Can you sell photos taken by you of famous products?

Started Nov 17, 2012 | Discussions thread
Doug Pardee
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Re: Can you sell photos taken by you of famous products?
In reply to Joe Villason, Nov 18, 2012

Joe Villason wrote:

I searched the web but I did not find anything conclusive.

That's because there ​is ​no conclusive answer.

If I take a photo of a Ferrari, can I sell the picture without getting a permit from Ferrari?

First off, there is no single answer that will apply everywhere. Different countries have different laws. In France, for example, Droit à l'image laws are relatively restrictive.

In the US, the answer is "unknown." In taking a photograph of someone else's creation or design, you are (possibly) making what's called a "derivative work." The US courts have never definitively decided on whether it is or isn't a derivative work.

If it's not, you're fine. Most photos that incidentally include a creative work probably fall into the "not derivative" category. Still, in the US, anyone can sue anybody (except the government) for anything, and copyright infringement is ultimately decided by Federal Courts, not by forum postings.

If your photo​is ​a derivative work, there's still no answer. Probably the most on-point case is Schrock v. Learning Curve. Learning Curve commissioned photographer Daniel Schrock to make photos of some of their toys for use in advertising for two years. Learning Curve continued to use those photos after the two years. Schrock sued for copyright infringement, and Learning Curve retorted that Schrock had no copyright in the photos because they were of LC's toys.

The Federal District Court (Northern Illinois) held that the photos were derivative works and that Schrock had no copyright in them. The 7th Circuit Court of Appeals reversed that decision, holding that "Schrock's artistic and technical choices combine to create a two-dimensional image that is subtly but nonetheless sufficiently his own."

The 7th Circuit didn't, however, rule on whether or not photos were derivative works in the first place. About the closest they came was to note, "Federal courts have historically applied a generous standard of originality in evaluating photographic works for copyright protection."

I would add that just because you have copyright in a photo doesn't mean that you have the right to use that photo however you see fit. Model releases and property releases still apply for commercial usage, at least. Copyright just means you can keep someone ​else ​from using it.

If you're selling your photos, I strongly recommend that you pay a few dollars to get competent legal advice. The blatherings of random Internet denizens like me are totally useless in court.

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