Copyright question using brand product images

[Midnyte Childs]

I don't usually run across this issue because its not something I've really had to deal with before. I am building a grocery store in SL, and I went to my Real life grocery store and took a bunch of photos of products on the shelves to use as images on the shelves to reduce prims of having a bunch of prim items.... anyway, some of these products are name brand products... oreo, Jiffy peanut butter, Orville popcorn just to name a few that are shown in these images. By using these images am I am breaking any copyright infringements? Do I need to go through and change the names of everything? Or is there a work around that would allow me to use these images and not get in trouble for it? Thanks in advance for responses and helping me out in this... 

 

[TheaDee]

Yes, you need to change them if you want to comply with the law and LL regulations regarding intellectual property.  From Linden Lab official policy:  "You should not use copyrighted, trademarked, or celebrity material in Second Life, unless of course you are the intellectual property owner or have permission from the intellectual property owner. Your use of Second Life is subject to applicable copyright, trademark, and right-of-publicity laws."   

 

The entire policy is here:  http://wiki.secondlife.com/wiki/Linden_Lab_Official:Intellectual_Property

[Midnyte Childs]

Wow, I looked up grocery store on Marketplace and you'd be shocked at how many people are breaking that then! So many name brand products popped up... well this is going to be a lot more work than I expected but I'd rather be safe than sorry! Thanks for the info. 

[TheaDee]

Yeah, there are lots of infringements.  They are all banking on the likelihood that the big brands aren't going to come in and file DMCA complaints against them.  I don't think it's ever worth the risk.

Edited July 2, 2019 by TheaDee
changing word usage

[Midnyte Childs]

That is why I asked. I don't usually create items that I even have to worry about something like that. I don't need nor want anyone coming after me! 

[animats]

Sometimes it works out OK.

[Fionalein]

1 hour ago, Midnyte Childs said:

That is why I asked. I don't usually create items that I even have to worry about something like that. I don't need nor want anyone coming after me! 

You can actually ask the companies involved wether they allow it - in model railroading it usually works and sometimes the companies don't even have to pay a licence fee - having your brand on model railroad cars all across the nation is free advertising after all.

[Alyona Su]

8 hours ago, TheaDee said:

Yes, you need to change them if you want to comply with the law and LL regulations regarding intellectual property. 

If the OP is in the United States, then this is incorrect because it is a photograph of multiple properties, it becomes a "derivative work" which is legal under the Fair Use clause of the United States Copyright code. A photograph of a work is Fair Use unless the photograph is done in such a way as to create confusion as to the source of the work (A photograph of a painting frames in such a way as to look exactly like the painting, for example).

@Midnyte Childs IF you are in the U.S. - you are free and clear. If you are not in the U.S. then you should research the laws of your country and local jurisdictions.

[TheaDee]

Do you have a citation for that?  My understanding of derivative works is that the creator of the derivative work has to add something to modify the original form of the work.  I don't think that taking a photograph of multiple items with trade dress would meet that standard unless the photos were post processed. 

That being said, it's really a moot point unless the trademark owners pursue it.  Regardless, in this case, I would go by the LL policy I cited above, as that has more possibility of affecting the OP's use of the items she is creating.

[Bitsy Buccaneer]

How would the communit(ies) you're making this for feel about creative, quirky replacement names? I wouldn't mind shopping half as much if it was fun to read the names

[Alyona Su]

3 hours ago, TheaDee said:

Do you have a citation for that?  My understanding of derivative works is that the creator of the derivative work has to add something to modify the original form of the work.  I don't think that taking a photograph of multiple items with trade dress would meet that standard unless the photos were post processed. 

That being said, it's really a moot point unless the trademark owners pursue it.  Regardless, in this case, I would go by the LL policy I cited above, as that has more possibility of affecting the OP's use of the items she is creating.

My daytime job is all about copyright. I know the U.S. laws on copyright inside and out because of the requirement of my job, though I also said that each person should check laws that apply to them for themselves. I was just answering a question based on the OP description. As for citing my source, here you go: Title 17 of the United States Code (https://www.copyright.gov/title17/). A photograph of a painting is a derivative work because it is now in an entirely new medium, for starters. But that's all a moot point, I defer to my previous comment for proper context of what I said.

