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Ferrari art idea - opinions wanted.

Discussion in 'Ferrari Discussion (not model specific)' started by ferrariartist, May 27, 2004.

  1. ferrariartist

    ferrariartist F1 Rookie

    Feb 21, 2003
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    I have been thinking of releasing line of greeting cards of an exotic-car (mainly Ferrari of course).

    That, alone, is a question in of itself... there is not alot of cards out there of this nature. (Maybe for a reason??) While there ARE women out there into Ferraris (hi Nika) i figure the market is 98% men. But i figure guys like us have birthdays, graduations and Fathers Day etc too and a card down our Ferrari-alley would be appropriate.

    However...

    THESE cards are 6.25" by 4.75" originals one-of-a-kind drawings. Hand drawn in ink and coloured in ink and/or watercolour. Constructed out of premium watercolour paper. No two cards are alike.

    I figure to hit premium notepaper and "artsy" card stores (Chapters and Indigo, Your Expression stores, Yorkville and other downtown specialty stationary stores etc.)

    Also,

    To offer sets of cards to owners/afficianados of Ferrari and F1. Meaning, to put together a set of say 10 or 12 cards featuring a titanium 360 Challenge Stradale for the owner of said car. These would be offered as a packaged rate.

    Which brings us to price....

    to be honest. i've never been that good at "finding my price range" yet. I sold similar cards for $8 at Art Shows and angered (literally) several of my neighbours for having ridiculous prices and undercutting them by %50 and cheapening my own work. (their words not mine...)

    i sold all 20 though... :)

    I have seen "art-cards" in STORES for sale in the $10-15 CAN range some involving dried flower & paper collages and the like. So i figure the $13 CAN dollar range for each would be a place to start. The package of, say, 10 i could do for, say, $85 CAN.

    So...

    i guess my question to all of you is this...
    Does this sound viable... is it something you or your significant other would spend your hard-earned money on? Am i making fine-art out of something that shouldnt cost more than 6 bucks? Is a birthday or graduation card something that should or could cost that much? If i got 3 or 4 ink drawings PRINTED the price could drop dramatically ($9) but the "one of a kind"ness would be gone... but maybe thats something i could keep just for the "package deal" for owners/fans, and charge $95-100 for a dozen.

    And, i know youre thinking it... yes a FerrariChat price could be arranged.... :)

    Anyways... i wanted to bounce this off you.. the "hand-carafted originals" idea appeals to me most but since you are the ones that would be the market i thought i'd request any and all opinions thru this thread. (I copied this in the Canada section and Business sections as well, if thats OK with the moderators)

    As i said... all opinions/advice welcome...

    Thank you
    GT
     
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  3. msdesignltd

    msdesignltd F1 World Champ
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    Better check Trademark infringement liabilities.
    I tried something with Harley Davidson and got a seise and desist letter within 24 hrs. of release.
    Artwork might be different.

    Any trade mark Lawyers on the site.....Mr. Hart
     
  4. milstanselnino

    milstanselnino Formula Junior

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    VERY NICE! Looks like something that could be placed in some upscale sites, not to mention exotic car dealerships.
     
  5. imperial83

    imperial83 F1 Rookie
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    May 14, 2004
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    here is where LP141 Intro to Business law from freshmen year kicks in.

    You can have the car in the artwork but you cannot have the logo. So for example you can have a 360 modena speeding through a city road but cannot have the prancing horse logo be the main feature of the drawing.

    That having been said each company has different flexibility and tolerance levels on what they will allow. In my veiew Ferrari won't have a problem with a tiny logo or emblem here or there. Companies like FORD and Toyota will stick you witha court order to stop in no time.
     
  6. whart

    whart F1 Veteran
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    Well, this issue has come up in different ways a number of times on the board. Let me try to capture the flavor of the law here, since an arid statement of the "rules" will not necessarily help or give you direction.

    Ferrari have various intellectual property rights in their products. The prancing horse logo is, of course, a trademark as is the shape and appearance of the car. (If i remember, the cases they or Spa brought some years ago against imitative kit cars never had to reach the question of the body shape being distinctive because the "knock-offs" also employed the prancing horse element in various places as well.).

