Is Getty Guilty Of Trademark Infringement For Every Photo It Has That Shows A Trademark?

from the 80-million-and-counting dept

And here we have yet another case of trademark law gone wrong. We've mentioned in the past that the company CAR-FRESHNER is so insanely over aggressive with its trademarks concerning its annoying pine tree-shaped car air fresheners that it takes out magazine ads warning photographers not to photograph the iconic air fresheners without permission. This struck us as trademark abuse. Contrary to the claims of the company, a trademark does not grant you all uses of a mark. It was initially designed as a consumer protection law, to help avoid consumer confusion. Unfortunately, aggressive trademark lawyers and the courts seem to keep expanding how trademark is interpreted, and CAR-FRESHNER may be leading the way towards a massive expansion of how trademarks can be asserted.

It appears that the company sued Getty Images for infringing on its trademarks on those tree shaped air fresheners because a few of the stock images available via Getty Images includes the tree. Getty Images responded that this isn't a violation of trademark law and is clearly fair use, so the claims should be dismissed. Unfortunately, at this stage, the court has refused to do that, and argues that CAR-FRESHNER actually has made a reasonable enough argument that there may be consumer confusion.

Really?!? I'm curious what moron-in-a-hurry is going to look at these images and think, "gee, the idiotically misspelled company CAR-FRESHNER must have sponsored this photograph that some person took in their car." I just don't see it. Furthermore, trademark (unlike copyright) has a clear requirement that the mark be "used in commerce." While Getty is certainly selling these images, it's ridiculous to think that it's using the trademark in commerce. It's just selling photos -- millions of them -- that photographers have taken. In this case, the "commerce" associated with AIR-FRESHNER happened when someone bought the little tree. Photographing it doesn't represent a new use in commerce. Except in this court, unfortunately.

And if you think this is just a minor issue, you're not paying attention. As trademark lawyer, Marty Schwimmer, points out in the link above, this could make Getty liable for every image in its collection that incidentally shows any trademarked item:

Given that Getty has 80 million images, it may have some agita that its fair use defense did not defeat a 12(b)(6) motion, given that perhaps some others of its 80 million photos that may depict recognizable trademarks as well.

While there may be some poetic justice, given reports that Getty is, itself, a rather insanely aggressive protector of copyrights, known to send out letters demanding huge payments for finding incidental parts of its images on websites, we should never celebrate the expanding of bad laws like this.

Filed Under: photos, stock photos, trademark
Companies: car-freshner, getty

If Amateur Photographers Are As Good As Professionals, Then We Can All Be Professional Photographers

from the 1000-words dept

Only a few decades ago, photography was dominated by film cameras, where each and every photograph you took cost money and time to develop. To accumulate 10,000 hours of shooting experience under one's belt was prohibitively expensive, so only those truly dedicated to the craft were able to excel. The divide between the quality of amateur and professional was fairly distinct. Fast forward to today, and we now have a world where photographers can take thousands of pictures without ever incurring any additional cost, making quality photography more accessible than ever before. Also, with digital photography, feedback about a photo is instantaneous, which only serves to accelerate the learning curve. And with the proliferation of photo-sharing sites like Flickr, photographers can share, critique and comment on their photographs and technique, which makes everyone involved a better photographer.

These advances have greatly disrupted a previously solid industry. Last year, after producing it for 74 years, Kodak retired Kodachrome film. Likewise, microstock photography sites like iStockPhoto have undermined the stock photography business model so much so as to incur comparisons of its business to pollution and drug dealing. The microstock business has been buoyed by a the increase in supply of new photographers -- and as with any market where the supply is increased, price is driven downwards. Stock photography that used to cost thousands of dollars a year for a single photo now can cost as little as $1 for a royalty-free license. Furthermore, with the decline of newspapers and magazines, fewer photographers are being sent out on assignment. As a result, professional photographers are starting to feel the squeeze on all sides, and many are now struggling to make a living. Some professional photographers criticize amateurs for agreeing to the low prices. Photographer Matt Eich claims:

"People that don't have to make a living from photography and do it as a hobby don't feel the need to charge a reasonable rate,"

Unfortunately, "making a living" is not a reason to charge a certain price for any good or service. The price is set at what the market will bear, so in this case, the flood of supply and shrinking demand exerts downward pressure on the market. Hobbyists have nothing to do with it.

Advances in technology create new opportunities. The printing press probably made many scribes unhappy with their job security, but it also made the printed word more accessible to everyone and also created a new class of craftsmen who were needed to operate the printing presses. Likewise, with billions of photographs uploaded to the internet each day, looking at and sharing photographs has now become a daily endeavor for many people, as compared to a once-in-awhile event when people dragged out their photo albums. Microstock has made stock photography accessible to many more people who were previously priced out of the market. According to Getty CEO Jonathan Klein:

In 2005, Getty Images licensed 1.4 million preshot commercial photos. Last year, it licensed 22 million -- and "all of the growth was through our user-generated business"

As for the photographers, there's still a viable business for those that can adapt their businesses to reflect the changing landscape. Sure, the magazine industry may be flagging, but magazine production costs are also falling with services like MagCloud, and enterprising photographers are taking matters into their own hands and producing their own. Furthermore, new publications like Burn and JPG have emerged to take advantage of this new crop of seasoned photographers. Some photographers have even embraced the entrepreneurial spirit with their own ventures. Photojournalist Lauren Victoria Burke started WDCPIX, a photographic wire service for sites that can't afford a traditional wire service. For only $260 a month clients have access to a wide range of photojournalistic sources, much cheaper than AP or Getty. But, what's interesting is that subscribers of WDCPIX are actually paying for Burke's work that has not yet created, one of the "10 Good Reasons To Buy" that we've discussed here many times before. So, apparently, even for photographers, the mantra of CwF+RtB applies as well.

Filed Under: amateur, microstock, photography, profressional
Companies: getty, istockphoto, wdcpix