[Midnyte Childs]

I do live in the United States. I also called Oreo company to ask them just to find out what they would say. They told me I'd have to write to the company informing them of my intent of use having the brand logo image in my project and get permission from them to use the photo. This is all becoming too much of a headache. I have decided not to use the photos I took and go the long hard route of sitting here spending hours creating my own food brands and labels to throw on a million cans and boxes to fill a grocery store... which also adds to the prim count which is what I was trying to avoid in the first place by using photos. Even with mesh, its still going to be much higher prim than I wanted it to be. But anyway, I thank you all for your replies and links to various areas. I have looked at and read them all (very confusing stuff) and decided this is probably the best route to avoid further headache and confusion. 

[ChinRey]

10 minutes ago, Midnyte Childs said:

I have decided not to use the photos I took and go the long hard route of sitting here spending hours creating my own food brands and labels

What we need, is a bunch of "role play brand names" free for anybody to use. That could be a great community project where everybody are invited to contribute their ideas for names, logos and/or labels. There must be a few out there already (didn't Linda Kellie make a few?), the trick is to find them.

 

15 minutes ago, Midnyte Childs said:

which also adds to the prim count which is what I was trying to avoid in the first place by using photos.

That shouldn't be a problem. Just combine your custom labels into the same kind of textures you were planning to use. One way to do it would be to build your product shelves from mesh and prim on the beta grid and take snaphots of them to use on the main grid.

[Midnyte Childs]

1 minute ago, ChinRey said:

What we need, is a bunch of "role play brand names" free for anybody to use. That could be a great community project where everybody are invited to contribute their ideas for names, logos and/or labels. There must be a few out there already (didn't Linda Kellie make a few?), the trick is to find them.

 

That shouldn't be a problem. Just combine your custom labels into the same kind of textures you were planning to use. One way to do it would be to build your product shelves from mesh and prim on the beta grid and take snaphots of them to use on the main grid.

I have made some cigarette brands that I would share from a previous project. As for taking photos of the things I am creating lol, I am doing just that! 

[Midnyte Childs]

How about some Hangover Puffs, The cereal for adults who partied too hard last night. 

 

[Alyona Su]

I just thought I'd update: @Midnyte Childs showed me the images planned: unquestionably in the clear of any copyright by anyone whatsoever, in fact: Midnyte can claim the official copyright on those images.

People are paranoid about copyrights, I get it. What people are doing is mistaking copyright for trademark, a completely different set of rules. So let us look at the OP question again, but make it the correct question - and I'll paraphrase it"

"I want to make a grocery store object the proper way by using a texture, which will be a photograph of a grocery store display. The image will show many different registered company logos on individual products. Even though copyright is NOT AN ISSUE, the questions is about permission to use a TRADEMARK in the image. Allowed?"

Answer: If you take a picture of the Mona Lisa it is not the Mona Lisa; it is a picture of the Mona Lisa. Copyright defends a *work* — thus, the photographer (creator of the image) owns the copyright of that image. The same is true if you take a picture of a [name your world-known popular brand logo].

TRADEMARK is where things get "hairy" - If you use a trademark on a product: that is illegal. If you create a shoe and slap the Nike "swoosh" logo onto it, then that is illegal. However, taking a picture of a Nike shoe with the swoosh logo on it is totally legal.

All of the above is based on Title 17, *United States* Code. Other countries and jurisdictions may or may not have the same or similar rules, so always do your research if you are in doubt. Though generally speaking, Copyright is to protect the consumer so that they know they are obtaining a product from an authorized source. That's all it is. Trademark is to protect the Trademark owner, so that consumer to not purchase a counterfeit product unknowingly, thereby depriving the trademark owner of revenue. If what you are doing does not break either of these two rules, then you are 90% *SAFE* if it is used IN-WORLD. If you post it on Market Place where anyone in the world can see it, THEN there is where greater care must be taken. In-world, however, any logo or copyright becomes derivative work, generally-speaking, other than when it is not a derivative work, for example: copying the text of a book into a notecard.

Edited July 3, 2019 by Alyona Su

[ChinRey]

17 minutes ago, Alyona Su said:

Answer: If you take a picture of the Mona Lisa it is not the Mona Lisa; it is a picture of the Mona Lisa. Copyright defends a *work* — thus, the photographer (creator of the image) owns the copyright of that image. The same is true if you take a picture of a [name your world-known popular brand logo].

