Ferrari P4/5 all scale model

Trans kits are usually made by some very small basement company. I think the name cottage industry is the official term. Some guy somewhere, probably in Asia, wants to convert his 1/18 Enzo to an FXX, so he makes the resin molds and voila, the trans kit is born. Might as well sell a few to cover his costs. I do not think Ferrari will go to the expense of sending a flock of lawyers to raid this guys house.

Nevertheless, I do not believe this is even close to being the same as making a model of a privately commissioned one off 1/1 car, and producing enough copies with the intent of making a profit. The owner of that one off 1/1 scale car owns the rights of the image, and only they should be able to approve the right to duplicate.

 

cool ron. do you think you could send me some pics?

and is this P4/5 kit is out .....is there anything?


jim?

 

I'm just exploring how far licensing can go....I guess the main reason for not taking legal action is that it is not worth it over a handful of models, drawings, or paintings.

 

I will offer to pay for the material and labor just to hang that baby on the wall next to my 365GT4 2+2 at the new warehouse.

 

There was one in the factory in July at the place where they make the engines.

 

I would love to have a shell as well, i would figure out how to put it on the wall.

 

Yes, I might be able to sell the photo to someone that wanted to buy it, but if I set-up a business selling prints (posters) of "Ferrari's" I could get in trouble. I photograph major league sports all the time, NFL, NBA, Pro Baseball, NHL etc. as a photojournalist working for major publications, and to recieve press credentials you must sign an agreement that you can only supply images to the outlet that hired you. Yes I could get away with selling a few prints if I wanted . but purely because it wouldn't be worth taking me to court for small money. Just as the small model manufacturers can get away with making a small batch of models.I bet that if an artist made prints of Ferrari's and advertised them as "Ferrari's" in say a major US magazine like Road and Track with a full page ad, implying a large amount of sales due to the cost of the ad that one of Ferrari's lawyers would be contacting them fairly quickly.

 

So basically, printing with demand is ok. Advertising to sell a large quantity of prints is not ok? As I asked before, What makes it a "poster"? size/quality/paper? Is it any picture that you are not allowed to sell a large quantity of, or only posters, you kinda threw me off with that.


Peter Hatch

 

Sorry, I don't seem to be getting my point across. Selling these images to a publication is OK, but basically selling prints of any size 8 x 10 or 30 by 40 (poster) is not really legal if it is identified as Ferrari's product without their consent. I said you could get away with selling a few reprints but legally, technically that would also be an infringement.
I live near Philadelphia Pa. If I went to an Eagles NFL game and bought a ticket in the stands, and brought a giant telephoto lens, I could shoot all the pictures I wanted for myself, but if I set up a stand outside the stadium and sold the prints I could get sued. If I put a small ad in the local paper and sold reprints I could get sued. Basically, people (or corporations) own the rights to the reproduction of the image of themselves or their product (Ferrari F430 picture). They spend Millions of dollars protecting these images, whether it be a car, Nike sneaker or Britney Spears and can legally control all distribution of these images except in Periodicals (magazines, newspapers, the internet etc.). You even have to pay if you want to publish most pictures in some kinds of books.

 

I think you're incorrect. According to everything I have researched it falls under intellectual property. A photo is just that. Ferrari can sue anyone over anything but the suit would get thrown out at least in the USA. You can sell a photo with there image on it. As many as you want for as much profit as you want. What you can't do is use there image in the advertisement of the photo you are selling. You also can not advertise it as an officially licensed product. They can not own the right to an image someone else photographs even if they photograph there property or tradmarked item. Ferrari owns the right to there designs. They have the right to stop anyone competing with them using a copy of there design. They can not stop someone from profiting from a picture of there design unless they used there logo in the advertisement of that item.

If what you were saying is true, there would be no papparazzi. When they get sued its not because of the photos they took, but what laws they broke in getting the photos taken such as trespassing or invasion of privacy etc.

Also, the Eagles game might have a disclaimer of not allowing cameras in the stadium. Thats different. There is an agreement in place maybe. Also with your press pass reference. If you sign something that does not allow you to distribute pics thats different also. If I take a picture in a public place, I can sell that picture regardless if its a Ferrari or any image at all. Its mine to do with as I please.

The Eagles own the rights to THERE own images such as those from a broadcast. They DO NOT own images other people take as long as they were taken legally. If I lived in an apartment and could see a ballgame from that apartment and took pictures, I could sell them all day long without breaking a single law.

