Photo-Copyright Question

[taychase1015]

May I use digital photos I have taken at Disney World with my own camera on a flyer for the sale of raffle tickets to win a trip to Disney World for a non-profit. (everything has been paid for or donated) Example: a photo of the Magic Kindom with "Wish you were here purchase a ticket for $5."

 

[MICKEY88]

May I use digital photos I have taken at Disney World with my own camera on a flyer for the sale of raffle tickets to win a trip to Disney World for a non-profit. (everything has been paid for or donated) Example: a photo of the Magic Kindom with "Wish you were here purchase a ticket for $5."

legally probably not,,, odds of disney finding out and making an issue of it, rather small

 

[Frantasmic]

This concept was discussed in a Letter to the Editor recently with Popular Photography magazine. I'm sorry, but I'm not able to find a link right now, but you can look for it.

Basically, as long as you don't use registered trademarks like Magic Kingdom in your wording, the gist was that you probably could legally use your own photos. Disney, if they did find out, probably would send a cease and desist letter via their attorneys, but this guy, a copyright expert somehow was pretty sure it was all right.

But, don't take my word for it. I'll look for the article.

 

[Geoff_M]

The problem with questions like this is that there are tons of gray areas and few clear-cut outcomes. The issue wouldn't be one of copyright, it would be that of trademark. You own the copyright to your photo... that wouldn't be in dispute.

The Rock 'n' Roll Hall of Fame poster case offers the best example of this... details here.

If the photo is of Cindy's castle, then you're dealing with a trademarked object. But, as long as a judge, or panel of judges, would not conclude from your poster that Disney was associated with, or sponsoring, the contest then it would be legal... this is where not using a Disney font on the poster text would work in your favor. Also, the non-profit nature of the raffle wouldn't be a factor one way or another. Not-for-profits have to follow the same laws regarding copyright and trademark (excepting for things like "fair use" exemptions for educational use).

 

[WDWFigment]

The problem with questions like this is that there are tons of gray areas and few clear-cut outcomes. The issue wouldn't be one of copyright, it would be that of trademark. You own the copyright to your photo... that wouldn't be in dispute.

The Rock 'n' Roll Hall of Fame poster case offers the best example of this... details here.

If the photo is of Cindy's castle, then you're dealing with a trademarked object. But, as long as a judge, or panel of judges, would not conclude from your poster that Disney was associated with, or sponsoring, the contest then it would be legal... this is where not using a Disney font on the poster text would work in your favor. Also, the non-profit nature of the raffle wouldn't be a factor one way or another. Not-for-profits have to follow the same laws regarding copyright and trademark (excepting for things like "fair use" exemptions for educational use).

Interesting article. I'd like to read something more current on that. To me, the Rock and Roll Hall of Fame, in "building form" seems way too vague for the PTO to grant a registered TM (and the application with the PTO was pending at the time...I wonder how it was decided). Same goes for Cinderella Castle as a building (no doubt Disney has registered TMs in the Castle as portrayed in the splash screen before films, ways it's depicted on website graphics, etc.) but that is different than the Castle in building form because there are literally infinite ways of depicting it. If granted, that would extend the TM protection way beyond its intended purpose, in my opinion.

There are other legal issues that I pointed out in a thread a while back, you might want to do a search for that.

Bottom line: 1) you have a good faith argument that your actions are legal; 2) Disney will never find out; 3) if Disney were to find out, given the nature of your act, Disney's attorneys wouldn't act (especially after the fallout from Pooh's banishment from the daycare center), and; 4) if Disney did act for some reason, it wouldn't matter if you are right or wrong, Disney would bankrupt you with its aggressive attorneys.

 

[Geoff_M]

Interesting article. I'd like to read something more current on that.

To my knowledge this is the most recent case as I don't think the issue of buildings as trademarks hasn't made it up that far in the legal food chain since then. If you want the read the Appeals Court decision (including the dissent as it was a split 2-1 decision) here's the text.