Tell me if I get this right: Take a picture of a shelf full of tin cans and add it to a cube prim - that's ok? But take a picture of the label of a single tin can and add it to a cylinder prim - that's not ok?

 

26 minutes ago, Alyona Su said:

If you take a picture of the Mona Lisa it is not the Mona Lisa; it is a picture of the Mona Lisa.

A bit off topic but this does not necessarily apply to contemporary art. I once had a photo rejected by Alamy because it featured some rather splendid and unusual grafitti.

 

[Alyona Su]

50 minutes ago, ChinRey said:

Tell me if I get this right: Take a picture of a shelf full of tin cans and add it to a cube prim - that's ok? But take a picture of the label of a single tin can and add it to a cylinder prim - that's not ok?

If the cylinder prim is in world: yes, it's okay. Because you, as a consumer, cannot possibly mistake the source of the product (and neither can you actually use it) - it is a derivative work (a digital replica for display purposes).

Posting it on the Market Place get''s sticker, though, generally speaking, copyright is fine, but trademark is where it can get complicated (the product logo.) It would depend on the Trademark owner having an understanding of what Second Life actually is; what that image on that web page represents. If they misunderstand it (which is most often the case - because there is a picture and a price next to it) they can submit a DMNCA takedown - but that take down almost *always* is limited to the web, extremely rare in-world in-world. The majority of in-world takedowns that occur are from other Second Life users: creators whose creations are plagiarized.

The Mona Lisa example was just an an example to help describe the concept.

[animats]

Trademark issues for models and images gets complicated. It's been litigated by model car companies. Opel and Ducati both lost on that in the EU. BMW sued TurboSquid in the US over a 3D model of a BMW, and withdrew the lawsuit before a decision. But TurboSquid took the model offline anyway.

Here's an article from a law school professor on the TurboSquid case: "In thinking about trademark infringement, the core analysis focuses on whether the digital file is a good about which there is confusion as to source, sponsorship, or the like. ... if purchasers are not confused about the source of the digital file based on external indicia, courts should channel any other potential claims (if any) to other areas of intellectual property law." Worth a read.

There's a constant problem with companies claiming far stronger intellectual property rights than they legally have. Few organizations push back. Wikipedia does push back, and several major claimants have backed down.

The Center for Internet and Society at Stanford has a project to help with pushback against unreasonable claims of infringement.

[Alyona Su]

14 hours ago, animats said:

There's a constant problem with companies claiming far stronger intellectual property rights than they legally have.

This is the primary problem and concern with trademark and copyright issues. Just as the fast-food restaurants have trained their customers to accept horrific service (take your money then shoo you away with no waiting area and waiting five to ten minutes to receive what you've paid for) - company and litigants have created a fear of running afoul  among the general population - a fear that should not be there.

Hence, the very reason for the question brought by the OP - it shouldn't't even be a question.

Just always remember this: If you created it - you own the copyright on it. If I take a picture of your creation: you own the copyright of that creation, but I own the copyright of that picture. The question of trademark is precisely as Animats describes in his reference: can the source of the item be confused? That is the sole purpose of trademark.

Edited July 4, 2019 by Alyona Su

[animats]

9 hours ago, Alyona Su said:

If I take a picture of your creation: you own the copyright of that creation, but I own the copyright of that picture.

If it's a picture of a picture, or a 3D scan of a 3D object, no new copyright is created. See Bridgeman vs Corel and Meshwerks vs Toyota. This stopped museums from claiming copyright on pictures of old public domain paintings. Wikipedia relies heavily on this. The National Portrait Gallery in London once threatened Wikipedia over some old portraits, and then backed down. Much grumbling about this in the museum community, and many false claims of copyright, but since Bridgeman in 1999, I don't think anyone has won a copyright case claiming copyright over a picture of a public domain picture.

So decorate your SL walls with framed pictures from the old masters. Anything published before January 1, 1924 is now out of copyright in the US. This date ticks up a year each January 1st. (Lots of other stuff published before 1978 is also out of copyright, because before that date you had to register a copyright. It's possible to check the records, and that's sometimes done for Wikipedia. But that's complicated. Pre-1924 is easy.)

