Legal use of electronic devices [Archive]

NeoDreamer

December 22nd, 2010, 06:42 PM

Who has the legal right to decide what is done with a photo of an electronic device? Is it the photographer or is it the manufacturer of the device?

I'm designing a print ad that features an Apple iPhone, Sony Vaio laptop, and an HP desktop computer. If I took those photos or bought someone's stock photos, can I do whatever I want with those images or do I have to adhere to Apple, Sony, and HP's rules. Apple's guidelines (http://developer.apple.com/appstore/AppStoreMarketingGuidelines.pdf), has some very strict requirements, such as not placing the iPhone next to another computing device - a rule I have already broken in my print ad. But I see these rules broken all the time. For example, here's the iPhone placed next to two other phones on Smashing Magazine (http://www.smashingmagazine.com/2010/12/22/the-designer-s-cross-training-toolkit/).

http://media.smashingmagazine.com/cdn_smash/wp-content/uploads/2010/12/cellphones.jpg

engadget also violates a ton of rules from various manufacturers. How do they get around these rules? Is it because they are the photographer of the device?

Stock Photos

Also, a question about stock photos: why are people allowed to sell photos that are blatantly name brand items. Take a look at this so called "generic silver laptop" (http://www.istockphoto.com/stock-photo-3594858-silver-laptop.php), which is obviously an Apple Macbook Pro? If I buy this stock photo and use it to my liking, will Apple sue me or the photographer? iStockPhoto only gaurantees protection up to $10,000. Apple will surely sue for more than that!

glosrfc

December 27th, 2010, 02:40 PM

The legal right to any photograph belongs to the photographer. If you use the photo without permission, then the photographer may sue you. Even with permission, the photographer still retains copyright but you are granted the right to use the photo as you wish. By retaining copyright, the photographer is able to resell the picture or use it themselves in self-promotion, for example they might put a picture they've taken of a product on their own web site. The exception is when the photographer is asked to sign a contract containing a Transfer of Rights. This will usually stipulate that any images, photographs or digitally enhanced, will become the property of the manufacturer. In these cases, the photographer must seek permission to use the photo for self-promotion and can no longer resell the images.

Of course, if a photographer retains the copyright, that means they should also be liable for any restrictions on branding imposed by the manufacturers. In which case, the manufacturer will sue the photographer. If a Transfer of Rights has been signed, then the photographer is in the clear legally, providing that they no longer use the images without express permission. Any issues with branding are the responsibility of the manufacturer when setting out the spec for the job.

A photograph refers to any kind of image. So, if you've photoshopped the devices, then you are technically the photographer and the legal buck rests with you.

There's also no law preventing you from taking a photograph of a product. The general principle is...if you can see it, then you can snap it, providing it, or you, are in a public place. The only exceptions are if you have to use specialist equipment in order to see (or snap) it, such as a telephoto lens, and if photography is banned by law, e.g. at a military base. In a privately-owned place, you can be asked not to take pictures. But bear in mind that you might still have the right to use your camera. For example, the lobby of Apple Inc, 1 Infinite Loop, Cupertino is a public space, even though they privately own the building(s). If you are entitled to enter that space, then you're equally entitled to take pictures of as many Macbooks as you can spot that are sitting in the lobby. And there's nothing Apple can do to prevent you.

So that's the taking of the images sorted out. In the vast majority of cases, you can take a picture of anything or anyone. However there are more restrictions on publishing your images. This is when you get into the sticky areas of fair use, copyright, defamation, privacy, etc. You cannot publish an image which is likely to give away a trade secret. So, if Apple produced a new Macbook which they left lying around their lobby, you can take a photo of it. But you cannot publish that photo or, if you did, you risk a law-suit. Naturally, you can argue that it was Apple's fault for leaving it lying around and I would expect that to be taken into consideration. But, if you were invited to a private demonstration of the new Macbook, and took surreptitious images which you subsequently published, then you can probably expect to have the (legal) book thrown at you. Besides, you would normally have to sign a disclaimer which would expressly forbid you from taking images (assuming the demo is taking place on private property) and from publishing details in written or pictorial form.

Even with the greater restrictions that apply to publishing, there are plenty of caveats. Provided that you haven't signed any kind of disclaimer, you can still publish the image if it's considered newsworthy. The decision of the product manufacturer to pursue a claim will depend on whether the image is deliberately placing the product in a bad light, e.g. if you were to doctor the new Macbook to show flames and smoke pouring from it. Also, if you don't publish any images which are legal trademarks, then you can claim that the image is "generic". A picture of a generic laptop may look uncannily like a Macbook but, unless it has "Apple" , "Macbook", or the apple logo visible in the image, then it would pass most legal scrutiny.

There are even more restrictions on selling images. In these cases, the products might be subject to trademark and copyright laws so it would be wise not to sell images of them at all. In theory that covers pretty much every product you can name. So you can take a picture of a Coke can but legally you wouldn't be able to sell the image. However, you can publish the image which includes placing it on a webpage.

Also note that there is a distinction between copyright and trademark. Copyright law does not include the right of the holder to prevent you from making, distributing, or displaying pictures or photographs of "useful articles" in connection with advertisements or commentaries. The definition of a "useful article" is an object that has an intrinsic utilitarian function that is not merely to portray the appearance of the article or to convey information. Examples are clothing; automobile bodies; furniture; machinery, including household appliances; dinnerware; and lighting fixtures. It would be quite difficult to argue that a Macbook does not have an intrinsic utilitarian function nowadays; indeed, most are probably considered to be a standard household appliance.

So, while Apple (or Coke) can prevent you from publishing or selling images containing their logo's and similar trademarks, they're unlikely to bother you over copyright when it comes to images of their product. And there are plenty of legal precedents that would dissuade them from doing so, not least of which is that, if you take your own pictures, then the copyright of the image belongs to you, not Apple. But bear in mind that the law is different in each country so, while this is an overview as I understand it, things might be slightly different where you reside.