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

OK, so i need the collective input of any members to what I can only see as bizarre but potentially dire issue that will effect any inmate that posts a picture of their motorcycle. If BMW have their way it looks like every photo on this site (of a BMW bike) and others will be removed.1 1. Think I'm being over the top. Read on.

Like most I understand the right and the need for companies both large and small to protect the trademark and products from exploitation, BMW seem to have taken their 'assumed rights' to a new level.

The background: My wife and I are on a bike trip, we've taken some nice photos on our trip, some of them have our bikes in them. Well they would wouldn't they! You know the one's, one rider heading up a road (a public road), a nice bit of landscape etc, etc.

We've opened an account with a internet based publisher called 'zazzle', created a few poster prints in the hope of selling our photography.

It's key to know that in NO WAY do we suggest, claim, elude to to imply that we have connection to BMW AG in these photos or in the promotion of them.

Last night we received this email:
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Response (Mike) - 08/09/2010 04:19 PM
Hello Zazzler,

Thank you for being a Seller at Zazzle.com!

We would love to offer every design that our users submit, however we must abide by all applicable laws and standards as well as our own content guidelines and copyright policies.

Unfortunately, it appears that your product did not meet Zazzle Acceptable Content Guidelines. Specifically, your product infringes upon the intellectual property rights of BMW AG. All elements including names, car/motorcycle models, logos, and actual cars/motorcycles.

We have been contacted by BMW AG, and at their request, have removed the product from the Zazzle Marketplace.

We are sorry for any disappointment, but hope you will understand our position in this regard. For future reference, please review Zazzle Acceptable Content Guidelines at: http://zazzle.custhelp.com/app/answers/detail/a_id/143.

If you have any further questions, please don't hesitate to contact us.

Thanks for using Zazzle. We look forward to seeing more of your creative designs!

Best Regards,
Mike
Content Management Team
Zazzle, Inc.
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BMW AG like a few other large automotive firms are basically claiming that the representation and or imagery of a vehicle they produced cannot be used without their express permission and in fact all photographs or likenesses created based on the recognizable shape of a BMW vehicle is in fact their intellectual property.

Here is the photo that BMW is claiming is their intellectual Property and has now been removed from my zazzle account



Does anyone have any experience with this?

If BMW are correct then, any photos, images and even video posted here or anywhere else is in fact theirs and not yours, even though you own the vehicle.

Help and advice would be really appreciated!

All the best
Simon

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

OK, so i need the collective input of any members to what I can only see as bizarre but potentially dire issue that will effect any inmate that posts a picture of their motorcycle. If BMW have their way it looks like every photo on this site (of a BMW bike) and others will be removed.1 1. Think I'm being over the top. Read on.

Like most I understand the right and the need for companies both large and small to protect the trademark and products from exploitation, BMW seem to have taken their 'assumed rights' to a new level.

The background: My wife and I are on a bike trip, we've taken some nice photos on our trip, some of them have our bikes in them. Well they would wouldn't they! You know the one's, one rider heading up a road (a public road), a nice bit of landscape etc, etc.

We've opened an account with a internet based publisher called 'zazzle', created a few poster prints in the hope of selling our photography.

It's key to know that in NO WAY do we suggest, claim, elude to to imply that we have connection to BMW AG in these photos or in the promotion of them.

Last night we received this email:
--------------------------------------------------------------------------

Response (Mike) - 08/09/2010 04:19 PM
Hello Zazzler,

Thank you for being a Seller at Zazzle.com!

We would love to offer every design that our users submit, however we must abide by all applicable laws and standards as well as our own content guidelines and copyright policies.

Unfortunately, it appears that your product did not meet Zazzle Acceptable Content Guidelines. Specifically, your product infringes upon the intellectual property rights of BMW AG. All elements including names, car/motorcycle models, logos, and actual cars/motorcycles.

We have been contacted by BMW AG, and at their request, have removed the product from the Zazzle Marketplace.

We are sorry for any disappointment, but hope you will understand our position in this regard. For future reference, please review Zazzle Acceptable Content Guidelines at: http://zazzle.custhelp.com/app/answers/detail/a_id/143.

If you have any further questions, please don't hesitate to contact us.

Thanks for using Zazzle. We look forward to seeing more of your creative designs!

