Ford: Car owners are pirates if they distribute pictures of their own cars

Josh sez, "The folks at BMC (Black Mustang Club) automotive forum wanted to put together a calendar featuring members' cars, and print it through CafePress. Photos were submitted, the layout was set, and... CafePress notifies the site admin that pictures of Ford cars cannot be printed. Not just Ford logos, not just Mustang logos, the car -as a whole- is a Ford trademark and its image can't be reproduced without permission. So even though Ford has a lineup of enthusiasts who want to show off their Ford cars, the company is bent on alienating them. 'Them' being some of the most loyal owners and future buyers that they have. Or rather, that they had, because many have decided that they will not be doing business with Ford again if this matter isn't resolved."

I got some more info from the folks at cafepress and according to them, a law firm representing Ford contacted them saying that our calendar pics (and our club's event logos - anything with one of our cars in it) infringes on Ford's trademarks which include the use of images of THEIR vehicles. Also, Ford claims that all the images, logos and designs OUR graphics team made for the BMC events using Danni are theirs as well. Funny, I thought Danni's title had my name on it ... and I thought you guys owned your cars ... and, well ... I'm not even going to get into how wrong and unfair I feel this whole thing is as I'd be typing for hours, but I wholeheartedly echo everything you guys have been saying all afternoon. I'm not letting this go un-addressed and I'll keep you guys posted as I get to work on this.
I'm sorry, but at this point we will not be producing the 2008 BMC Calendar, featuring our 2007 Members of the Month, solely due to Ford Motor Company's claim that THEY own all rights to the photos YOU take of YOUR car. I hope to resolve this soon, and be able to provide the calendar and other BMC merchandise that you guys want and deserve! This thread will remain open for you to comment however you wish, and I'll update it as needed.

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I write books. My latest is a YA science fiction novel called Homeland (it's the sequel to Little Brother). More books: Rapture of the Nerds (a novel, with Charlie Stross); With a Little Help (short stories); and The Great Big Beautiful Tomorrow (novella and nonfic). I speak all over the place and I tweet and tumble, too.

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The Snowden Principle

george57l

One of the key issues is that this is NOT about the club or the calendar, and not about preventing the club from producing the calendar, but IS about being SEEN to be protecting the trademark.

We (and the courts) can debate if this is the best case/place to do it but if a company is not SEEN to be protecting its trademarks, eventually someone comes along and does something with it that we would all agree is wrong, but they might get away with it if the trademark owner had shown no propensity to protect its trademark, as evidenced by lots of prior cases (such as calendars like this) over the years, where it had blithely looked on (implies approval) and taken no action.

This club could surely get their calendar produced by asking the trade mark owner for permission (which satisfies the criteria for protection).And in this case why wouldn’t a club like this have (or want to have) an ongoing relationship (which would facilitate easy permission) with Ford in any case? There are plenty of “INSERT BRAND” Owners’ Clubs in the world who all have excellent relationships with the manufacturer in question, after all.
Takuan

c’mon, not even Ford can be this stupid. This is a hoax? Right?
DoorFrame

Trademark law is a tough nut to deal with. It deals with the public perception of what rights a company can control with respect to their mark, so, basically, as long as people believe that Ford has the right to prevent a calendar like this, they do in fact have the right to do it.

Mind bending.
Takuan

then why does Ford make the offer of permission in the first place? Where is their good faith?
Takuan

nah, it’s as long as they can buy enough judges to make it so
Typo

What is a design?
A design is the overall appearance of a product. The visual features that form the design include the shape, configuration, pattern and ornamentation which, when applied to the product, give it a unique appearance. A registered design can be a valuable commercial asset – registration of a design gives the owner protection for the visual appearance of the product but not the feel of the product, what it is made from or how it works.

To be registrable, a design must be new and distinctive. ‘New’ means the identical design (or one very similar) has not been publicly used in Australia nor has it been published in a document within or outside Australia.

For example, a design would not be considered new if it had been ‘published’ on the Internet before the date it was filed (or its priority date, whichever is earlier).

A design is ‘distinctive’ unless it is substantially similar in overall appearance to other designs already in the public domain.

Before filing an application, you should search existing design records. If your design is not new and distinctive, any registration you receive could be revoked as a result of examination and your registration could be worthless. You may also face legal action if you infringe the design rights of the owners of other similar designs.

Advice and assistance when making a design application, and professional searches of the IP Australia registered designs records, are available from patent attorneys and search firms, a list of which can be found in your Yellow Pages Directory and IP Australia’s list of IP Professionals.

http://www.ipaustralia.gov.au/designs/what_index.shtml
themindfantastic

So… if your trying to SELL your Ford, in the paper or craiglist or the like, can you take a pic of it so people can see what they might be buying? Or is that against the law too?
Takuan

we are all missing the point here. Anyone who owns a Ford deserves what they get.
Adventure Books of Seattle

Uh…I think you can take pictures of your own car for a calendar. Even with Ford’s likely large legal staff, there is no way they can enforce this one.

The complete image of a car CANNOT be copyrighted.

Even if this were true, the fact that car owners PURCHASED the car for MONEY from Ford means they are allowed certain rights. One of them is taking a picture of the car itself.

As Pink Floyd once said: ‘Hello…(hello)… is there anybody IN there…’
Takuan

sorry: “doesn’t”
OM

…Sounds to me like some ambulance chaser discovered his credit card was maxed again by his mistress, and needed to come up with a quick sting to get the bill paid ASAP.

