Trademark What is my right to my own art?

[Az Oak]

Jurisdiction

Other

I have a question about fair use when it comes to art, I have made a picture of a racecar at night. The picture is of a BMW, the only thing that identifies the car is the grill and that I named the picture "BMW racing at Le Mans", what are my rights to sell that picture online. I made the image from scratch. The thing is that BMW in Bayerische Motoren Werke Aktiengesellschaft (BMW AG) and BMW Australia Ltd is saying that I am infringing on there intellectual property.

Here is the picture.

And the site is Redbubble.

 

[Zigner]

Let's say that you have every right to use it. When you are sued, how much do you think you can afford to pay your attorney to defend you compared to how much BMW can afford to pay to pursue the matter?

Get it?

 

[Az Oak]

Well that was not question, the question was do I have the right to my own art?

 

[PayrollHRGuy]

Their name and logo are trademarked. You are using it in both the title & the art.

Take it out of both places and you might be OK. But as Zigner alludes to how much are you willing to spend to prove you have the right to do it?

 

[adjusterjack]

BMW in Bayerische Motoren Werke Aktiengesellschaft (BMW AG) and BMW Australia Ltd is saying that I am infringing on there intellectual property.

Is saying?

Meaning you have already been notified by the company that you are infringing.

Common sense would dictate that you remove it from public view so it never again sees the light of day, so you avoid getting sued.

Guess who is BMW in this picture and who is you.

 

[Tax Counsel]

I have a question about fair use when it comes to art, I have made a picture of a racecar at night. The picture is of a BMW, the only thing that identifies the car is the grill and that I named the picture "BMW racing at Le Mans", what are my rights to sell that picture online. I made the image from scratch. The thing is that BMW in Bayerische Motoren Werke Aktiengesellschaft (BMW AG) and BMW Australia Ltd is saying that I am infringing on there intellectual property. And the site is Redbubble.

It's going to depend on which nation's laws apply and exactly what use you are making of the work. You post suggests you are not in the United States so the law may differ for you than in the U.S. In the U.S. your original artwork in the picture is protected by a copyright held by you as the creator. So BMW could not use it. The problem is in trademark law. If there are any elements in the picture that identify it as unique to a particular company, including trademark names, logos, or iconic design that the company uses in marketing their products they'd have trademark rights that would severely restrict what you could do with it without their consent. Titling the art as a BMW car along with the distinctive look of the car, etc would likely be enough for the company to assert a viable trademark claim. There is a doctrine of fair use for copyright and trademarks (and the fair use rights are not exactly the same between them) but even assuming what you are doing here would constitute fair use, if BMW decides to sue for infringement anyway, you might be in for an expensive legal battle over it to see who is right. Or you can contact the legal department of BMW and see if you can get a limited license to display your art for a fee you are willing and able to pay.

But again, that's how it works in the U.S. It may be different wherever you are displaying/using the work.

 

[army judge]

Well that was not question, the question was do I have the right to my own art?

I suggest you discuss your concerns with one of Sweden's skilled trademark and/or copyright attorneys.

Or, as many would say in Swedish:

Jag föreslår att du diskuterar dina funderingar med en av Sveriges skickliga varumärkes- och/eller upphovsrättsadvokater.

 

[zddoodah]

In what U.S. state do you live?