I am researching copyright law with regards to selling merchandise (posters/calendars/postcards…etc) featuring photos of my dioramas. My question is not necessarily with regards to the buildings and scenery which are for the most part scratch built, but speficially in regards to HO Scale figures and vehicles displayed in the diorama scenes… As an example, in the below photo features a Lamborghini 1:87 model by Malibu International, a boat which I repainted and fisherman in the background by Busch (or Preiser, don’t remember which) and a cactus from a Woodland Scenics set (painted). The inlet, dock, road and general scenery I created. Would I need to obtain permission from all of the above companies (i.e. Lamborghini, Malibul International, Busch and Woodland Scenics) to sell for instance postcards of my photo/diorama scene below?
I am interested if any of you have done any merchandising using photos of segments of your train dioramas and if you figured out what the copyrights laws are with regards to the non-original elements of your photos (HO Scale figures, vehicles…etc.?)
You can browse my photo gallery at Flickr for a better idea of scenes, some of which I would be interested in using for merhandise.
Do you actually believe there is a market for someone buying posters, cards, etc. of your dioramas? I personally can’t imagine wanting to buy such items, but I do my own modeling and photography.
So you never bought model railroad related trinkets? Like MRR calander or a t shirt that says “still play with trains”. Yeah someone would buy it. That saidthe only advise I can give is to contatc a real lawyer. Here’s a thought for a product: instead of “real” photo backdrops, what about a backdrop of a diorama? May be easier to blend into the scenery. Maybe not the best idea but it’s early…
Trademark and copyright laws are complex largely because there is a lot of gray area with regard to fair use, etc. I think your problems will be more in the trademark area. I second seeing a lawyer, make sure it’s one that specializes in trademark and copyright law. Take him a few sample pictures of what you have in mind.
Gotta tell you, though, I looked at your photos, and I don’t find them to be something I’d buy; the modeling and photography are not up to the quality level of current top-level model photography.
Suppose I wander around Sin City, taking photos that I will eventually convert to post cards for sale to visitors. Do I have to get copyright clearance for every make of motor vehicle, the Las Vegas Monorail and every casino and gentlemen’s club, or model releases from every passing pedestrian? I don’t think so. As long as I’m working from the public sidewalk, my photography is simply that which would be seen by a non-photographer standing at the same place at the same time.
Likewise, if I photograph a freight train running through the steelwork of my layout, do I have to get written permission from the manufacturer of every visible product, from locomotive to steel studs, before I could submit the digital image to Model Railroader for possible publication?
At the most, identification of specific items (which was done by the IP in the specific example shown) should be sufficient. The object of the photo is to convey an impression of the entire scene, not one brand of figure or model car.
OTOH, if you were to obtain plans and photos of a specific model diorama, then set about reproducing it down to the last fallen leaf and leaky bucket, THAT would be copyright infringement.
Just my [2c], as an unpublished author and rank amateur photographer.
If these laws were as invasive and pervasive as imagined here, virtually no photographs of man-made objects would be published. Can you imagine publishing a photo of a city-street scene after having to obtain permission to publish from the store owners/operators, the manufacturers of products advertised on the signs, the makers of the automobiles and their owners, and the persons walking in the scene? Or how about publishing photos of the interior of your home which includes objects such as televisions, furniture, etc. Would you expect having to obtain the permission from those manufacturers or your landlord? We would be left with just photographing nature scenes on public property for goodness sakes.
By the way, I’ll accept donations for the right to publish photos of my home, my cat, my automobile or myself at 20 bucks a photo.
I’ve never personally bought model railroad calendars, but have had a few over the years, freebies supplied by the NMRA and a gift one. But all of them featured very high quality photography and modeling. I just checked the original posters’ Flickr album and to be realistic there aren’t any images there that would seem to me to be calendar worthy. Perhaps for a toy store/site?
A photo of mine was used on the NMRA calendar a few years ago, and one of mine is the cover on the current NMRA Canada 2010 calendar:
Sin City is actually copyrighted; You can take photos for personal use of course, but Las Vegas passed a law (unconstitutional in my opinion) essentially copyrighting/trademarking the city skyline for the strip, so you wouldn’t be able to sell postcards for instance of photos of the Las Vegas strip. Also, a law was passed during the Clinton administration making any buildings built after the mid-eighties (don’t recall specifically which year) copyrighted, owned by the architectural firms that designed the building.
My understanding of Fair Use is that its afforded protections go out the window the minute a venture is “for profit”. Also, to address a post above, a photograph of a street scene is substantially different than photos of a scene made with toys. Common Sense would dictate that figures and vehicles sold for model building would be like selling nails for a house, so I would think the copyright protections would be more limited, however I think there is a definite issue if you are photographing for instance highly recognizable brands of toys, such as Legos, Barbie Dolls, GI Joe’s.
I would think that NMRA obtained releases for the photo above; Obviously a release from the photographer/owner of the diorama, but also perhaps permission from the manufacturer of the “toy” engine and finally the actual Rail Company since a logo is visible on the train in the pic. Am I off base here in my interpretation of the law?
My photos were used as examples only and I readily admit with much humble apologies to the pros on this board that my diorama building skills are much inferior to everyone here. [bow]
It would be really useful of Model Railroader could write an article on the topic of diorama use of images.
