Toyota Takes After Ford In Claiming Ownership Of Fan Photos

from the not-so-smart dept

Mon, Nov 17th 2008 6:29am — Mike Masnick

You may recall that Ford has been rather aggressive in telling fans of various Ford cars that they have no right to create things like calendars from photos they, themselves, have taken. Basically, Ford has claimed ownership of any photos of Ford vehicles. That, of course, is crazy. But apparently the thinking extends to other car companies as well. Apparently, Toyota is now threatening a site that hosts various "desktop wallpapers" for computers because it offers up a variety of wallpapers made up of images of various Toyota automobiles.

TorrentFreak, who has written up the article, exaggerates a bit in claiming that this is the most "wildly arrogant" DMCA claim. After all, Ford did exactly the same thing earlier, and plenty of other companies have done similar things. Also, apparently Toyota hasn't actually invoked the DMCA yet, simply telling the site's owner he has to remove the images or it would send DMCA notices. Rather obnoxiously, when the guy who runs the site asked which images, specifically, violated Toyota's intellectual property, Toyota's lawyers responded that they would only identify them if the site's owner paid for their time. Of course, the DMCA actually requires you to name the specific infringing files.

You might possibly be able to make a case that Toyota could sorta maybe make a trademark claim here -- that some might assume that the desktop wallpapers were officially offered by Toyota, but that wouldn't explain why they're threatening to use the DMCA, which has nothing to do with trademarks.

However, most importantly, as we noted with the Ford situation, it makes no sense to beat up on fans of your products who are sharing photos of the cars they love and are actively promoting the cars for the automakers. It seems like yet another case where lawyers simply freak out without realizing how much damage they're doing to their client's brand. Update: Good news! In the comments, Ford claims that the earlier story was a misunderstanding (though, don't exactly explain how come it's happened multiple times) and Toyota has also apologized for the threat, saying that it was a mistake.

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Filed Under: copyright, dmca, fans, lawyers, wallpaper
Companies: ford, toyota

32 Comments

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SteveD, 17 Nov 2008 @ 6:47am

Even if the wallpapers were official and belonged to Toyota, you've got to wonder at the business sense in trying to limit their circulation. Wouldn't it to be better to spread them as far as possible? Its all free promotion.

Overly-protective IP lawyers seems to be a growing problem.
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Ridiculous, 17 Nov 2008 @ 7:10am

Idiots...
Ok... so... you can't COPYRIGHT an image you haven't taken.

You can't COPYRIGHT a car, you must PATENT it. So, this isn't a case for DMCA at all.

You can TRADEMARK the logo, but if you pixelize out the logo, what is the case?

The only case I can possibly see is if they are using the name TOYOTA or FORD as part of the picture.

But, you CAN say "This is a Ford Focus"... because that's a fact and fact's CAN'T be copyrighted... unless you are in baseball....
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Anonymous Coward, 17 Nov 2008 @ 7:23am

I'm sure some IP Lawyers are trying to meet some sort of quota. I doubt this will go far at all.
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Anonymous Coward, 17 Nov 2008 @ 7:36am

Re:
Maybe we should just revive a buzz-word of the past and things will start to become clear to them, here goes: viral-marketing, viral-marketing, viral-marketing... everybody now...
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eleete, 17 Nov 2008 @ 7:36am

The Financial Impact
Sadly, the David vs. Goliath nature of these suits will render the laws virtually silent. I doubt these sites will be able to afford a protracted legal battle with the likes of Toyota. This is the worst damage done by IP laws. Small businesses cannot afford to pay the legal services required to prove their innocence or fair use, sometimes to the point of bankruptcy. In my opinion, that doesn't exactly provide incentive to create or innovate. Sounds like it transforms creativity and innovation into a financial target.
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chris (profile), 17 Nov 2008 @ 7:56am

Re: The Financial Impact
what you say is true, but given the nature of the internet, it's not hard to see the work around.