Contact an attorney, its the easiest way to settle this.

 

Alright, Sorry. I just had my mind set on posters since that was the example used. I don't understand why anyone can claim your photos though. That's like having a picture with a Mustang in the background and having Ford's attorneys coming after you. I guess I can't really grasp the reason behind this, but I think I understand your reasons. You can sell your photo to a Periodical, but you can't sell it to people by yourself. Freedom of Press? Thank you for your time, and your responses, it's very much appreciated.

Peter Hatch

 

Are you always so delightful?

 

Man, With all due respect I don't think you are reading these posts.I said "is not really legal if it is identified as Ferrari's product without their consent." I clearly stated that it is the way the picture is sold. The paparazzi can rightfully sell pictures that they take in public of a celeb to a publication, but try selling posters of Britney Spears with her boob hanging out by advertising in the back of People Magazine and see if you don't get a law suit.
IT IS WHERE AND HOW IT IS SOLD THAT MATTERS.
EDITORIAL PUBLICATION IS FREEDOM OF THE PRESS.
I don't mean to sound so harsh, but I have been doing this for a living for 30 years and have sold a hell of a lot more photos then you have sold models. IMHO you need a new lawyer if he is telling you that you could sell peoples or products image anyway you want.
With your interpretation of copyright I don't know why you couldn't sell as many copies as you want of your models.

The reason you can't is because you even called it a Ferrari in the title of this thread.

So you are telling me that if someone took a picture of Jim's car parked in a nice spot that they could sell posters of that car anyway they want to.
You might want to check on this.
I'm sure Jim and Pininfarina would be happy to let you make a bundle doing that. LOL

 

I can probably help here. Analytically, there are several questions being argued in this thread. Let's break them down.

First, is the underlying thing that is being copied protectible?

Sculpture and design, including design of utilitarian objects, can be protected under copyright, trademark type theories and design patent, so long as the elements are non-functional. The copyright law protects sculpture as such, the trademark laws protect non-functional product configurations (ie, the shape of a container, or a car body) as well as word and design (logo) marks; the patent law will protect designs in two and three dimensions pretty much on the same basis as the copyright law.

A good example would be the tail fin of a '59 Cadillac. No real functional reason exists for the design element and if copied in the form of another car design, it would probably be actionable. Keep in mind that some of the great industrial design of the post WW2 period was never really protected well, particularly things like architectural furniture- eg, Eames, Knoll, etc. Thus, the proliferation of knockoffs which were tolerated until quite recently. Those companies seem to have gone on a campaign to reinvigorate their rights, and can often stop unauthorized usage of their brand names, if not the copying of their designs. (There has been some press about this in the past year).
A ubiquitous design, like a squared-off truck fender, seen on many trucks, would not be protected. (We invalidated a design patent held by Chrysler for such a fender when it sued an aftermarket replacement parts manufacturer in an attempt to control that market. I don't remember if the case is reported- it was called Chrysler v. Haur Tay).

The Lanham Act, section 43(a) will protected unregistered trademarks, including product configurations. We successfully stopped an unauthorized maker of a plastic orange Dodge Charger, bearing the confederate flag and nomenclature identical to the 'Dukes of Hazzard' car, in a case on behalf of Warner Bros.

So, the underlying design of the car, as well as the brand names and logos on it, are protectible.

What form does the copying take?

A competing product, eg, a clone car, is likely actionable. Ferrari have brought a number of these cases, Rolls brought one against the RR grill kit that appeared on VW bugs (for those of you with long memories) and Shelby has had some interesting ups and downs on the Cobra body design, at least when using his name.

What about models? Well, they are pretty clearly a form of merchandise, and for that reason, it is not likely that they will be given much berth under first amendment or analogous principles of freedom of expression. The issue of poster v. photo is a good illustration. A photo appearing in a book is likely protected by free speech, but a poster is more like merchandise. One case, involving Hulk Hogan, found that a book of 'tear-out' posters was more merchandise than book, and held it actionable (the case involved Hogan's right of publicity, but the same issue arises under the Lanham Act).

More recently, a controversial case involving lithographs of Tiger Woods in famous moments during golf touraments concluded that though the lithos were 'products' the artist has the right under the first amendment to create and sell them in multiples, notwithstanding Woods' intellectual property rights in his image under the Lanham Act and state right of publicity laws.

