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I recall a bizare example from way back. In 2001: A space odessy, they had to pay Pan-am and I think Pepsi to use the logos in the movie, as they wanted real-world ties. 20 years laters, and Pepsi would be paying THEM to have their logo used.
If they HAVE to protect it like you say, then how come Sega allows fans to create and distribute fan made Sonic games? There is no legal document from Sega saying this is ok. The only confirmation is by Sega's TWITTER page, lol. Is Sega suddenly in danger of losing rights to the world famous character Sonic??? This isn't like using a brand name soda in a movie, this is actually creating and building entire new Sonic games. If there is a text book case for infringement, this is it.
https://www.destructoid.com/sega-gives-sonic-fans-the-okay-to-make-games-386389.phtml
You're assuming the companies would see it in a positive way. They may e.g. think your render is amateurish (not saying it is, but that they may see it that way) or targetting a demographic they want to avoid (e.g. if they are targetting adults and you are targetting children). Or they may just want to control their brand/trademark as much as possible.
Bottom line is do what you can afford. Can you afford a lawyer if you are sued, recieve a DMCA takedown notice, etc? What's the impact if you are forced to take it down? Factor in that your acocunt could be suspended temporarily, etc.
As a side note, most of us see too many ads already. Unless you are trying to point that out, I thik it detracts from your work. I was pretty disgusted when I saw that example render because of advertisement fatigue. I think you should seriosuly consider whether it is adding to or detracting from the scene.
It's not a trademark violation if the trademark holder gives permission. Some companies give tacit approval for non-commerical fanart or even actual outright approval and others want as much control over their brand as possible. It's far from a textbook example. A text example would be company B in the same marketplace as company A trying to use the same name as A or a logo very similar to A's in the hopes that people looking for A's products mistakenly buy B's (i.e. confusion in the marketplace). In the case of Sonic/Sega, they are giving tacit approval for non-commercial fanart that's being distributed as fanart, so there's nothing to protect. It's just a business decision.
Again, not legal advice, but it comes down to your intended use. If your depiction is so-called "fine art" -- you intend to make a statement about commercialism in train stations or whatever, and your art is exhibited rather than sold -- then it's likely to be ignored (though there's no guarantee of that). But if your art is used in a commercial venture, even if you give it away (a free graphic comic), then you're probably asking for trouble, especially since there are so many marks that are depicted, and you raise the possibility of any one of them objecting.
As a commercial use, unless these companies have contracted with you, you're not adversiting anything. You're passing off on their good name and publicity for your own benefit. That's the definition of infringement.
If it were a photograph of, I'm assuming a train station, then it probably would be fine...but since it's a render no, it won't be.
And if that sounds crazy...it is. Because, in the photo, those ads/billboards would be 'incidental', but since it's a render, you had to deliberately place them.
See Richard's earlier reply about incidental use.
I guess i can see that. But unless its something unethical, i.e. advertising to alcohol to children, i dont get why or how an ad could be viewed negatively.
Understood...
The idea actually came from an actual subway I recently visited. I just looked around and there were advertisements everywhere. I think most would appreciate the scene as being realistic, which was what i was aiming for. But I understand and appreciate your opinion.
- MJ
Simple Formula: If you can't afford an Attorney's fees to defend you if you are sued, then don't use it.
Kendall
Welcome to the world of capitalism. Product placement is a business model. In fact it is becoming a major form of advertisement revenue. For all the reasons stated in previous posts. Brands will vigorously defend when, where, and how their trademarks are shown to the public. Even when it seems petty or foolish, they MUST attack each "violation" or set a precedent in law. The precedent being that the brand registration is null since no defense was mounted against its use. Second, while your image (as presented) is innocuous, it evidently a WIP. If your final image showed a scene of absolute carnage, the brands shown may feel that their product is not shown in the best light. As an example:
"In an episode of HEROES, a popular science fiction television series broadcast on NBC between 2006 and 2010 that chronicles the lives of ordinary people with superhuman abilities, a character sticks her hand in the garburator of a sink and pulls it out mangled and bloodied. Much to the chagrin of Emerson Electric Co., the owner of the InSinkErator brand, the InSinkErator mark is clearly visible in the scene, leaving viewers with the impression that the product is dangerous and can cause serious injury and disfigurement if improperly used. Emerson sued NBC in the US District Court in the Eastern District of Missouri claiming trade-mark infringement, unfair competition and dilution/tarnishment of the InSinkErator mark. The case was ultimately settled."
One might have (and apparently did) ignore the fact that it was a specific brand of disposal that mangled the character's hand. But the company didn't agree.
