Is it OK?

violation of law is a crime, whether criminal or civil,
With all due respect, no it's not. Civil actions are not taken against "crimes". There is no "innocent" or "guilty" verdicts issued in such matters. The laws you are referring to are ones that allow people to attempt to sue if they feel their IP rights have been violated. It's up to a judge or jury to decide if such a violation has actually taken place and to decide on a remedy. If I can make my case that my use of my photos taken on WDW property were "editorial" in nature and I didn't attempt to deceive buyers into thinking that my work was a product of Disney themselves (as have been done successfully by others), then a would not be found "liable". Even in the wildest stretch, there would be no "crime".

I sat on a jury in a medical malpractice case two years and the judge went over many of the differences in criminal and civil cases with us before the trial started and in our instructions before deliberation.

Another reason why it doesn't make sense to automatically declare something in this arena a "crime" is that even the laws concerning things like copyrights and trademarks are deliberately vague in providing clear definitions of things like what exactly constitutes "fair use", "infringement", etc. It's left up to the court to sort out in the end based in guidance in the laws as well as legal precedence. They have to weigh the facts presented by both sides in the case.

I personally don't think challenging disney and most likely being banned from all disney properties for life, is worth the profit on a few picture books..
And that's certainly a reasonable option to select... but that's a personal decision and not an outcome prescribed by law.

billing rate..???. corporate lawyers are usually salaried employees and get paid the same whether they are in court, or sitting at their desks hoping for something to do..
I'm salaried, but I "bill" my time internally as do most support functions within corporations. I can only work on so many projects each year and such billing allows management to determine the "costs" of a project and help prioritize work. The same is most likely true for Disney's legal staff. They can only juggle so many cases per lawyer. At some point, there is no doubt a cost/benefit analysis done on which actions they well follow as well as the degree of there actions.

it would appear the only way we wil agree on this issue, is if we agree to disagree...:thumbsup2
So be it.
 
Hi folks. I'm a new member, but I've been hovering for a while, and I have years of experience shooting my mouth off. So, let's get started, shall we? ;)
I have to say, it really kind of bothers me when I see people selling their personal, non-authorized Disney photos. (Hence my problem with the TMIP site, where that seems to be the main reason for it existing.) It really doesn't matter to me if it's legal or not (and I don't know what arrangements exist there), it just strikes me as somewhat distasteful.
Why is that? Presuming, of course, that it is legal ...
It also seems to take advantage of the casual buyer - certainly no one has a monopoly on decent Disney photos, and there are no shortage of top-notch images churned out by Dis regulars who are usually happy to let you have a high-rez copy of their photo for free.
Well, sure -- there are many nice photos that most anyone could obtain for the price of asking nicely ... but a high-res file isn't the same thing as a professional-caliber print of an image that has been optimized for printing on a particular device. Most people don't have the equipment needed for that, nor the expertise to tweak an image for print. The alternative is to go to a company such as Mpix.com, but they're not going to print it for free, either.

As for the legality, I hear some people saying Disney doesn't allow people to sell photos taken of recognizable park icons/landmarks. Yet Tim Devine has been selling his work for quite awhile. There's no way Disney isn't aware of him and of what he's doing, yet they haven't stopped him. If they didn't allow this, they could squash him like a bug, yet they haven't. And it doesn't appear to me that he has any sort of special permission from Disney (though I could be wrong). He's not the only person who sells prints of photos taken in the park; he's just a rather well-known example. I believe there're a lot of people who presume that Disney doesn't allow it, but I haven't seen anything official which says so. I doubt asking the average cast member really qualifies as definitive, as I suspect most of them have no better knowledge of copyright law than the rest of us. I'm beginning to think that this business of Disney not allowing photographers to sell their park-related work may be one of those things "everyone knows" that may not, in fact, be true. Kind of like Walt being frozen and kept under PotC at Disneyland ...

SSB
 
Hi folks. I'm a new member, but I've been hovering for a while, and I have years of experience shooting my mouth off. So, let's get started, shall we? ;)
Why is that? Presuming, of course, that it is legal ...
Well, sure -- there are many nice photos that most anyone could obtain for the price of asking nicely ... but a high-res file isn't the same thing as a professional-caliber print of an image that has been optimized for printing on a particular device. Most people don't have the equipment needed for that, nor the expertise to tweak an image for print. The alternative is to go to a company such as Mpix.com, but they're not going to print it for free, either.

As for the legality, I hear some people saying Disney doesn't allow people to sell photos taken of recognizable park icons/landmarks. Yet Tim Devine has been selling his work for quite awhile. There's no way Disney isn't aware of him and of what he's doing, yet they haven't stopped him. If they didn't allow this, they could squash him like a bug, yet they haven't. And it doesn't appear to me that he has any sort of special permission from Disney (though I could be wrong). He's not the only person who sells prints of photos taken in the park; he's just a rather well-known example. I believe there're a lot of people who presume that Disney doesn't allow it, but I haven't seen anything official which says so. I doubt asking the average cast member really qualifies as definitive, as I suspect most of them have no better knowledge of copyright law than the rest of us. I'm beginning to think that this business of Disney not allowing photographers to sell their park-related work may be one of those things "everyone knows" that may not, in fact, be true. Kind of like Walt being frozen and kept under PotC at Disneyland ...

