Many professional photographers began shooting photos as a hobby and had no intention or aspiration to turn pro. While many professions require special college study courses (such as becoming an attorney or physician), just as many or more professions do not require any special education beyond the trial and error process learned through experience. This is the case with photography.
I had absolutely no interest in photography at all until digital cameras first became available to consumers. My first camera was a Kodak Digital Science something or other which had no LCD screen and shot images that were only 493 x 373 pixels in size. (I still have a few of those photos, see photo #3 below.)
After several years of upgrading to cameras that shot larger images and noticing that my skill in capturing appealing images was improving, I decided that I could turn this hobby into an income source. What I was mostly unaware of at the time, however, was the massive tangle of copyright and trademark law that all artists encounter when entering the commercial arena.
Copyright Law
US Copyright law can be studied in depth at the US Copyright Office web site. What a photographer needs to know about copyright law can be summarized as follows:
1. You must register your copyright ownership with the US Copyright Office before you can bring a copyright infringement suit against anyone.
2. You cannot shoot a photo of other 2 dimensional art which is copyright protected (like another photo) and claim copyright ownership of that photo.
There are more minor points and complications involved in copyright law, but that's all you basically need to know.
Studying the full text of US Copyright law will reveal some of the lesser known elements of copyright law to you... such as rules about architectural photography, which is essential knowledge for the urban photographer.
Architectural copyright did not exist prior to 1990; therefore, nearly all buildings constructed before 1990 are fair game for commercial photographers. (Exceptions to that rule would involve structures that also have trademark protection, such as the Transamerica building in San Francisco.)
However, this 1998 decision by the 6th Circuit Appeals Court found that photos of trademarked buildings may not be infringements. While every case is unique and can't be used to predict the outcome of other cases with certainty; case law is one of the most valuable sources of information. Don't believe everything you read on blogs and discussion forums.
Copyright law also states that even the majority of copyright protected architecture is fair game for commercial artists and photographers. The main purpose of architectural copyright is to prevent the building of duplicate structures. All pictorial representations (drawings or photographs or films) of copyright protected architecture are allowed to be used commercially if the architecture is located in OR normally visible from a public place. (See US Copyright Act Chapter 1 Section 120).
Think about recent movies and television shows you've watched, where the star is driving down a highway and all kinds of buildings are depicted in the scene. Without having to look up the statute, you probably were already aware that the film producers did not have to obtain permission from every building owner to include their building in the film.
Trademark Law
This is a more complicated area of law as it involves intangible elements. While copyright applies to tangible audio and visual products (music, literature, poetry, drawings, paintings, digitally created graphics, sculpture, photography, film); trademark can apply to what a person thinks in addition to what can be seen in the image.
Slogans and phrases can be protected by trademark (Just Do It, Got Milk?) as well as (as the name implies) a "trade mark" or logo (Nike's swoosh, McDonald's arches, Mitsubishi's three diamonds, etc.)
Further complicating the issue is that unlike copyright law which states that your photograph of a copyright protected item might not be eligible for copyright protection itself ... under trademark law, you CAN in most circumstances photograph a trademark and own the copyright to that photo. (Exceptions would involve copyright protected trademark art photographed in a similar fashion as photographing a photograph and trying to pass it off as your own.) How the image containing a trademark is used is usually what's most important.
I can photograph the McDonald's Golden Arches up close and own copyrights to that photo. But what can I do with a photo of a famous trademark?
1. You could sell licenses to use the image. Any risk of being sued by McDonald's for trademark infringement is assumed by whoever publishes the image; not the photographer. A magazine might purchase the photo to use with a news story, or McDonald's might purchase the photo themselves to use in advertising materials.
2. You can use the image for noncommercial purposes, like a blog article about how good or bad McDonald's food is.
3. You can use the image in a parody. This Harvard Law article discusses an example of how someone successfully used trademark protected elements in a parody which was for profit.
What you can't do is put your Golden Arches photo on a poster or tee shirt and sell it. That would be a trademark infringement because the McDonald's BRAND would be the primary idea behind selling the item rather than the quality of the photo. There would be consumer confusion: people would think McDonald's is somehow involved with the poster or tee shirt, when they're not. It's that intangible I mentioned earlier.
While a photo of the White House makes people THINK "White House" rather than "spectacular photography"... the White House is not a trademark. Also, most things that are owned by the government are in the "public domain" rather than being copyright protected, because the government is publicly funded.
Yes, it's a bit confusing.
The challenge for the urban photographer is to capture interesting images while avoiding prominent trademarks.
While a close up photo of the Golden Arches slapped on a t-shirt for sale would be a trademark violation; a photo of a street scene that INCLUDES McDonald's Golden Arches is probably NOT a trademark violation. Prominence is a key issue. Do the arches take up 50% of the photo? 25%? How much of a percentage constitutes a trademark violation?
There is no hard rule. Again, it's based on what people think. If an average person would THINK that you're focusing on the McDonalds logo... that it's a primary element of the photo you're intentionally drawing attention to, rather than an unavoidable presence; you're in unsafe territory.
