "Daytona" not Dayton---although they probably went to Dayton too...

Mac

 

[PeoriaMac]

OK, this is the last thing I'm saying about trademarks or copyrights. If you think some
of the folks are unhappy with BMW --- just visit the following site and see why this guy
is unhappy with H-D (c)


http://www.tabberone.com/Trademarks/HallOfShame/HD/HarleyDavidson.shtml

Mac

 

[munchy]

Simon's original post indicated that the website Zazzle notified him of the problem, not BMW, as I understand it. Zazzle is one of several internet sites which make a profit by providing an internet marketplace for the sale of mulitiples, such as photos and posters. As such, they have a stake in making sure a company like BMW does not take their business down, or make it impossible to make a profit. Hence their cautionary note to Simon.

Some of the posts here ask why a company would complain about the sale of photos showing their product in the very scenarios they themselves try to sell as a lifestyle. That is not, necessarily, what drives them. Any IP lawyer will tell you that there is an "enforce/ protect your IP rights... or lose them" concept in IP law. In other words, if you, as a company with intellectual property do not take appropriate steps to protect your rights (even against "the little guy"), you will soon find that courts deem your IP to be in the "public domain" leaving you with no ability to control the use of your intellectual property. In a sense, they have to do it.

I'd love to come up with some great designs using BMW imagery or logos but know that the minute I tried to sell them as a product, they would pounce and have the full weight of the law on their side. Then again, if the sale site weren't Zazzle, and was a site owned by Simon, it might stay under their radar.

 

[CATHDEAC]

Next time you are offended by cost of software... or other IP ownership.....

Think about the cost of the next breath you take....

 

[PeoriaMac]

You don't suppose BMW is going to be unhapy with the stickers on the panniers on
my KLR 650, do you???

Mac

 

[cycleman2]

It's pretty standard practise wheither you are dealing with a product or a person, if it's identifable then you need a release in order to be able to sell the photo.

It's been that way for years.

 

[OUTBACKUFO]

.

 

[rocketman]

It's pretty standard practise wheither you are dealing with a product or a person, if it's identifable then you need a release in order to be able to sell the photo.

It's been that way for years.

Actually its not nearly that clear cut, nor do you always or even normally, need a model release if the person/product was in public view from a public space. It is more about How you use the photo in selling it. if sold as an artistic piece then changes are you don't. take a crowd scene, how many are recognizable in it? Would you need a model release to sell that image? most likely not, otherwise there would be very few professional photographers as it would be too complex time consuming to get releases from everyone in such images. News photographers would never be able to sell their work to papers, as an example.

RM

 

[rocketman]

my view of what is going on is that BMW thinks it created as the original idea of the adventure rider and the lifestyle that comes with it.

As for the photographs... you and Lisa own the copyrights to all the photos that you actually push the button of the camera. Unless you sign away the rights to use the photos. Photographers who are hired by a company normally sell the rights to their photos (beyond personal fine arts or personal PR for portfolios) to the uses of the images they take while under contract with said company that has hired them to photograph specific imagery.

Remember BMW is trying to fend off all the other bike companies from "their" adventure riding lifestyle they feel as a corperate identity they created sololy for their cycles.

Most companies in the end shoot themselves in the foot for all the free advertizing they get and PR from riders like you and Lisa or the rest of us that live the 'lifestyle'. Plus you two are at the point of really doing something big...so they want there cut.

you need to talk to a international Copyright speicallist/ intellectual property rights lawyer about this. one in Germany specifically or EU...plus maybe one in the US..

there is some issues with the whole its are product design thing when you have modified you cycles so much to do the trip that a stock cycle could not do as we all know...

You could just call you motorcycles a work of FINE ART (performing also)

As it truns out it wasn't the photo they (BMW) had an issue with, it was the use of their trademark BMW as it was used to in the sales write-up. Still a bit heavy handed but nothing to do with the photo itself.

RM

 

[globalrider]

Help and advice would be really appreciated!

All the best
Simon

Simon, looking at that photo, I can't even tell if it is a BMW. At least not in that sized pic.

Better yet, the fact that it is rolling down the road instead of being roadside due to a rear drive failure would have me believe it is anything but a BMW.

If this is for real, BMW is doing everything in their power to be a bunch of a-holes.

Just to rub it in, BMW...my Porsche Carrera is far more car than any four-wheeled thing you produce.

 

[pmdave]

Thinking more about this, I think it's important to note that these photos are being sold as "art". Did Warhol have to pay Campbell's soup? There are far more examples of the same thing. I'm sure other companies try the same overly strong-handed tactics, but I think it's a bad idea. Like I said, it doesn't make me especially proud to be riding a BMW when I hear about things like this. To be safe, any photos I take of my bike should probably include tape over any logos.

Let's note once more that there is a distinct difference between generating work for publication as a donation to an enthusiast organization--and generating material for sale. If you're making money off your work, you need to be careful about copyright laws, and aware of how your words and images might expose you to liability. That's what professional writers must do, and it's not bad practice for anyone generating material for donating.

