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Q: Pictures on websites ( Answered 5 out of 5 stars,   1 Comment )
Subject: Pictures on websites
Category: Business and Money > eCommerce
Asked by: abouttime-ga
List Price: $30.00
Posted: 26 Oct 2006 11:08 PDT
Expires: 25 Nov 2006 10:08 PST
Question ID: 777163
Many businesses that sell products on websites, take there own photo
of the product they are selling (note.. I said there OWN PHOTO that
they actually took) then put a watermark on the photo
(i.e. there company name) so other people cannot steal this picture
and use it on there own website. My question is if you take a picture
of a product (for example a watch) and then place your watermark on
the photo and have that actual photo / product on the website for sale with
your own company watermark on the product are you breaking any laws?
Laws such as copyright, trademark laws, etc.

Clarification of Question by abouttime-ga on 26 Oct 2006 11:20 PDT
I should also not that many of these website show this disclaimer on
the website as well.. so I do not know if this means something to the
answer but it seems like required information to answer the question
The names, trademarks, designs, logos, service marks, intellectual
property, etc. of the products shown on this site are exclusive
property of their respective owners and are not the property of
company xxxx....
Subject: Re: Pictures on websites
Answered By: hummer-ga on 26 Oct 2006 14:04 PDT
Rated:5 out of 5 stars
Hi abouttime,

"My question is if you take a picture of a product (for example a
watch) and then place your watermark on the photo and have that actual
photo / product on the website for sale with your own company
watermark on the product are you breaking any laws?"

Briefly, no, you won't be breaking any laws, you won't be
manufacturing a copy of the watch, only taking a photo of it. Your
photographs acquire automatic copyright (with you as owner) the moment
they become fixed in some tangible form (e.g., on your hard drive,
floppy, etc). Your concern will be protecting your work from poachers,
that is why some people recommend adding a watermark. The caveate
being, in order to sue someone for stealing your work, they must be
registered with the Copyright Office.

"I should also not that many of these website show this disclaimer on
the website as well.. so I do not know if this means something to the
answer but it seems like required information to answer the question

A copyright notice is no longer required to protect your work, but
it's not a bad idea. It can be as simple as "This page © Copyright
2006, abouttime" or "All photographs © Copyright 2006, abouttime" on
the bottom of each webpage (pressing ALT+0169 will make the © sign) or
you can choose to have a more elaborate statement, with directions on
how to get permission to use your photographs. Another idea is to make
your watermark "© Copyright 2006, abouttime".

"Whenever you publish a photograph, particularly on web sites, it is a
good idea to use a copyright statement, such as '© 1999 John Brown' on
or near the work as a reminder. The year is normally the date of first
publication. This could be in the caption, the 'alt text' on simply on
the web page. A single statement can cover all the images on a whole
site, though its probably best to repeat it at least on each page as a

10 Big Myths about copyright explained:
1) "If it doesn't have a copyright notice, it's not copyrighted."
"This was true in the past, but today almost all major nations follow
the Berne copyright convention. For example, in the USA, almost
everything created privately and originally after April 1, 1989 is
copyrighted and protected whether it has a notice or not. The default
you should assume for other people's works is that they are
copyrighted and may not be copied unless you know otherwise. There are
some old works that lost protection without notice, but frankly you
should not risk it unless you know for sure.
"It is true that a notice strengthens the protection, by warning
people, and by allowing one to get more and different damages, but it
is not necessary. If it looks copyrighted, you should assume it is.
This applies to pictures, too. You may not scan pictures from
magazines and post them to the net, and if you come upon something
unknown, you shouldn't post that either.
The correct form for a notice is:
"Copyright [dates] by [author/owner]"
"You can use C in a circle © instead of "Copyright" but "(C)" has
never been given legal force. The phrase "All Rights Reserved" used to
be required in some nations but is now not legally needed most places.
In some countries it may help preserve some of the "moral rights."

Following are some links which should answer all of your questions.
I've pasted some relevant sections but please click on the links for
full details.

