Publishing Railroad Photos - Legal?

[Anonymous]

I enjoy taking railroad-related pictures, and have submitted a few to TRAINS over the years (unfortunately none have made the cut, but that's a different issue!). I also upload a fair number of shots to Internet sites such as Railpictures.net. I'm even more prolific in taking pictures of commerical airplanes, and have nearly 600 shots on one of the most popular airliner photo web sites.

That web site has recently been faced with an interesting issue that could have ramifications for rail publications. A photographer took a picture of a business jet from public property and uploaded it to the web site. A few days later he was contacted by the law firm of the company owning the jet demanding that the photo be removed and the original destroyed as the logo on the jet is a copyrighted work - the claim is that the photographer is infringing on the copyright by photographing the logo and publishing it for public consumption.

This seems at first blu***o be a baseless claim by the legal firm, but upon doing some cursory Internet research, I'm wondering if it might hold up in court. There doesn't seem to be a specific exclusion in the Copyright Act for photographing a copyrighted work, and the doctrine of Fair Use doesn't even seem to cover this area. Do we have any lawyers out there who might be able to provide a more intelligent answer?

What's all this have to do with TRAINS Magazine? By extension, if it is indeed a violation of copyright law to publish a picture of a copyrighted airplane logo on a web site, how is that any different than taking a picture of a C44-9W with BNSF's new logo and submitting it for publication in TRAINS or any of the other rail hobby publications? After all, TRAINS is a for-profit enterprise and both the photographer and TRAINS make money from use of the BNSF logo in this case. I suppose it's possible that TRAINS has explicit and blanket permission from all railroads to show their copyrighted/trademarked images, but that seems a stretch.

[edblysard]

There is no difference between the corporate logo on the jet and the logo on the locomotive...
Both are there to be seen, they fall into the realm of advertisement for public consumption.

Had the company not wanted anyone to see their logo, they wouldn’t affix it to the jet.

Now, if the photographer was using the logo to make a profit, different story.
But both the jet and the locomotive are easily seen from public places, and their owners know that, which is why they put the logo there in the first place.
Sounds like a slow day at the corporation’s law office...
Ed

[Anonymous]

QUOTE: Originally posted by edblysard


Now, if the photographer was using the logo to make a profit, different story.
But both the jet and the locomotive are easily seen from public places, and their owners know that, which is why they put the logo there in the first place.
Sounds like a slow day at the corporation’s law office...
Ed

Ah, but in the case of submitting a photo to TRAINS, the photographer WOULD be making a profit. After all, TRAINS pays for photographs. Further, TRAINS is profiting from publishing the photo, as it gains both subscription dollars and advertising revenue by running the photos.

[Anonymous]

I've wondered about this. But I'm told by counsel that the insignia is in public view, and that the owner has no proprietary rights when in that context. If that company's claim was true, NO ONE could take any pictures and publi***hem. Unless you're in a forest our nation's landscape id full of insignias and everyone from FedEx, to BNSF, the CTA, Yellow Cab, and the Salvation Army could concievably have every news photographer, outdoor TV show, and movie producer in court...for years.

Furthermore...I believe the company in question would have to prove damages.

Mitch (not a legal expert)

[gabe]

PC1968,

DO NOT CONSIDER THIS A YES/NO, PROFESSIONAL ANSWER TO YOUR QUESTION, OR IN ANYWAY UNDERTAKING LEGAL REPRESENTATION OF YOU.

However, though I decline to give a legal answer upon which you or anyone else may rely—or subject myself to a malpractice claim for undertaking representation for which I am not paid, I don't think train photographers need be too concerned about this issue.

The only reason I am even responding to this is I don't want everyone out there to feel the need to stop taking pictures of trains—I am NOT offering a legal opinion as to the merits of you or your friend’s case.

There is a "fair use exception" to the Copyright Act. See 17 U.S.C. § 106-07; see also Kelly v. Arriba Soft Corp, 336 F.3d 811, 817-18 (9th Cir. 2003). Under the fair use exception, four factors are considered in determining whether the use is permissible: (1) the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes; (2) the nature of the copyrighted work; (3) the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and (4) the effect of the use upon the potential market for or value of the copyrighted work. See 17 U.S.C. § 107.