Best Regards,
Mike
Content Management Team
Zazzle, Inc.
--------------------------------------------------------------------------


BMW AG like a few other large automotive firms are basically claiming that the representation and or imagery of a vehicle they produced cannot be used without their express permission and in fact all photographs or likenesses created based on the recognizable shape of a BMW vehicle is in fact their intellectual property.

Here is the photo that BMW is claiming is their intellectual Property and has now been removed from my zazzle account



Does anyone have any experience with this?

If BMW are correct then, any photos, images and even video posted here or anywhere else is in fact theirs and not yours, even though you own the vehicle.

Help and advice would be really appreciated!

All the best
Simon

You need to contact an attorney familiar with intellectual property rights in you area. I have no idea what kind of letter this site received from BMW, but I do not see anything that would give rise to a claim as they allege. BMW has no property right to your photo because you happen to be on their motorcycle. Something else is going on with the website owner.

Anyway, everybody posting stuff online in other than their own website better take time to read the tedious fine print in a lot of sites. The photos sometime expressly become the property of the website, and you have agreed to it !

thanks

ka5ysy said:

You need to contact an attorney familiar with intellectual property rights in you area. I have no idea what kind of letter this site received from BMW, but I do not see anything that would give rise to a claim as they allege. BMW has no property right to your photo because you happen to be on their motorcycle. Something else is going on with the website owner.

Anyway, everybody posting stuff online in other than their own website better take time to read the tedious fine print in a lot of sites. The photos sometime expressly become the property of the website, and you have agreed to it !

Click to expand...

Hi ka5ysy,

easier said than done as at present we're in Nepal. We're still on the road, a the moment I'm hoping to get zazzle to see a little sense or gt BMW to back off and apply some common sense.

Simon

"Over the top?" Yes, absolutely.

You are missing (conveniently or otherwise) a major difference here. In one case we have an image being posted for commercial purposes while on the other we have images being posted for entertainment/educational purposes. Images posted for educational purposes, even copyrighted images owned by another, are generally exempt from copyright laws by the court-established "fair use" rule. Commercial ventures have no such protections.

I'm not saying BMW AG is right in this instance. I don't know. What I am saying is that your contention that BMW's objection to you selling images of their vehicles somehow leads to your statement that "if BMW have their way it looks like every photo on this site (of a BMW bike) and others will be removed" is, in a word, ludicrous.

SimonThomas said:

OK, so i need the collective input of any members to what I can only see as bizarre but potentially dire issue that will effect any inmate that posts a picture of their motorcycle.

Click to expand...

actually, there is an issue only if you publish a picture of their product in an effort to generate revenue. they are not claiming that they own your picture, they are claiming that they own some of the intellectual property *in* your picture. ultimately, if you use what BMW sees as their intellectual property to generate revenue, BMW is going to want a piece of your pie. and they have the money and lawyers to destroy your business.

i am not an IP lawyer, so i can't tell you if they have a 100% legal leg to stand on, but they have the money to pursue you in court... and most likely, you don't.

this is a really sad state of affairs.

when i was on our Board of Directors last year this subject came up in the form of BMW's claim of "wordmark" for the letters B, M and W when formed together in a logo type. this was presented to all clubs as part of a new "corporate graphics style guide."

many who saw this said it's no big deal.... someone said that someone at BMW NA said that this was not going to be an issue. personally, i would not trust that assurance.

i think that this is a threat to our association that's been forming for over 15 years, ever since BMW made us put a letterspace between the BMW and the MOA.

and it sucks for individuals like you who are trying to make a living by telling their tale of adventure.

poor form, BMW. poor form.

ian

You know what's amazing to me is that, in the photo above, the motorcycle isn't even recognizable as any particular brand - at least not to me.

I wonder if BMW employs a special department charged with thinking up new ways to kick their customers in the teeth.

This is not news to any photographer. You can't sell your photos with anyone's trade mark on them. Very basic concept.
The issue isn't so much showing the picture, it is the selling that is getting you.
I think it's a CYA situation in the example picture your show. There appear to be no word or trademarks displayed, and technically you probably have a case.
If you want to sell motorcycle pictures. take picture in ways that no trademark is visible. This is not particular to BMW.

