Upload & Sell: On
| p.4 #7 · Photography at Art Fair - Legal/Moral question |
Interesting discussion. A private venue renting public property can prohibit photography, but the thing about notice is not off the mark. If they don't post notice somewhere (at the gate, at the ticket booth, or most often, ON YOUR TICKET) then if you walk in and start photographing in a location that is known as "public", that is their own stupid fault. It is a public location... what are you supposed to think taking photos without some notice that you can't? And if you spend an hour in some venue taking photos before somebody realizes and comes up to you and says "You can't photograph here. Give me your memory card," are you going to hand over your card or tell them to buzz off? I'll tell them to buzz off and politely walk out of the venue, but the card stays with me and photos stay with me. I suppose I could make the argument that their failure to provide notice permits me to do whatever I want with those photos, including commercial use, but I don't care enough to get into that legal wrangle. It certainly wouldn't stop me from posting them on my FB or Flickr page in a non-commercial way.
But companies and venues generally don't act that way. We all take cameras into events all the time. Think about it. You're watching the opening kickoff of the SuperBowl, what do you see? Thousands of flashes. Same with the Olympics... and concerts... and amusement parks. These places generally only get pissy when you use your photos for commercial use. But think of the uproar if they started going after dad taking photos of his kid with the Green Monster in the background at kid's first baseball game. MLB and the Red Sox would look like friggin overbearing a-holes if they started suing middle class mom & dad because they found a couple of "illegally obtained" photos on a Flickr page.
On a related topic in this discussion, I have no idea what they are doing with that tree out in Carmel with the claims of trademark and all of that nonsense. A trademark is any word, name, symbol, or device used to identify the source of goods and services. The tree isn't trademarked. Some image of the tree is trademarked as used on some good or service... pens, t-shirts, association services, who knows. But you don't register a trademark and then get protection to use it on everything under the sun. You get protection when it is used in a manner that identifies the source of goods or services on which the mark is used.
So if you get a photo of that tree in the perfect sunset and you want to sell it, they can't stop you. Period. Now, maybe they could stop you from using an image of that tree if you use it to identify yourself as the source of similar goods or services compared to what they provide under that trademark, but they are going to have to demonstrate a likelihood of confusion. To do that, you have to look at, among many things, a host of specifics about the similarity in sound, appearance, and meaning of the two marks and the similarity of the goods/services, their intended uses, and their trade channels. That is why you can have a Delta Airlines, a Delta Faucets, and a Delta Power Equipment all with registered trademarks. Nobody is going to think that the faucet in their bathroom is made by the same people who fly them to Bermuda.
And let's not get into the argument of whether they are using their image of the tree in a manner that actually acts as a trademark. If they are selling art prints of the tree and claiming "trademark rights" in the print, they are FoS. That image of the tree as an art print is not acting as a trademark. It like the difference of sticking a little alligator on a shirt versus it being an image of an alligator emblazoned on the front of the shirt. One acts as a trademark to identify the source of the shirts (Izod Lacoste), one is merely ornamental.
Anyway, just thought I'd throw my 0.02 in. Guess I should mention that IAAL, but this is not advice.