Using a Railfan Photo for a Book Cover

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Using a Railfan Photo for a Book Cover
Posted by GP-9_Man11786 on Saturday, November 04, 2017 1:58 PM

This year I've decided to participate in NaNoWriMo or National Novel Writing Month. And while it's not what I'm working on now, I may write a memior of railfanning exploits. My question is, if I use one of my photos, say of a Norfolk Southern freight at Horseshoe Curve, would have to obtain permission from and pay royalties to NS? Or is it considered Fair Use?

Modeling the Pennsylvania Railroad in N Scale.

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Posted by tree68 on Saturday, November 04, 2017 7:00 PM

You're over hurdle #1 - you took the picture, so no need to get the permission of the photographer.

You could consider going straight to the railroad - find out their PR department and give them a call.

It would not be unexpected for them to ask for information about the photo's use, which based on your description, should be acceptable.

I would opine that if you took the photo from a publicly accessible location (ie, you weren't trespassing), that fair use probably applies.  From Marriam-Webster:

a legal doctrine that portions of copyrighted materials may be used without permission of the copyright owner provided the use is fair and reasonable, does not substantially impair the value of the materials, and does not curtail the profits reasonably expected by the owner 

OTOH, I'm not a lawyer, and I didn't stay at that hotel last night...

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Posted by Overmod on Saturday, November 04, 2017 7:13 PM

By far the easiest thing to do is what the Iranis did when they posted rail pictures years ago: go into Photoshop and blur out or replace logos, change colors, etc.

For a literary competition, the intellectual property or goodwill of a particular railroad is unnecessary.

If the name or image recognition of a particular company IS important ... then it is an appropriate thing to ask written permission to use.

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Posted by Backshop on Sunday, November 05, 2017 7:48 AM

I don't see why.  It's not like every Morning Sun or other railfan publisher with photos in the book asked the railroad for permission.

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Posted by samfp1943 on Sunday, November 05, 2017 8:09 AM

GP-9_Man11786 said as OP:        "...This year I've decided to participate in NaNoWriMo or National Novel Writing Month. And while it's not what I'm working on now, I may write a memior of railfanning exploits. My question is, if I use one of my photos, say of a Norfolk Southern freight at Horseshoe Curve, would have to obtain permission from and pay royalties to NS? Or is it considered Fair Use..."

 

 

Overmod

By far the easiest thing to do is what the Iranis did when they posted rail pictures years ago: go into Photoshop and blur out or replace logos, change colors, etc.

For a literary competition, the intellectual property or goodwill of a particular railroad is unnecessary.

If the name or image recognition of a particular company IS important ... then it is an appropriate thing to ask written permission to use.

 

You, GP Man 11786 :might give the PR department a"courtesy contact" , if they launch into a'legal position' response; Your fall back position is as Overmod suggested, photoshop out the corporate name, realizing that the color scheme would be a giveaway of corporate ownership, and therefore an open display that could be considered to be in the public domaine??

Sam

 

 


 

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Posted by Euclid on Sunday, November 05, 2017 8:48 AM

Backshop

I don't see why.  It's not like every Morning Sun or other railfan publisher with photos in the book asked the railroad for permission.

 

I agree.  There are countless cases of published photos of products and equipment that include the visual representation of the product owner's logo or the logo of the manfacturer of the product.  I cannot imagine that the publishers of all these images sought permission to publish showing the logo.  I just don't believe that the copyright protection extends that far.  But I am sure that is a vastly deep legal question that has no clear answer.  I also suspect that if one were to write to a railroad company with the question, they will deny permission, citing copyright or trademark protection.  It might cost them $50,000 in legal expense to answer or to give you permission.

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Posted by Firelock76 on Sunday, November 05, 2017 9:13 AM

Backshop

I don't see why.  It's not like every Morning Sun or other railfan publisher with photos in the book asked the railroad for permission.