I am NOT saying that this automatically makes any use of a train picture permissible—as that would constitute a legal opinion, WHICH I AM NOT GIVING. I am just pointing out that there is no need for panic on the forum over the possibility that we might have to stop taking pictures of trains.

As a practical non-professional aside, can you imagine how anyone could ever post family reunion photos on the internet (copyrights are usually contained on clothing), the news could ever be reported (as a mere car driving/someone holding a Coke would have a copyright on it), etc. etc.?

I smell a rat. I am not telling anyone what particular act is or is not legal, but I wouldn't worry about shelving your cameras over this.

Gabe

[edblysard]

If the photo was of the logo and the logo alone, that would be using their logo without permission, but by affixing it to the sides of a easily seen vehicle, or building, they are putting it in public view on purpose.

By including the logo in a photograph of a train, plain, ship or building, the photographer is not infringing on the logo owners copyright.

And any attorney would have no problem proving that the intent of the photograph was to showcase the locomotive, or the jet, not the logo alone.
The inclusion of the logo would be incidental, as part of the overall photograph, not the center point of the photo.

If, on the other hand, the photographer took a photo of UPs Shield logo, and only the shield, on the nose of a loco, and sold that image of the logo only, they would have a case.
But if the photographer took the same basic shot, but included enough of the locomotive to show that the subject of the photo was the locomotive, not just the logo, not a case.

Again, if the owner of the logo did not want it displayed, they shouldn’t place it in the publics view.
Ed

[jeaton]

Sounds like a slow day at the law offices of Dewey, Cheetam and Howell.

Of course that would be a solution for the long suffering rich and famous. Wear designer clothing with oversized logos and stop the paperazi in their tracks.

By the way did the logo look like the head of a rabbit? The owner of that logo has big catering expenses.

Jay

[eastside]

I'm pretty sure Ed is right. I've had similar questions because I've done some photography. I once had some questions about selling pictures of sports personalities in action. Fortunately, I live in New York City, which is pretty much the publishing center of the US, so it's pretty easy for me to get access to media lawyers. The general principle is that anyone or anything in view from a public place is fair game. One lawyer told me that if it wasn't the case, the unemployment rate in NYC would go up by 20%! Problems may arise if you trespass to shoot the pictures or if the image is used for non-editorial, commercial purposes. Pasting corporate logos all over the place cannot be used as a means of censorship.

It may be that the owners of the airplane have had second thoughts and don't want to attract attention to their corporate perk and are trying to intimidate the photographer. If so, they shouldn't have displayed the logo on it in the first place.

I'm not a lawyer.

[gabe]

Once again, this is not a strict legal opinion. But, I would be careful under the "if it is in a public place you may reproduce it theory." The location of the copyright or trademark has very little to do with the analysis. For instance, try taping a concert and selling a copy of it, and see how much trouble you get into.

By definition, trademarks or copyrights are things that are meant to be viewed by the public's eye in public. Ed has valid points, but the analysis centers more upon what the copier of the trademark/copyright is doing with the reproduction than where the trademark/copyright was copied from.

I don't mean to correct anyone, I just don't want anyone to think (1) they can't take pictures of trains or (2) they can go to an NFL game, tape the game and sell the tape en masse.

Gabe

[Anonymous]

QUOTE: Originally posted by gabe


I don't mean to correct anyone, I just don't want anyone to think (1) they can't take pictures of trains or (2) they can go to an NFL game, tape the game and sell the tape en masse.

Gabe

But if I were somehow able to position myself on public property outside the stadium and film the NFL game and sell the film to NBC, really how is that any different than taking a picture of a train from a public road and selling it to TRAINS?

[eastside]

QUOTE: Originally posted by penncentral1968

QUOTE: Originally posted by gabe


I don't mean to correct anyone, I just don't want anyone to think (1) they can't take pictures of trains or (2) they can go to an NFL game, tape the game and sell the tape en masse.

Gabe

But if I were somehow able to position myself on public property outside the stadium and film the NFL game and sell the film to NBC, really how is that any different than taking a picture of a train from a public road and selling it to TRAINS?

If you’re out in public shopping, driving a car, or driving a train, that’s not a creative activity subject to copyright.

For the NFL, the football game is the primary product that they're selling. It's copyrighted. If you can get a view of an NFL game from a public area, you can shoot all you want for personal use, but you can't sell it.