Screw the revolution. Let’s line up all the lawyers against the wall *now*…
Jason_Nardiello

I find Whitney Drake’s message confounding.

Unless I am missing something, the letter drafted by Drake above states that (1) trademarks cannot be used in the products that are sold, yet, incredibly, remarks that (2) he will purchase the calendar!?

It seems to me that by necessity, the Ford logo will appear in the calendar, and will be the impetus for purchasing the calendar.

So in one letter, the BMC is inconsistently told that they can and cannot produce the calendar.

Just another example of why trademark law in the wrong hands can be dangerous.

Regards,

Jason Nardiello
Nardiello Law Offices, P.C.
http://www.realtimeintellect.com
Takuan

hey, I want them to to grab their ankles for awhile first…
p3ngwin

this is like the varying opinions on if something is a rare antique, or a useless piece of junk.
it all depends on who you can persuade that you have the truth.
as DOORFRAME said earlier, if you have a majority, or maybe some key players with power, then you can have the winning belief that makes the difference.

in this case FORD believes that they own the likeness of their cars, so how do you DRIVE the bloody things in public without EVERYONE seeing it??

isn’t that a public broadcast of a trademark? oh difficult one there right?

if people continue to ALLOW companies to have these beliefs and to successfully sue the public for living a normal life, then the people are the ones that responsible for this mess.

with copyright infringement and examples like this FORD fiasco waiting to happen, it all boiled down to the stupid human belief that you can “own” anything.

nothing is owned, you simply “share” time & energy with other energy forms for a period. you have “relationships” with things, people for the duration they’re useful to achieve your goal. then you continue to use these”tools” to get to your next goal, etc.

you don’t “own” your body, nor your partner, car, land, language,etc…you simply have the use of it. how long and in what manner is between you and anyone else that may disagree about it.

fighting about who owns anything is a futile human fear that is ruining our species’ evolution.

once we get rid of the idea that we are all unique individuals and that “I am better than you”, then we can all realise that we are all part of the same organism in the same galaxy, in the same universe…all part of the same recipe that is this universe.

lets share and play our part and stop trying to control things that have nothing to do with us.

there is no “I”, there is only “i am this small part of a bigger thing”.

it’s like having your body parts not realise that they’re all connected and start arguing about who owns anything and who controls, who has rights over the rest of the body.

once we realise we are all connected then we can cooperate and more efficiently achieve things impossible before when we argued over each other.

cooperation, not competition is the way forward, and for that to happen we have to get rid of the fear that if we don’t fight the other people we’ll be left with nothing.
george57l

Takuan
Good question. And presumably Ford have actively protected their trademark in enough other situations that they don’t need to hassle the BMC. (And frankly which judge is going to let someone else really get away with passing off FORD if they tried it)

Maybe the BMC just got a rookie lawyer on a bad day. Who knows – let’s wait and see what ensues (deliberate bad pun)
halkun

Nope, I’m afraid that Ford is right on this one. This has been address by them before, and here is a copy of the letter that was sent to another automotive club when they tried to publish calenders themselves.

———————-

“Although you and your members may own the Ford automobile, you do not own the rights to the trade dress. Taking pictures of any Ford automobiles, placing them on products (i.e. calendar, mugs, t-shirts, etc.) and making them available to the public for sale is an infringement of Ford’s intellectual property rights.”

“Because of the cachet of the world-famous Ford name, thousands of independent businesses and people make a living from or pursue a hobby related to Ford products and services. Unfortunately, many of these businesses improperly attempt to affiliate themselves with Ford by using Ford trademarks and trade dress (for instance, the depictions or photographs of Ford’s distinctively shaped vehicles) in advertising their products and services.”

“If a business not affiliated with Ford uses any Ford trademark, whether through the use of photographs, depictions or silhouettes, or any confusingly similar variation thereof, without Ford’s express, written consent, then that business is violating Federal and state trademarks laws.”

“It is also not sufficient for a business to state that it is not affiliated with Ford but continue to use Ford trademarks without permission. The business is still misappropriating the goodwill and reputation developed by Ford, and attempting to capitalize on or profit from Ford’s goodwill and reputation. Even with the best of intentions, unauthorized use of another company’s trademark is against the law.”

“At times Ford enthusiasts question why Ford is so adamant about policing it’s trademarks and preventing unauthorized uses or infringements of them. It is quite common for someone who is using a trademark without permission to say, “I’m giving Ford free advertising, so why does Ford care?” Ford cares because it is important that Ford be able to exercise control over the quality of the product or service bearing Ford’s trademarks.”

“To protect the value of its trademarks, Ford is obligated to object to and pursue unauthorized uses of its trademarks and trade dress, even if the use of the trademark or trade dress does not appear offensive or objectionable.”

——————–

In a nutshell, they were selling their trademark, which they must enforce or lose it. You notice they use the words “Goodwill”. “Goodwill” is actually an accounting term, with a real monetary value behind it. It is the amount more the company is worth when adjusted for intangible assets, such as Intellectual Property. When the IP is infringed upon, the value of “Goodwill” goes down and the company loses perceived value.

Don’t sell things trademarked by other people. That’s really business 101 there.
Piove

Print and be damned. I’ll buy two.
Takuan

@11 quite correct in every regard

@12 I’ll buy three
sync32

while the argument against over litigious companies is a valid one; the more I see of this example the more I understand Ford’s actions, while the story suggests a small community of enthusiasts, the forums have 9000 total users and 4000 active users, once you go to their store it’s not simply a little cafepress shop with a few t-shirts, this group has their own logo’d credit card with a link to apply for it. the sheer numbers of the community make me think Ford has a valid argument
Takuan

dammit, who is supposed to be serving who here??!