    Of course, if you copy a drawing or photograph of a car that was made by someone else, you could also run afoul of the copyright law, but i will assume for the purposes of this discussion that the drawings are entirely original, and based on your use of an actual car as a model or your own photograph of one. (There would be a nice question if you drew from a model, which is itself copyrightable to the extent that there are design choices necessary to reduce the car in size and make it look pleasing, but that's another story).

    There are also design patents for ornamental or decorative, nonfunctional designs, sometimes obtained by auto manufacturers for body parts and elements. Dunno what Ferrari does respecting that, but the design patent analysis is similar to copyright in alot of respects: if you copy a substantial portion of protected matter, you infringe unless its excused.

    Ok, having set up the various doctrine, where do drawings such as these fit in? In one respect, they are artwork, and like anything else, should be subject to interpretation and creative expression like any other subject, human or not (eg, think of selling drawings of, say, Brittney Spears. On the one hand, she is a fair subject for this, on the other, she might take the position that her rights of publicity are being impinged).

    Ferrari could claim that artwork and cards, such a postcards, are a form of merchandise that consumers are likely to believe come from, or are authorized by, them just like posters, models and other assorted licensable stuff.
    On the other hand, at least with respect to fine art, there was a recent case--in fact someone here first brought it to my attention during one of our discussions about this very subject-- involving Tiger Woods. An artist made paintings of him and Tiger sued for violation of his right of publicity as well as his rights under the US trademark law (there is an omnibus provision in the Lanham Act that treats as protectible anything that functions as a trade or service mark, including a personality's appearance, product configurations, color schemes associated with a particular brand, etc., whether or not they constitute technical trademarks or are registered as such). My recollection of the case was that the federal dist. court and the 6th Cir. Ct. of Appeals (out in Ohio, i think) held that the artist's work was protected by the First Amendment and was not actionable, either as a violation of the right of publicity or the Lanham Act.Obviously, this is one court in one circuit, not a universal ruling applicable throughtout the US.

    Nonetheless, when you get down to something that is reproduceable in multiples, like lithos, postcards, posters, and the like, i think the risk is much greater that a court would find the thing more a prosaic product and less artistic expression, and a court could well find it infringing. I haven't checked recent law on this, but it might be a good project for one of our summer associates. I hope this helps. I guess i come out thinking its risky, even without the scudie badges.
     
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  8. Doody

    Doody F1 Veteran

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    fwiw, yes, ferrari has been filing design patents since about 1990, as best i can tell on uspto.gov.

    doody.
     
  9. George H.

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    As Whart pointed out, works of art are protected by the First Amendment. Thus, generally speaking, an artist's depiction of a trademark in an artistic work will not be actionable by the trademark owner. For example, Andy Warhol's soup can paintings are protected from claims of trademark infringement by Campbell's. This doctrine applies not only to original works, but to reproductions (such as prints and posters) as well. A 1996 New York case extended the artist's protection to the sale of T-shirts bearing reproductions of artwork depicting protected trademarks.

    Hand drawn cards of cars that are distributed in relatively limited numbers should fall within the First Amendment protection even if they depict trademarks of the car builder.

    A caveat to all this is that the trademark cannot be used in a way that would imply sponsorship by or affiliation with the trademark owner. So, for example, you couldn't prominently display the cavallino on packaging or advertising for the cards.
     
  10. 96cobrakid

    96cobrakid Formula Junior

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    so are me and nno illegal because of our tats? :)
     
  11. whart

    whart F1 Veteran
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    George:You would be interested to know that Warhol got permission from Campbell's.
     
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  13. zjpj

    zjpj F1 Veteran

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    Isn't it weird that John Deere couldn't trade mark their color scheme? The court said the color was "aesthetically functional" - because farmers would want all their farm equaipment the same color and allowing John Deere the right to a monopoly on the color scheme would prevent other manufacturers from selling to consumers products with a similarly aesthetically pleasing quality. I think it's a ridiculous ruling.
     
