This is illegal. It’s a violation of trademark laws. Why? Because it has the BMW logo right in the middle of it.
The car itself is your design, it looks nothing like any BMW I’ve seen. Therefore, you own the copyright of the picture.
As a picture you made for fun it is not illegal IMHO.
Not to sound too direspectful, but your honest opinion counts for naught in a court of law. If you create something that happens to violate someone elses copyright, trademark or patent and you release it to the public, then the excuse ‘I made it for fun’ holds as much water as your sink without the plughole blocked.
Just to make it clear; I’m not a lawyer or a solicitor.
That’s not how trademark law works (at least none that I’m aware of). There’s no violation of the law, there’s a possible infringement of the rights granted by trademark law to the trademark holder, which may entitle the trademark holder to an injunction or financial compensation.
For reference, see what constitutes such an infringement under US trademark law, also summarized here: “Trademark infringement is the unauthorized use of a trademark or service mark on or in connection with goods and/or services in a manner that is likely to cause confusion, deception, or mistake about the source of the goods and/or services.”
The car itself is your design, it looks nothing like any BMW I’ve seen. Therefore, you own the copyright of the picture.
Under most(?) jurisdictions, you always own the copyright to your work, automatically, even if it infringes on someone else’s trademark, design or patent.
Not to sound too direspectful, but your honest opinion counts for naught in a court of law. If you create something that happens to violate someone elses copyright, trademark or patent and you release it to the public, then the excuse ‘I made it for fun’ holds as much water as your sink without the plughole blocked.
For a legal defense - should it come to a court case - that context certainly does make a difference.
From now on can we have a rule that if you post a question about IP law, you have to say what your jurisdiction is? It varies a lot between US and EU and that’s where a lot of users are located I think.
We should also have a sticky that explains the differences between copyright, trademark, and patent. Nobody seems to appreciate the differences.
You’ve just reaffirmed my point here. Is there a disagreement that I’m missing? It’s what I said; because he created/designed/built the image, the copyright belongs to him.
That’s not how trademark law works (at least none that I’m aware of). There’s no violation of the law, there’s a possible infringement of the rights granted by trademark law to the trademark holder, which may entitle the trademark holder to an injunction or financial compensation.
I was simplifying the process, but you are correct. Trademark’s have to be defended else they risk loosing the rights to that trademark, unlike copyright.
There are a few shades of things said here that are not really accurate. I really really strongly suggest people study this stuff at the source rather than argue about it. You guys are wrong on both sides of several of these points. But I refuse to jump into the arguments. Really. Look this stuff up!
Yeah if any good point has been made in this thread (dubious) Richard’s is it. If you are going to invest real time and money into any project that involves making use of someone else’s creation, do the research yourself and make sure you get the jurisdictions right. If we’re talking REAL money you’d better talk to a lawyer who specializes in the subject.
Telling someone that they’re “wrong”, refusing to show how they’re wrong and then telling them to “look it up” is completely worthless. Look up what, exactly?
If you know something is wrong, point it out, at the very least. Better yet, provide an explanation and some reference. There’s no “argument” here.
You said: “The car itself is your design, it looks nothing like any BMW I’ve seen. Therefore, you own the copyright of the picture.”
The sentence structure leads one to conclude that because it is his design (i.e. not an existing BMW design), he owns the copyright. That’s not a required precondition though, it could show an exact replica of an existing BMW model and he’d still have the copyright to the image (but not the permission to use the brand).
I understand where the confusion lies, and I’m not sure that I agree.
To simplify the matter, I’ll use Micky Mouse as an example. My understanding is, if a person draws Micky Mouse and then starts sharing it, he’s violating copyright laws because he doesn’t own Micky Mouse and he doesn’t have the right to be distributing it. Whether or not he drew the picture and thus holds the copyright to that specific image is irrelevant, it’s still violating copyright law. I would assume the same principle would apply to vehicles.
Try googling a few other keywords and see what you can find.
I think the questions are best answered by going to the source. Simple as that. No point in getting caught up in a discussion. Really can’t resolve anything. Copyright, Trademark Law and other design laws are a constant moving target. New laws, new cases, changes in enforcement etc. Laywers get paid to stay on top of this stuff.