Arrogant companies need a consumer spanking.

Otherwise they start thinking they are governments.
maxwelton

This happened to me as well. Ford offered no channels to help enthusiasts get permission (which I do not believe we legally need in any case, but there is no way in the world I’m spending thousands of dollars to “earn” a few hundred to fight them). The attorneys I talked to thought the Salt Lake firm who sent out the notices was full of shit but, again, they undoubtedly want some lawsuits to pay for their second or third houses, prep schools, etc.

I moved my publishing to a different supplier and included a zillion words of disclaimer. So far my clandestine project hasn’t been hassled but I fully expect it to be.
robin_hood

my, how quickly we went from “why is this even a boingboing post, there’s no way ford will actually block this” to “you know, they’ve got a good point…”

i hate cars even more than i hate copyright, so…
Mindpowered

Irony being, Ford doesn’t even own their own logo anymore

“and Ford pledged collateral for everything from its plants to the trademark Blue Oval logo to raise $23.4 billion to pay for new models”
Mycroft

A lot of times with crazy crap like this, it turns out that it was the law firm that represents the company acting on their own, and the company doesn’t even know what is going on. I remember this happening with someone on a website I hang around involving Nintendo’s law firm, and when Nintendo did find out, they were very quick to make apologies (and if I remember correctly, make with a free Nintendo of some sort for those who were wrongly attacked by the law firm.).
SpigotHead

Unfortunately this kind of crap has proliferated in recent years. The main issue is publishing the images. You can take all the pictures of things you own that you want, you just can’t publish them without explicit permission.

This is true of more things than you might imagine, even things that might seem to be in the public domain. This includes statues, buildings, even the lighting schemes of buildings. For instance here in Chicago, Marina City recently took issue with one of its tenants for taking photos. The towers that make up Marina City were used in the film “The Hunter”, and they appear in other films, as well as on the album cover of Wilco’s “Yankee Hotel Foxtrot”. The rules on taking photos of buildings are a little fuzzy, depending on when the building was constructed.

Just to make it clear, I’m not in favor of this. As a photographer, I find it to be a major pain and indefensible in general. But if someone wants to enforce these rules and has money for lawyers, the current laws are on their side.
Josh Michtom

IAAL, and I just spent a few minutes doing some legal research on what court cases are out there concerning the manufacturer of a commercial product’s power over the use of the image of that product. The short answer is that manufacturers win when the use is purely commercial and lose when the use is at least partly artistic or documentary.

There are two elements to this calendar that make it, I think, a good case for the motor club and a bad case for Ford:
1) The calendar is more like a collection of art photographs and less like an unrelated commercial product; They’re not using the pictures of Fords to sell peanut butter; they’re just selling the pictures of Fords because in their own right.

2) Because the cars being photographed are highly customized and, presumably, different than the product that Ford offers to consumers, they are inherently works of art in their own right (like sculptures made from Sculpey brand modeling compound – Sculpey has no rights to those).

BTW, I could not find a single case in which the manufacturer of a commercial product was able to limit a purchaser’s ability to photograph the product and distribute the photograph as a work of art.
Takuan

buy Toyota
philipb

#15 – Here’s your spanking:

http://finance.yahoo.com/q/bc?s=F&t=5y
acrocker

I wonder how this affects AP images. Or any photographer trying to sell works that just happen to have a Ford car in it.
sabik

#11, just because Ford sent you a C&D letter, doesn’t mean they’re right.

IANAL, but fundamentally, trade mark is a consumer-protection law. Are consumers being fooled into thinking something is a Ford product which is not? For a plain photo of an actual, genuine Ford car, the answer is clearly ‘no’.

Of course, the other question is whether you want to spend the next half a decade in court arguing about that. In a “might makes right” sense, they have the upper hand.
Cory Doctorow

Halkun@12: Ford can say this, it doesn’t make it true.
Takuan

yeah, that’s the ticket

http://www.theregister.co.uk/2002/06/29/ford_loses_2600_lawsuit/
certron

I’m with #32 (Stickarm) and #27 (eclectro), slap a tailfin on those cars and be done with it!

How about shots of only the interiors and engines of the vehicles, as those wouldn’t be the shape or outline of the car, but I’m sure they are asking for more than just the shape. Do they own pictures of third-party spare parts, too? Technical manuals? Drawings?

I like the idea of a solution involving cooperation between the racing, PR, and enthusiast departments. This way, the car company can actually increase goodwill, perhaps by a donation of license to use the ‘distinctive shape’ of the cars as well as a few choice bits of hardware. Everyone involved gets to promote their design and engineering expertise, and all parties win. It is usually more fun to negotiate than litigate.
Krisjohn

The problem is not with Ford. The problem is with Cafe Press letting Ford pull this crap. The club should just shop around for a different place to sell ALL their stuff.
Takuan

nyah nyah nyah

http://members.aol.com/chvylvr350/jokes.html
Josh Michtom

IAAL, and I just spent a few minutes doing some legal research on what court cases are out there concerning the manufacturer of a commercial product’s power over the use of the image of that product. The short answer is that manufacturers win when the use is purely commercial and lose when the use is at least partly artistic or documentary.