US Copyright Office
"Copyright protection subsists from the time the work is created in
fixed form. The copyright in the work of authorship immediately
becomes the property of the author who created the work. Only the
author or those deriving their rights through the author can
rightfully claim copyright."
What Works Are Protected?"
"Copyright protects ?original works of authorship? that are fixed in a
tangible form of expression. The fixation need not be directly
perceptible so long as it may be communicated with the aid of a
machine or device. Copyrightable works include the following
5. pictorial, graphic, and sculptural works"
Notice of Copyright
"The use of a copyright notice is no longer required under U.S. law,
although it is often beneficial. Because prior law did contain such a
requirement, however, the use of notice is still relevant to the
copyright status of older works."
Works Originally Created on or after January 1, 1978
"A work that was created (fixed in tangible form for the first time)
on or after January 1, 1978, is automatically protected from the
moment of its creation and is ordinarily given a term enduring for the
author?s life plus an additional 70 years after the author?s death..."
"In general, copyright registration is a legal formality intended to
make a public record of the basic facts of a particular copyright.
However, registration is not a condition of copyright protection. Even
though registration is not a requirement for protection, the copyright
law provides several inducements or advantages to encourage copyright
owners to make registration. Among these advantages are the following:
* Registration establishes a public record of the copyright claim.
* Before an infringement suit may be filed in court, registration is
necessary for works of U.S. origin.
* If made before or within 5 years of publication, registration will
establish prima facie evidence in court of the validity of the
copyright and of the facts stated in the certificate.
* If registration is made within 3 months after publication of the
work or prior to an infringement of the work, statutory damages and
attorney's fees will be available to the copyright owner in court
actions. Otherwise, only an award of actual damages and profits is
available to the copyright owner.
* Registration allows the owner of the copyright to record the
registration with the U. S. Customs Service for protection against the
importation of infringing copies. For additional information, go to
the U.S. Customs and Border Protection website at Click on ?Intellectual Property Rights.?
Registration may be made at any time within the life of the copyright.
Unlike the law before 1978, when a work has been registered in
unpublished form, it is not necessary to make another registration
when the work becomes published, although the copyright owner may
register the published edition, if desired."

Copyright Registration for Online Works:

Copyright Procedures A Tutorial

How To Copyright Photos
From Peter Marshall,
Your Guide to Photography.
Copyright establishes your ownership of photographs and the right to
payment for any use of them. Read this easy guide.
Here's How:
"1. You do not have to do anything to establish copyright in a
photograph - all photos (except possibly some copy work) are
automatically copyright.
2. Optionally you can register copyright with some national bodies.
Doing so may make it easier to claim breach of copyright and increase
the amount you can claim in that country.
3. For the USA, go to the Library of Congress web site and download
the forms listed there - they are in Adobe Acrobat format.
4. The fee of $45 can cover any suitable collection of photographs.
Read all the instructions and follow them or your form will be

Understanding Your Rights: Copyright Protection on the Internet

Copyright on the Internet Quiz:

Forum:  Protecting Photos:
I want to protect my online photos.
Which is the best method, Watermark the photo, Disable Right Click and
Save or some other way?
Can someone please explain how to go about doing the above procedures.
I am very new to this!

Forum: Can I copyright/mark my photos before putting them on a website?:

The Internet is public domain, so isn't everything fair game?
"No. The copyright laws that apply to written material, photographs,
and a myriad of other items apply on the Internet too. You cannot just
take and use what ever you feel like."

Copyright Laws and the Internet:
"Works put on the Internet are considered ?published? and therefore
qualify for copyright protection. A work put on the Internet is not
considered public domain simply because it was posted on the Internet
and free for anyone to download and copy. You need permission from the
site owner to publish any materials, including photographs, music, and
artwork from the site."

I was glad to work on this for you, I hope it is clearer for you now.
If you have any questions, please post a clarification request and
wait for me to respond before closing/rating my answer.

Thank you,

Search Strategy:
I searched my own bookmarks.

Request for Answer Clarification by abouttime-ga on 27 Oct 2006 09:03 PDT
Maybe I was not clear enough when asking my question... I am not so
much concerned about people stealing MY PHOTOS in my question to you,
but am looking for this answer;

Can the companies that manufacture the watches come after us with any
rightful legal justification for taking a photo of there actual
watches and then posting them on our website. Please be very careful
when answering this because these watch manufacturing companies
actaully do this and by sending a letter stating we are breaking
copyright / trademark laws by showing there actual products with our
watermarks on them. I can understand there point if the watermarks
were on there photos from there website or catalog but what if it is
my actual photo... This situation drives me crazy becasue I would
think if someone cannot take an actual photo of products then put
there own watermark on the photo then Ebay and Amazon would have to
close 50% of there sales because I see this all the time.

This is what I need to know with 100% correctness...

Clarification of Answer by hummer-ga on 27 Oct 2006 14:04 PDT
Hi abouttime,

Thank you for your clarification, I'm sorry I went off in the wrong
direction with my answer.

A good place to start is with eBay's instructions.