I also agree that the risk of using a personal photo of Disney World with the raffle poster is basically nil.

 

[WDWFigment]

To my knowledge this is the most recent case as I don't think the issue of buildings as trademarks hasn't made it up that far in the legal food chain since this case. If you want the read the Appeals Court decision (it was a split 2-1 decision) here's the text.

I also agree that the risk of using a personal photo of Disney World with the raffle poster is basically nil.

Shepardizing that found me a couple of 2006 cases from the Western District of Michigan and Northern District of California. Here are the citations (WestLaw then Reporter for the first):
W.D.Mich - 2006 WL 2456218, 79 U.S.P.Q.2d 1905
N.D.Cal - 467 F.Supp.2d 965

I only skimmed them so far...really busy right now.

 

[Geoff_M]

Same goes for Cinderella Castle as a building (no doubt Disney has registered TMs in the Castle as portrayed in the splash screen before films, ways it's depicted on website graphics, etc.) but that is different than the Castle in building form because there are literally infinite ways of depicting it. If granted, that would extend the TM protection way beyond its intended purpose, in my opinion.

The dissenting judge in the HOF museum would disagree with you on that point. He uses the example of the acknowledged 3D trademark of the Coca-Cola bottle.

"The trademarked shape of the bottle has three dimensions. Regardless of the angle from which it is viewed, it is still recognizable as a Coke bottle. When a Coke bottle is photographed it loses a dimension, but the subject of the picture remains recognizable as one of a trademarked, three dimensional figure. If a photograph of a trademark--for example, one of a Coke bottle--can be sold by the owner of the trademark in a poster form, that poster naturally must be recognized as one of the owner's "goods", albeit a derivative good."

 

[WDWFigment]

The dissenting judge in the HOF museum would disagree with you on that point. He uses the example of the acknowledged 3D trademark of the Coca-Cola bottle.

That's an excellent point. I think the critical distinction is that the 3D HOF museum is not as recognizable as the 3D Coke bottle. On the continuum, however, Cinderella Castle is probably closer to the Coke bottle than it is the HOF museum. I also think the way Coke uses its bottle is a little different than many other 3D objects, in that its one of their prominent logos (appearing in almost every Coke ad I've ever seen). Cinderella Castle, while very recognizable as a mark of Disney, is not on the same plane (in my opinion). Additionally, I don't think my or your use of Cinderella Castle on a small scale level would create a likelihood of confusion. Even with those distinctions, I still am not sure how a court would rule. I think it would be really close.

Man, Cinderella Castle really would make a great test case! I'd love to read an opinion on that!

 

[MICKEY88]

it isn't a matter of copyright, or trademark, it's a matter of usage rights....

for a building that is private property you should have a property release..

here is info from the website of American Society of Media Photographers..

A property release says that the owner of a certain property, such as a pet or a building, has given you consent to take and use images of the property. You don’t need one for public property, such as government buildings (although you may run into problems just from photographing them, for security reasons). But for images of private property — and particularly of objects that are closely identified with specific people — you are safer if you get a release.

 

[ThurlFan]

I also seem to remember reading on here something about having paid to get into a private business in order to take the picture. Taking the picture inside a theme park (which you paid to get into) is different from taking a picture from a public easement such as a road or sidewalk. This may also play a role in making a distinction between the Rock HOF and Cinderella Castle.

IIRC think this came up in a discussion involving pictures of zoo animals here on the photography board...

 

[ukcatfan]

2) Disney will never find out; 3) if Disney were to find out, given the nature of your act, Disney's attorneys wouldn't act (especially after the fallout from Pooh's banishment from the daycare center), and; 4) if Disney did act for some reason, it wouldn't matter if you are right or wrong, Disney would bankrupt you with its aggressive attorneys.

I think that these are the most important points made. It does not matter if it is legal or not since they have the financial strength to stop you if they want to. I would personally doubt that they would ever find out. If they did, the most likely outcome is that they tell you to stop and that would be the end as long as you do.