you put up your fansite, wallpaper site, etc. and get hassled by lawyers.

all you have to do is creative commons the site and tell everyone to help mirror it, then take your copy down.

in time, the whack-a-mole effect will make policing the photos practically impossible. compound that with the streisand effect and the sky's the limit.

it's a war of attrition, time and talent vs. billable hours. one resource is unlimited, the other is not.
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John Duncan Yoyo, 17 Nov 2008 @ 7:58am

Hey if the own the image I guess they are responsible for my camera tickets.
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ha, 17 Nov 2008 @ 8:04am

Dear Toyota
Dear Toyota (and Ford),

Good going. Now I will be sure NOT to even look at buying any of your vehicles. Congrats, you just lost yourself money and sent it right to your other competitors. Instead of wasting time with bogus law suits, take the time instead to shoot your lawyers or better yet, give the crash-test dummies a break and use the lawyers instead.
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arby, 17 Nov 2008 @ 8:20am

Re: Dear Toyota
"Instead of wasting time with bogus law suits, take the time instead to shoot your lawyers or better yet, give the crash-test dummies a break and use the lawyers instead."

That would not work. The crash test dummies actually simulate a human being. Lawyers don't...
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KB, 17 Nov 2008 @ 8:30am

Re: Re: Dear Toyota
This gets my vote for post of the year. Nice, nice work.
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Devious, 17 Nov 2008 @ 9:04am

Lets all Sue
Hey, lets sue the Big three for failing to pay for advertising, as all the cars driving around with their logos prominatly displayed is nothing but advertising. I bought two new trucks and told the dealer to take their logos off the back, they got offended and showed me the buyers agreement showing where I would have to agree to display their logo if I wanted to buy the truck. I got up from the sales mangers office and walked out the door. They asked where I was going, said I don't agree to your terms and was done here. They asked why, I told them that the logo on the back was advertising from their company and if I am going to advertise for them then they would have to pay me to do so, and if they wanted to sell the trucks they could either pay me to advertise or remove their logo and kept walking. The sales guy passed me out the door with a scraper and promptly removed it. Guess he wanted those two sales bad enough.
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Scott Monty, 17 Nov 2008 @ 9:09am

Before you throw Ford under the bus, please see http://www.boingboing.net/2008/01/25/black-mustang-club-c.html for what really happened with Ford and the Black Mustang Club.

The short of it: Ford supports owners' and enthusiasts' efforts to proudly display their own material. And we do our part to make Ford content available as well under a Creative Commons license on Flickr: http://www.flickr.com/photos/fordmotorcompany/

We hope this clears up any confusion as to Ford's position on the matter.

Scott Monty
Global Digital Communications
Ford Motor Company
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Anonymous Coward #42, 17 Nov 2008 @ 9:15am

I find it hard to believe that any half-wit business man running an auto manufacturing company in this economy could be this stupid. They should be bending over backwards to help support this cause, not trying to shut it down. Fan-based content can be very, VERY good publicity. I'm willing to bet that the lawyers are convincing the company that it needs to litigate in order to try and win a big settlement to help supplement their dwindling cash flow. The arrogance is simply astounding.
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RD, 17 Nov 2008 @ 9:55am

Scott from Ford
Scott,

While I applaud your position in encouraging fans of Ford vehicles to share their enthusiasm for your product, you might want to tell your LAWYERS this fact. See, lawyers dont see the value in such things as the rest of us do. They only see opportunities to sue, and cast every instance of even perceived infringement in that light. And in a big corporation, often there is a disconnect between your level of management and the legal team. Until someone reigns in these over-reaching and hyper-aggressive IP lawyers, this kind of thing will continue and cause more harm than good to your brand. Thank you.
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Scott Monty, 17 Nov 2008 @ 10:38am

Re: Scott from Ford
From my understanding (this happened prior to my joining Ford), the issue was around the Ford blue oval being used and the potential for this being perceived as a Ford-sponsored calendar. It had nothing to do with the images of the vehicles.