SSB

http://www.chillingeffects.org/dmca512/notice.cgi?NoticeID=2396 http://www.redbubble.com/people/hmb...-act-of-photography-become-a-criminal-offense
just by googling "can i sell photos of disney trademarks with out their permission" i came up with pages of "nooooos" so i am guessing it's not like walt's head:lmao:
if tim devine is the magic in pixels guy i asked him directly that question but so far he hasn't replied, not to pick on him but he's a fairly obvious eg of someone selling photos of disney trademarks.
 
http://www.chillingeffects.org/dmca5...?NoticeID=2396
just by googling "can i sell photos of disney trademarks with out their permission...
The link you provided isn't a good example of what we're talking about. The link is a DMCA notice regarding the posting of still photos taken from the production of PoTC2 motion picture. Without a doubt that is (excuse the pun) piracy. That's taking one person's photos and just reposting them elsewhere.
 

just by googling "can i sell photos of disney trademarks with out their permission"
Asking that particular question worded that way is likely to turn up references to things like selling reproductions of Mickey Mouse art, which is obviously not allowed. And who was it that was giving all these "nooooos"? Were they copyright lawyers, or just more people who presume it isn't allowed?
if tim devine is the magic in pixels guy i asked him directly that question but so far he hasn't replied
I can't speak for Tim directly, but I can bet you dollars to doughnuts (whatever that means) that Disney is aware of him and what he is doing. They haven't chosen to make him stop. Whether that is because they legally cannot do so or because they choose not to do so, I cannot say. I can say that whatever the reason, it isn't because he's escaped their notice. Tim's been active with this for at least two or three years, and he is fairly well-known among Disney fans online. He's been an active part of at least one well-known podcast (Magical Definition) and he and his site were regularly mentioned on the MouseTunes podcast while it was still active.

One more thing -- if you (or whoever) did try to sell photos made in the parks, Disney is almost certainly not going to ban you from the parks or file a lawsuit against you right out of the box, even if they could stop you and chose to exercise that ability. I have fairly good experience as part of another online community. One of my other hobbies is building plastic models, especially of sci-fi-related subjects. Model-building is not the hobby it was when I was young; it just isn't as popular anymore. There are relatively few model kits produced these days of sci-fi subjects. Consequently, there is a cottage industry for what are called "garage kits." These are limited-run kits, made of resin instead of plastic, produced by independent modelers rather than large companies. These kits are produced in very limited numbers and they tend to be rather expensive (because they are expensive to produce -- no one is making much, if any, profit on them). Especially in the case of the sci-fi subjects, they are produced without a license from those who own the trademarks on the subjects involved. These are usually kits of subjects that no licensed company is producing. In many cases, they are of such obscure subjects that no licensed kit is ever likely to be produced. Those who produce these garage kits know that the owners of these trademarks could "attack" at any moment. They are no more "flying under the radar" and escaping notice than Tim Devine has escaped Disney's notice. For example, Disney is no more vigilant at enforcing its copyright than Lucasfilm is at enforcing theirs. But for the most part, Lucasfilm says nothing. Usually, it is only in cases where a company has a license from Lucasfilm and believes that a garage-kit maker is producing something they (the licensee) believe will be competing with a licensed product they wish to market.

The point of all that above is that even in these cases, Lucasfilm didn't sue, nor did they ban anyone from seeing a Star Wars film. No, the first step is to send a C&D (cease and desist) letter. It is when you ignore or defy that "request" to cease and desist that you're likely to get into big trouble.

To be clear, I'm not saying that it is okay to sell photos you take in the parks. I don't know. My point is only that people do it -- and in some cases, such as Tim Devine, Disney is surely aware of it. I just think there are a lot of people who say they know you can't, but they actually don't know either. They just think they do because someone told them so or because they've heard it said -- but did those people really know? So, on the one hand, Steve Barrett has said that Disney won't allow him to use photos of Hidden Mickeys in his books on the subject, although he can use them on his site. On the other hand, we have Tim Devine and others who sell their photos. So where is the line? Why is one de facto allowed and the other is not?

SSB
 
The link you provided isn't a good example of what we're talking about. The link is a DMCA notice regarding the posting of still photos taken from the production of PoTC2 motion picture. Without a doubt that is (excuse the pun) piracy. That's taking one person's photos and just reposting them elsewhere.

guessing you didn't bother to read it since the second link specifically says taking a photo of a trademark is a violation of trademark infringement...epcot ball=trademark, mickey =trademark, castle=trademark and the poster i quoted asked if disney had ever gone after someone or if that is just a urban legend...obviously that is the application of the first link, which is titled
Re: Unauthorized Use of Copyrighted and/or Trademark Properties (EJS) File No. 05 4697 so yeah, they have. whether it is for a photo of a photo or not, they have pursued copyright/trademark violations and that isn't the only one i found. one was for a daycare with disney characters that disney made them remove, others had problems with making items of a disney character then selling it. they could use a licensed replication ie a sticker, fabric with mickey mouse on it, they bought and used on a craft of some sort but not a personal drawing/ carving etc of that same character.
as far as tim devine...that is why i asked him..i am guessing he may have some agreement with them..but since he didn't answer, i can't really speculate and neither can you.
and i posted this earlier...what disney says they do http://corporate.disney.go.com/corporate/conduct_standards18.html now if you still want to argue that's fine but you need to come up with some proof for your "facts" lol since you don't seem to want to accept anyone elses
 
Re: Unauthorized Use of Copyrighted and/or Trademark Properties (EJS) File No. 05 4697 so yeah, they have. whether it is for a photo of a photo or not, they have pursued copyright/trademark
Well, sure they have, but a photo of a photo is not the same thing as an original photo. A photo of a photo is the same thing as a scan of someone else's photo, or a photocopy of one, or a burned copy of a DVD.
as far as tim devine...that is why i asked him..i am guessing he may have some agreement with them..but since he didn't answer, i can't really speculate and neither can you.
I'll speculate. I seriously doubt he has any sort of agreement with Disney -- not a formal one, anyway. Quoting from his site ...
The Magic in Pixels said:
© 2006-2008 The Magic In Pixels, LLC is a fan-created site, and is in no way affiliated with or endorsed by Walt Disney World, the Walt Disney Company, their agents, servants, or employees. Walt Disney World is copyright The Walt Disney Company. All Disney names, titles, and images are copyright The Walt Disney Company. All photographs on this site are owned and copyright The Magic In Pixels, LLC and may not be saved, downloaded, or reproduced without the express written consent of The Magic In Pixels, LLC; all rights reserved.
Doesn't sound to me like something someone with an agreement would say. And what about Jeff Lange? He makes ride-through videos of almost every attraction Disney offers, and sells them on DVD. In addition, he sells photo screensaver CDs. And he's another case of a person who is generally well-known to fans selling images gathered in the parks. I dare say he doesn't have an agreement with Disney either. Although I couldn't find anything one way or the other on his own site, The Laughing Place store does stress that Lange's DVDs are "fan-created." So now we have two real-world examples.

