Legal Question | FerrariChat

Legal Question

Discussion in 'Other Off Topic Forum' started by Exotica Motorsports, Jun 16, 2005.

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  1. Exotica Motorsports

    Nov 1, 2003
    3,673
    Washington
    Full Name:
    Jason Godsil
    Hey guys,

    I have had some legal questions over the years and I know that we have a few lawyers here, so here's my question. I am getting my companies catalogs together and I know that I can't go on the internet and start saving pictures to use. However, my website guy lead me to believe that if there is a download section on like Motor Trend magazine website that I can use those images because they are there for people to download. Is this correct? Can I use an image for my catalogs if I take it from here? Thanks.
     
  2. Stackhouse

    Stackhouse F1 Rookie
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    Feb 14, 2004
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    CT.. AKA Pimp Daddy
    Nope, you will need permission from the creator, photographer, artist… Do it right the first time. Get permission from the right people to use their works and avoid a future headache! Nothing is free in this world!
     
  3. ryalex

    ryalex Two Time F1 World Champ
    Consultant Owner

    Aug 6, 2003
    25,964
    Las Vegas, NV
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    Ryan Alexander
    This is not legal advice.

    IMO, I don't think that those pictures are intended for any commercial uses. Motor Trend probably retains the rights to them, but allows them for personal use (well, really their use as a marketing media - you see their logo on your desktop, etc).

    The above is not legal advice!
     
  4. Stackhouse

    Stackhouse F1 Rookie
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    Feb 14, 2004
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    CT.. AKA Pimp Daddy
    ooh yeah! What Ryan Said. "This Is Not Legal Advice"!!!
     
  5. whart

    whart F1 Veteran
    Honorary Rossa Subscribed

    Dec 5, 2001
    6,554
    Austin, TX
    Full Name:
    William Maxwell Hart
    I think i've answered this question here before, but here goes: virtually anything and everything is copyrighted from the moment of creation and fixation in tangible form. No special notice, or other cautionary indication is needed for the author/owner to claim rights. Now, what happens when stuff gets posted to the Internet? The answer may depend on whether it was put up with authority of the copyright owner. If not, it is an infringement, and your copying and reposting is more infringement; the fact that you mistakenly believed it was permissible doesn't matter for liability purposes, although it may affect the monetary remedies that can be levied againt you.

    If the work was posted with the copyright owner's authority in the first instance, there is a sort of practice, not really recognized clearly, yet, by the courts, that others will likely copy it, and absent prohibitory language, there is a decent argument that there is an implied license to do so by its mere presence on the 'Net. Whether that extends to reposting is another question however, and the law itself would impose liability absent proof of a defense, like license. Reposting in a commercial context may be indefensible, since whatever arguable implied license may exist for users to copy, that doesn't extend to someone else using the work, without permission, in a commercial context. (Keep in mind that under US copyright laws, "profit" is not an element of infringement; if there was unlawful copying, or public display, it's an infringement, and the commerciality of the use only makes it less likely that an equitable defense, such as fair use, may be applicable. This is not a hard and fast rule, in the sense that fair use doesn't apply to reproductions in a commercial setting, but i'm just giving you some feel for context).Moreover, the commerciality of your use does not depend on whether you are selling the photos themselves; their use to sell other products, as through a catalog, may give rise to a claim for a recovery of the money you derived from sales of the products the photos helped facilitate.

    And, yes, i do this everyday. You're welcome. :)
     
  6. Exotica Motorsports

    Nov 1, 2003
    3,673
    Washington
    Full Name:
    Jason Godsil
    whart,

    I was hoping that you would read my post. As usual, thank you. You did answer my other question that if I were to use them only for contect, like backgrounds and not actually for sale. One question I have is about fair use. How does this work for magazines. They can have a Ferrari horse on their cover without asking permission. How does this actually work and if I take a close up picture of your Ferrari emblem could I use that picture in my advertising even though it is of Ferraris emblem?

    I see a lot of advertising where they have photoshopped out the emblems. Is this necessary? Or since they took the picture is it there property and they are just making sure there is no problems in the future?
     
  7. whart

    whart F1 Veteran
    Honorary Rossa Subscribed

    Dec 5, 2001
    6,554
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    William Maxwell Hart
    Jason, what we were talking about with the photos was copyright, but the issue of the logo also introduces trademark principles. In my estimation, it's one thing for a magazine, like Road & Track, which is reviewing the latest from Maranello, to depict an F430 on its cover, and even focus on the horse. It would be altogether different for someone to use that same picture in advertising a product or service. The arguable difference is that the one is news, information and is ostensibly "about" the Ferrari itself, whereas the other usage is unfairly trading on the Ferrari recognition factor to draw attention and prospective purchasers. This is also a question of "fair use" in the trademark law, but the rules are slightly different than under copyright, since the question is whether the use of another's trademark is in a truthful, descriptive and non-confusing sense, or in a way that creates a false association with an unlicensed seller. For example, if you were an independent Ferrari mechanic, you could advertise the fact that you repair them, and perhaps, even indicate that you do so using factory authorized parts (* but be careful here given the rest of what i have to say); but, if you were to put up a sign, using the Ferrari logo, that said, Ferrari Repair Center, there is no question that people would be led to believe that you are in some way authorized or endorsed by the factory. That would be infringement, and the difference between these two examples would be the difference between infringement and fair use in a trademark context.
    In copyright, there is no issue about confusion; if you copied artwork or photography of another and used it without authority in a commercial context, you would likely infringe the copyright in that work, and it would not even be relevant to ask whether anyone was confused.
    I actually teach this stuff part time and do a fair number of presentations on copyright and trademark issues for various industries. Glad to help.
     
  8. Uberpower

    Uberpower Formula 3
    Rossa Subscribed

    Feb 6, 2004
    1,115

    You can of course go to something like Corbis.com and find royalty free images there. You pay a one time "use" fee. This may prove expensive depending on the number of photos you need.

    Good luck.

    Nick
     

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