  14. Texas Forever

    Texas Forever Four Time F1 World Champ
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    Speaking strictly from a layman's viewpoint (I ain't no stinkin attorney), I'd apply a with/with-out test. That is, clearly the post cards could be drawn with generic looking sports cars that resemble a Ferrari without being an exact copy of any of Ferrari's marks. (I'm thinking here of the sunset picture of Wolfgang's car that just shows the outlines of a TR.) Presumably these post cards would appeal to car nuts looking for a post card over a card that shows cute little kitty cats or something equally as worthless.

    But by drawing cards with clearly identifible Ferraris is the artist attempting to use the Ferrari name to sell post cards? I suspect so. In other words, if someone is trying to make a buck off the Ferrari name, they need to send a check to Ferrari Spa or whoever owns the license.

    Dr "You'll never understand copyright laws until you get ripped of" Tax
     
  15. ferrariartist

    ferrariartist F1 Rookie

    Feb 21, 2003
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    ok....

    first off thanx for all the responces so far... especially Mr Hart. VERY much obliged... Ive PAID lawyers for their time on this and got less from them, so THANK YOU whole-heartedly....

    i have researched this trademark thing on and off for years talking to both sides of the story...

    and i get a different answer almost every time....

    some things are standard across the board... the fact that Harley Davidson, GM (particularly Chev) jumps on ANYONE that draws ANYTHING resembling their vehicles/logos is a fact. HD, i know, has 2 licenced artists on some form of "official retainer" that provide the world with all the HD-art they feel the world requires. Everyone else is out-of-luck. Kind of heavy handed if you ask me...

    However, from what i've seen Ferrari has allowed their cars to be painted/sculpted as works of art for years... If not, then explain this:

    http://www.jaykokastudio.com/editions/editions_items/thumbnails_ferrari.htm

    or this

    http://www.automotiveimages.com/index.html

    or this

    http://www.cstudio.net/artf1ferrari.htm

    or this

    http://www.motorsportcollector.com/ColinCarter.html

    now, maybe all of THESE people are venturing on "illegal" activities themselves, and that brings up the everpresent argument "just because someone else breaks the law doesnt give you the right to..."

    so how about this:
    the fact that Enzo Ferrari included Artists' paintings (no, not commissioned for the book, paintings already completed beforehand...) of his road/F1 cars for his own book Piloti Che Gente?

    Explain the Ferrari-endorsed book "Obiettivo Cavallino" whose soul porpose is to highlite Ferrari-artwork/photography from around the world?

    Or the fact that Ferrari dealerships have Ferrari-art hanging in their own dealerships?

    get the picture? or painting in this case...

    the way i see it... they sell (or race) these cars in public, therefore they are susceptible to be "caught" by a passing artists eye, just as any building, landscape, cityscape would be. If i paint the skyline of Toronto i wouldnt be legally bound to "ask permission" from the Bank of Nova Scotia, the Bank of Montreal, BCE, TD Bank, the Royal York, Skydome Inc, and a host of Condo companies if i can include their private property and logos in my painting. Sounds ridiculous, doesnt it?

    Where's the difference?

    Is it the fact that i've crossed the line from art-prints to a "product" - that of cards - and the fact that they are hand-drawn is irrelevant. Not to sound fecetious but if they were sold as "original art that happens to be folded over" that makes a difference?

    The only way i see them, or Ferrari, getting bent out of shape is if i show their logo/building/car in a bad light, ie if i paint a picture of a Ferrari 308 broken, bent and rusted with a sign saying "for sale as new". or the Pracing Horse being beaten and trampled by a large bull. (Get the symbolism?) Or their F1 car in Marlboro livery with a giant cancerous tumor growing out of the radiator air-intake. THEN they would be all over me.

    Believe me, i dont intend to do that.... I only ever want to show their wonderous creations in the best and most creative light possible. And as far as i'm concerned they dont seem to have a problem with that.

    Anyways... i think this could go on forever... if anyone else has any opinion or official takes on this - anyone here actually from FNA or Ferrari SpA? - i more than welcome them...