I hope you can appreciate that as a major global brand, there are plenty of people who would love the opportunity to sue Ford and try to take advantage of our supposedly deep pockets. Our legal team tries to keep the best interest of the company in mind while still allowing regular communications to occur.

We're doing our part to make as much content available as possible, through our social media press release site at http://ford.digitalsnippets.com and involvement on Twitter, to name a couple of things. We're working with our legal staff to ensure that it's done according to company policy, but with an eye toward the norm of communications in the 21st century.
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Ed, 17 Nov 2008 @ 11:33am

Crazy
If an auto maker retains ownership of any and all images of their product, then publishing a car magazine would be pretty much impossible.
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Anonymous Coward, 17 Nov 2008 @ 11:36am

Re: Re: Scott from Ford
That's pretty cool! Thanks for the info, Scott!
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Mr Big Content, 17 Nov 2008 @ 12:48pm

Test of Faith
Think of it as a test of faith: the true fan will stay loyal regardless, whereas the wavering one will give up and go elsewhere.

Ford/Toyota is Yahweh, the fan is Abraham, and the fan photos are Isaac. The fan is being called on to make the supreme sacrifice for the sake of his fandom: will his faith prove to be powerful and firm, or will it turn out to be worthless and hollow?
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bored now, 17 Nov 2008 @ 12:57pm

as someone who mostly disagrees with Mike...
... I find that, in this case, I have to say "Decent analysis. Well done Sir."

That is all.
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Rick, 17 Nov 2008 @ 1:11pm

Re: Re: Scott from Ford
Good job posting here Scott.
It's nice to see a company representative taking steps to bring their employer inline with the 21st century.
I can appreciate the issue with the logo's as well as I understand trademark law forces you to react to use of your logo.
Maybe you could add a few logos under creative commons licensing agreements as well to avoid such legal issues in the future. I didn't notice any 'logo-only' photos or graphics in your Flickr collection that a fan might use in something, such as a fan-made calender - legally.
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Eric, 17 Nov 2008 @ 1:27pm

Wow, see a ford rep posting here. I'm a huge fan of ford, I saved for 4 years to get my mint condition '98 GT Mustang with under 50k. I have plenty of pictures of my car on photobucket as well as Facebook. I don't think i would like my car as much if i couldn't take pictures of it and show it off to everyone that i could...
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Anonymous Coward, 17 Nov 2008 @ 2:09pm

Re: Re: Re: Scott from Ford
I guess that was exactly what his company is against. They dont mind people creating calenders of their cars, but they dont want their logo to be used (which would suggest that the calender was approved/created by ford).
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Skaperen, 17 Nov 2008 @ 2:33pm

Legal risk in non-DMCA takedown
The DMCA provided a safe harbor for providers (such as a web site that posts/hosts user provided content) in exchange for cooperation under a takedown procedure. The provider is protected against liability both from the copyright owner and also from the user if the procedure if followed. If the takedown is inappropriate, the party requesting the takedown assumes the liability.

What Toyota is doing is making a "request" outside the scope of DMCA safe harbor. The provider gains no protection if they choose to take down user content. And Toyota is not liable, either, because they didn't specifically identify any content to take down.

I believe Toyota's action is an attempt to shift liability from themselves to the provider. To me, that supports the idea that there really is no copyright infringement taking place when an owner of a car takes a picture of their own car and posts it online. That may be different in some cases where the photo zooms in on decals and such. Having not seen the pictures, I'd bet there are some very questionable pictures the Toyota lawyers know they cannot defend against a counterclaim by the owner who posted the picture. So they are using this method to get the provider to take all the risks.
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Mike (profile), 17 Nov 2008 @ 3:14pm

Re:
Before you throw Ford under the bus, please see http://www.boingboing.net/2008/01/25/black-mustang-club-c.html for what really happened with Ford and the Black Mustang Club.

