Question about selling photos of Trademarked Products

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My wife has always been interested in taking photos of vintage vintage bicycles. She has expressed interest in trying to locate all types of vintage bikes and maybe creating a coffee book or scrap book of sorts and selling it. But what if they are vintage Schwinn bicycles or any other brand for that matter and you show the name on the photos? Is this something that I should probably get legal advice about or simply something not allowed?

Thanks in advance

[Jeff Lane]

It sounds like you are primarily concerned with images that include the trademark "Schwinn" (or other bicycle manufacturers' trademarks) or perhaps some visual aspect of the device that could be distinctive as trade dress. One helpful way to think about this question is to think about what a specific law is designed to protect against. Trademarks and "trade dress" laws are designed to protect commerce by preventing a likelihood of confusion that would cause someone in the market for a bicycle (or coffee table book) to assume something false about (1) the origin of goods or services, or (2) some association (like, for example, an endorsement) with the goods or services. Trademark law does not protect against appropriation of the image itself, provided that the use you make of that image does not cause any likelihood of confusion in the marketplace for bicycles. In other words, unless your wife does something silly like claim, "I got to take these pictures because Schwinn loves me so much that they've made me the exclusive photographer of their vintage stuff," she'll probably not run afoul of any trademark lawyer's ire.

There are manufacturers of certain classes of goods that claim their stuff is really more art than function, and therefore entitled to the same level of copyright protection that you'd normally give a sculpture, for example. (For what it's worth, the socks you're wearing are someone's design entitled to some level of copyright protection, but as a practical matter that level of protection is pretty measly.) Those claims are rare, and I truly doubt you're anywhere near crossing that line with the folks at Schwinn. Copyright is completely different from trademark law in what it is intended to protect, however: whereas trademark law protects consumers in the market from confusion as to origin or association, copyright protects creators by letting them limit (and charge licensing fees for) the ways other people get to use their works. While a good lawyer (yes, "good lawyer" is an oxymoron) could wax on for days about whether a 70-year old Schwinn qualifies as a "sculpture" and thus entitled to the same level of protection as Rodin's "Thinker", Schwinn would still be pretty hard pressed to say that your wife's creative use of an old rusty bicycle as the subject in an artful photo is not a "fair use" of that article ("fair use" being a term defined by long paragraphs in statutes and even longer books full of case law), provided (once again) that you don't imply some kind of association that isn't there. (One way around even the slight possibility of an implied association is to make sure you use photos of other brands of bikes in the photos).

Of course, there are lots of other issues that could come up that would change this analysis (and no good lawyer-post is complete without a disclaimer), but on the whole, without knowing something more or seeing the finished coffee table book, I'd say it doesn't look like you're heading into too much trouble.

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Jeff, thanks so much for your response...this helps so much. I had to read this several times just to make sure I really understood it and well...I have to read it again. lol thanks sir.