The last argument comes from a legal clause "denial of service". Did you know that if you toss your trash into a construction site dumpster, you are committing a "denial of service" offense. The same can be said of your art piece. There was no negotiation, no contract, no agreement. Entire teams of employees went unpaid. Therefore, there IS liability on the part of the brand. For example, many years ago I was doodling around with pen and paper when a friend said "hey, I need a logo for my company group." So I designed a simple logo for free and he used it for about two years. Suddenly, he was confronted by the corporate legal eagles and ultimately I had to a) sign a contract, b) declare my self a business, c) accept a payment (not the hardest task) then sign over the rights to the logo to the company. and declare the payment as income on my taxes. All for an afternoon's doodling. Brands will not accept any liability for the outcome of your work. Therefore it's easier to shut you down than work around you.
I do understand your frustration, the image looks cool and real. However, you are not the creator of the logos, images, or brand. That is akin to me using your avatar (which I assume you rendered) as my next wanted poster. Just a simple example, but an accurate analogy.
Thanks everyone for sharing their opinions. Definitely sounds like a bad idea... even though it looks cool. So, as an alternative, is anyone aware of any products being offered of pre-made, but legally usable ad posters? After searching I found Davorama's Facade Pack #2: http://www.daz3d.com/facades-pack-2, but this looks more suitable for Sci-Fi renders than modern ones.
Any suggestions?
-MJ
Also, out of curiosity, does anyone know how Daz feels about Daz3D company ads being included in commercial renders?
-MJ
An example that comes to mind is Tiffany & Co which owns a very specific color blue; they do not allow its use in boxes or bags or any depiction of a luxury good that isn't theirs and designed by them (https://en.wikipedia.org/wiki/Tiffany_Blue); the belief is that it cheapens the brand to hav the color used out of context. The goal of the company is to sell jewelry and luxury goods and situations like Andy Warhol and Campbell soup are the rare exceptions. If you imagined a situation where someone took your photo in a public place like a subway train, made an ad campaign out of it, and said you should be grateful for the unbidden attention, you get a feeling about how companies handle their public image.
IMHO, since this is a commercial render/commission I'd be doubly cautious about ANY third party involvement. Take the Davorama set. Once purchased, you own the rights to publish in part, or whole, any renders you create. But, you would need to either buy the rights, or obtain a waiver from the artist before creating a "for-profit" piece with artwork from another source.. Again, as an example, If I take a picture of a nice couple walking down the street then incorporate that image into a commercial product I am liable to be sued by the couple. The EULA for DAZ products shields you from most issues (since you paid the fee for the product). I would advise against a Google image search or such. Places like Shutterstock have royalty-free images, but you still pay Shutterstock. Even if you find an amateur here in the forum to do some for you. Get a waiver or pay a fee. You may find that the most cost effective way is to buy a DAZ product (thinking http://www.daz3d.com/widdershins-grocery-pack ;) and do your own ads. Widdershins was quite careful about the product names and you've paid for the usage.
We don't know the exact terms of the settlement, but a few news outlets suggested the display of the brand might have been suspicious. At that time GE owned NBC, and GE makes their own line of garbage disposals.
I'm more inclined to think it was unintentional, the result of producers who should have known better, but didn't. OTOH, all scripted programming on all networks is reviewed by company lawyers prior to airing, so it's curious how it got past all the control mechanisms they typically have in place. In all, things like this point up the need to be careful when using any brand name or recognizable product.
I was using it as a generic term for drywall compound. I didn't feel like getting into a peeing match with them, so I just removed it completely.
It might be a problem. If you make them off brands that look similar to name brands, you might get the same effect (and a little humor too) without having to worry about any kind of infringement.
I didn't say it was legal, or uninfringing. Only that it wouldn't be a Trademark violation. There are other laws to worry about in the example I used. Patent Law (as you mention) is a whole different kettle of fish.
The example was specfically about Trademarks. I fully agree there are other legal considerations in that particular example. Sometimes to demonstrate one particular point, you have to use something that marks only that distinction. In Absentia of other legal concerns, the example is correct.
(edit: It should be noted that MUCH of the design of both the Z3 and Z4 were actually stolen from prior vehicles (notably Alfa Romeo and the MCA MG series) and are clearly a major influence on the 'famous' design.....It wouldn't take a brilliant attorney to demonstrate where each section had been 'borrowed' from, and show that their particular arrangements did not constitute a patently unique design or brand-recognizable design.)
That's absolutely silly as they are many shirted and clothing ducks in use by many businesses and Disney is absolutely powerless to do anything about it. Donald's sailor shirt is not even identifiably the same as 2 or 3 well known sailor clothing designs. I could easily dress a duck in traditional sailor clothing of France or alter the US design and Disney can whine all they like but they couldn't do anything about it
That's the reality of using a creature like a duck and anthropomorphising the duck.
Silly or not, that's where the 'real' money is made, and for the most part it isn't actually enriching the companies, but rather their lawyers. And all it takes is the judge in a particular case to look at the image and go with the first thing that pops into his head...and if that happens to be a Disney character, then you are up the creek, without a paddle.