SSB
 
guessing you didn't bother to read it since the second link specifically says taking a photo of a trademark is a violation of trademark infringement...epcot ball=trademark, mickey =trademark, castle=trademark
Yes, I didn't see the 2nd link as it was butted up against the first... my bad. However, trademark violations are not quite that cut-n-dry as the article states. Context must be considered when judging whether or not a trademark have been violated. "Trademarks" differ from copyrights in that they are used as a form of business branding. I'll quote from Harvard Law:
What constitutes trademark infringement?
The standard is "likelihood of confusion." To be more specific, the use of a trademark in connection with the sale of a good constitutes infringement if it is likely to cause consumer confusion as to the source of those goods or as to the sponsorship or approval of such goods. In deciding whether consumers are likely to be confused, the courts will typically look to a number of factors, including: (1) the strength of the mark; (2) the proximity of the goods; (3) the similarity of the marks; (4) evidence of actual confusion; (5) the similarity of marketing channels used; (6) the degree of caution exercised by the typical purchaser; (7) the defendant's intent. Link
The company that sells Domino brand sugar tried years ago to sue Domino's Pizza for trademark infringement since "Domino" is their registered trademark. They lost because of the reasons I quoted above. Even though both companies sell food products with the name "Domino" in them, the judge ruled that the consumer would not be likely to confuse the two offerings and therefore Domino Pizza was not trying to sell pizza using the goodwill of the Domino brand of sugar.

Selling a photo that simply contains a trademark is not automatically a "trademark" violation. The owner can try and claim it is and file a suit, but that doesn't mean they'll win in court. Now if I were to make a poster of a photo of the castle and add Disney font text to it to make it looks like it was an official Disney product, then they'd have a bone to pick with me.

The parts about architectural copyright exemptions only applying to structures built after 1990 and not viewable from public areas is interesting. However, the implication would seem that in order for someone to take a copyright violating photo there would have to be some sort of trespass that would have to be involved. Disney might also have a hard time convincing a judge that some of the most heavily photographed structures in North America are worthy of such copyright protections even though WDW is "private property".

and the poster i quoted asked if disney had ever gone after someone or if that is just a urban legend...obviously that is the application of the first link, which is titled
Re: Unauthorized Use of Copyrighted and/or Trademark Properties (EJS) File No. 05 4697 so yeah, they have. whether it is for a photo of a photo or not, they have pursued copyright/trademark violations and that isn't the only one i found.
That's a form letter that used for either copyright violations or trademark violations. If Pete were to use Disney fonts and Disney characters all over the DIS, then he'd likely get one of these form notices for trademark violation. As for the violation cited, "pre-release publicity stills" are still photos taken on the sets of movie productions, or copies of finished frames of the movie itself. They are not pictures of pictures, they are copies of the pictures themselves. It's the same as if I posted an MP3 of the PoTC title track on my site.

The "urban legend" comment, I think, isn't so much directed at the notion that Disney may huff and puff and fire off C&D nastygrams in the hopes that the targets will cooperate (they do), it's the notion that sales of any photos easily identifiable as taken on WDW property are strictly legally verboten.

one was for a daycare with disney characters that disney made them remove, others had problems with making items of a disney character then selling it. they could use a licensed replication ie a sticker, fabric with mickey mouse on it, they bought and used on a craft of some sort but not a personal drawing/ carving etc of that same character.
I'm aware of the daycare center case. The problem there is that Disney was claiming that in using the characters on the walls of the Daycare in an unauthorized manner, it can be construed that Disney is "endorsing" the daycare operation as well as using the characters to make the venture more appealing to potential customers. In essence, the daycare operation, in Disney's eyes, was using Disney trademarks to further their business. In addition, businesses that actually pay to use Disney characters in an authorized manner in their businesses could have a problem with Disney if they knowingly allowed others to use Mickey, Minnie and Goofy in their ventures on a "license free" basis (think of Exp626's LucasFilms "selective suing" example here). As for the selling of crafts issue, again, the concern is that they don't want to risk that people may think that the products being sold and made from Disney character fabrics are connected to Disney. They print those restrictions right on the edge of the fabrics on the bolts.


as far as tim devine...that is why i asked him..i am guessing he may have some agreement with them..but since he didn't answer, i can't really speculate and neither can you.
and i posted this earlier...what disney says they do http://corporate.disney.go.com/corporate/conduct_standards18.html now if you still want to argue that's fine but you need to come up with some proof for your "facts" lol since you don't seem to want to accept anyone elses
Let's look at what Disney says in your link:
Trademarks are symbols (including words) companies use to identify their goods or services. For instance, DISNEYLAND is a registered trademark of the Company. Under United States law, a federally registered trademark provides the registrant with nationwide protection against another's use. Any use of another party's trademark that gives rise to a likelihood of confusion as to the source or sponsorship of a product or service constitutes "trademark infringement" and violates the law. It is also impermissible to duplicate the packaging of a rival firm in a way that deceives or is likely to confuse the public. Every Cast Member and employee acting on behalf of the Company must honor all trademarks held by others.
Per Disney, as long as they cannot convince a judge that Tim's work creates such confusion in the public and doesn't use Disney's trade dress, then any efforts to take legal action against him would fail.

