My opening line on this blog post is "I am not a legal
professional". I have spent a very large amount of time studying the
subjects of copyright, IP and TM (trade mark).
This post is, out of necessity very general - as ever
individual images need individual attention.
So here we go then:-
Broadly speaking copyright and trademarks are Intellectual
Property (IP) - For something to be IP it must actually exist. You can not for
example claim that your as yet to be taken image of an eagle carrying off a
salmon as it flies under Tower Bridge
in London as your IP. But when you
do get that shot then it is your IP.
An excellent resource on the subject (for the UK
at least is the government's site
Copyright does not need to be registered to exist. The
moment anyone creates something (this blog entry for example - or your now
world famous eagle under Tower Bridge
shot) it is immediately copyright of the creator. Copyright can loosely be
considered to relate to just that - a copy. So your salmon carrying eagle photo
is a 2D thing - anyone creating a 2D version of it, maybe your original is on
canvas and they copy it and make a paper print would be in breach of your
Take a 3D object - a car for example and make a lifelike
model of it at any scale and that's a copy - hence copyrighted.
However - take same car and photograph it that's now a 2D
version of a 3D object - copyright has not been broken. That's why it is legal
to photograph 'coins of the realm' but not bank notes.
Trade Marks (TM)
A trade mark is anything that pretty much instantly is
associated with a product or business. A good example is the backwards
"R" in Toys R Us" - another would be the petrol station ones -
BP's sunflower, the shell of Shell . . .
Logos are a good example of a trade mark.
Trade Marks do not legally need to be registered - however
if that is an important part of your business then doing so would be extremely
wise. That way in the hopefully unlikely event of anyone wishing to use the
same, or a 'similar' you can prove 'ownership'
Using someone else's trademark prominently in your image is
potentially bad news. This is why sites like P4M decline images where things
like the London Underground symbol are prominent.
Can it be both ?
Yes - easily. Take
the London Underground sign. It exists in printed (2D) and physical (3D) forms.
Printed on a tube station wall it is 2D and your photograph is a copy -
copyright. Take a photo of one of the big 3D signs and that's more likely to be
a Trade Mark issue - your 2D photo is not a 'copy' but it clearly is an image
of LRT's Trade Mark and they could argue that you are using their material for
your financial gain.
What happens if you 'cross the line'?
Some companies seem not to care so long as you don't show
them in a bad way. Some will grant you permission to use either with or without
stipulated conditions. Others do care - enough to at least start to threaten
legal action. The first - and if you have any sense at all - only warning shot
you'll get from their legal team will be a "cease and desist" notice.
All IP offences are in UK
law 'civil' not 'criminal. This means the parties involved must make their case,
present and defend themselves (or appoint lawyers to act on their behalf). As
this is a civil matter there is no legal aid. Get involved in an IP case and if
it gets to court then expect a legal bill running into tens if not hundreds of
thousands of pounds.
Intellectual Property rights kind of cover the whole area -
real creations are intellectual property and backed up by a lot of legislation.
Everything physically created is covered by copyright.
Boot-legging music is copyright theft, making and selling a model of a mobile
phone's design is copyright theft, photographing a movie poster and copying it
Trade marks should be registered for the sake of the owner
but they could still call a case against you if they wanted.