My take- models are more merchandise than 'art,' notwithstanding the creativity and effort that goes into them. Given the existence of established commercial product lines and licensing arrangments for them, from the cheap plastic model kits we built as kids, to the more elaborate finished scale models, any business based on the copying and sale of such models is likely to interfere with a well established market typically controlled by the owner of the underlying car design. One-offs usually don't attract the attention of the makers because the market is tiny, and the issues probably aren't worth the trouble. But, a commercialized venture making these models will probably incur the wrath of the car's ip owner.
I know of no rule that says 'less than 500 units' is a safe harbor. I suspect the lawyer suggesting that came up with some line-drawing to try and keep the product into a 'limited edition' art-type character, rather than a mass market product. But, I don't think that is necessarily a good insulator. While I suppose there is a risk that a court could hold a commercial model maker to be making 'art' not merchandise, the more the activity bears commercial earmarks, the more likely it is to be held to infringe.
Hope this helps.

 

I love how you guys get all personal ''I sold more photo's than you have models" Its not personal. How can you be so sure how many models I have sold and you sold more photo's? But you make my point perfectly. You state as fact something without doing the research. With all due respect maybe you might read the posts? I started my post with, "I THINK you are incorrect" meaning I am not SURE myself! But do a little research maybe.
I guess you feel selling photo's for 30 years that makes you an expert on copyright law. With all due respect one has nothing to do with the other. I am no lawyer, don't want to be, but it sounds like I'm the only one who spoke to one.

All I am trying to illustrate is you MIGHT not be right. I could also be wrong and maybe I asked the attorney the question without making him completely understand what I am doing. However I find that very unlikely. And he has been in business around 30 years also.

As for photo's I never really went into that area as I do not sell them, except it was brough up during the process of finding out what I can and can not do.

The bottom line is I have been looking for a case that actually went to court and was ruled upon.

The one poster who posted about the "Duke of Haz" model. Did that actually go to court or was it that the maker just stopped? Whar was the EXACT reason they stopped. Was it a complete knockoff of the design? There could be many reasons why they had to stop. Just because they were stopped does not necessatily mean it was because of what we are talking about but I would like to know more about that case. I know of several instances when the C&D letter went to a company and that was enough to get them to stop producing an item. That happens, not often, but sometimes. A letter in the mail with a result like that does not mean the company was doing anything illegal. All it means is they didn't want to find out either way.

And getting sued is not the same thing as doing something illegally. What that means is it goes to court and gets settled that way. Of course a Celeb will/might sue if you get them naked. They may or may not win but if they do it usually has to do with HOW the photo was produced or arrived at, NOT the photo itself. Also, if the photo affects the Celeb in a negative way and maybe could make them lose WAGES that makes it a problem. These are things that are not looked into when in this thread there is the blanket metality of "this must be wrong". I just like to verify everything.

I'm sure there are pages of text about what can and cannot be done. I tried doing a "quick" search on the web to try to narrow it down so when I speak to my lawyer again I can make the coversation easier. Its just amazingly confusing. I did find and read as much of the Lanham Act as I thought would apply but its big and also somewhat old.

Either way this is just a discussion that I only did a small amount of research into which seems to contradict what everyone thinks they are so positive about. I am not sure I know the facts, I am plainly saying that. I am sure I don't know. But when talking to the lawyer and reading everything I could find on it. Its seems very limited as to what can be protected with trademarked, copywriten, etc items.

I'm not trying to get personal with anyone. Just want to get to what the truth is if possible.

 

Here is a link to the Warner Bros. v Gay Toys case that I mentioned: http://www.frosszelnick.com/pdffolder/WarnerBrosGayToys.pdf.

Here is one of the Ferrari decisions, and one involving a Viper (which I haven't read- if I can link to the opinions I will do so for your convenience): See Ferrari S.P.A. Esercizio v. Roberts, 944 F.2d 1235, 1240 (6th Cir. 1991), cert. denied, 112 S.Ct. 3028 (1992) (holding “exterior design and shape of the Ferrari vehicles” protectable trade dress); Chrysler Corp. v. Silva, 118 F.3d 56, 58-59 (1st Cir. 1997) (holding image of Dodge Viper protectable trade dress).