 

[WDWFigment]

it isn't a matter of copyright, or trademark, it's a matter of usage rights....

for a building that is private property you should have a property release..

here is info from the website of American Society of Media Photographers..

It's actually a matter of all three. I made my points why I believe the there is no need for a release in that previous thread with regard to usage, with which you stated your disagreement. That area of usage is also an unsettled area of law.

Besides the 4 points I made (the practical, not legal implications), this is a complex legal issue (as much as everyone hates them, there is a reason why lawyers tend to make a fairly decent living). It's easy to find information online, but I wouldn't take that as the gospel. You need to look at legal resources and need to really know how to research and analyze legal issues.

 

[MarkBarbieri]

I know almost nothing about the law on this, but my guess is that the worst thing that would happen is that Disney would tell you to quit doing it. Even that is extremely unlikely.

 

[MICKEY88]

1.It's actually a matter of all three. I made my points why I believe the there is no need for a release in that previous thread with regard to usage, with which you stated your disagreement. That area of usage is also an unsettled area of law.

Besides the 4 points I made (the practical, not legal implications), this is a complex legal issue (as much as everyone hates them, there is a reason why lawyers tend to make a fairly decent living). 2.
It's easy to find information online, but I wouldn't take that as the gospel.

You need to look at legal resources and need to really know how to research and analyze legal issues.

1. what previous thread..?? the photographer has copyright of his image, that's non debatable, whether the castle is trademarked or not it's privately owned so a property release should be obtained
2.

I wouldn't consider anything I find online gospel. especially if it was on an individuals website, however , generally when a professional photogrpahy organization posts info for their members, they make sure they are giving sound advice, plus in over 30 years of photography I've seen this debated so many times , read about it so many times in magazines etc, including PPA, and the ned result is always the same, the photographer has copyright but for usage rights a property release is required..,

but in the end, no matter what the actual law is, as someone mentioned earlier Disney will bankrupt any individual before that person even comes close to winning in court, which is why there are 3 options, in this situation, don't use a photo, contact disney legal dept for permission, or use the photo and take your chances, odds are disney never finds out..

 

[WDWFigment]

1. what previous thread..?? the photographer has copyright of his image, that's non debatable, whether the castle is trademarked or not it's privately owned so a property release should be obtained
2.

I wouldn't consider anything I find online gospel. especially if it was on an individuals website, however , generally when a professional photogrpahy organization posts info for their members, they make sure they are giving sound advice, plus in over 30 years of photography I've seen this debated so many times , read about it so many times in magazines etc, including PPA, and the ned result is always the same, the photographer has copyright but for usage rights a property release is required..,

but in the end, no matter what the actual law is, as someone mentioned earlier Disney will bankrupt any individual before that person even comes close to winning in court, which is why there are 3 options, in this situation, don't use a photo, contact disney legal dept for eprmission, or use the photo and take your chances, odds are disney never finds out..

I've worked in a law offfice for the past 26 years, .. having been involved in a lot of research, and filing briefs etc...LOL

thanks for that advice

I was not trying to be condescending or anything of that nature, it just is a pet peeve of mine when people with no legal background in matters being discussed interject their "opinion" of the law.

Here is the previous thread: http://www.disboards.com/showthread.php?t=2269484&highlight=copyright

The portion you quoted from the photo association site didn't purport to be the law, it just says you're safer if you get a release for private property. Near the end of that thread, dmccarty similarly includes a link from the PACA--one that also does not make a statement on legality, just that there have been "issues" with photographers and EPCOT.

I will admit that I have nowhere near 26 years of legal experience, heck I'm not even that old; I'm only basing my statements off of my research and background in contemporary IP law. If you want to PM me, I can provide citations to you if you want to read some documents, upon which I based my assertions in this thread, at work on Westlaw/Lexis.

Anyway, I think the OP's question has been sufficiently answered multiple times, and any further abstract legal discussion by me isn't going to help, so I'll exit this thread...