There are two elements to this calendar that make it, I think, a good case for the motor club and a bad case for Ford:
1) The calendar is more like a collection of art photographs and less like an unrelated commercial product; They’re not using the pictures of Fords to sell peanut butter; they’re just selling the pictures of Fords because in their own right.

2) Because the cars being photographed are highly customized and, presumably, different than the product that Ford offers to consumers, they are inherently works of art in their own right (like sculptures made from Sculpey brand modeling compound – Sculpey has no rights to those).

BTW, I could not find a single case in which the manufacturer of a commercial product was able to limit a purchaser’s ability to photograph the product and distribute the photograph as a work of art.
eclectro

I bet there is case law concerning this already. I think the trademark of a design is possible, but a specific object is not. That is, there is enough variation with the photographs that they differ from the trademarked ones. The problem is that Ford can outspend anyone legally with this, and in the end get their way (no matter where the law stands here). What they should have done is cut a deal with Ford to print a calender.
They also did this with the eiffel tower, copyrighting its lighting scheme at night, so they can shakedown the TV and movie business. But now, whenever it appears in a movie, there is this obvious “sparkly lights” added to it. Copyright law foiled once again! Another thought, they could publish a calender of Ford mustangs that have gone through a crusher!
ugniobgniobu

dear fomoco attorney,
your client’s trademark is polluting the planet. your client’s trademark is an unsightly eyesore on the landscape of this planet. it is also a very dangerous environmental hazard. i demand that your client; ford motor company; (fomoco) cease and desist manufacturing the destruction of the planet earth that i and my children and your children have to live on with your ugly and unsightly trademark. i am certain that your client is guilty because its name and trademark is written all over these environmental hazards as seen in these images.
http://www.nd.edu/~cwilber/PhotoArtColorLandscapesJPGS/JunkCars.jpg
http://www.chss.iup.edu/kpatrick/Cartomb/Allegheny%20Front,%20junk%20yard,%20S%20of%20Hollidaysburg,%20PA-3,%20Nov%202005.JPG
http://65mustang.files.wordpress.com/2007/01/1_18_scale_custom_diecast_1964_ford_mustang_convertible_a_1.jpg
http://www.hunterclassicsportscars.ca/images/restorations/mustang_2.jpg
http://www.rasloto.com/prog/pix/mustang.jpg
http://cache.jalopnik.com/assets/resources/2007/04/90_Mustang.jpg
http://www.erichall.eu/images/USA2002/sw2114.jpg
thank you
Teresa Nielsen Hayden / Moderator

Maddy: Lost copyrights or lost trademarks? Quite a lot of difference there. Among other things, copyrights are a lot harder to lose than they used to be.
Beastmouth

So one could reasonably get away with calling Ford ‘copyright Nazis’, hey?
Takuan

no you can’t.

be witty, be emotional, be childish but don’t be boring
Joe4speed

Well, it looks like the above story was right! They approved bmc to sell their calendars. http://www.bmcforums.com/showthread.php?t=42820
acrocker

and no breaking Godwin’s law.
Maddy

my memory is more copyright … but it all grows dim (thankfully) … I want to say that was one of the defenses in the Alfred E. Neuman case … that despite the copyright holder filing SIX different actions protecting it, they still got her cuz she didn’t go after every one. Yup, here’s a link:

http://theseventhsun.com/0507_copyright2.htm

Granted, there were other problems, but see the language of the judge in this link … Granted its a LONG time ago, and there is newer, established case law, but this is a famous and fun case that every lawyer learns early, and prolly has a big influence.
smoochy

UPDATE: The issue has been resolved. Ford Car Communication’s Whitney Drake tells us “Mustang (and other car owners) can take pictures of their cars and make calendars and sell them to whomever they like. They can’t however use Ford logos in the calendar.” She further clarifies, “The club (Black Mustang Club) and cafe press (or another printer) now has permission to print the calendar. Apparently, CafePress misunderstood the intent of an earlier communication from Ford regarding the use of trademarks on other products they sold when it told Black Mustang Club it would not print its calendars.

http://www.adrants.com/2008/01/ford-slaps-brand-enthusiasts-returns.php
Josh Michtom

Um, sorry for the weird, James Garfield-style non-consecutive double post. Don’t know how that happened.
Takuan

obviously the mindset of the Ford representative is that “products” are objects like cars ( or parts,accessories, clothing etc) and calendars fall into a category of “image”.

Neh?
Shasta McNasty

I guess I can kinda see Ford’s point here, even if I don’t agree with it.

What if I took the Ford oval off my car (or Apple logo off my iPod), photographed it, put it on a coffee mug, and sold it? IANAL, but I think that clearly would violate Ford’s (Apple’s) trademark, so I can’t. Yes Ford (Apple) sold me the logo, but they still retain trademark interest, so I can’t just reproduce the one they sold me and resell it. I’ve got no problem with this restriction even…without it trademark law seems somewhat pointless.

The problem is, does Ford (Apple) have a trademark on the entire car (iPod)? Where does the line get drawn? Is it enough to airbrush out the Ford (Apple) trademarked logo on a photo of my car (iPod) when I put it on the coffee mug? It seems to me that this is too much of a stretch, but IANAL. I bet a skillful lawyer could make a non-specious argument for this view.

And in this case, I think each car is somewhat customized by the owner. How can Ford assert trademark interest in the owner’s work? This seems even more over the line to me, but might also be supportable in current trademark law.
Stickarm

@ eclectro (#27)

This is a great point to raise! If the calender is a collection of images of Ford cars that have been modified in various ways by club members, I don’t see how the club could be infringing on Ford’s “intellectual property” even if they’re selling the calender in a for-profit venture. All the club would have to do is carefully document exactly what user-created modification is being depicted and they should be set. …Assuming they can financially survive the court case, of course.

