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Old 10-10-2012, 10:28 AM   #15
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Join Date: Aug 2010
Posts: 4,224

Originally Posted by wbeem View Post
You're right that giving it away isn't a legal deterrent. Let's just say that it seemed less likely that they would have taken action against me for a free eBook compared to selling it.

Disney has shut down a number of photographers who sell their photos of Disney parks online, but they haven't taken any action against photos on fan sites or park blogs. One of their primary concerns is that people would be confused as to whether these items for sale were affiliated with Disney.

As you said, big business rules even if the law isn't really against you. They could throw complaints against you about trademark violations that would become very numerous with almost any photograph. One photo could have trademark violations for Cinderella Castle, hidden Mickey's, characters on balloons, characters in the park, and perhaps other items I haven't considered. Best not to fight such a battle without deep pockets.
Practice versus the actual law. Trademark protection is very thin, and in theory, trademark owners are not supposed to be able to use their trademark protection to stifle free speech. (Theory does not always equate with practice). A trademark is only supposed to be used to prevent consumer protection.

There are lots of books that use Disney photographs, without any license from Disney. For example, the Unofficial Guides to Disney utilize lots of photographs. (I could be wrong, but I'd be very surprised if they paid Disney any license which would really undermine their unofficial status).

On the other hand, a book of "Disney photography" really can get into much grayer area of intellectual property. If its some sort of history book, behind the scenes book, etc --- Then you really are on the much safer side of "fair use" -- as you are essentially transforming the intellectual property. You're not merely capitalizing on someone else's creation, but adding your own work on top of it. But if you work is merely capitalizing on the creation of someone else, then there is a much better argument that it could be infringement.
The infringement could be viewed as 2 types:
Actual copying of a copyrighted work. For example, if you videotaped Mickey's Philharmagic and then tried to sell copies of it-- That would be unquestionably copyright infringement.
Trademark infringement -- Here, there must be a danger of consumer confusion. So if you published a book of "Princess Stories" -- And you put a picture of Cinderella's Castle on the front of the book, and Tinkerbell on the back of the book, Disney could argue you are infringing on their trademarks, and leading consumers to believe that this is a Disney product when its not.

Ahhhh.... I miss copyright law. Unfortunately, all the Intellectual property firms wanted me to prosecute biochemical patents, and I had no interest in that.
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