    But also, if anyone has any opinions if this is viable product or a logical course of action selling-wise - ie if you would actually consider purchasing one or more of these things - that would help too... Someone anwered in the Business section that at $13 a card i'm working for about 2 or 3 dollars an hour... actually since they take about 30 minutes each its more like 5 or 6.

    As an artist... thats about par... sad.... but par...

    I think i should have been a lawyer... less complicated.... :) (just joking sirs)

    again, all opinions/thoughts welcome

    GT
     
  16. Texas Forever

    Texas Forever Four Time F1 World Champ
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    Simple, nobody has filed a mark on the Toronto skyline.


    Again, I'm not a lawyer, but my answer would be yes. A work of art is typically a one-off thing. Running off 5,000 post cards is something else all together. So why not do this with your intrepretation of the Ferrari image? Instead of doing a transcription of a copyrighted product, why not use it as inspiration for your own work? Again, see the pic of Wolfgang's car elsewhere on this board. I would gladly pay for an interpretation of that piece.

    Good luck, DrTax
     
  17. George H.

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    Grant,

    You've summarized it pretty well. I can't speak to Canadian law, but in the US there is a constant tension between freedom of expression and intellectual property rights. Your example of the cityscape is a good one. The artist's right to interpret the view in a work of art trumps the rights of individual trademark owners whose marks may appear in the view. It gets trickier when the artistic work focuses in closer on protected IP. As an extreme example, freedom of expression would almost certainly not protect you from creating a rendering of the SF shield and putting in on merchandise.

    Artistic works depicting automobiles (or any other commercial product) would generally be protected. This would generally also include parodies and social commentary as in your examples. Nevertheless, many companies vigorously police their IP and will go after anyone that they perceive to be an infringer knowing that they can bully a lot into submission.

    You may want to contact the Automotive Fine Arts Society to get their advice on the subject.
     
  18. whart

    whart F1 Veteran
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    There is also an answer to your rhetorical question about depicting a city skyline. First, even if a building is famous, distinctive and associated with a particular institution or business, depicting it in situ, as part of a skyline perspective should not create any "false association" issues, of the trademark law type. And, from a copyright standpoint, the US law now has an exemption that makes it clear that even to the extent a building's design is copyrightable, there is no copyright prohibition on depicting it, and making and distributing copies of the depiction, so long as what is depicted was visible from a public place, ie no trespass.(This legislation grew out of an architecture case i did in the late 80's).
    But, answering the copyright question does not answer the trademark type question if the facts are changed to make the building prominent. There was a case involving depictions of the RR Hall of Fame, can't remember how it came out, but suffice to say, there was enough grist for a case. Likewise, if you depicted and sold postcards focusing entirely on a single, well-known building associated in the public's mind with a particular business or institution, you might be subject to a trademark/false association claim. Let's take a couple other examples. Years ago, George Moshenbacker brought a claim for the depiction of his racing car in a tobacco ad. His claim was that his car, with its specific indicia, was associated with him- i suppose in the same way Dale Earnhardt's car is. His claim for false endorsement was not dismissed.

    Or, take the crooked tree out on that remote hole of the Pebble Beach golf course. Pretty famous, i don't know if they actually use it as a TM, but i could see a claim against someone who opened a competing golf course using a depiction of that tree as a logo. Couldn't you? Ok, now take it the next step. Depict somebody's logo on a postcard? Actionable or not? You see where i am going....

    By the way, Dale, we ip lawyers reserve the "in/out" test for other purposes....
     
  19. George H.

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    (This is more interesting than the work on my desk.) The Rock & Roll Hall of Fame case involved a photographer selling prints of his photo of the RRHF. The border of the prints included the wording "Rock N' Roll Hall of Fame - Cleveland". The Museum owned registered trademarks for the building design as well as the words "The Rock and Roll Hall of Fame". The federal court of appeals (with a strong dissenting opinion) vacated a preliminary injunction expressing "grave doubts" that the Museum would prevail in showing that consumers would believe that the photograph originated with or was sponsored by the Museum.
     