Ebay Guidelines for Creating Legally Compliant Listings
"If you are selling a brand name product, you can mention the brand
name in your listing and include an image that depicts the product you
are selling. However, you should avoid suggesting that you're an
official dealer/reseller, if you're not, and avoid using the
manufacturer's logo, other than as it may appear in context on the
Example: If you're selling an Acme brand television, you can mention
the Acme brand in your description but you shouldn't display a
separate image of the Acme logo or state that you're an Acme dealer if
you're not authorized by Acme to do so.

So, you can sell the object ("first sale doctrine"), and you can
display an image of the object.  What you can't do is manipulate or
change the image in any way (or "cause confusion"). Regarding the
watermark, make sure it does not touch the object's image at all
(e.g., make sure the © sign does not show up on the wristband). In
other words, make it perfectly clear that your watermark refers to the
photo and not the object. Avoid confusion.

Following are a few relevant links.

"Under the first sale doctrine, ?a sale of a lawfully made copy
terminates a copyright holder?s authority to interfere with subsequent
sales or distribution of that particular copy.? Adobe Sys. Inc., 84
F.Supp.2d at 1089 (citations omitted). ?The first sale doctrine is
only triggered by an actual sale.?

I. Other General Issues With Trademark Infringement
  " a. General Rule: First Sale Doctrine ? someone who purchases
trademarked goods and wants to resell them can UNLESS, for some
reason, the consumer would be confused. Under this rule, sales of
trademarked items on Ebay etc? should all be ok.  However, if the
court finds consumer confusion, then the First Sale Doctrine does not
        i. Leads to issue of what constitutes ?consumer confusion?
such that it would not be OK for someone to purchase a TM item and
then resell it.
Davidoff: the court got around the First Sale Doctrine by finding
sufficient possibility of consumer confusion based on the fact that
something had been scratched off the bottom of the bottles."

a. First Sale Doctrine 
"Authorized initial sale exhausts right to maintain control over
resale, and thus exhausts protections of the Lanham Act.  Origin has
not changed, and customers should not be confused.
Material Difference Exception. Unauthorized sale of a materially
different product constitutes infringement.  Material difference is
one that consumers consider relevant to the decision to buy.  Low
threshold.  Theory grounded in customer confusion."

I hope this hits the nail on the head for you -

Request for Answer Clarification by abouttime-ga on 27 Oct 2006 14:42 PDT
Ok.. I am being anal but I reall have to be clear on this.. In your
answer you wrote "Regarding the
watermark, make sure it does not touch the object's image at all
(e.g., make sure the © sign does not show up on the wristband). In
other words, make it perfectly clear that your watermark refers to the
photo and not the object. Avoid confusion."

If the water mark is not on the photo then what good is the watermark?
I am going to make this very straight forward... Is the photo with the
watermark labeled Tag Heuer Link Automatic Chronograph Watch Model
#cjf2114-ba0576 located at url address illegal or
legal? your will notice that it is a real photo that I took and yes
because it is a real photo I placed my watermark on it. It is my
business so it is ok to comment on it.


Clarification of Answer by hummer-ga on 27 Oct 2006 19:38 PDT
Hi abouttime,

Personally, I think you may be viewed as "branding" the watch with
your own brand. In your case, the watermark is not really there to
protect your photo from being stolen but rather you want to prove that
you took a photo of an object that you actually own. If I were you, I
would put "Image © Copyright 2006 About Time®" along one of the blank
edges (running vertical along the left or right edge would be ok). Not
too large, not too obvious, but enough to indicate that you took the
photo. What you have now is an advertisement for your website placed
directly over a brand name product which, I assume, you have no
official dealer/reseller license for.

I'm sorry that it isn't what you want to hear but I really think you
are skating on thin ice here. I suggest phoning several copyright
lawyers to get their advice. It's a nice website, you seem to have
really put alot of thought into it and have tried not to leave a stone
unturned. Moving your watermark to the edge and making it more
copyright specific (versus your website's URL) will fit in with the
website's design nicely.

Best Regards,
abouttime-ga rated this answer:5 out of 5 stars and gave an additional tip of: $10.00
I kept challenging "hummer" and he answered all of my questions. Thank you

Subject: Re: Pictures on websites
From: hummer-ga on 29 Oct 2006 19:29 PST
Dear abouttime,

Thank you so much for your nice note, rating, and tip! I'm glad to
hear that we finally managed to get "on the same page", it did seem to
take me awhile to get to the point. :) I'll have a look at your
website in a week or two to see what you've decided to do.


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