I'll speculate. I seriously doubt he has any sort of agreement with Disney -- not a formal one, anyway. Quoting from his site ...
Exp, I think that's a safe speculation... Such licenses usually cost BIG $$$. A friend of mine once inquired about getting such an non-exclusive "official license" from a minor racing series to sell race photos. The figure he was quoted was $10,000 plus a percentage of the sales. It would have taken him years to recoup the up front license fee alone. I shudder to think what Disney would want! Unless your volume is measured in thousands, it won't be worth it.
 
OK, I think I've found a real life example that will put this whole issue to rest... "Roll Over Beethoven, I've Got Trademark Blues Today". In 1996 the Rock-n-Roll Hall of Fame sued photographer Charles Gentile for selling postcards and posters that featured the famed building along with the text "Rock and Roll Hall Of Fame, Cleveland, Ohio". Both the building's design and the name of the museum are registered trademarks of the museum and they claimed that the use of the building's design and the text together on the postcards infringed on their trademarks. The museum brought out evidence that they sold similar postcards and posters as well as T-shirts and such that bore the image of the building as well as the name of the museum. They argued that Gentile was attempting to make his products look like their "official" souvenirs. The photographer's defense was that the text simply was to identify the name of the building on the card/poster and that people should not be confused about "sponsorship" of the products because he clearly identified himself and his company on them as their source. Gentile lost the case in the lower court, but the decision was overturned on appeal to a higher court. The above brief notes some findings that I think would also apply to photos taken at WDW:
The Court reasoned that when it viewed Gentile's poster and his photo of the Museum, it did not readily recognize Gentile's photo of the Museum as an indicator of a source of sponsorship. In other words, it was merely a photo of a well-known, well-recognized building.
However, the brief does go one to say that it may be possible for a building owner to win such a suit, but only if it consistently uses one or two visages of the structure on commercial products. It could be that the view of the Castle looking at it from down Main St. might work in this case, but again, it's an image taken millions of times each year. Also, a photographer like Gentile could even then avoid legal entanglement by simply selling photos taken from a slightly different vantage point.

It's also worth noting that the above case involved not a mere photo, but a commercial products (posters and postcards), and the Hall of Fame's claim was based on the use of multiple trademarks in the same creative work.

In an even stronger example of how hard it is to try and win lawsuits about trademarks that are structures, sometime you can even make copies of trademarked buildings and not get into trouble. In 1999 the New York Stock Exchange tried to sue the owners of the New York, New York resort in Las Vegas for the inclusion of a 1/3 scale model of the NYSE building, which is a registered trademark, that they called the "New York $lot Exchange". The judge dismissed the case saying the casino's use of the trademarked structure did not dilute the trademark or diminish the NYSE's business reputation. No harm, no foul.
 
Such licenses usually cost BIG $$$. A friend of mine once inquired about getting such an non-exclusive "official license" from a minor racing series to sell race photos. The figure he was quoted was $10,000 plus a percentage of the sales. It would have taken him years to recoup the up front license fee alone. I shudder to think what Disney would want! Unless your volume is measured in thousands, it won't be worth it.
Agreed. Loosely connected with the Lucasfilm case to which I referred, it came up in a magazine interview with one of their representatives. The question was posed, asking if the company might not be able to offer some sort of lower-tier license that manufacturers of smaller-run, niche model kits could actually afford. The reply was that, although they'd actually like to be able to do that, they simply couldn't. The reasoning was that in terms of legal costs, it would cost them the same amount of money to negotiate such a license as it would to grant a full license. Also, it would be seen as a deterrent in negotiations with a company that might seek to produce kits for the mass-market (and such a license is currently held by Revell). Thus, it wouldn't be cost-effective for them to offer a less-expensive license. The same thing could be inferred as applying to Paramount, which holds the possibly even more lucrative rights to the Star Trek franchise. Disney figures into that as well; many people I know would love it if Disney would grant a license to some company to produce kits of anything from The Black Pearl to Lightning McQueen to the Nautilus to Jumba's ship from Lilo & Stitch (and would I ever love that!) to simply being able able to reproduce the Pirates of the Caribbean and Haunted Mansion diorama kits that were available decades ago. But I digress ...

The point of all that was that these licenses are expensive, and it doesn't seem to be that you can get a more affordable license if you're not going to be making money hand-over-fist, but rather that you'd better be able to make scads of money if you want a license. In other words, I doubt Jeff Lange or Tim Devine are making enough to afford such a license if they needed one -- which it appears they do not.

So why don't more people do this? Probably because it is a lot of work, and the majority of people aren't going to buy a photograph of anything if it doesn't feature a family member, themselves, or someone they know (a famous person) in it. In other words, it would probably be very hard, no matter how good you are, to actually make a living with taking photos in Disney parks of structures we think of as "park icons." It is hard enough to sustain yourself as a landscape photographer, period. You might be able to make a few bucks here and there, or (as is probably the case with Tim Devine, but I'm just guessing) create a nice source of supplemental income. But doing so would be tons of work, and most people would rather channel that energy elsewhere -- or not expend it at all.

SSB
 
Geoff, just to play devil's advocate here, one could make an argument that the building you mention is generally photographed from public property (ie, sidewalk, etc); whereas there's very little that you can photograph in WDW from public property. (This is different, to some degree, at DL.)

Hi folks. I'm a new member, but I've been hovering for a while, and I have years of experience shooting my mouth off. So, let's get started, shall we? ;)
Why is that? Presuming, of course, that it is legal ...
(Why do I find it distasteful.)
Well, there's any number of reasons, and I'm not going to ask that anyone agree with me - these are merely my own opinions, and I will be the first to admit that they're not particularly well-researched - mostly because I don't care enough to bother. :) But I've had kind of a weird feeling about that place from the beginning. First, it appears to be set up primarily as a money-making venture - the site's there to sell photos. Which is fine, but pretty unusual for a Disney fan site. (I don't think the primary purpose of Disboards, AllEarsNet, Mouseplanet, or the vast majority of the countless other fansites, blogs, and podcasts about Disney parks have money-making as such a high priority.

