The Barefoot Photographer®

a photography blog

Sunday, July 20, 2008

Intellectual Property -- Trademark Issue

As a photographer you have a responsibility to educate yourself about intellectual property.  I suppose I need to say – as a respectable, considerate, ethical, etc…photographer you need to know the limits and boundaries in the ever changing arena of intellectual property.  Being a photographer you have it from both sides.  You must learn to protect your property.  You also must learn about the rights of others and be mindful not to infringe on rights or leave yourself open to a disagreement.  I believe when dealing with intellectual property – it is best to err on the side of caution.


Almost two months ago now – I finally received my trademark registration for "The Barefoot Photographer."  I wanted to protect my name and website.  During the process I learned a lot about patience.  Even though I had been using the name for a long time – my application process took almost a year to complete.  I had one bump in the road along the way.  Because of that bump I met a very nice photographer and hopefully she will get her registration soon.  I believe we both handled that bump very professionally.


When the registration came through, I contacted a few people who had been using the name on the internet and perhaps locally.  Everyone I contacted was very nice – very professional and there was no problem.  Just recently I have had another bump – quite a large bump – and I can honestly say I am not dealing with a nice or very professional person.  She did not begin using the term "barefoot photographer" until after my registration came through.  She has a blog with that term in the tagline ("ramblings of a barefoot photographer").  Her blog is about her and her photography business.  I have asked her (more than once) to remove that term from the blog and she will not – at least she said (and I have this in writing from her) that if it was shown to her that she was in error in using it – she would remove barefoot photographer from her blog – she would comply with my request. 


Ok – so I give her my registration number with the US Trademark and Patent Office detailing that I had the rights to that terminology in services and class categories including photography services.  Pretty plain – don't you think?  You can easily verify this information with the USPTO.  No, she did not think that was sufficient.  Her feeling is that there are a lot of names on the internet like mine and some identical.  What she is failing to realize is that the identical names – in the United States – have been contacted and are either in process of deleting things or have changed the names on their webpages.   This also reminds me of the argument my kids have tried on me "but Mom, everyone is doing it!"  The answer now is the same it was then, "no, everyone is not doing it." 


I contacted the hosting company for her blog – nice people.  I had a response within 24 hours that they were requesting she change it.  She changed it alright – to another website!  Well – this story is not complete yet – hopefully in the next few days I will get compliance with my request and that will be that.  At present there are letters in the mail both to the person and to the web hosting company's legal department.  To keep my records and cover myself in the event it does get to the point of calling my attorney – I have printed every email from her and her hosting companies (the blog site and the web hosting site).  I even printed the page from Wordpress that says, "The authors have deleted this blog.  The content is no longer available."


As photographers we must protect our intellectual property.   You have to keep records, print emails, and document what happens in case things have to go to the next level.  If you do not, you risk being able to prove what was discussed.  My favorite part of this case is having in writing from her (in an email) that if it was proven to her she was in error, she would comply.  Well, it was proven and she still did not comply.  If I did not ask and demand this person to cease and desist the use of my trademark – well – my trademark would be useless.  The same thing can happen with the use of your photos.  If you allow your photos to be taken and used without permission or compensation – then how can you expect to do it later?  There are many people who take photos from the internet without permission.  You have to be ready for it and prepared to speak up.  As my granddaddy used to say, "Peter, if you don't look out for #1, no one will."  (I don't know why he called me Peter!)


The next blog will be about respecting the rights of the subjects you photograph.



Sabrina said...

Thank you for this post. I'm starting up my portraiture business and want to "do it right", and the information about the patent, registration,etc. is great. I stumbled across your site when Googling names I like for my business--"barefoot" is now out! But it was great to find you and read this!

Donna said...

Hi Sabrina --

Thanks! It is really easy to take a moment to check about a name before going to any expense -- business cards, website, etc. If you choose something that is already in use and especially if it is trademarked -- you will have to start over at some point.

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