If the calender is meant to depict user-created modifications of Ford cars, how else could the club possibly achieve their goal except to print pictures of the cars?
RacerZack

The confusion here is coming from the difference between a for-profit business and a non-profit enthusiast club. I dealt with the same issues with Mazda not too long ago (and yes, Mazda’s lawyers are Ford’s lawyers since Mazda is 35% owned by Ford).

The issue gets muddy because Cafe Press is involved. THEY don’t know who is a nonprofit enthusiast club making 40 or 50 of something for club members vs. a for-profit business trying to side-step proper licensing agreements. So, Cafe Press is the one who squished the Mustang club.

It is also a bit of an exaggeration to say that ANY likeness of a car AT ALL can’t be reproduced. For example, my Miata is highly modified — body kit, custom color, etc. Therefore, a picture or drawing of my Miata would no longer qualify under this copyright principle since it’s not the same thing as what Mazda produced. The same can be said for any other stylized renditions (so the claim that even an outline or silhouette is illegal is completely false).

Sadly, it doesn’t matter WHAT kind of arguments we make in a forum like this. The true control of this kind of insane legal arm-wrestling is going to come from the car company itself showing restraint. If Ford or Mazda or Chevy or whomever wants to send “cease and desist” letters to an enthusiast club for using a likeness of a logo or car (which they have NOT done; it was Cafe Press who refused to make the calendar), well — then the club will have to comply or pony up the money to fight the issue. Being RIGHT is not what matters, it’s being RICH which matters. Remember the golden rule: he who has the gold, rules.
Kieran O’Neill

Update (from the BMC forum):

http://www.bmcforums.com/showthread.php?t=42681

They’re going to fight it.
MadCarlotta

This is nothing new. I’m a graphic designer and back in 1998 I was working on a direct mail piece that featured photos of classic cars as artwork. I had to airbrush out all identifying logos on the cars before we had approval to send it out.
Takuan

@60

I think many homosexual people would take offense at your remark. Some of them even because it is intrinsically homophobic.
Nixar

“In a nutshell, they were selling their trademark, which they must enforce or lose it.”

Copyrights and trademarks are related, but different concepts. You appear to be mixing them up; you are therefore most likely wrong.
AlanB

As others have already pointed out, this is not the first time that Ford has done this. It’s not even just with Ford cars, there was a similar ban for Jaguar XKE calendars … check out this from October last year:
http://xkedata.com/blog/2007/10/11/calendars-areoff/

In this case, things may be sorted out when Ford sells Jaguar.

In the meantime, I shall continue to publish pictures I take of my own 1967 Jaguar 420 when and where I choose!
Takuan

this is all very interesting in its own way, but you know what really gets me?: Just how intensely some people can wrap their sense of self in with their car.
DefMech

#48: So does that mean the news channels can’t show clips with Ford vehicles in them?

Documentary use and the Press are given greater protection when showing copyrighted or trademarked content. This is how the paparazzi can get away with selling images of famous people without any legal clearance. So no, it doesn’t mean the news can’t show clips with Ford vehicles in them.
Teresa Nielsen Hayden / Moderator

Whitney (83), thank you for the clarification. Sounds like CafePress is getting way too jumpy.
Steaming Pile

@Takuan – Watch it. Somebody at Ford might suggest that commenting on the quality of Ford cars is a violation of copyright.

Fix Or Repair Daily, indeed.
Robert

Dear Ford,

Please please PLEASE sue the people who make those Calvin-peeing-on-X stickers.
Steaming Pile

#21 posted by acrocker , January 13, 2008 11:54 PM

I wonder how this affects AP images. Or any photographer trying to sell works that just happen to have a Ford car in it.
————————–
Or any movie that happens to have an old Ford in it. Does Steven Spielberg ask permission before putting old cars in his movies?
Josh Michtom

@ #66: Well, yes, the press gets greater leeway when showing trademarked things, because press coverage is entitled to a presumption of fair use. But the images of famous people are different – there’s no question of trademark or copyright, only a protection against unauthorized publicity or use of a person’s likeness. Famous people don’t get the same protection because (a) they’re famous and (b) since they’re famous, they’re considered (wrongly, I think) inherently newsworthy.

But that’s all really tangential to Ford’s dumb position this calendar case.
ryanmsmith

The same thing happened to me at CafePress. I put up a whimsical t-shirt design for my band that featured a VW Bug. (http://oldecellarband.com/images/shirt.png and http://oldecellarband.com/shirt2.png) Within days, it was suspended due to use of ‘Volkswagen’s iconic design’. Note that no VW logo was to be seen and the design was sketched. Because of the nature of CafePress’s business, they probably take a ‘better safe than sorry’ approach to copyright and trademark issues, regardless of whether such claims can actually be enforced.
drosdin

So, if a government agency takes a photo of my ford going at a high rate of speed then I can get the ticket thrown out because they obtained the image without Ford’s permission?

Cool.
GaryInMiami

Sadly things like this are all too common. Several years ago then Daimler-Chrysler (DC) served a model car forum I run with a cease and desist letter demanding I remove all member’s avatars that had DC legal marks in them such as logos and photos of the member’s own cars. Although I have an IP attorney, largely for other websites, this particular website is not monetized so I decided it just wasn’t worth it to fight DC and removed all their marks. In return DC turned a number of loyal fans into angry former fans.