That doesnt make any sense. If i purchase the product, I am allowed to utilize the product in portions or in whole however i choose... commercial or not.
But yes, im definitely done with images from Google searches.
-MJ
It's an assumption to try and put an opinion into the mind of an independent judge and one that neither of us can do so my point stands - it is perfectly legal to create a new character that has much likeness to existing characters and not break any laws. It's done persistantly and constantly and legally. One behaves as if a lawyer for the firm with more money gets them the win, well that doesn't get them the win, the law gets you the win and in the law, Disney and such companies are powerless to persecute people for creating similar characters to theirs.
+1
Anybody remember the movie "Sneakers"? While they were filming, their IT guy contacted the small electronics company I worked for, (Motron Electronics, specializing in Ham Radio stuff at the time.) We had a circuit card that decoded DTMF tones and they wanted to use it in the movie. We sent them one for free. Long before "our" scene ended up on the cutting room floor, we asked about getting listed in the credits, and we were told people/companies who were in the credits had spent tens of thousands of dollars to get there. Even if our product had made it into the film, we wouldn't have gotten credit. But we were told we could say it was used in the filming of the movie.
Some years back, a few kids from the UofO did a video called "I Love My Ducks" (https://www.youtube.com/watch?v=f_P1PPy7FTo) using the official mascot (costume) of the Oregon Ducks. The mascot was originally Donald Duck, licensed from Disney. But the students didn't get prior consent for using the Duck in the video and Disney made them pull it. Sometime after that, Disney and the UO came to an agreement, Disney deciding the UO mascot was no longer Donald, and released UO from any future issues regarding their mascot. The video went back up on Youtube, and the following year, they students did a sequel.
The bottom line is, if you stand to profit off of someone else's intellectual property, you are putting yourself at risk if you do not get their permission first. (That includes winning a contest!) Even in non-commercial images, if your image disparages a specific brand, you should probably expect repercussions. A request to cease and desist could be the least of it.
Totally not worth the risk, in my opinion.
Think i found a solution...
http://www.daz3d.com/citysigns
Won't give me the same effect as commonly known products, but i dont have to worry about being sued behind using it either.
-MJ
No, that's the way it should work...in practice, though, it's closer to what I said. (know too many lawyers and judges...family connections and such, not the other way
)
It really doesn't matter who is right in these forums, the end result is that both the plaintiff and defendant are both going to be out a large sum of money just in court costs and attorney fees. Any rulings for compensatory and/or punative awards would be further injury. How a judge rules will be dependent on the laws of the jurisdiction the ruling is made in. In the US, it is really a case of "if the judge or panel feels there is enough likeness to confuse an average consumer upon a casual glance." Sadly, most consumers are not well acquainted with many "alternative" figures, so a panel of such would likely call any white duck wearing a blue shirt "Donald" in the normal testing phase, just as they would likely call any mouse wearing pants as "Mickey". I have *seen* this in action folks, this is not speculation. I have been called as an expert witness in US courts on numerous occasions.
The long and short of this is that you really *don't* want to be on the receiving end of a summons of this nature. It rarely goes well for the little guy.
Kendall
...yeah, their licencing is pretty strict. You have to read the all the conditions before you order.
For example I was saving up for a model of a Yamaha EX Concert Hall Grand Piano until I read the "fine print" which stated the only "open" use allowed was for journalistic media purposes (meaning I had to be a writer employed by a news agency to use it in any image I created). The only other option would be having to contact Yamaha Pianos directly to obtain (and most likely pay royalties for) the right to use the model in my story. Sadly it is the most totally accurate model of such an instrument I have seen, and I've spent a tonne of time researching 3D piano models to find one that looks right..
Unfortunately, that is one of those things that's going to be nearly impossible to come up with one that DOESN'T look very close to some company's IP...there's only so much you can 'change' the basic design of a piano and have it still be a piano. As long as there are no logos, it should pass...but even then, why take the chance?
...yeah even more distinctive is the Bosendorfer Model 290 Imperial. (which is a fairly common site on European concert hall stages) that has a full eight octave keyboard down to 32' C giving it a 97 key compass instead of the traditional 88. If I could even model one without the brand name (or some fictitious one), I'd still probably get in trouble because it is so "unique" in appearance.
Didn't the Lego ruling basically come down on the side of "If it's part of the function, it can only be patented" - and then for a limited time (Lego tried to stop other companies making interlocking-bricks like theirs on the grounds that they had a copyright / trademark in the design). So if they haven't patented a larger-range keyboard (which would be difficult), then you should be OK (or just make it 96 keys and bet nobody will notice ;) )
Patents are no good across industries. Making a 3D model would not constitute Patent Infringement since no physical piano is being created. There could be a design copyright though that could come into play. (pun intended)
Kendall