I’m actually wondering about the status of that law now. From what I gather it was any building built after 1980 that was purportedly copyrighted and that was to prevent someone from designing/building something similar and claiming ownership of that design. I am having issues with it being used primarily against normal photography as such.
I would personally purchase calendars, postcards, posters, screensavers…etc. of Railroad dioramas featured in Model Railroader if they were available. I would be even more interested in products with scenes from Miniatur Wunderland, for instance and I do not even qualify as a hard core hobbyist.
Copyright/Trademark law in the US has become pretty restrictive. The large film production studios have dedicated teams focused on nothing but clearing/obtaining releases for trademarks/copyrighted materials appearing in scenes of a movie. There is also a thriving product placement aspect to the industry, which would be the other side of the coin (i.e. subliminal promotion of brands/products in movies).
Looks like you’re looking for a problem where there isn’t any. NMRA Canada and the parent NMRA did not ask for or obtain releases when they used my photos. I submitted them and they used them. I’ve had over 800 of my model photos printed in the hobby press, and not once was I ever asked for a release. The closest thing was from submissions to Model Railroader, their acceptance form stated they had exclusive rights to the material and photos. Eleven of my thirty cover photos featured models representing prototypes, again never a request for releases.
So I cannot see the need for an article in a magazine re using images; they’ve been doing it for over 75 years so I assume there are no problems.
The Architectural Works Copyright Protection Act was signed into law by President Bush in December 1990.
The intent of the law is to protect the architects from someone else building new buildings according to the original architectural design. It was an extension of the preexisting copyright the architects had on the drawings.
It does not prevent people from taking pictures of a building built according to a copyrighted building design. In fact, that exception - that anyone can take pictures of such a building from a public place is specifically mentioned in the law.
This is an entirely separate issue, and revolves around the fact that product placement in films has been used as a form of advertising. So if Pepsi, for example, pays to place their product in a film, then the producers must ensure that no other product is identifieable. Conversely, if Pepsi doesn’t pay, filmmakers will be sure not to show a can / bottle, but only because the precedent has been established that filmmakers will pay to use products.
This specific situation comes about because you’re talking about advertising dollars.
There is no requirement to identify / credit / pay the owners of any trademark or copywrighted item that appears in a photograph, even if that photograph is subsequently sold. The reason MR sometimes identifies manufacturers is to help readers identify products they might like to use themselves. Manufacturers like it because it’s free advertising.
I don’t believe this is accurate at all. I’m pretty sure I cannot take of photo for instance of a BMW, then use the photo to print posters/calendars for sale without permission from BMW. In the case of HO Scale vehicles for instance, the manufacturers such as Busch, Norev…etc. obtained and most likely paid fees for use of a vehicle design in a toy (for all practical purposes). If you then photograph that toy within the context of a diorama for use in merchandising (i.e. for profit vs. for personal use), I’m pretty sure a release is needed from either the toy manufacturer or the car company owning the brand of vehicle appearing in toy form in the photo?
Excuse me but if I took a photo of a street scene I don’t need to go running around getting permission from every single car mfg to sell a photo that I took.
This sounds just a little like you’re scratching where it isn’t itching-----
I beg to differ. Commercial use of trademark images is pretty much an automatic infringement of trademark, not copyright law. Trademark is much easier to defend - and you must do it when aware of it to protect your trademark. The NFL/Saints ownership of the “who dat” trademark is just the latest example of trademark defense. Xerox for copier is an example of a lost trademark.
In the case of selling photos of a street scene with autos parked, it’s going to depend on how clearly and prominently the individual trademarks are visible, and what the photo is achieving to t
I think there is a hang up on the specifics of a situation and not the purpose of the items use in the photo.
This is how it was explained to me a few years ago when an auto restoration/custom and selling venture was thought about and never left the ground.
Copyrighting is to prevent someone from using something that someone else created without allowing them due compensation. Trademaking also comes in to play in your plans so and the effects are almost the same so without going into a Copyright is this and trademark is that, I’ll just refer to them loosely. The concept is the same.
The law is vague for some of us because we hear so and so got in trouble because he used a Major League Baseball team logo on a cap he made without the rest of the story, or we quit listening after we hear that. Usually, but not always, if it is for personal use, such as making a copy of a CD for your use to play in you vehicle so as to preserve the original, or a copy of the UP logo as your screen saver, there is no problem. As long as you don’t sell the copies, or even give them away and get caught. We all know this so that is not the problem. It is what you intend to do with the image that is the problem. As it related to cars if I were to advertise the car has this brand of parts and that brand of parts and incuded pictures, it would not have mattered if I was just some average person selling their Hot Rod. However, as a business that’s purpose was to sell cars or restore cars for profit, and not just a one time or occasional sale of some sort, there was a grey area over why the parts were photographed and why they were mentioned by brand.
If you make a Mercedes Benz or the Coke logo the subject of the photo, and you plan on selling the picture. I would contact the owner of the trademark. Or a good attorney. If however you are taking a picture of the street, and making the intersection, the crowd, a dancing naked cowboy, the subject and there are BMW’s, Chevy’s, Citybank signs and Sc