Then there's the issue of making money off something of questionable legality - obviously it's not cut-and-dried if this is legal, as this topic comes up regularly with no solid resolution.

I also got the feeling, back a couple years ago, like we'd occasionally see people here and other places who popped out of nowhere, promoted the site (occasionally with some off-the-wall thing like "widely recognized as the finest WDW photographer" or some other hyperbole - easily disproven by comparing his shots with what you can find in any weekly photo contest here), then disappearing again. You yourself are a new user, who has revived a thread that had no activity for well over a week (around here, that means several pages back), and managed to make this thread completely about him, nearly every message you've posted has mentioned the site owner by name - and you replied only to my message where I spoke about him, and did not quote any of the many messages posted after mine that didn't speak about him. I'm not accusing you of anything and certainly welcome another new member, but it does have an air of strangeness to it. I'll assume that it's just coincidence. :teeth:

Well, sure -- there are many nice photos that most anyone could obtain for the price of asking nicely ... but a high-res file isn't the same thing as a professional-caliber print of an image that has been optimized for printing on a particular device. Most people don't have the equipment needed for that, nor the expertise to tweak an image for print. The alternative is to go to a company such as Mpix.com, but they're not going to print it for free, either.
Mpix does an 8x10 for, what, $2? Anyway, how is what he's offering any different than you can get via buying a print from Smugmug or any of the other online galleries that sell prints? We're also stuck seeing the images at only 600x480 before plunking down $19? And again, it seems strange that you know so much about his workflow, like if he's optimizing for a specific printer, etc. A quick glance at the site shows no FAQ or similar page explaining why his product is priced how it is, or what tweaks are done, etc. Then there's the CDs - $12 for ~70 pictures, no larger than 1152x864? No thanks.

Don't get me wrong - he's free to charge what he wants and run the site he wants (as long as Disney legal doesn't mind), but I don't have to agree with his choices (and I don't.) That's the way a free country works. :) Anyway, this thread's like free advertising for him, he ought to be very pleased to be talked about.
 
I also got the feeling, back a couple years ago, like we'd occasionally see people here and other places who popped out of nowhere, promoted the site (occasionally with some off-the-wall thing like "widely recognized as the finest WDW photographer" or some other hyperbole - easily disproven by comparing his shots with what you can find in any weekly photo contest here), then disappearing again. You yourself are a new user, who has revived a thread that had no activity for well over a week (around here, that means several pages back), and managed to make this thread completely about him, nearly every message you've posted has mentioned the site owner by name - and you replied only to my message where I spoke about him, and did not quote any of the many messages posted after mine that didn't speak about him. I'm not accusing you of anything and certainly welcome another new member, but it does have an air of strangeness to it. I'll assume that it's just coincidence. :teeth:
Understandable. I used Devine as an example because he's probably the most well-known photographer who concentrates on Disney and offers his work for sale without any seeming fear that Disney will shut him down, leading me to surmise that there must be some reason that this is so. I agree with your assessment; he's a decent photographer and I like some of his work, but I've certainly seen better -- here, elsewhere, and even in some of my own stuff.
Mpix does an 8x10 for, what, $2? Anyway, how is what he's offering any different than you can get via buying a print from Smugmug or any of the other online galleries that sell prints?
Granted, but this is true of any photographer selling prints of anything. The cost of making a given print isn't the only thing you pay for. Sure, one of us could take someone else's file (with permission, of course) and have it printed and it seems pretty straightforward, but there are plenty of people for whom that's not the case. Any photographer who is serious about selling his work charges more than cost. How is it any different than going to Yellowstone and selling photos you take there?
We're also stuck seeing the images at only 600x480 before plunking down $19?
The bane of selling work online!
And again, it seems strange that you know so much about his workflow, like if he's optimizing for a specific printer, etc. A quick glance at the site shows no FAQ or similar page explaining why his product is priced how it is, or what tweaks are done, etc.
I have no specific inside knowledge. I'm just making presumptions based on what I know about landscape photography in general. I would presume such for anyone who appears to have been successful for a while selling prints. There was also my own experience. I use an Epson 9800 to print my work, and my images are optimized to what I have, over time, discovered as its strengths and weaknesses. I only presume others, including Mr. Devine, would do the same.
Then there's the CDs - $12 for ~70 pictures, no larger than 1152x864? No thanks.
Yeah, I'll pass as well!
I don't have to agree with his choices (and I don't.) That's the way a free country works. :) Anyway, this thread's like free advertising for him, he ought to be very pleased to be talked about.
Certainly, you do have the right to not agree; I was just curious as to why you felt that way. Further, it is fine that it is just a gut-level reaction. But it has made me think -- again, how is selling your work made at Disney any different from that made at Yellowstone, or any other place that is relatively freely accessible? And as far as making money off those images, we are talking about a place that charges $75 minimum for the privilege of being in range to take those photos. As much as I love the place and firmly believe that Disney is more than just a business, it is still a business (the same way I believe that Lost is both more than "just a TV show," and also a TV show at the same time, it is still subject to ratings pressure, just like every other show on the air).

I know what you mean about the free advertising; I used to cringe every time I heard his name dropped on certain podcasts, which seemed to happen on a weekly basis! But again, I used him as a real-world example -- on the one hand, some assert that one cannot do what he is doing, yet he is doing it, and Disney hasn't had him eliminated. Leads me to strongly suspect that anyone can and may legally do what he is doing, while Disney may prefer most people believe otherwise. This would probably not be the best place to try to drop his name in the hope of generating sales of his work -- as you say, there are better photographers shooting Disney subjects, and many of them are right here on this board.

Note that I also mentioned Jeff Lange, who may be even more well-known -- just didn't think of him as quickly. For the record, I am not either gentleman. I do not know either of them or any of their family or friends (though I'd love to sit down and talk to Lou Mongello one day if I get the chance -- and if we do, we won't be talking about photographers!). And neither of them has ever gotten a dime of my money.

