Copyright and Calendars
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Q: I am planning to produce a calendar of classic cars. Do I need to get permission from the car manufacture to use the photos of the cars in the calendar?
A: Don't confuse 'trademark' with copyright. The names of car models, or nail polishes, etc. are trademarked. Your photos, and works of art and writing, are copyrighted.
If your stock photo is going to be used for a commercial purpose -- an advertisement, endorsement, promotion, etc. -- make sure there are no copyrighted elements in your photo, such as a statue, specific architecture, a recognizable painting, and so forth. A good thing to ask yourself: "If this were my statue, architectural design, logo, painting, and the photographer was benefiting by the fruits of my artistic labor, wouldn't I want to share in the photographer's profits?" If it's necessary that such elements be included in your (commercial) stock photo, then, your next step is to get permission from the owner of the copyright.
If you are incorporating someone else's photo in your photo, this would be defined as a "derivative" work. Nowadays, digital manipulation allows a photographer to incorporate various graphic items into an existing photo. Court decisions vary regards who actually owns the copyright to a digital manipulation, when a copyrighted image(s) is incorporated into a "new and original" digital image.
Of course, none of these issues are a concern if your photo is not to be used commercially. If the photo is to be used editorially, say in a magazine, textbook, or non-commercial calendar, there's no likelihood that the publisher would require a release or "consent of the copyright owner." This interpretation has consistently stood up in courts,
Here's an example of this situation, using the "Pinto," which is now a classic car, but which was re-called by the manufacturer back in the '70's when it was proved by the consumer advocate, Ralph Nader, to have a faulty gas tank. If a publisher were to produce a commercial calendar advertising a fire retardant, and included a series of calendar images that included the Pinto, the calendar publisher could well be asking for a lawsuit if they did not obtain permission for use of the photos from the car manufacturer. On the other hand, if a publisher produced a free "safety calendar" (informing an educating), with no commercial tie-ins or endorsements, and included a documented picture example of the Pinto, the publisher would be within their rights. Even so, given the history of car manufacturers' legal pursuits of claimants, the publisher could expect a legal battle with the car manufacturer, even though the publisher could expect to win the case.
Rohn Engh is director of PhotoSource International and publisher of PhotoStockNotes. Pine Lake Farm, 1910 35th Road, Osceola, WI 54020 USA. E-mail: info@photosource.com . Fax: 1 715 248 7394. Web site: www.photosource.com.
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