I don’t think it is a bad idea to discuss this. Just not the way you guys are going at it. If you have a point to make. Quote the source and show a link at least. That goes a lot further than trying to hammer these things out. There are all kinds of free sources. I just spend a few minutes with a search engine. There is all kinds of stuff out there.
They may be infringing on someone else’s copyright. For something to be covered by copyright, it needs to copyrightable under the applicable law. US terms are fairly broad and it has in fact been ruled that using the character without permission can be copyright infringement in the infamous Air Pirates case:
“The essence of defendants’ argument is that characters are never copyrightable and therefore cannot in any way constitute a copyrightable component part. That argument flies in the face of a series of cases dating back to 1914 that have held comic strip characters protectable under the old Copyright Act.”
In any case, what really constitutes copyright infringement is ultimately determined by courts on a case-by-case basis. Most likely, you’ll never get to hear the courts decision, because if Disney sends you a politely threatening letter, you probably won’t want to fight.
I would assume the same principle would apply to vehicles.
Not necessarily, though there has been a recent US ruling on the Batmobile design that considered it covered by copyright. Whether the same is true for a more utilitarian vehicle isn’t so clear.
There’s no debate and there’s no rage.
If you have a point to make. Quote the source and show a link at least.
I tend to do that. You said someone, somewhere was wrong. No link, no quote, nothing. I’d be happy to learn where I was wrong, if only I knew what you were talking about.
I don’t think it is a bad idea to discuss this. Just not the way you guys are going at it. If you have a point to make. Quote the source and show a link at least. That goes a lot further than trying to hammer these things out. There are all kinds of free sources. I just spend a few minutes with a search engine. There is all kinds of stuff out there.
I only joined in this thread about three posts ago and you think we’re hammering it out? lol.
My source is the ‘Copyright, Designs and Patents Act of 1988’ which is UK based law. Giving it a quick look and there isn’t anything to do with derivative works in there. That’s fundamentally a USA point.
Looking at this link, this particular point comes to mind:
Legally only the copyright owner has the right to authorise adaptations and reproductions of their work - this includes the making of a derivative work.
The copyright owner is generally the creator of the original work, or it may be someone the creator has given copyright to (i.e. next of kin).
Unless you are the copyright owner of the original work, you will probably need the permission of the copyright owner before making a derivative work.
There are exceptions, which are included in that page.
I think the questions are best answered by going to the source. Simple as that. No point in getting caught up in a discussion. Really can’t resolve anything. Copyright, Trademark Law and other design laws are a constant moving target. New laws, new cases, changes in enforcement etc. Laywers get paid to stay on top of this stuff.
The trouble is, like BeerBaron has demonstrated, the law is determinable, meaning it isn’t necessarily as black and white as going to the source. Not to mention, like others have said, laws vary from country to country.
In the US (at least, probably UK too) this is also largely (mostly?) a trademark issue. If you draw mickey yourself it’s not a copy of anything. But it is infringing disney’s trademark. A derivative work is one that samples or copies some/all of an existing piece of media. Drawings of characters are something of a grey area.
Trademarks are rather about “original” words or word combinations (such as “Mickey Mouse”) and particular logos. In the Air Pirates case, the court actually threw out the trademark violation, but it upheld the copyright violation. Therefore, if you draw Mickey Mouse, a US court may in fact decide that you violated Disney’s copyright - there is a precedent for it.
But it is infringing disney’s trademark
If you read that article, it appears that (unlike the name) the design of Mickey Mouse hasn’t actually been trademarked, at least not in its current form. It’s also questionable whether you can trademark a whole character, as opposed to just particular logos incorporating it.
Nobody actually knows how a court would decide on that matter, so if you want to play it safe, better stay away from graphic depictions of rodents of any kind.
To simplify; quit trying to silence the conversation.
If you draw mickey yourself it’s not a copy of anything.
…? It’s a copy of Micky Mouse, thus it’s a copyright issue.
But it is infringing disney’s trademark.
If you used Micky Mouse in a shop window, named your store ‘Disney’ and used Disney’s typeface, then it would be (could be*) a trademark issue, because people can mistakenly believe that the shop is licensed, endorsed or supported by Disney.