SSB
 
Geoff, just to play devil's advocate here, one could make an argument that the building you mention is generally photographed from public property (ie, sidewalk, etc); whereas there's very little that you can photograph in WDW from public property. (This is different, to some degree, at DL.)
Fair enough... however, in reading the summaries of the RNRHOF case it appears that the private/public vantage point didn't enter into the case. The higher court's point was that "If you're claiming that it's a trademark, then you need to show that you've really used it consistently like a trademark if you're going to go after perceived infringement." Secondary to that, the RNRHOF was told that every depiction of a structure can't be used as a "trademark". If there's one example were the photographer should have been "dead meat" it was Gentile. He used, not one, but two duly registered trademarks in a commercial product and not just a simple photo. The courts ruled that using trademark status as a "shotgun" means to protect a structure doesn't work.

As for the public vs. private angle when it comes to copyrights, the law regarding structures completed after 1990 only exempts buildings viewable from public spaces from protection. It doesn't grant any extra protection to buildings hidden from public lands. One of the other things to remember with such IP lawsuits is that there is a large degree of interpretation that the judges may use since the laws offer at most "guidelines" and recent case law about such things as "fair use" and what constitutes "infringement". Which is why Gentile at first lost his battle with the RNRHOF and then eventually won in another court.

In a case that might involve the selling of a photo of the copyrighted architectural structure of Cindy's Castle, a judge would have to look at a number of factors. It would be hard to disagree that any photo of the castle would be a derivative work. So on one level any photo taken by anyone outside of Disney would be a suspect copyright violation. But in looking at the photographers likely "fair use" defense, a judge in a suit would need to weigh the usual factors. The "character of the use" would be different for a person selling their photo versus a tourist take a photo for their scrapbook. But in the photographer favor's, I think, would be factors such as the "nature of the use" (a simple photo instead of a recreation of the work), and the financial impact the photo would have on Disney. On top of that, there's the likely conclusion that the higher court justices had in the RNRHOF case "it's merely another photo of a well-known, easily recognized structure that's freely photographed by millions of people each year." Do I think the photographer would be certain to win such a case? No. But I think it's very likely. Particularly given the outcomes of recent cases like the RNRHOF and the NYSE lawsuits. I also don't think that every photo taken at Disney would be as defensible. For example, if the photo exclusively features a copyrighted character, then I think it would be likely riskier for a photographer to sell... just like selling photos of sculptures and other works of art are a generally accepted legal no-nos. But as long as one sticks to scenic and landscape work, then I think the risk is slim to none.
 
Further, it is fine that it is just a gut-level reaction. But it has made me think -- again, how is selling your work made at Disney any different from that made at Yellowstone, or any other place that is relatively freely accessible? And as far as making money off those images, we are talking about a place that charges $75 minimum for the privilege of being in range to take those photos.

Let's compare two specific cases - taking a picture of a wolf roaming around at Yellowstone vs a the Brer Wolf character at WDW. The first wolf is either unowned or owned by the United States (not sure which). It was designed either by God or evolution (not going to argue which). It is the subject of no copyrights or trademarks.

The Brer Wolf chacater at WDW comes to us from the copyrighted Disney movie "The Song of the South". It was derived from the Joel Chandler Harris book Uncle Remus; His Songs and His Sayings. The Folk-Lore of the Old Plantation. and traces back much further. Taking a picture of your own Brer Wolf creation is not a problem because Disney does not own Brer Wolf. Publishing a picture of Disney's Brer Wolf make's you subject to Disney's copyright. It's no different than if you want to post a snippet of the movie, a still from the movie, a section of the dialog from the movie, or any other portion of the copyrighted work that is "The Song of the South."

There is a fundamental difference between taking pictures of things that are no one's creation and taking pictures of things that are. In the first case, you are not taking anything from anyone. In the second case, your derivative work is diluting the value of the subject's copyright holder.
 
Let's compare two specific cases - taking a picture of a wolf roaming around at Yellowstone vs a the Brer Wolf character at WDW.
I'm not sure I'm prepared to try to make that particular argument. I was thinking more in terms of a photo of Cinderella Castle versus one of, say, El Capitan. Further, I was addressing a specific post by Groucho, who said he felt selling work shot at Walt Disney World was "distasteful." He added that his feelings in that regard didn't really have anything to do with whether the sale of such photos was legal, so I was approaching the question from the assumption (let's call it a hypothetical) that it is, in fact, legal.

As far as the situation you describe, I'm not sure whether that is legally any different or not. It may be -- I just haven't given the character question itself much thought. My own gut-level reaction to it is that it might be different, but I'm not sure. Perhaps this question doesn't tend to arise so much because, as far as I know, no one is taking photos of characters and trying to sell them. I personally can't imagine there be as much of a market for that as there might be for a shot of the castle, or Tower of Terror, or any other iconic structure. Maybe there's a gray area, of sorts -- I bought a DVD of a video of Spectromagic and Wishes, and Spectromagic certainly features the characters. What struck me as questionable was that the videographer didn't use the in-park audio; he had substituted the audio tracks from the CD versions of both shows (though he allowed some of the ambient fireworks sound and crowd reaction to come through for Wishes at a couple of points). I understood why he did it, I think. If he had used the in-park audio for Spectromagic, there would be substantial stretches with nothing to show onscreen (at the beginning and during the breaks between groups of floats). And having done it with Spectromagic, maybe he figured it would sound odd if he didn't do the same for Wishes. It was probably easier for the latter, as well, because he could easily keep the sound synched with the action, which is impossible for Spectromagic without judicious editing. The point, his use of the tracks from the CDs struck me as putting him on shaky legal ground at best.