[StillGrande]

The game is also in a contained venue, with restrictions on access (even NBC and FOX can't just go to any game). They only allow viewing through the purchase of a liscence (or a ticket) and greatly restrict what you are allowed to do there (read the back of the ticket).

[RudyRockvilleMD]

To add a little grist to the mill. New Jersey Transit has required a permit to photograph its vehicles and its facilities from public property or its stations or parking lots, and this originated much earlierearlier as an intellectual property issue; I suspect they didn't want everybody photographing their logo and using it for commercial purposes. I suggest reading a one page tract about photographers' rights and responsibilities which was published by Bert Krages, and which you can download from his website: www.krages.com/phoright.htm

If I am correct, and with few exceptions, once anybody or anything is in full view out in the public they lose all rights to privacy.

[UPTRAIN]

Trains isn't using the photo as their own work and is free publicity for the railroad.

[tree68]

Consider, too, that one reason that so many lawsuits are settled instead of going to trial is that the whole process is expensive. Corporation, Inc can afford to file the suit. Mr Little Guy Photographer probably doesn't have a few thousand floating around to hire a lawyer. Hopefully (from Corp, Inc's point of view) Mr LGP will look at that and back down. After all, even if LGP wins the lawsuit, he's still got a pretty big bill to pay.

Could be that Corp, Inc didn't want anyone to know they'd been in town - maybe some sensitive dealings going on or something, and having a competitor see the jet, and the date, might influence things badly. Then, again, that's why cops use unmarked cars....

[eastside]

QUOTE: New Jersey Transit has required a permit to photograph its vehicles and its facilities from public property or its stations or parking lots, and this originated much earlier as an intellectual property issue; I suspect they didn't want everybody photographing their logo and using it for commercial purposes.

Why should anyone who wants to use NJT’s logo bother with photographing it? First of all it’s plastered all over their Web site. Second, all it takes is a drawing program such as Adobe Illustrator to make your own copy. It may be because some over-zealous official is concerned about security. Or more likely they don’t want the public taking pictures of their employees goofing off (or appearing to do so) and holding them accountable. I believe this would not withstand a court challenge, as did a similar rule that the MTA had in the NYC subways.

QUOTE: If I am correct, and with few exceptions, once anybody or anything is in full view out in the public they lose all rights to privacy.

Privacy is different from copyright. I can take pictures of you in public and publi***hem, but you might rightly resent the invasion of your privacy.

QUOTE: Trains isn't using the photo as their own work and is free publicity for the railroad.

That’s right. Remember several years ago when Tiger Woods was considering asking for royalties for pictures taken at tournaments and there was a huge uproar? That prompted me to ask a media lawyer about these issues. (See my earlier posting.) She said not to worry. In the first place the type of pictures I had showed sports stars in action. Those are the types of pictures they want the public to see – free publicity. Second, even if one of them happened to be greedy or disliked it, he/she couldn’t do anything about it. BTW, I also had press accreditations to all the events. If you're interested, I've put a few online:
http://www.marginalsoftware.com/Photographs/sports/sports.htm

[fuzzybroken]

QUOTE: Originally posted by penncentral1968

A photographer took a picture of a business jet from public property and uploaded it to the web site. A few days later he was contacted by the law firm of the company owning the jet demanding that the photo be removed and the original destroyed as the logo on the jet is a copyrighted work - the claim is that the photographer is infringing on the copyright by photographing the logo and publishing it for public consumption.

I would ask that the company compensate me for the photo, i.e. buy it. That way it's "their" photo, and they can do what they want with it, including remove it from the website, and destruction of the original.

-Mark
www.geocities.com/fuzzybroken
www.fuzzyworld3.com

[gabe]

QUOTE: Originally posted by tree68

Consider, too, that one reason that so many lawsuits are settled instead of going to trial is that the whole process is expensive. Corporation, Inc can afford to file the suit. Mr Little Guy Photographer probably doesn't have a few thousand floating around to hire a lawyer. Hopefully (from Corp, Inc's point of view) Mr LGP will look at that and back down. After all, even if LGP wins the lawsuit, he's still got a pretty big bill to pay.

Could be that Corp, Inc didn't want anyone to know they'd been in town - maybe some sensitive dealings going on or something, and having a competitor see the jet, and the date, might influence things badly. Then, again, that's why cops use unmarked cars....

I think you might be on to something Larry.

