Recently my legal team has been working overtime battling a case against us made by a company manufacturing glasses. I can't mention their name here until the case opens to the public. The problem is that quite a few of the models that we have shot over the years have used their own glasses on shoots, which then turn out to of this particular brand and are "design trademarked". (There are no trademarks or logos on these glasses, just a shape of that particular design series from that year for that brand). These models have paid prices in the range of 800 USD for just one pair of glasses so they are quite expensive.
The problem is, that if this case goes into court and I lose, it will have a huge effect on the rest of the industry and we estimate that about 100000 images (at least) needs to be removed from all the online stock libraries, because as you know stock agencies don't want content online where their customers risk a lawsuit if using the images. Istock has done several of these "mass take downs" in the last few years. So if you shoot people like I do, and you have 10000 images in your portfolio, you should expect to have to remove 50-200 images.
Another effect we might expect, is that other brands of glasses will follow suit or that the agencies themselves will request you to remove all images with XXX brands, at which point we are looking at having to remove about 30-50% of all images on all stock sites with glasses. For me personally about 1500-3500 images. Potentially the biggest take down in stock history.
However. Is this fair?
1. Glasses are by the very nature something you wear on your face in all circumstances and thus are almost imposible not to take pictures off. Brands making glasses are aware of this and make them for this very purpose. Cars, computers and other everyday items are similarly recognisable, but are part of every day life. We can remove the logo, but can't remove the car.
2. Is it fair that a photographer that removes all trademarks, now have to risk being sued because of "design"in something as generic as glasses?
3. Is it fair that a photographer has to research into patent registrations prior to a stock shoot or a portrait series of a client? And in fact remove the model's/clients own glasses if they are of a particular brand? Even when this client has paid top dollar for them?
I think this case is ridiculous as you can probably hear, but it could become quite a big problem for us and all other photographers especially portrait photographers or other commercial photographers doing client work.
Any advice that we can use in our case preparations are very welcome. Good arguments, links to similar cases, reflections, law experience. Whatever you think is relevant is very welcome. If this case becomes a reality (which it looks like it will, because they are now already expanding their demands to more images) we want to take it to supreme court. Our lawyers are however not positive about our chances.
Best Yuri Arcurs
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