Visian said:

actually, there is an issue only if you publish a picture of their product in an effort to generate revenue. they are not claiming that they own your picture, they are claiming that they own some of the intellectual property *in* your picture. ultimately, if you use what BMW sees as their intellectual property to generate revenue, BMW is going to want a piece of your pie. and they have the money and lawyers to destroy your business.

i am not an IP lawyer, so i can't tell you if they have a 100% legal leg to stand on, but they have the money to pursue you in court... and most likely, you don't.

this is a really sad state of affairs.

when i was on our Board of Directors last year this subject came up in the form of BMW's claim of "wordmark" for the letters B, M and W when formed together in a logo type. this was presented to all clubs as part of a new "corporate graphics style guide."

many who saw this said it's no big deal.... someone said that someone at BMW NA said that this was not going to be an issue. personally, i would not trust that assurance.

i think that this is a threat to our association that's been forming for over 15 years, ever since BMW made us put a letterspace between the BMW and the MOA.

and it sucks for individuals like you who are trying to make a living by telling their tale of adventure.

poor form, BMW. poor form.

ian

Click to expand...

Hi Visian,

Vsion, thanks for the info, so, if you're right and i hope you are, presenting images online in the likes of this forum etc is legally covered and all OK. This really is a muddy issue and one that can get contorted easily.

I think that a good part of my confusion is that other than to those that are in the know the bike in the photo doesn't resemble a production BWM??

Xtropper,

The entire scenario seems ludicrous to me and there's nothing particularly 'convenient' about any of this. My understanding when i took the photo was that I owned the IP as the focus of the image is the landscape and not the bike.

As the owner of the images I have to wonder whether BWM AG would have had the same issue if the print was available as a freebie as opposed to a work of art created by me. What I think confuses me is that this particular image that BM have decided to take to task has little or no link to the brand or mark. There is no logo in the image and no reference to the motorbike BM or otherwise in the title.

With the association of the image and BM being so vague I had to wonder (not being an IP lawyer) what other imagery BM would consider worthy of their attention.

SheRidesABeemer said:

If you want to sell motorcycle pictures. take picture in ways that no trademark is visible.

Click to expand...

yeahbutt, gail, BMW will claim that the *shape* of their motorcycle is their IP.

after all, david robb created that shape, and he is an employee of BMW.

You got an email from "Mike" a Content Manager at Zazzle addressing you as "Hello Zazzler" to basically inform you that they're simply following their policy. I wouldn't be worried. Like Gail and Ian said, you can't resell someone else's Intellectual Property (even if it's an integral part of an image or artwork you created). But Zazzle is covering their collective butt; this is undoubtedly not the first time they've had to do this.

Write directly to AG, show them your poster and ask for permission. I'm sure you'll receive a suitable reply. Then find an alternative marketplace to Zazzle and sell your work. Bolster promotion through forums, Facebook and Twitter. You should be fine.

Cheers.

tessler said:

You got an email from "Mike" a Content Manager at Zazzle addressing you as "Hello Zazzler" to basically inform you that they're simply following their policy. I wouldn't be worried. Like Gail and Ian said, you can't resell someone else's Intellectual Property (even if it's an integral part of an image or artwork you created). But Zazzle is covering their collective butt; this is undoubtedly not the first time they've had to do this.

Write directly to AG, show them your poster and ask for permission. I'm sure you'll receive a suitable reply. Then find an alternative marketplace to Zazzle and sell your work. Bolster promotion through forums, Facebook and Twitter. You should be fine.

Cheers.

Click to expand...

Tessler, thanks for the words of encouragement. I think you spot on and that zazzle are just taking the better safe than sorry approach.

My only worry is that if infact zazzle did receive a direct communication from BWM then the same would happen again regardless of which publishing agent/site i choose to share and sell my photography. And, because of the nature of our current lifestyle ie, long term motorcycle travel, the majority of my work will inherently include a bike, albeit one that does not look like one that BWM produces.

dhgeyer said:

You know what's amazing to me is that, in the photo above, the motorcycle isn't even recognizable as any particular brand - at least not to me.

I wonder if BMW employs a special department charged with thinking up new ways to kick their customers in the teeth.

Click to expand...

try thinking from BMW's perspective. they have invested millions of dollars in developing a product and differentiating it in a marketplace full of competitive products.

if an individual or business uses that which makes the BMW different, the value of that special something is decremented. at some point, the value of the difference is decremented to the point that the market no longer places any value on the difference.

in this instance, *that* is what BMW is trying to protect... the value of the difference that makes their product competitive in the marketplace.

sounds like BS, i know, but it's what marketing is all about.

ian

SimonThomas said:

Hi Visian,



Xtropper,

The entire scenario seems ludicrous to me and there's nothing particularly 'convenient' about any of this. My understanding when i took the photo was that I owned the IP as the focus of the image is the landscape and not the bike.