SSB
 
Certainly, you do have the right to not agree; I was just curious as to why you felt that way. Further, it is fine that it is just a gut-level reaction. But it has made me think -- again, how is selling your work made at Disney any different from that made at Yellowstone, or any other place that is relatively freely accessible? And as far as making money off those images, we are talking about a place that charges $75 minimum for the privilege of being in range to take those photos. As much as I love the place and firmly believe that Disney is more than just a business, it is still a business (the same way I believe that Lost is both more than "just a TV show," and also a TV show at the same time, it is still subject to ratings pressure, just like every other show on the air).
First, I'm glad you were able to understand where I was coming with in my comments. I'm not trying to start a bloody debate or anything, just answering your questions about my feelings.

As for Yellowstone - to paraphrase what Mark says, it's a national park. Theoretically that means that it belongs to all of us (even if we have to pay to get it!) Obviously this is not the case with Disney.

The "it costs a lot so I should be able to take pics" argument certainly doesn't count - that's like saying "this hotel is expensive so I should steal the towels." One friend of mine used to grab a few grapes off the bunches when we'd go through the produce section at the grocery store, his feeling was that they price in that people sometimes do that. They may, but it doesn't mean that you should do it!

You did lose some points for mentioning Lost though. After hating myself every time I watched it, I finally killed the season pass off my Tivo and I feel so much better. I was tired of having my intelligence insulted by the writers. But that's a whole different topic. :teeth:

But yet, Disney parks are not your normal business. I wonder if there are examples of non-Disney parks taking any action against people selling photos... companies that don't have such a "cuddly" image, like Universal.

I'm not sure I'm prepared to try to make that particular argument. I was thinking more in terms of a photo of Cinderella Castle versus one of, say, El Capitan. Further, I was addressing a specific post by Groucho, who said he felt selling work shot at Walt Disney World was "distasteful." He added that his feelings in that regard didn't really have anything to do with whether the sale of such photos was legal, so I was approaching the question from the assumption (let's call it a hypothetical) that it is, in fact, legal.
Now now, you're putting words in my mouth.

I did not say that selling WDW photos is "distasteful". I said that the way it's done at TMIP is something I find distasteful, especially with some rather curious advertising - I specifically remember at least once here, where someone popped out of nowhere, made a rather clumsy attempt to be an independent person who loves the site and regarded him as the "greatest" WDW photographer, then never posted again... it seemed very suspicious and even if it was completely innocent, it reflected badly on the site, at least. At the time, the site was fairly new and the forums were completely barren. My feeling is actually that it probably isn't legal but that Disney has decided that it's going to turn a blind eye for the moment. I'd be surprised to see someone successfully defend selling WDW photos like that in a court of law - but I'm no lawyer, so what do I know.

Maybe there's a gray area, of sorts -- I bought a DVD of a video of Spectromagic and Wishes, and Spectromagic certainly features the characters. What struck me as questionable was that the videographer didn't use the in-park audio; he had substituted the audio tracks from the CD versions of both shows (though he allowed some of the ambient fireworks sound and crowd reaction to come through for Wishes at a couple of points).
Now these, I definitely don't like. Not only is it, again, something where you can probably get better-quality versions for free (even hi-def stuff is starting to become more common if you know where to look), but it's mainly taking Disney's work and turning around to make a quick, unearned buck off it. On the other hand, we have a commercial site like Extinct Attractions, which produces pretty solid documentaries on attractions and other park topics and obtains legal clearances, and on the free side, there's Martin from the UK, who produces extremely good free-to-download "tributes" which are basically documentaries plus ride-throughs for various attractions and such. He gives full credit to all sources at the end of each video, but is forced to insert "video not for sale" texts here and there in his videos, so that nobody takes his hard work and resells it under their own name to make a quick buck, when he wants it freely distributed.

The point, his use of the tracks from the CDs struck me as putting him on shaky legal ground at best.
Definitely. These are hard times for the RIAA and similar organizations, when music can freely be found as backgrounds for YouTube videos, downloadable photo slideshows, etc. Don't get me wrong, I have no sympathy for the RIAA whatsoever, just commenting. :)

I guess my big thing is that I don't like when people look to make a quick buck off someone else's work. Setting up a whole site to hawk photos of questionable legality seems like that to me. Selling home videos seems like that to me (especially when Disney happily sells DVDs feature attraction ride-throughs in their stores.) Heck, I'm not even a big fan of what Laughing Place (and one or two others) does, with reselling items - you buy something from their site, they go into the park, buy it, and ship it to you, pocketing a healthy markup on the side, when buyer could just buy from WDW directly for less. Legality doesn't enter into my feelings on the matter; lots of things are legal that bother me much more than these pretty minor things.
 
First, I'm glad you were able to understand where I was coming with in my comments. I'm not trying to start a bloody debate or anything, just answering your questions about my feelings.
Oh, no question. Much better to be able to have an honest debate that neither of us takes personally. That can be hard to find online.
As for Yellowstone - to paraphrase what Mark says, it's a national park. Theoretically that means that it belongs to all of us (even if we have to pay to get it!) Obviously this is not the case with Disney.

The "it costs a lot so I should be able to take pics" argument certainly doesn't count - that's like saying "this hotel is expensive so I should steal the towels."
Not the argument I was trying to make at all. I meant that both Walt Disney World and Yellowstone are relatively easily accessible, both have features that are very heavily photographed, both are big tourist destinations, and in both cases, there are plenty of good photographers who will freely pass on high-res images to others. Yet I don't hear people argue that people shouldn't sell photos made in Yellowstone. So the fact that Yellowstone belongs to all of us (at least in the US) doesn't seem to enter into the argument (at least not the one I'm making).

I wonder if there are examples of non-Disney parks taking any action against people selling photos... companies that don't have such a "cuddly" image, like Universal.
I don't know. Selling photos taken at Universal would require an actual buyer for such a thing, wouldn't it? Does such a creature walk the earth? ;)

Now now, you're putting words in my mouth.