 

This could be a source for an answer.  Why not contact Morning Sun and ask for advice on how they handle it?

https://morningsunbooks.com

 

Morning Sun's got more railbooks out than Carter's has "Little Liver Pills."

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Posted by daveklepper on Sunday, November 05, 2017 9:32 AM

I think the moderator can answer the question.  Don't the photographs in Train and Classic Trains often identify the railroad?

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Posted by Saturnalia on Sunday, November 05, 2017 12:41 PM

If you took the photo, you own the image. It is yours to do whatever you want with it. 

No fair use, no royalites to the company. It's just yours. 

How else would Trains, Pentrex, etc "get away" with using images, or anybody else of any other thing for that matter? 

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Posted by Firelock76 on Sunday, November 05, 2017 3:53 PM

You've got a good point Saturnalia, but if GP-9 man wants to play it safe, especially in this lawsuit-crazy day and age we live in I can't say I blame him.

GP-9 Man, if you can't get the attention of a moderator try contacting Mr. Jim at "Trains" and see if you can get some input from him.  Couldn't hurt.

editor@trainsmag.com

Dave Klepper's asked kind of the same question over on the "Classic Trains" Forum.  David's got some photographs he purchased from the late Ron Zeil years back and would like to post them, but isn't sure whether he should or not.

My opinion would be if he bought and paid for those photos they're his to do what he wants with them, but I'm no lawyer and the only thing I know about copyrights is they're finite, they have to be renewed at expiration, and if they're not renewed then the copyrighted matter goes into the public domain.

Again, I'm no expert on this and I can't blame anyone for being careful.

I'm sure we all remember the flap Union Pacific caused in the rail publishing and modeling world a few years back when they got very possesive of the UP herald, in addition to all the heralds of the 'roads they merged with over the years. 

 

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Posted by BaltACD on Sunday, November 05, 2017 4:53 PM

Let's face the facts - with the legal system in the US today and the lawyers that are looking to make a dime - you can probably be sued for going to bed a night and then again for waking up in the morning.  If you are still breathing somebody, somewhere is offended!

         

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Posted by Saturnalia on Sunday, November 05, 2017 6:54 PM

Firelock76

You've got a good point Saturnalia, but if GP-9 man wants to play it safe, especially in this lawsuit-crazy day and age we live in I can't say I blame him.

This isn't "playing it safe". If you took the photo it is yours, ok? If you create anything yourself, it is YOURS. This is the very cornerstone of copyright law and to be honest, I'm shocked that this forum is being so damn cautious about it. 

Publishing works of somebody else or recreating a copyright/trademark, as in the case of UP logos, is a different story. But if you're out taking photos, the photos are legally yours - or else literally nobody could publish ANYTHING

Imagine if ABC, NBC, CBS, etc had to get permission from every company at Times Square in order to post a photo or video of the space?

What if you had to get US Gov't permission to take a photo of the White House? 

If people couldn't use their own works, then literally none of today's media would be possible. 

Again, I'm astounded that this is even an issue. Legally (and many illegally) created creative works are instantly provided copyright and the owner has 100% freedom of distribution, here in the US. End of story. 

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Posted by Euclid on Sunday, November 05, 2017 8:04 PM

Saturnalia
 
Firelock76

You've got a good point Saturnalia, but if GP-9 man wants to play it safe, especially in this lawsuit-crazy day and age we live in I can't say I blame him.

 

 

This isn't "playing it safe". If you took the photo it is yours, ok? If you create anything yourself, it is YOURS. This is the very cornerstone of copyright law and to be honest, I'm shocked that this forum is being so damn cautious about it. 

 

 

I would not have expected that photographing trains would violate copyright law by including logos or company names in the photo.  But I am not so sure that “if you take a photo, it is yours” holds true across the board. 

If you take a photograph of copyrighted material, you have copied it, not created it.