Hi Scott, thanks for the info. As noted in our original post on the subject, the Mustang club was hardly the first instance where this had happened. So is there an explanation for the earlier examples? If that was also a case of Cafepress overstepping its bounds, why did Ford not make it clear to Cafepress at the time not to do that?
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IP law student, 17 Nov 2008 @ 5:09pm

Re: Dear Toyota
(Let me start off by saying I don't actually want to be an IP lawyer, I just enjoy learning about IP law.) I know you blame the lawyers, but Toyota is the one who came to them with their grievances...and apparently Toyota didn't choose a very good firm since their lawyers can't tell the difference between a copyright and a trademark......But Toyota is the one trying to overreach their IP rights. The lawyers are just there to take their money.
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nasch, 17 Nov 2008 @ 7:07pm

Re: Re: The Financial Impact
I think it might be better to forward the legal notice to someone like the head of Toyota North America, explaining that this is why Toyota will no longer be receiving free publicity from that source, and then take down all the Toyota photos. Also on every page that used to have a Toyota photo, put a notice of why it's gone, with the law firm's and Toyota's contact information. No legal battle to worry about, and rather than further aiding Toyota with free publicity, they'd be at least attempting to show them how stupid and foot-shooting their legal threats are.
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nasch, 17 Nov 2008 @ 7:18pm

Re: Re: Re: Re: Scott from Ford
What about taking a closeup photo of the Ford logo on your car and using that? Clearly you have the rights to the photo, but would Ford still try to interfere on trademark grounds? Don't know, but Scott might!
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Scott Monty, 17 Nov 2008 @ 9:59pm

Re: Re:
Mike, I'm not sure about the earlier examples. I'm fairly new to Ford, so I can't say for certain what happened there. Reading the previous posts and links, there's really not that much information there for me to be able to make a judgment.

Nor can I say that it was apparent what was going on with respect to CafePress based on just two instances; if anything else happens with them, it'll clearly be a trend and one that we can address with the appropriate party.
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Scott Monty, 17 Nov 2008 @ 10:05pm

Re: Re: Re: Re: Re: Scott from Ford
I can't say for certain, nasch, as I'm not legal counsel for Ford. But from what I've seen, the concern is more along the lines of the logo itself rather than an image of the logo - if you understand the way I'm parsing it.

As an example, if I wanted to show an image of me next to the back of a Ford vehicle, where the blue oval is affixed, that would be okay; but if I wanted to take a JPG or EPS logo of the blue oval and change it to green in honor of Ford's sustainability efforts, I couldn't. I asked once - Legal almost had a fit. :-)

Let me see if I can get clarification from the appropriate staff from our Office of General Counsel and we'll see if they can clarify.
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David (profile), 21 Nov 2008 @ 1:09pm

Toyota Backs Down
http://jalopnik.com/5095779/toyota-backs-down-from-desktop-copyright-request

Yep, you read correctly: Toyota figured out their PR mistake and said

"If people wish to post their own photos of one of their own vehicles, that's their right. In fact, we're pleased that people would want to show their Toyota vehicles to the world. So have at it."
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Don, 9 Dec 2008 @ 5:53am

Having issues with Zazzle and Subaru Photos
I wanted to make some Posters of a Photo collage I made from Photos I took of my own Car:
http://farm4.static.flickr.com/3042/3094559239_729bba6bf6_b.jpg

Zazzle deleted it and told me I was in violation of copyright laws.
I mean come on, I doubt Subaru cares if they get some free advertisement, I'd say they'd be flattered and appreciate the loyalty.
At least I'd hope they would, I e-mailed them and asked this very question, I'm waiting to see what kind of answer I get...
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Don, 9 Dec 2008 @ 5:55am

Oops!
I guess by me posting the URL of the Photo I'm in violation and subject to prosecution.
I hate the society we've become...
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