Copyright and Trademarks are two legal concepts that are often confused. Let’s define how they practically affect the production of abbywinters.com shoots.
Note that this information is general in nature, and is not to be considered legal advice.
Copyright
Copyright is a bunch of rights belonging to a person who creates “works of expression”. For example;
A photographer takes a photograph. They are considered the “author” of the work), and they own the copyright to that photograph.
To be paid for that work of expression, the photographer may sell exclusive rights to that image (as a press photographer might) but they still retain the copyright of the image. Or, the photographer may choose to assign copyright to another party for money (as happens when a Shoot Producer sells a shoot to abbywinters.com BV). The photographer may also choose several other things to do with their copyright.
Copyright matters are seldom an issue in our company, as we have established, clearly-worded and legally binding agreements with Shoot Producers.
Trademarks
Trademarks are intellectual property protection (as opposed to protection of other types of property, like real estate). Companies work hard to develop their brand and distinguish themselves from competitors. Businesses register Trademarks in various jurisdictions, to prevent other businesses from making money with their own brand. A brand can be a combination of shapes, logos, words, “novelty”, signatures, packaging, sounds and scents (and more).
For example;
The shape of the Coca-Cola bottle is a trademark (their logo is trademarked separately).
Coca-Cola believe that if other drinks-makers used the exact same bottle shape that Coke does, people might make the mistake that the product was actually Coke and buy it – taking money away from Coca-Cola company. Trademark government agencies in pretty much every country in the world agrees with that assertion.
It’s up to Coca-Cola company to sue companies who use their trademark (and if Coca-Cola doesn’t, they risk losing their trademark!). Because the trademark was previously registered, Coca-Cola is likely to win such a lawsuit (this is very simplified!).
Incidentally, we have trademarked the abbywinters.com name and logo!
So, what if a model wears a Nike-branded in abbywinters.com shoot? What if she’s measuring herself, and uses a Stanley tape measure? What if she’s sending a text message on her Apple iPhone? Will Nike and Stanley and Apple see that we’re trying to make money from their brand?
So long as we’re not using the media we make to sell a competing service (Fitness wear; hand tools; smart phones) we probably fall into the “fair use doctrine”. That means, it’s reasonable for us to show a model wearing a Nike T-shirt / using a tape measure / messaging on an iPhone, so long as we do it respectfully.
It’s likely that trademark holders will not be happy with the context their brand is appearing, but the chance of a successful suit (and of them proving their brand has been damaged) is low enough to not be “worth the hassle”.
However, we can go too far, and attract unwanted attention to ourselves. For example;
“Mounds” are a well-known chocolate treat in the US. Having a model place some of these on her breasts or pubic mound could be a fun thing to do in a shoot (or backstage image).
It would be fun, it would likely make customers smile… but the people who own the “Mounds” brand are likely to dislike their product being used in that context, and may complain (or worse).
Aim to reduce the risk – practical tips for showing trademarks;
- Tend to select clothes that do not show brand names printed on the front of the clothes
- Do not have the model talk about the item’s brand (mention it’s a smart phone, and that she’s messaging, but not that it’s an iPhone)
- Never “review” real products in an AW video, unless they are sex toys or similar “adult” themed products
- Never “exploit” a brand for our purposes (see the “Mounds” story, above)
- Tend not to mention brands, unless the name is essential to the story
- Tend not to show brands unnecessarily (for example, a banner for “Makita” tools is on the wall behind the sofa where the model will spend a third of the shoot – take the banner down for the shoot!)
- Be aware that all sports teams, book, movie and TV series visual media is trademarked
However, there is no need to take this to extremes. Don’t;
- Put gaffer tape over trademarks that appear in a shoot (a common practise in some genres)
- Never, ever show any brands
- Remove furniture, because it’s made by a well-known company.
Fun fact from the AW history books
We were once almost sued for a trademark issue: The model was going to a formal “beauty school” (where people learn the beauty salon trade – making people look pretty). She brought her “school uniform” to the shoot, and the Shoot Producer asked the model to wear it, describe what she did at the school, and what she hoped to do when she graduated.
Turns out, the owner of the school was a customer of abbywinters.com and got their lawyers to send a nasty letter – they claimed we were bringing their business into disrepute. We took the shoot down and paid a large fee to them (instead of going to court to argue the matter, which would have been much more expensive and likely we would have lost).
Since then, we have de-emphasised branded uniforms in shoots, favouring instead “generic” (but still real) uniforms like “hi-viz worker”, “gardener”, or “cook”.