Here is some information on how copyright issues pertain to people taking pictures:

http://www.wipo.int/export/sites/www/sme/en/documents/pdf/ip_photography.pdf 

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Posted by Norm48327 on Sunday, November 05, 2017 9:01 PM

BaltACD

Let's face the facts - with the legal system in the US today and the lawyers that are looking to make a dime - you can probably be sued for going to bed a night and then again for waking up in the morning.  If you are still breathing somebody, somewhere is offended!

BINGO!

Snowflakes will always find a way.

Norm


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Posted by zugmann on Monday, November 06, 2017 6:10 AM

Snowflakes Lawyers will always find a way.

The opinions expressed here represent my own and not those of my employer or any other railroad, company, or person.

I occasionally post off-topic remarks.  Adults can handle that.

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Posted by Euclid on Monday, November 06, 2017 6:52 AM

 

Copyright, patent, and trademark law is far deeper and more complex than is popularly understood.  If anything, there is much more infringement that goes un-prosecuted that there is lawyers concocting phony cases of infringement.  By far the greatest risk is in inadvertent infringement that contributes to a business profit being made.  As it relates to copyright law, a camera is no different than a copy machine.  Both are perfectly capable of producing copyright violation. 

 

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Posted by daveklepper on Monday, November 06, 2017 7:05 AM

I doubt that the UP or any of the class I's would bother you.  First of all, you are not adversely affecing their business in any way.  Second, in terms of lawyer time and expense, any money they would receive from you would be tiny compared to the cost of lawyer time and expense required to pursue the case.  If the book is neutral or positive with respect to their operations, they will be happy to have the addiitonal publicity, and if the book is really positive, you may even get a thankyou note.

None of the Class I's have shown themselves mean-spirited toward railfans.

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Posted by cx500 on Monday, November 06, 2017 10:26 AM

In my amateur opinion, a photo of the train, or even simply a locomotive, taken from a public place, should present no issues.  On the other hand, if the picture (or an inset) was cropped to show only the herald you could be vulnerable. 

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Posted by rdamon on Monday, November 06, 2017 11:31 AM

If you are making money with it, I bet they would like a cut.

The MR Forum proably has a lot of info on this as UP has been diligent in proctecting its copyright.

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Posted by Backshop on Monday, November 06, 2017 3:48 PM

The difference is that model railroad manufacturers are reproducing the logo, etc., while a photo is just an image of the logo that the railroad itself used.

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Posted by Semper Vaporo on Monday, November 06, 2017 4:54 PM

Backshop

The difference is that model railroad manufacturers are reproducing the logo, etc., while a photo is just an image of the logo that the railroad itself used.

 

Not quite... the Model Railroad Manufacturers are making money using the logo.  If the photo on the cover of a book is being used to sell the book (such as the book is describing something of the RR by name or reputation), that would be the same thing...

If the photo is just incidental to the book (such as the story is about 2 people that meet while railfanning and fall in love) then the logo would not be considered essential to the story and not a selling point of the book.

The idea is "who is making money from MY property"?  If you make money from MY property (intellectual or physical) then you OWE ME some portion of that income, deending on the ratio of how much of MY property is making the money.

 

PAY UP or I'll SUE!

Semper Vaporo

Pkgs.

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Posted by Overmod on Monday, November 06, 2017 5:08 PM

Of course, we're all being Debbie Downers when there's a whole 'nother way to commercialize this -- Hollywood style!

In many recent movies, advertisers have paid (and in some cases, paid well) to have their brand or product presented recognizably in a scene, or even become a key element in the plot or action.  Our author could write to UP with the great opportunity of putting their name, colors, identity, whatever in front of an audience ... in a way that wouldn't be possible without publication.  A little gentle pointing out that negotiations to photoshop BNSF or KCS in, instead, are ongoing might help the situation along...

Perhaps you need an agent?