Here is a link to the Chrysler opinion: http://www.ca1.uscourts.gov/cgi-bin/getopn.pl?OPINION=95-1926.01A

 

Thank you for the link.

Having read through the Warner case briefly you can see some very big distinctions and some similarities that related to this crazy discussion here. And if I missed any points its only because I went through it quick. First, they had to prove the likelihood that the public was being decieved from buying the liscensed brand and show damages to be awarded under Lanham. (if I do not use the correct terminolgy please excuse me as I am not a laywer)
They also infer that there is confusion as to sponsorshop of that product. Also they sold 500,000 units with B/O's for 700,000 more. This can have an effect on the liscensed products in the same market as the children beleive they are playing with a toy from the Dukes of H Television fame and assumed the car was SPONSORED by the show. That is very important. As they mention the liscensing agreements are more profitable than the show itself makes the case too. This being said I am sure if car company went after a model company they might have to prove the same. They might have to prove a specific scale model that they are going after for damages would hurt there agreements and buyers are confused as to them being made under "car maker X" sponsorship.

Its interesting to notice they did not get in trouble for making a Dodge Charger. This might be becuase they might have had liscense or Dodge didn't go after them. Its hard to know as it does not cover that. Also the use of the flag. I thought a flag could not be used in a trademark but in this case it was important.

Either way Warner Bros appeared to have proved there case (or the lawyers did a great job of it, especially with the 8 out of 10 survey, very well done). That could not have been an easy victory. But with a market in the millions of units being sold I can see why they went as far as they did.

Thanks again for the link

 

You have to read all of these cases in their context. The 'Gay Toys' case doesn't address your core issue in the sense that it ruled on the unlicensed manufacture and sale of a model of a car in a suit brought by the car manufacturer. What it did hold was that a toy or model car could be the subject of a Lanham Act claim, based on its distinctive appearance as associated with a particular source, in this case, the producer of a tv program in which the car was featured. At the time of the case, Warners has not put a 'General Lee' licensee into place. (I do not know what their relationship was with Dodge at this time- keep in mind that this case dealt with the old TV show, and not the more recent movie, and that product 'appearance' issues have become a much more serious business in the last decade).
As to your question about proof of damage, the key to the case was the preliminary injunction, not the money. The goal was to stop the manufacture and distribution of the unlicensed product, particularly since the district court which first heard the request for an injunction, denied it. That was the issue on appeal in the ruling I linked. In Lanham Act cases, damage does have to be proved to recover money, but, in most of these cases, the injunction is worth a pile of gold. I'm sure I'll supplement this thread as it keeps going. Glad to help.

Here is a link to a site which reproduces the Roberts decision. http://www.ipcasebook.com/updates/Supplement%20Post-Sale%20Confusion.doc

One last observation- the question in these cases is not, or should not be, will people confuse a clone car with the real thing- although in certain cases, that issue may be a legitimate one. Instead, rather than testing 'product' confusion, the Lanham Act asks whether persons are 'likely' to be confused as to source or 'affiliation.' This may only require proof of probable confusion, and that is confusion over whether people think that the original maker sponsored, endorsed, or licensed or approved the use, not whether the products are the same. So, the standard, at least for getting an injunction, is not quite as high as you would think, and the proof of likely confusion required is not necessarily dispelled just because 'any idiot' could determine, on close inspection, that the car is not a genuine one. Interestingly, though, the 6th Circuit Court of Appeals that decided Roberts in Ferrari's favor refused to rule in favor of Gibson over a competing use of a single cutaway solid-bodied electric guitar, aka the 'Les Paul.'
Fun reading, eh?

 

Its very hard to understand all of the details. And even any of these decisions could not have been arrived at easily. I thought I saw something say a decision was reversed at one point before unlimately being ruled on? I suppose thats not uncommon.

Thank you again for some clarification.

Fun reading, maybe not. But significantly less fun would be having to read it on the way to the courthouse............. Information is always important.

 

is a 1/43rd resin kit of the P4/5 by a company I've never heard of, called YOW

 

www.yowmodelli.com
It is a small japanese firm producing a very limited series .They are sold as kits and factory builts. Costs are higher than BBR . Factory built quality is like a good built provence moulage . He is a specialist in building one offs and protoypes. The last Ferraris made by Yow are GG 50 Giugiaro , the P 4 / 5 from Jim and next is 575 Maranello Zagato.