9/16/09

Ads #20: Whose Picture Is It, Anyway?

As I was posting this picture on Retrospace Zeta, it got me thinking about things. Not about how unintentionally gay this advertisement is, but about whose pictures are these, anyway? I mean the intranets are full of billions of images being passed around. There seems to be some marginal attempt at obtaining permission from original sources, but it's usually just at the big sites like IMDb where they're likely to get sued. A lot of blogs have some pitiful disclaimer (check out the bottom of my sidebar), but it would never hold up in any real legal action. And, honestly, it's just damn near impossible to determine who these images belong to - especially in the case of vintage photos. Let's take a look at the image above, and try to trace it backwards...

1. I'm posting it here on Retrospace
2. I posted on my Tumblr blog Retrospace Zeta, where it was reblogged at least 5 times as of this writing.
3. I swiped it from a site called Vintage 123
4. Vintage 123 took it from a September 1971 issue of McCall’s magazine

So, who does this ad belong to? McCalls? Very doubtful.

The ad would be owned by the company that produced the product and commissioned the ad - Canada Dry. However, it's not as simple as that, and so it doesn't stop there.

It is highly unlikely that Canada Dry copyrighted the advertisement. Any legal action would come from trademark infringement. Fortunately, the risk of monetary liability for re-publishing the Canada Dry trademark is exceedingly low - almost nonexistent. And even if the ad was copyright-protected the risk of legal action is still negligible. And why is that?

The Nominative Use Doctrine saves our blogging butts. It states that if "the user does nothing to suggest sponsorship or endorsement by the trademark holder", we bloggers are squeaky clean!

I apologize if this was a boring post, but I just wanted to know if I was going to get sued any time soon. It's a relief to find that posting these vintage pictures is legit. Whew! However, I should mention that, while Canada Dry may actually be glad to have their brand name reprinted over and over again, the greedy bastards at the record companies are not so cozy with the idea. Sharing music is still kind of a risky practice. Damn you, Metallica!

13 comments:

  1. Not boring, interesting!

    And I tell my kids, when it comes to online music, it is how these artists make their money. Yeah, it is tied up in huge companies and all that, but at a basic level, they are 'artists' trying to sell their 'art' for profit.

    So, some of the sites that let you get the music for free, are wrong.

    My line (which I am sure they are sick of hearing) is: Just because you can, doesn't mean you should.

    Glad to know about The Nominative Use Doctrine, though, since I occasionally post pics on my blog, or re-blog other's. Thanks for some learnin' this morning!

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  2. Also, I think any ad, unless it's really tacky, would be a plus to a company - provided they are still in business. Shows readers they've been around for some time. So why sue over it. Of course for every old ad showing a manly '72 Chevy pickup, there also might be an ad for the Chevy Vagrant, err, Vega.

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  3. An advertisement is to get word out about a product. Music IS the product. You shouldn't steal Canada Dry, and you shouldn't steal music.

    You do have to be careful about photos. For the most part, unless someone is making money from prints, or selling them as stock photos or something, a 30-year-old photo won't be pursued legally.

    I've done some research in this area because I'm wanting to scan old magazines and post the entire thing. It's legal if it's a certain age and if the masthead doesn't have a copyright statement.

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  4. I agree that there's definitely an argument against ripping and sharing songs. However, I will bring up a couple points...

    When I was recording Casey Casem's Top 40 onto a tape cassette back in 1981, was that wrong? Was it wrong when I made copies of it using a dual cassette recorder?

    The difference is that it can be distributed literally around the world to millions of people in the digital age.

    I wonder if it's just inevitable, though. I mean, let's face it - there's really no way to clamp down on the entire planet and prevent all 7 billion of us from putting up Led Zeppelin's box set!

    So, it makes me wonder if the artists and record companies should just accept the inevitable outcome and try Plan B and adapt. I don't know what Plan B is, but I have a feeling Steven Tyler, Lars Ulrich, Justin Timberlake, Jay-Z, et al will still be living comfortably in their Bel Aire estates regardless.

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  5. I'm not a lawyer but I'll through in my two cents anyway. The copyright of the add probably belongs to the ad agency since it produced the ad. Assuming the agency is still in existence, they still own the copyright. If they've gone out of business someone may have acquired the rights through, say a bankruptcy proceeding.

    The doctrine of fair use is probably more appropriate here for the copyright. The copyright doesn't strictly prohibit the use of the image but puts some restrictions on it. I think, under fair use, you're ok publishing the image on a blog like this unless you claim you own the image or try to sell it.

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  6. I am very glad you posted about this. It's something I think about a lot - but I figure that after 30 years, it's probably going to be all right to scan it or copy it. Fair use, etc.

    I hope so, anyway. I try to link to the person/site I got the ad or whatever from but honestly I see the same scan in a lot of other places sometimes.

    The Creative Commons toolbar is moderately helpful, BTW. Assuages my guilt a little, in any case.

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  7. Read the Wikipedia article on copy right. It's pretty clear. It explains the Fair Use doctrine as well.

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  8. This has nothing to do with anything, which is how my thought process usually rolls, but at first glance I thought 'fro boy in the picture was Napoleon Dynamite. True story. Ok, as you were.

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  9. Actually, the truth is, that I own the ad.

    Yep, me, alone, and in totality.

    I own the ad and am the ONLY one who should get a portion of the revenue generated by it.

    All you people who visit this site own me money for viewing and thus using my ad. That I alone own.

    So, everyone here put two dollars in an envelope and send it to me.
    The owner of the ad.

    Now, on the "legalizing Marijuana" entry . . .

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  10. Why is everything sweet "gay" now? It was 1971. Peace and love dude! A young person making peace with a cop. That's sweet! Sharing a soda is gay? If they were sharing a beer, would that be any less gay?

    The times were different.

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  11. God,I pray Jon Sloss never comes across this picture I'd hate to see what he'd come up with.

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  12. Doll, your post was far from from boring. In fact, anything that you write, think, say, do, or post could ever be considered so. Look at the creativity and detailed work that you display here. I am impressed!

    This is the first time I've seen your blog. It looks and tastes like love too and I think I am going to share it!

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