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Posted by tree68 on Monday, November 06, 2017 5:17 PM

Overmod
In many recent movies, advertisers have paid (and in some cases, paid well) to have their brand or product presented recognizably in a scene, or even become a key element in the plot or action.

The studios have people who do this, both licensing and product placement.  Occasionally you'll see a reference to it in the credits.  "Looney Tunes - Back in Action" made some fun of the practice.

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Posted by Backshop on Monday, November 06, 2017 8:06 PM

Semper Vaporo

 

 
Backshop

The difference is that model railroad manufacturers are reproducing the logo, etc., while a photo is just an image of the logo that the railroad itself used.

 

 

 

Not quite... the Model Railroad Manufacturers are making money using the logo.  If the photo on the cover of a book is being used to sell the book (such as the book is describing something of the RR by name or reputation), that would be the same thing...

If the photo is just incidental to the book (such as the story is about 2 people that meet while railfanning and fall in love) then the logo would not be considered essential to the story and not a selling point of the book.

The idea is "who is making money from MY property"?  If you make money from MY property (intellectual or physical) then you OWE ME some portion of that income, deending on the ratio of how much of MY property is making the money.

 

PAY UP or I'll SUE!

 

You actually think that?  Do you think that Trains, Railfan & Railroad and the rest of the book and magazine publishers send royalty checks to the railroads, you're sadly mistaken.

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Posted by daveklepper on Monday, November 06, 2017 10:40 PM

Agree and stand by my previous posting.  You simply do not have a problem with the Union Pacific.  And I am quite confident that the terms they give model manufacturers, which indeed is a different story, since there the trademark bands a product, not a picture of a product, are reasonable.  In fact, I believe UP has a program to assist model manufacturers.  When they pay the modest royalty, they get accurate official drawings of equipment.  See my thread on UP Streamliners on the Classic Trains forum.

I suspect the same is true of NS.

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Posted by daveklepper on Monday, November 06, 2017 11:48 PM

But if several of us have not convinced you that you simply do not have a problem, you might proceed as follows:

Using the photo for a class project is by no means a commercial use.  Then, before you actually publish the book, by all means send one copy to the community relations or public relations officer of the particular railroad.  Not only will you surely get a favorable reply regarding the use of the photograph, but you might also get a request for a number of copies of the book to distribute with the railroad's organization or its customers.

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Posted by moelarrycurly4 on Tuesday, November 07, 2017 9:16 PM

It is your photo, you do with what you want, so long as it is not a copy of someone else's work. You can sell prints, put it on your book, publish it in a magazine,( you notice the magazine has to pay YOU if they publish it) post it online, make photo toilet seats, you own the rights to it period. All the people with videos on youtube that are making money off of ads are not paying royalties, their video. 

Using it for slander and the like could get you sued, but that would not be for copyright. 

Using just the logo would take you down the copyright infringment road.    

 

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Posted by Firelock76 on Wednesday, November 08, 2017 5:04 PM

Gee, we haven't heard from GP-9 Man since his initial post.  I hope we haven't scared him off.  I'd hate to think he's hiding under the bed with his photos after all this.

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Posted by zardoz on Friday, November 10, 2017 9:10 PM

Saturnalia

 

What if you had to get US Gov't permission to take a photo of the White House? 

Wait a year or so....

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Posted by Firelock76 on Saturday, November 11, 2017 11:26 AM

zardoz
 
Saturnalia

 

What if you had to get US Gov't permission to take a photo of the White House? 

 

 

Wait a year or so....

 

Zardoz, I'm sure your tongue is planted firmly in your cheek over that one!

Plain fact of the matter is the White House is government property, which in the end means it's the property of the taxpayers, not the occupant. 

There are some things that are government copyrighted, like US military or other government uniforms.  Believe it or not if film makers want to use current government uniforms of any kind in the production they have to pay a fee to do so.  The work-around is to have something wrong on the uniform, even if it's inocuous, then no fee is required.   How much that fee is I have no idea.

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