Gabe

[DPD1]

QUOTE: Originally posted by penncentral1968

I enjoy taking railroad-related pictures, and have submitted a few to TRAINS over the years (unfortunately none have made the cut, but that's a different issue!). I also upload a fair number of shots to Internet sites such as Railpictures.net. I'm even more prolific in taking pictures of commerical airplanes, and have nearly 600 shots on one of the most popular airliner photo web sites.

That web site has recently been faced with an interesting issue that could have ramifications for rail publications. A photographer took a picture of a business jet from public property and uploaded it to the web site. A few days later he was contacted by the law firm of the company owning the jet demanding that the photo be removed and the original destroyed as the logo on the jet is a copyrighted work - the claim is that the photographer is infringing on the copyright by photographing the logo and publishing it for public consumption.

My guess is that they're using the logo issue as an excuse to get the photo off the site for security issues. Wealthy individuals and the companies they run/own, have many people sitting around who's job is to protect them. Whether they really need to be protected or not. Either way, they're going to do everything they can to justify their existence. I've dealt with many municipal airport operators. Both they and the people associated with the aircraft's owners, can be EXTREMELY protective of the aircraft, and the people that own it. If a company or wealthy individual has a security firm working for them (which most do), they are always going to recommend to that individual, that they stay as low profile as possible. The less people know about their travel habits and such, the better. And that includes what aircraft they use. Wealthy people who are well known, and/or employ many people at their company, often have many enemies. These people will resort to death threats... Threats to hurt the person's family... All kinds of stuff. So the last thing the security people want is photos showing what that organization's aircraft looks like. I've photographed things for work in the past, where I accidentally shot private aircraft, and security people or the operator made me delete the photos. Sure, if that's the case, the logo may seem like a contradiction. But that might have been the owner's idea. They don't always necessarily take the advice of security people.

Dave
-DPD Productions - Featuring the NEW TrainTenna LP Directional RR Radio Monitoring Antenna-
http://eje.railfan.net/dpdp/

[MP57313]

As a tangent to this topic - how about photographing museum collections? I recently visited the B&O Museum in Baltimore. There was a sign posted near the entry way, that basically stated that I could take photos for my own private use, but I could not publish anything (including sending jpeg files) without express permission from museum management.

I understand the point they are making --- the collection is their 'product' and admission fees help pay for its maintenance. Some of the equipment is easily viewed in the parking lot, without ever entering the museum building itself.

The question is - what about outside equipment that one can photograph without entering the museum grounds -- is that legal? Does the answer change if you can photograph the items without even entering museum property? {Examples - Altoona, PA Railroaders Museum; Calif. State RR Museum - Sacramento}

MP

[MP173]

I agree with Tree. Someone wants information of the jet being in that airport kept quiet.

Years ago a certain oil patch company's corporate jet was spotted in Pittsburgh. Smart money put 2 and 2 together and purchased a chunk of the oil company located in Pittsburgh and made out quite well when it was purchased by the oil patch company from Oklahoma.

Money people put things together, particularly when there is a legal notice to cease and desist.

PennCentral....care to mention the corporation and the airport the jet was mentioned?


ed

[eastside]

QUOTE: Originally posted by MP57313

As a tangent to this topic - how about photographing museum collections? I recently visited the B&O Museum in Baltimore. There was a sign posted near the entry way, that basically stated that I could take photos for my own private use, but I could not publish anything (including sending jpeg files) without express permission from museum management.

The way many museums control picture taking is to forbid photographing their collections while on the premises. They permit entry on the condition that you abide by the rules, or if they do permit picture taking, your rights are restricted. If, however, a RR museum takes a locomotive off their property and runs it on the tracks by your house, they have no control of any pictures that are taken as a result (see my comments above). You're free to sell them to Trains or whatever for editorial use.

Most of this I learned from an attorney who defends paparazzi in NY, where candid pictures of celebrities is a minor industry. I'm sure you've seen compromising pictures taken of celebrities, on their own property even, taken by such photographers from public areas or from areas they have permission to enter. People who sue the photographers consistently lose in court. Again, you're fair game if you're visible in public.

[eastside]

QUOTE: Originally posted by DPD1

My guess is that they're using the logo issue as an excuse to get the photo off the site for security issues. Wealthy individuals and the companies they run/own, have many people sitting around who's job is to protect them.

Litigation meant to intimidate are called "SLAAP suits". To find out more use Google.