What is this world coming to when loyal fans can’t even express their enthusiasm for a company without risking a lawsuit?
Pipenta

Dear Steaming Pile,

Re: “Or any movie that happens to have an old Ford in it. Does Steven Spielberg ask permission before putting old cars in his movies?”

As I understand it, the way it works nowadays is that Spielberg (or whatever big name director) has his people approach Ford/BMW/Apple and tell them, we’re going to do a scene with a truck/car/laptop and if you want us to us your product and make it look all glittery and cool, you’re going to have to chunk out some cash.

This, if I am not mistaken, is what is known as product placement.

I blame Disney for all this copyright craziness. I think they started the insanity decades ago when they started going after bakers for selling Mickey cakes made in pans that Disney licensed. They got away with that obscene little bit of greed and it has been snowballing since.

Greed + greed + greed and then throw in dash of stupidity and complacency.
Jeff

Takuan said, “Anyone who owns a Ford deserves what they get.”

And what’s that? I’ve owned several “Fords” and they’ve all been great cars. I’m not here shilling for Ford, but they’ve come a long way in the last ten years. And although Volvo is a company owned by Ford, under it’s management Volvo has made some nice gains in the market and is a far better looking group of cars than it was before.
Teresa Nielsen Hayden / Moderator

Filed actions protecting copyright? How would that work? You register copyright for the available length of term. After that, it’s a matter of who holds a license to use the work.
Takuan

they want your money, not your love
candlefish

I don’t understand the movie thing. I’ve seen lots of movies that obviously didn’t have clearance of vehicles (went out of their way to hide trademark). If Ford is right, those movies are just as guilty.
iain010100

Ford should demand a recall of any newspaper photo, movie, tv show, personal photo, and family movie over the past 100 years which has any incidental pictures of their car.
Teresa Nielsen Hayden / Moderator

I thought about what other products might have a fan following comparable to Ford or other automakers, and decided to try Harley-Davidson. Accordingly, I went to this calendar site, which gives you a medium-close view of calendar fronts and backs, and searched for calendars featuring motorcycles.

What I found: in cases where the copyright notice was visible, or was listed in the product info, the majority of the calendars were simply copyrighted by the publishers. The only exceptions were calendars specifically focusing on Harley-Davidson motorcycles, which either said “official licensed product” or “all rights reserved.” Other calendars had Harley-Davidson motorcycles in them, but didn’t acknowledge them as having any rights.

I suspect that if the Ford fans’ calendar had simply been named something else, or had some other ostensible focus, it wouldn’t have been suppressed.

LamontYouBigDummy (79), if it’s that easy for an unpopular organization to discredit a trademarked product, I wonder that I haven’t heard of people starting nasty-sounding organizations and threatening to publish calendars showing some firm’s product line.

In any event, the logical solution would be for Ford to do a simple contract with the fans giving them permission to do a calendar. Ford could ask a token payment or percentage. The point would be that the calendar was published with their permission, so their ownership of their trademarks wouldn’t be affected.

It would also mean that if some outfit wanted to do an undesirable calendar — say, one featuring photos of wrecked or broke-down Ford vehicles — Ford could refuse to grant them permission. The existence of other calendars wouldn’t constitute a precedent, since the others did have permission.
maxwelton

I should note that when Cafe Press sacked my stuff I wrote to Ford’s hired hacks in Salt Lake City and received insufferable boilerplate from the upstanding paralegal at the firm there. In no case did Ford offer any channel to find out how to get “permission” to sell calendars with pictures of “their” cars.

Note, again, that I took great pains to not use and Ford owned logos or trademarks in the graphic design of the calendars…they didn’t even say “Nifty Ford Cars 2007″ or anything on the calendars themselves.

I’m in the right, but I cannot afford to take on entire firms full of $1200 an hour attorneys dedicated to slapping enthusiasts around.
dculberson

This doesn’t make the situation any less idiotic, but I bet if they got ahold of the right person at Ford they could get permission to print the calendar. Granting permission would allow Ford to keep control of their trademark while still fostering good will with their buyers.

My suggestion to the club would be to not fight it out with the lawyers, but to try contacting the PR, enthusiast, Ford Racing, and other divisions at Ford. You only need written permission once – and someone there would be excited to get it for you. If you take the fight with the lawyers too far, it might preclude you from getting that permission.

Personally, I’d also take this as motivation to get my own equipment or contract with a cheaper printing shop than Cafe Press. You pay for the convenience they offer.
Nike Dunks

Very useful tips..for conversions in temperature, use the short form

50 f in c
historyman68

I mistakenly read the headline as “Cat owners are pirates if they distribute pictures of their own cats”.

Damn.
Nike Dunks

Very useful tips..for conversions in temperature, use the short form

50 f in c
GaryInMiami

Takuan said, “they want your money, not your love”

When it comes to car enthusiasts (models and 1:1), love of a product often brings the company money for said product, and invaluable advertising; both via word of mouth and, in the case of my forum, thousands of eyeballs a day seeing the legal marks.

I understand the need to protect legal marks. But how far should a company be legally obligated to go in order to protect those legal marks?
Whitney

My name is Whitney Drake and I work in Ford Communications.

We’ve been watching this discussion with interest and I’d like to clarify what is essentially a misunderstanding.