As the owner of the images I have to wonder whether BWM AG would have had the same issue if the print was available as a freebie as opposed to a work of art created by me. What I think confuses me is that this particular image that BM have decided to take to task has little or no link to the brand or mark. There is no logo in the image and no reference to the motorbike BM or otherwise in the title.

With the association of the image and BM being so vague I had to wonder (not being an IP lawyer) what other imagery BM would consider worthy of their attention.

Click to expand...

Your question as to whether BWM AG would have had the same issue if the print was available as a freebie has already been answered. They wouldn't.

I can post a photo of my RT in this thread without raising any objects from anyone, including BMW. The very existence of this forum as well as the myriad other similar forums is proof of this fact. On the other hand, if I post the same image of my RT in the Classified forum and put a price tag on it, this would undoubtedly raise the ire of BMW and they would likely demand it be removed.

Again, I'm not saying BMW is correct in your particular case, but asking permission to use the intellectual property of another for any commercial purpose is the recommended course of action.

oh, and...

consider the discussion in this thread with Pieter de Waal's discussion of lifestyle marketing in this other thread.

there is no free lunch.

Visian said:

try thinking from BMW's perspective. they have invested millions of dollars in developing a product and differentiating it in a marketplace full of competitive products.

if an individual or business uses that which makes the BMW different, the value of that special something is decremented. at some point, the value of the difference is decremented to the point that the market no longer places any value on the difference.

in this instance, *that* is what BMW is trying to protect... the value of the difference that makes it competitive in the marketplace.

sounds like BS, i know, but it's what marketing is all about.

ian

Click to expand...

Visian I agree. I also standby bm's right to protect it's brand, mark and IP. Without which we'd arguably not spend the extra bucks we did to buy what we all perceive as a luxury product.

My argument in this instance is much more specific and relates to BM's issue with this particular image, which I believe does not infringe on their IP. Moreover the bike element contained is not recognizable as a production BM bike. The brand/logo is not visible and even the engine is unseen. So what i need to understand is exactly what part of image is BM claiming IP over.


Simon

There is a difference between a private individual posting pictures of their bike versus someone with a commercial venture, such as selling photographic prints.

SimonThomas said:

Visian I agree. I also standby bm's right to protect it's brand, mark and IP. Without which we'd arguably not spend the extra bucks we did ...

Click to expand...

bingo... you just putnyour finger on what BMW is attempting to protect.

what i need to understand is exactly what part of image is BM claiming IP over.


Simon

Click to expand...

that badass adventure touring look.

think about it... the GS is an R bike with longer suspension and a styling exercise. for this GS owners pay a 25% premium.

SheRidesABeemer said:

This is not news to any photographer. You can't sell your photos with anyone's trade mark on them. Very basic concept.
The issue isn't so much showing the picture, it is the selling that is getting you.
I think it's a CYA situation in the example picture your show. There appear to be no word or trademarks displayed, and technically you probably have a case.
If you want to sell motorcycle pictures. take picture in ways that no trademark is visible. This is not particular to BMW.

Click to expand...

Curious - if what you say is true, how do you explain the lucrative business / revenue that all the commercial photographers that patronize "The Tail of the Dragon" enjoy?!

Visian said:

try thinking from BMW's perspective. they have invested millions of dollars in developing a product and differentiating it in a marketplace full of competitive products.

if an individual or business uses that which makes the BMW different, the value of that special something is decremented. at some point, the value of the difference is decremented to the point that the market no longer places any value on the difference.

in this instance, *that* is what BMW is trying to protect... the value of the difference that makes their product competitive in the marketplace.

sounds like BS, i know, but it's what marketing is all about.

ian

Click to expand...

That might make sense if there were something in the image that differentiated something about the bike from, say, a Suzuki DL1000 similarly outfitted. Or if the focus was on something about the bike that made it attractively a BMW. But there isn't. The focus and purpose of the image is a person riding a loaded up touring or sport touring machine of unidentifiable origin in a beautiful setting. BMW may wish to think that the concept of such an activity belongs to them, but it doesn't.