In a trademark infringement case, the main deciding factors are CONFUSION (would consumers think your photo is sponsored by or a product of the trademark holder?), PROMINENCE (how prominently the trademark is featured), DILUTION (do your sales of the photo or your product using the photo dilute the profits of the product represented by the trademark?), GOODWILL (does your photo or product rely on the goodwill of the trademark owner rather than the artistic quality of the photo to make it a marketable photo or product?) and INTENT (did the photographer intend to misuse the trademark?)
The issues of confusion and intent can be easily eliminated by clearly labeling or branding your web site, photos, and products with your own trademark. For example, if you have a photo containing McDonald's Golden Arches and you're using it commercially... putting it on a web page titled "Joe's Photography" with a Joe's Photography logo and labeling the photo "Photo of McDonald's on Main Street, Philadelphia" is clearly a different thing than putting it on a web page titled "Welcome to McDonald's!" that has no photographer's logo or branding on it anywhere and labeling the photo "McDonald's Golden Arches." In the second example, the photographer is probably intending to confuse consumers into thinking the photo is endorsed by McDonald's.
As discussed by the judges in the 1998 Rock & Roll Hall of Fame case - it can be quite a stretch to claim that a photograph infringes on a trademark. The thing that makes the Rock & Roll Hall of Fame case more interesting is that the photographer, in addition to using a photo of a trademark protected building, added trademark protected text to the photo - and was still found not guilty of infringement.
However, this was a 5-4 decision that could have easily gone the other way; so it's always best to be overcautious. Your photos will also be more marketable if you remove trademarks from them as many buyers who intend to use your photo commercially would want a signed release from the trademark owner before using the photo. I've included two examples of how to remove trademarks in photos posted at the bottom of this intel.
Photo #1 of the Mirage. Architecture visible from a public place, no problem. Oh, what's that HUGE rectangular ad? The Beatles! Hmmm. It's only a very small portion of the photo... but in my opinion it's too prominent to risk in commercial use so I've got to remove it from the photo.
Photo #2 shows how I've converted a potentially risky (get sued by the Beatles?) unusable photo (for what I intend to do with it, selling posters and shirts) into a usable photo; by simply REMOVING the trademark in a visually appealing manner.
And that's the main point of this intel: how to make a photo which is commercially unusable, into one which is not only usable but more attractive.
1. Identify the potentially trademark violating areas of the photo.
2. Think to yourself "What would look BETTER than..." whatever they are.
In examples 1 & 2 below, I isolated the rectangular area by drawing a line around it and filling it in with a neon-like color gradient. A simple procedure taking less than 5 minutes, and in my opinion, an improvement on the original photo.
See photos #4 and #5 below for another example. In photo #4 you can see a similar Beatles "Love" ad on the Mirage sign, and further back, an ad for the Cirque du Soleil show "O" on the Bellagio sign. I don't think those elements are prominent enough to be considered as trademark infringements but JUST TO BE SAFE I clone brushed over them with a reduced size image of another one of my photos (the Welcome to Las Vegas sign; which is neither copyright protected nor a trademark.)
I learned how to perform these kinds of edits gradually, through trial and error, using graphics software and looking for online tutorials. Some of my early edits are fairly unattractive, just blotches of color; but you'll learn to refine your edits over time.
Gimp is an excellent FREE graphics program you can download and use for these kinds of digital photo edits.
What about stock photo sites?
I've been to those stock photo sites that either reject your image or want a "property release" for architecture photos. As third parties, they are simply being cautious in exercising their right to refuse or accept photos as they choose, based on potential risks.
POD (print on demand) sites like Zazzle and CafePress operate in a similar fashion, rejecting photos they feel may be risky. If your photo is rejected by all the stock photo sites and PODs, that doesn't necessarily mean it is infringing. They are just not going to let you use it, and they have the right to accept or reject images that will be used on their sites - for any reason or no reason.
While your photo of a building may be entirely risk free by itself, if a stock photo site posted it for download and someone purchased it to use in a malicious, libelous article about the building owner... the stock photo site could become involved in litigation. To avoid that risk they simply reject the photo or require a property release - which is a written agreement that the property owner won't sue.
You can avoid risks like that yourself by having a comprehensive terms of use included on your web site if you offer your photos for sale to the general public. Standard licensing terms should incorporate a statement such as:
Images may not endorse, promote, represent or be used in connection with: illegal drugs; psychological, psychotropic, and/or physical disorders; criminal and/or anti-social behaviors; illegal sexual and/or pornographic contexts. In addition, any uses which may be construed as degrading, offensive, defamatory or which deal with controversial subjects of any kind are not covered in the releases (insert your name or company name) has in its possession. Inquiries may be made by e-mail. Any exceptions must first be approved in writing by (insert your name or company name) prior to usage.
Creative Commons is an excellent resource which offers several levels of predefined licensing agreements you can use.
I'm not an attorney or law student; the above information is a compilation of what I've learned after many years of using my photos commercially. Stick to studying case law, the text of the actual statutes, and information posted on law firm and law school web sites when conducting legal research.