Yesterday we spoke to both Cafe Press and the Black Mustang Club and explained the situation (about the Black Mustang Clubâ€™s calendar) to everyone’s satisfaction. Ford has no problem with Mustang or other car owners taking pictures of their vehicles for use in club materials like calendars. What we do have an issue with are individuals using Fordâ€™s logo and other trademarks for products they intend to sell. Understandably, we have to take the protection of our brands and licensing very seriously.

Ford did not send the Black Mustang Club a â€œcease and desistâ€ letter telling them that they could not use images of their own cars in their calendar. The decision not to allow the calendars to be printed was made by Cafe Press, because we had gotten in touch with them in the past about trademark infringements on products they sold.

The Black Mustang Club, and any other Ford enthusiast club, are free to take pictures of their own vehicles for use in calendars or other materials as long as they don’t use Ford trademarks in products that will be sold.

I think it is great that the Black Mustang Club, and any other enthusiast club, would take pictures of their own vehicles for use in calendars or other materials.

I’m looking forward to purchasing a copy to hang in the garage next to my Mustang (even if mine isn’t black).

Thanks for giving us the chance to have our say.
Leon Renaud

This exact thing has been covered in another auto related web site that I visit daily.Those who think the law firm was acting on their own are correct. Ford Motor Company has already said they have no problem with the Mustang club publishing their calendar.Ford Motor Company sent a letter of appollogy and written permission to do the calender explaining that what Ford does not want is people making or selling reproduction Ford products without their permission.Products being reproduction/replacement parts or complete reproduction autos.Carrol Shelby has gone through this with the companys making and selling knock off Cobra cars ,and its not always about the owner of the product adding to their pocket.In the Shelby case all he asked for in exchange for the rights to use the cobra name was proof of a donation of 2% of their profit be donated to a charity of their choice not his choice theirs!
jbelkin

The problem is letting the lawyers run the business – they could care less about goodwill, advertising or marketing because that would be like asking a 5-year old kid whether a Roth IRA is better than a regular IRA. They just do NOT get that at all. They live in a world where “regular’ words are TOO complicated so they invent LEGAL definitions and each word only has ONE meaning … that is how they see the world. WIN. LOSE. GUILTY. NOT GUILTY. THat is how they define the world so either you are violating trademarks or you’re not … there is no middle ground … because that would be too FREAKIN’ complicated otherwise to their feeble minds.
Jason_Nardiello

Gendoo, you must have me mistaken for someone else.
NickD

It seems Ford is saying it is fine to make and sell the calendar, show pictures of the cars, as long as the Ford logo is not used. This would have to mean that it is ok for the logo to appear on the cars in the photos. But to put a big Ford logo on the calendar would imply that the calendar is endorsed or made by Ford when it is not. This is where trademark law comes in. The club cannot appearer possibly/maybe represent themselves as Ford.

It seems all this would take is a disclaimer (We are not affiliated, enforced or licensed by Ford). But, it would need to have such a presence as to interfere with the aesthetics of the calendar.

Failure to protect the trademark would encourage others to produce non-licensed Ford accessories and shwag. It could be possible for Ford to make exceptions, to reach out to all of the clubs and come up with some sort of license agreement with non-profits, but then they might disenfranchise their licensees.

But, would it be better to disenfranchise existing licensees or disenfranchise your most passionate customers? Trademark law should probably be revisited as well.
batman567

i remember ferrari (formula one) did something like this a while back. they were riding on the crest of the schumaker era, and had fans all over the world. but when a little kids made a (pretty good) model of a ferrari, they got seriously uppity and made it legal.

alienating your die-hard fans will cost you way, way more than posting photo’s (of your own car) or typical fan stuff EVER could. wake up Ford – and others – having people rave about your product is a GOOD THING!
Takuan

pity,I was looking forward to spraining my other jowl.
Takuan

Ford is not “obligated” at all. The are doing this because they can.

Bottom line: the average sheep – I mean automobile user/consumer – that buys an undistinguished, boring model is far more important than the most zealous fan.

They need to sell lots, not quality.
dainel

Cory, in your picture published on your website at http://craphound.com/bio.php, you are wearing our clothes. Please note that these clothes are trademarked by us. We would appreciate if you would remove the photo, or replace it with another photo not wearing our clothes. It would not do to simply change your clothes, as you would then infringe on someone else’s trademark. You will have to take the new photo without wearing any clothes. For obvious reasons, we suggest that the new photo be a head shot only.

Oh yeah, and lose the glasses too.

:)

Noun: trademark
1. a distinguishing characteristic or attribute
2. a formally registered symbol identifying the manufacturer or distributor of a product

“Ford” is a trademark. “Mustang” is a trademark. The symbols are trademarks. The entire car itself is not a trademark. It isn’t even a “mark”.
Joe4speed

Ford also slapped our website with the same deal. They said nothing about the trademarks. They said even silhouettes couldn’t be used. Here’s what they told us: http://www.ricehatersclub.com/vbulletin/showthread.php?t=25901
I haven’t seen anything on BMC’s website to suggest that this has been resolved yet.
GaryInMiami

RE: #46

Takuan, I respectfully disagree with you about Ford not being obligated at all. I’m certain that at some level they have to protect their legal marks or risk losing them as has happened to other corporations such as Kleenex.

To me it’s a question of how aggressive do they have to be in terms of protecting those legal marks? Do they really have to risk losing the loyalty of fans over something as simple as a calendar for a forum?