I did not say that selling WDW photos is "distasteful". I said that the way it's done at TMIP is something I find distasteful

It sure sounded that way to me when you said ...

it really kind of bothers me when I see people selling their personal, non-authorized Disney photos. (Hence my problem with the TMIP site, where that seems to be the main reason for it existing.) It really doesn't matter to me if it's legal or not (and I don't know what arrangements exist there), it just strikes me as somewhat distasteful.
Doesn't seem to me as if I was putting words in your mouth, but if I misinterpreted what you meant, I apologize.

especially with some rather curious advertising - I specifically remember at least once here, where someone popped out of nowhere, made a rather clumsy attempt to be an independent person who loves the site and regarded him as the "greatest" WDW photographer, then never posted again...
I know what you mean. Just the other day, I was looking at a photo site where a photographer had posted several stunning HDR Disney photos. I read some of the comments that had been posted. Way down the page, one of those comments mentioned something about "Tim Devine has similar photos on his site," and then either gave the URL or mentioned the name of the site -- can't remember which. The person who posted that comment identified himself as "nrose" -- either it was Nathan Rose (formerly of the Mouse Tunes Podcast and currently of The Magical Definition Podcast), or someone posing as him. Nathan did tend to mention the site on a weekly basis and seemed to have a personal friendship with Mr. Devine. So I can't really blame him for trying to help a friend, but it did strike me as ... questionable, at best, to post that in comments being left for another photographer. The other photographer wasn't offering any of his work for sale, but still ...
(especially when Disney happily sells DVDs feature attraction ride-throughs in their stores.)
They do? Where is that? I want some of those!
Heck, I'm not even a big fan of what Laughing Place (and one or two others) does, with reselling items - you buy something from their site, they go into the park, buy it, and ship it to you, pocketing a healthy markup on the side, when buyer could just buy from WDW directly for less.
Laughing Place does seem to mark up their stuff quite a bit, but Disney's shipping charges are pretty high as well, last time I checked. And they don't really make it easy for you to buy from them, in my experience.

SSB
 
Not the argument I was trying to make at all. I meant that both Walt Disney World and Yellowstone are relatively easily accessible, both have features that are very heavily photographed, both are big tourist destinations, and in both cases, there are plenty of good photographers who will freely pass on high-res images to others. Yet I don't hear people argue that people shouldn't sell photos made in Yellowstone. So the fact that Yellowstone belongs to all of us (at least in the US) doesn't seem to enter into the argument (at least not the one I'm making).
Well, that's exactly why I'm not bothered by Yellowstone photos. It's a national park and the photographs are of things created by the ravages of time and elements, rather than designs that a company paid money to build and maintain.

I don't know. Selling photos taken at Universal would require an actual buyer for such a thing, wouldn't it? Does such a creature walk the earth? ;)
I almost said exactly the same thing, honest. :) It's been a few years since I've been to USF, but man, I was at USH last year and it's about as photogenic as a cow pie!

It sure sounded that way to me when you said ...

Doesn't seem to me as if I was putting words in your mouth, but if I misinterpreted what you meant, I apologize.
Hmm... looks like I may have written not exactly what I meant. I really am not hot on anyone selling their WDW photos but such blatant attempts to make money off of them is when I pull out the "distasteful" bomb.

They do? Where is that? I want some of those!
Here's where Laughing Place is handy - this is the 5-pack, you can also buy them individually. Where Dreams Come True DVDs. You can also find them on eBay, etc. I actually don't own them but I am pretty sure that the description on the back includes ride-throughs. Heck, somewhere I still have a couple Super 8 films from WDW of HM and PotC... I remember sitting in my room as a kid with the lights out watching the little 3-minute films over and over. :)
 
As far as the situation you describe, I'm not sure whether that is legally any different or not. It may be -- I just haven't given the character question itself much thought. My own gut-level reaction to it is that it might be different, but I'm not sure...
Well, after doing a lot of searching, I think I've come up with some good information that will give us an answer to this puzzle. It appears that the bulk of legal opinions (though not universal) in court decisions is that photos of copyrighted objects (particularly 3D objects) are NOT considered "derivative works". Another words, a photo of Mickey Mouse leading a parade at WDW is most likely NOT an infringement of the copyright to the character. The most recent case was handed down just this March.

In this case a photographer named Todd Latimer sued others for copyright infringement of photos he took of customized motorcycles. The Defendants tried to claim that the Latimer's suit should be dismissed because he could not own the copyrights to the photos he took since the photos were "derivative works" of the copyrighted motorcycle designs. The court didn't buy the argument. It said in its decision (also citing other supporting cases):
Here, Latimer has not altered Hathaway's (the motorcycle designer) artwork, recast it, or otherwise transformed it during the photographic process. The ZX-14s [motorcycles] are the subject of the photographs. Hathaway's artwork has not been transformed in the slightest-it is presented in a different medium, but it has not been changed in the process such that it meets the criteria for a derivative work under copyright law. While Latimer has copyrighted photographs of the ZX-14s, he does not seek to monopolize the subject matter or idea of the photographs but merely to protect the actual reproduction of his expression of the idea, to wit, the photographs themselves. As in SHL Imaging (precedent case), Latimer has not "recast, transform[ed], or adopt[ed]" Hathaway's artwork. Defendants' argument that Latimer's photographs are derivative works lacks merit. Link

One other recent case muddies the waters a bit and found the opposite. Dan Schrock is a photographer that look photos of "Thomas & Friends" toys for use by a toy distributor known as "RC2". RC2 used Schrock's photos past the agreed license period. He sued RC2, and RC2 tried the same defense as used in the motorcycle case. The lower court agreed that the photos of "Thomas the Tank Engine" were indeed "derivative works" of the copyrighted toys. However, this decision appears to have ignored the precedent cases and is an outlier. An appeal is in the works and amicus briefs are being filed on Schrock's behalf. Court watchers seems to think the chances of it being overturned are good. Link
 















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