Edited July 4, 2019 by animats

[Marianne Little]

This example: I take a screenshot of an online art gallery site. I crop the screenshot and upload it to SL without selling it, I only use it as a decorative picture on the wall in my SL home.

What is the legal view on this?

[Mollymews]

1 hour ago, Marianne Little said:

This example: I take a screenshot of an online art gallery site. I crop the screenshot and upload it to SL without selling it, I only use it as a decorative picture on the wall in my SL home.

What is the legal view on this?

the legals depend on what the subject of the screenshot is. A screenshot of a copyrighted work is technically a derivative work

[Alyona Su]

17 hours ago, animats said:

If it's a picture of a picture, or a 3D scan of a 3D object, no new copyright is created. See Bridgeman vs Corel and Meshwerks vs Toyota. This stopped museums from claiming copyright on pictures of old public domain paintings. Wikipedia relies heavily on this. The National Portrait Gallery in London once threatened Wikipedia over some old portraits, and then backed down. Much grumbling about this in the museum community, and many false claims of copyright, but since Bridgeman in 1999, I don't think anyone has won a copyright case claiming copyright over a picture of a public domain picture.

So decorate your SL walls with framed pictures from the old masters. Anything published before January 1, 1924 is now out of copyright in the US. This date ticks up a year each January 1st. (Lots of other stuff published before 1978 is also out of copyright, because before that date you had to register a copyright. It's possible to check the records, and that's sometimes done for Wikipedia. But that's complicated. Pre-1924 is easy.)

 

4 hours ago, Marianne Little said:

This example: I take a screenshot of an online art gallery site. I crop the screenshot and upload it to SL without selling it, I only use it as a decorative picture on the wall in my SL home.

What is the legal view on this?

 

3 hours ago, Mollymews said:

the legals depend on what the subject of the screenshot is. A screenshot of a copyrighted work is technically a derivative work

A three-dimensional scan is creating a replica and therefore is not a derivative work. Taking a photo of an artwork and then cropping the artwork to be a replica of the original is not a derivative work. These both will offend copyright because they are replicas. Taking a screen shot that is obviously just a screenshot is a derivative work and does not offend copyright. In all these cases, I refer to Title 17 of United States code, other jurisdictions may be different.

[Orwar]

5 hours ago, Marianne Little said:

This example: I take a screenshot of an online art gallery site. I crop the screenshot and upload it to SL without selling it, I only use it as a decorative picture on the wall in my SL home.

What is the legal view on this?

   I don't think that it's entirely in line with copyright law to do so, but at the same time, the copyright holder would have to file a complaint to start a legal process and can only do so if they are aware of it - for private use within SL I don't expect it would be regarded as a particularly severe infringement unless you start trying to sell the image (which I would guess would be considered much the same as virtual piracy).

   To be on the safe side though, if you make a Google search for photographs or art, it's occasionally stated what license applies to them. For example, an art piece licensed as Creative Commons you may use and distribute freely - but not modify the artwork itself or profit from it. If you want to decorate your home, a good way of keeping your back clear is to simply go to a site where all works are under the CC license - it seems like CC play nicely with virtual worlds, however, I'm not entirely sure; I know a lot of mesh sites (who use different licenses entirely) for example do not allow their meshes to be used in Second Life - they do occasionally have specific licenses that allows them to be used in virtual worlds, but this isn't universal. For example:

• "Using <SiteName> products in Virtual Worlds.
  This use is prohibited if the virtual world-type is an open MMO, like Second Life. However, the use is allowed if the MMO is a closed MMO, like World of Warcraft. More specifically, the 3D model may not be exported or sold."

   Of course, a large portion of the meshes found on the MP come from these sites, and it's a veritable jungle to figure out what's proper and what isn't. Some prefab 'creators' run their business entirely on buying 3D models that are explicitly forbidden for use in Second Life and then re-distributing them as full-perm to make a profit.

   To be honest, copyright has gotten pretty confusing - it used to be that you had to patent your work to be protected, which was a more involved process. I don't think half the people who share pictures and art online have any idea of what rights and licenses they apply to their uploads. How many Second Life Flickerites have even noticed that they have license options on their uploads?