  20. ferrariartist

    ferrariartist F1 Rookie

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    as stated perhaps this never-ending question should be directed toward AFAS members or Ferrari themselves...

    but just to be a total creep.... explain these attatched pics...

    (i could get in real hot water here because these ARE NOT MINE so if the photos disappear soon just use the links...)

    http://www.jaykokastudio.com/editions/editions_items/mond1.htm

    http://www.automotiveimages.com/index.html
    and click on Gallery and "on the hoof" painting or several others for that matter...)

    these guys have been displaying work in full view of FNA at various Ferrari shows and i'm sure you are well aware of them... as have i at the Toronto Car Show a couple hundred feet from the Ferrari booth...

    again... the moral idiom... just because these guys are breaking the law and getting away with it doesnt mean i should/can...

    GT

    ps if i am annoying people let me know... i dont want this thread turning into one of those infamous ones that some of us remember...

    [pics removed by Admin at request of the poster]
     
  21. Texas Forever

    Texas Forever Four Time F1 World Champ
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    LOL, I ain't picking up any soap around you, buddy boy.
     
  22. George H.

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    They are pictures of Ferrari cars - they are not Ferrari branded merchandise. Consumers are more likely to believe that the pictures originated with an independent artist (e.g., Jay Koka) than from Ferrari S.P.A.
     
  23. jimpo1

    jimpo1 Two Time F1 World Champ
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    I would think, based on what I consider to be common sense (assuming I have any), that if I 'pay' you to make drawings of MY car on a card, then there should be no issue. It's my car, I own it, I want pretty pictures of it to send to my friends that understand. No different than if I pay a photographer to take pictures of it.
     
  24. whart

    whart F1 Veteran
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    What if you own a Picasso painting? Not the rights in the painting, just the physical object? Would you think that your rights of ownership extend to making copies of it? Distributing copies? Sorry, but common sense doesn't necessarily control here. Remember, its the law.
     
  25. jimpo1

    jimpo1 Two Time F1 World Champ
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    That's the sad part, isn't it.

    But by owning the car, don't I 'own' the rights to the images of it? (There's a reason I'm not an atty! )

    GT, go ahead and send me a few drawings of my car, we'll see what happens! :)
     
  26. dm_n_stuff

    dm_n_stuff Global Moderator
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    Having exchanged letters with Ferrari on this very topic, I can tell you they frown on the use of their logo, typeface, name, etc.

    Told me in no uncertain terms not to use the word "Ferrari", the logo, prancing horse, shield, etc, or the Ferrari Typestyle on a T-shirt being GIVEN AWAY at a CHARITY FUNCTION.

    Told me to try and get apporval from FILA, which owns worldwide distribution rights. They wouldn't even return my calls or emails on the subject.
     
  27. ferrariartist

    ferrariartist F1 Rookie

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    ok...
    i can gather 2 things from all this...

    1. I wouldnt do detailed shields, prancing horses and Ferrari logotype (such as in the TR in my original post) for cards available to the general public. Images of the entire car - the hood emblem would simply be a dot and the shield a nondescript triangular shape) or closeup sections without logos is fairgame.

    2. Cards i do as "commision" pieces directly for owners personal use can include anything... They know it is not 'official Ferrari merchandise' so no confusion can occur.

    As for Mr. Hoover's comment:
    i'm afraid i don't understand... what makes their artwork "pictures of Ferrari cars" making them OK in your book, and mine not, therefore illegal? A trademark is a trademark... if anything they are mechanically REPRODUCING the image 500 times in prints which is a definite no-no... mine at least is still an original drawing from my own hand. Why cant the consumer believer that the drawings on these items originated with me (an independent artist) The fact that these are cards, and therefore merchandise the rules (if there are any) are different? Neither of us are, in any way, saying these products - paintings, prints or cards - are Official Ferrari merchandise.

    Please - no offence Mr. Hoover - just a different opinion...

    Maybe its the theory that the general public COULD LEAP to that conclusion with cards but don't with art and art-prints is what could be the basis for Ferrari's actions.

    GT
     

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