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.
www.prr-nscale.blogspot.com
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...
Larry Resident Microferroequinologist (at least at my house) Everyone goes home; Safety begins with you My Opinion. Standard Disclaimers Apply. No Expiration Date Come ride the rails with me! There's one thing about humility - the moment you think you've got it, you've lost it...
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.
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.
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.
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.
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."
I think the moderator can answer the question. Don't the photographs in Train and Classic Trains often identify the railroad?
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?
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.
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!
Never too old to have a happy childhood!
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.
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
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
Snowflakes Lawyers will always find a way.
The opinions expressed here represent my own and not those of my employer, any other railroad, company, or person.
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.
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.
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.
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.
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.
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.
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?
OvermodIn 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.
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!
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.
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.
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.
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.
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 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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