I’m not even sure why CafePress is so concerned about this. I’ve sold items with Ford legal marks on them via CafePress on and off for many years and CafePress has never raised any objections.
thepartycow

ALL YOUR CARS ARE BELONG TO US!
Flybridge

So does that mean the news channels can’t show clips with Ford vehicles in them?
Cory Doctorow

Garyinmiami: Kleenex is still trademarked, despite the fact that it is routinely used in the generic sense. That’s because the failure to enforce one’s mark against the public *does not mean you lose your mark.*

This is just a fairy tale told by trademark lawyers.
figment88

If they want me to be a Ford, they would have to change the name. I am not going to go around in any shape or form spreading the legacy of Henry Ford.

I’m glad the company is limiting its dissemination — clearly unprotected trademarks is now the World’s Foremost Problem.
Takuan

what is the main duty of corporation? Profit?
Shareholder happiness? Customer satisfaction?

I think it is: be smart enough not to kill your host.

Cars exist because we need to get around. Our need to get around is what is real – not the branded personal automobile.
dbarak

I completely believe the story, although I don’t know how much of it is because of Ford.

I once opened a store on CafePress to sell “American Idiot” items, complete with a PARODY logo. This was long before Green Day’s album came out.

CafePress removed the images despite my appeal to them that this was a legal parody. They were NOT happy when I opened a “CafePissed” store in protest.
Lamontyoubigdummy

There’s been more than a few very well argued comments on this thread, but everybody is concentrating on the peas and not the steak (apologies to vegans).
I’ve had this very conversation with several intellectual property (patent/trademark/copyright) attorneys. Of course Ford highly values the BMC club and would never wish to alienate them, but they don’t have much choice. Ford is doing this (as would most other companies) to avoid setting a precedent that all but guarantees them roughly $50-$100 million in law suits and legal fees.

If Ford expressly allows BMC to go forward and publish this calendar with their product coupled with BMCs logo, it sets a precedent. If, the very next year, several members of, say, NAMBLA (who happen to just love Mustangs) decide to publish their very own Mustang calendar… What happens when Ford says, “No?” Nambla sues Ford for discrimination, and you can bet your ass they’ll get free counsel from the ACLU.

This is just preemptive, and, unfortunately, necessary.
ecobore

There’s only one answer to this – publish and be damned – if Flawed actually had the audacity to make a law case of this they would damage their sales network hugely – imagine this situation – I just bought a new ford and I took a picture of my baby sitting on the hood… OOOOH sorry! You can’t print that photo, Ford owns the copyright. What TOTAL BULLSHIT – In fact I will NEVER buy a Ford if this is to be their attitude! a few 100,000 saying the same thing will soon change their little corporate minds!
luvmaford

20 years ago, Ford would have been flattered and proud that people like their products and flaunt it. Now because of all the laws we have it’s no longer possible. It should actually be the other way around, Ford should support its greatest fans by printing the calendar for free…that’s advertising at the best level! Take care of your clients and the rest is a joyride to the bank for FORD.

If Jesus had followers who advertised (apostles preaching) what would happen he suddenly Jesus told them to shut up? BUY FORD but don’t tell anyone you like it so much and don’t you dare show off.

Come on FORD, jump in and take a ride. This is an advertising opportunity for you, that might ride down the sunset.
Teresa Nielsen Hayden / Moderator

This is what Cory means when he talks about the term “intellectual property” being a corporate dodge for grabbing rights they ought not have.

Suppose the club had had a different pretty girl sitting on the hood of each car, or had photographed the each car in a differet scenic setting. I doubt Ford would have said a thing. The perceived problem is that the content is all Ford cars.

Ford might have a thin case if the cars were unmodified. The photographs would show the definitive forms and designs of those cars, which is something Ford owns.

However, I understand that some or all of these cars are customized to some degree. Thus, the photos don’t show the definitive platonic forms of those models. They show one specific vehicle, which Ford sold. The owner has rights in the image, as does the photographer. Ford doesn’t own those rights, unless they specifically retained them in the purchase contract for the car.

As for CafePress adopting draconian policies, like not allowing a bit of hand-drawn art that included the likeness of a VW Bug: I assume people have been using CafePress to manufacture merchandise decorated with images they don’t own, and CafePress is now overreacting. You don’t have to have Volkswagen’s permission to reproduce a sketch of a street seen that has a recognizable VW Bug in it.

Doorframe (2), perception doesn’t govern it. Right comes into it as well.

Halkun (11), add me to the list of people who think that Ford saying something doesn’t make it true.

Sync32 (13), that just makes me wonder why they’re going through CafePress.

Spigothead (18), nonsense like that deserves to be vigorously ignored. It fails the “What would happen if everyone did it?” test.
Maddy

Cory, having worked for copyright/trademark attorneys, I have memories of seeing actual cases they would use where people LOST copyrights over not being eternally vigilant. I remember having discussions with attorneys like — why does it have to be either or? Why should a company get penalized on its mark for allowing a church group to use a Snoopy? They agreed, but claimed these specific cases made them have to do it. Lawyers try to protect against everything, and all it takes is going “oh, no one cares about a possibility so tiny” and then you have THE LOS ANGELES OF ANAHEIM. That’s why they try to plan for all sorts of ridiculous eventualities … all of this said by someone who is out of the biz and loving it …
Anonymous

What should a photographer say then if Ford uses his pictures taken from famous sites such as Flickr? They have created a group where pictures taken and submitted to the group can be used without the artist being notified.

Isn’t there a contradiction?

You may not show pictures of their models, but you’re encouraged to post to their Flickr group, so they can use your pictures for free.
Wow the whole thing’s crazy!