To reduce your exposure to either private or commercial greed, it's easy enough to remove identifying marks from your images with Photoshop, and to use the appropriate copyright, registered trademark. etc. disclaimers in the text. I usually disguise license plates in my photos, or remove words or symbols from bumpers, T shirts, jackets, etc.

To further obfuscate the issue for materials intended for commercial sale, you could title the photo "Chang Jiang(TM) in the desert", or even "Harvey-Go(TM) Motorcycle in desert."

This is an extemely important issue for all of us involved in generating images or writing. It's not just BMW AG, but the whole enchilada of copyright laws. I occasionally see phrases I created being used in others' works, or even entire articles by me reprinted in club newsletters without permission. The key is to always ask permission, even if it's for non-profit use.

pmdave

 

[pmdave]

You don't suppose BMW is going to be unhapy with the stickers on the panniers on
my KLR 650, do you???

Mac

The shape of the "spinner" graphic is very obviously taken from the official BMW logo, so I'd guess that if push came to shove, BMW could take you to court and win. You can probably remain unnoticed so long as you don't use an image of your machine for commercial purposes. But anyone can sue anyone for any reason in the USA, and you have to defend yourself at your own expense even if you know you're right.

I once rebadged my Suzuki DR350 as a "BMW R35GS" complete with the BMW logo on the tank. I thought this was a good joke at the time, but in fact I was exposing myself to liability. By dumb luck, there were few photos taken, so it never came to the attention of BMW AG, although it did royally piff off a local BMW dealer--who could have brought it to the attention of the factory lawyers.

It's not a joke anymore...

pmdave

 

[rocketman]

The shape of the "spinner" graphic is very obviously taken from the official BMW logo, so I'd guess that if push came to shove, BMW could take you to court and win. You can probably remain unnoticed so long as you don't use an image of your machine for commercial purposes. But anyone can sue anyone for any reason in the USA, and you have to defend yourself at your own expense even if you know you're right.

I once rebadged my Suzuki DR350 as a "BMW R35GS" complete with the BMW logo on the tank. I thought this was a good joke at the time, but in fact I was exposing myself to liability. By dumb luck, there were few photos taken, so it never came to the attention of BMW AG, although it did royally piff off a local BMW dealer--who could have brought it to the attention of the factory lawyers.

It's not a joke anymore...

pmdave

better hope no one at AG is reading this post!

I've gotten to wondering if my faded roundel's on my airhead will get me in trouble, esp. if I retire as planned down to Greenville SC!
RM

 

[tessler]

This is an extemely important issue for all of us involved in generating images or writing. It's not just BMW AG, but the whole enchilada of copyright laws. I occasionally see phrases I created being used in others' works, or even entire articles by me reprinted in club newsletters without permission. The key is to always ask permission, even if it's for non-profit use.

I couldn't have said it better. Most recently, this happened to me with designs I created for specific usage being employed elsewhere.

 

[marchyman]

The shape of the "spinner" graphic is very obviously taken from the official BMW logo, so I'd guess that if push came to shove, BMW could take you to court and win.

Win? In the US you've got a well established first amendment right to parody such things. As long as a trademark parody doesn't confuse the public or compete with the trademarked goods or services there is no harm. That might not stop the trademark owner from suing, but if you are willing to pay for a half decent lawyer you will likely to win. Might not be cheap, though. Or you can just continue making fun of a company (or its law firm) that doesn't seem to have a sense of humor. Example (Unicorn, the new white meat).

Don't know what the rules are outside of the US.

 

[Visian]

Most recently, this happened to me with designs I created for specific usage being employed elsewhere.

forgive them father, they know not what they do.

many people do not understand the designer's passion for their design, and the pain they feel when their design gets taken and used without their consent, or worse, when the design gets used in a way the designer never intended.

ian

 

[pmdave]

Win? In the US you've got a well established first amendment right to parody such things. As long as a trademark parody doesn't confuse the public or compete with the trademarked goods or services there is no harm. That might not stop the trademark owner from suing, but if you are willing to pay for a half decent lawyer you will likely to win. Might not be cheap, though. Or you can just continue making fun of a company (or its law firm) that doesn't seem to have a sense of humor. Example (Unicorn, the new white meat).

Don't know what the rules are outside of the US.

My point here is that a common sense opinion of your rights isn't any automatic legal decision. In the USA, anyone can sue anyone without having to first prove they have a legitimate case. That's why people have sued McDonalds for coffee that was too hot. Whether you are right or wrong, the direction of the case can be swayed by who has the sharper lawyer. The problem with defending yourself after you have stuck a tack in some corporation's posterior is that big companies have big legal budgets.

So, make fun of someone at your own peril. And consider carefully whether you are being slanderous or libelous.

Other contries have different legal rules. In most other countries, if you sue someone and lose, you will typically be required to pay their legal expenses defending themselves. That makes it much less profitable to sue someone. In the USA it's a free-for-all, which is why we have so many lawyers here.

BTW, I'm not a lawyer, and I don't consider any of the above to be legal advice.

pndave