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Use of car manufacturer names and/or photos
Author
Hello, I originally posted this question in the beginners forum but I was also advised to post it here as it may be more related to the topic.
I am making a car game (have been in development for about a year now) and I''ve got a concern with the use of car names and photos etc.
Firstly, I understand that I cannot use a manufacturer''s name as it is trademarked, and so are their logos. I will not be able to gather permissions from all the manufacturers that I wish to include (a large selection of cars) - and I doubt that they would even grant permissions, I know many big car games have had this problem and a "no-one" like myself would stand no chance.
My plan is to use fake names as those are not trademarked. My main question is whether I can use photos of cars if I remove any logos that may be visible in the front or rear etc, and then call the car something completely different. I.e. "Ferrari F355" = "Foggo S5". Would it be illegal to use these photos, even if I am the one that took the picture, or had authorisation from the photographer??
The suggestion has been made to use drawn pictures which I may have to revert to if this turns out to be illegal, but I really wish that is not necessary.
Thanks.
Take the GTA3 approach. Make the cars recognizable but different and name them what you want. We all can tell that you''re driving a Corvette or a Mustang or a Jag in GTA3 even though the car looks a bit different and is named differently.
As long as there is enough variation, there shouldn''t be an issue. Afterall its hard for GM to come to you and say, "Hey I trademarked a big piece of metal with 4 wheels, 4 - 5 doors and a steeringwheel, you can''t include anything like that in your game!"
Kressilac
ps I''m not an IP lawyer, but using photos of cars in-game might be too close to the actual thing. You need some degree of difference in your car versus the actual car your copying from.
As long as there is enough variation, there shouldn''t be an issue. Afterall its hard for GM to come to you and say, "Hey I trademarked a big piece of metal with 4 wheels, 4 - 5 doors and a steeringwheel, you can''t include anything like that in your game!"
Kressilac
ps I''m not an IP lawyer, but using photos of cars in-game might be too close to the actual thing. You need some degree of difference in your car versus the actual car your copying from.
GM is currently suing another care manufacturer for making a vehicle that is very similar to the H2 Hummer.
This is a tricky area because the design of the car is copyright itself. It boils down to the use you are making of the images and the way you use them.
If you make money from the product they might claim that you are making money from their designs. Also if you used the images in any way to promote your game or the game even refered to as "that Jag racing game" in reviews you could find yourself on the end of a passing off suit.
Dan Marchant
Obscure Productions
If you make money from the product they might claim that you are making money from their designs. Also if you used the images in any way to promote your game or the game even refered to as "that Jag racing game" in reviews you could find yourself on the end of a passing off suit.
Dan Marchant
Obscure Productions
Author
Damn, it''s never easy is it =)
As if not making the game alone was tricky enough. Okay, I think I know what to do now juding by everyones comments (here and other forums).
Many thanks,
RzSwede
As if not making the game alone was tricky enough. Okay, I think I know what to do now juding by everyones comments (here and other forums).
Many thanks,
RzSwede
A car''s design cannot be copyrighted, although it might be subject to trademark protection. Such "look and feel" or "trade dress" lawsuits are unfortunately becoming very popular. I find such lawsuits to be extremely unfair, but they do come up, so you need to be careful.
I have never understood why you can''t use the car name and description in a game. Look at books...authors write books and talk about cars all the time, often in great detail. You can even write a book that is nothing but your opinion about the Ford Focus, and Ford can''t do a damn thing about it.
So why can''t a game use real names and data?
Now, I know you can''t illegally link your game to their trademarked names, for example "Ford Cars Racing Excitement", or "Ford Focus Speed", because there is a genuine risk that the consumer might reasonably think this is a game made by Ford. Therefore, the game is infringing on Ford''s name and reputation, and that is specifically a no-no.
But if you had a game, say "Stock Car Racing", which featured cars by Ford, Chevy, and Yugo, along with a nicely sized disclaimer that said "Ford Focus is a trademark of the Ford Motor company. All other trademarks are the property of their respective owners", what exactly could they do about it?
So why can''t a game use real names and data?
Now, I know you can''t illegally link your game to their trademarked names, for example "Ford Cars Racing Excitement", or "Ford Focus Speed", because there is a genuine risk that the consumer might reasonably think this is a game made by Ford. Therefore, the game is infringing on Ford''s name and reputation, and that is specifically a no-no.
But if you had a game, say "Stock Car Racing", which featured cars by Ford, Chevy, and Yugo, along with a nicely sized disclaimer that said "Ford Focus is a trademark of the Ford Motor company. All other trademarks are the property of their respective owners", what exactly could they do about it?
Hmm...after writing the above, I found this article. Some interesting points for authors. But does this also apply to games? That''s the problem that probably will make some lawyers rich.
http://www.publaw.com/fairusetrade.html
http://www.publaw.com/fairusetrade.html
Lawyers aren't all that bad, but when you prescribe to that view you are actually sponsoring the ones who abuse the legal system. See, Lawyers do not, and can not, initiate lawsuits - persons or entities (like companies)do - lawyers just file them. One unfortunate practice is for large market incumbents to manipulate uncertainties in the law to suppress certain behaviors in competitors. In my opinion, its a barrier-to-entry in the marketplace. So large companies like Ford or the NFL or Wells Fargo can send out letters threatening litigation if a party does not cease and desist a certain activity. Even though the smaller party may be in the right, the costs of the litigation are the real threat and often force them to desist rather than to resist.
The only thing that makes a large business change its behavior is a loss of money, so for them money equals accountability. If they can convince the little guy (consumer, small competitors, etc.) that lawyers are evil and to avoid them, they win. See, they will always have and be able to afford lawyers. ;-)
In the article you listed it presents the situation where an author (seeking a copyright) desires to use a trademark. You are a game designer - an author - who would seek a copyright for your work. So in my professional legal opinion the analysis provided in the article is exactly the type of evaluation you would need to make in writing your game. The level of risk is up to you.
I would follow Kressilac's advice if I were you. It's always been sound in the past.
[edited by - Adam Hill on February 26, 2003 10:07:36 AM]
The only thing that makes a large business change its behavior is a loss of money, so for them money equals accountability. If they can convince the little guy (consumer, small competitors, etc.) that lawyers are evil and to avoid them, they win. See, they will always have and be able to afford lawyers. ;-)
In the article you listed it presents the situation where an author (seeking a copyright) desires to use a trademark. You are a game designer - an author - who would seek a copyright for your work. So in my professional legal opinion the analysis provided in the article is exactly the type of evaluation you would need to make in writing your game. The level of risk is up to you.
I would follow Kressilac's advice if I were you. It's always been sound in the past.
[edited by - Adam Hill on February 26, 2003 10:07:36 AM]
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