To respond to this October 2005 Editorial, send comments to: Editorial@modelrailroadnews.com
Who owns that photo?
As I’ve watched the spread of discussion surrounding the UP licensing debacle, one thing has become very clear: there is real confusion over who owns that photograph. Ownership conveys not only the title but the publication rights. So whoever owns the photo may sell the photo and its publication rights, publish the photo, or do anything else desired with it.

And the photographer owns the photo. Let’s make that clear from the very start. That is the law and it has withstood the high-powered lawyers hired by famous faces. Virtually every celebrity and famous personality has emerged from a cab, a nightclub, a hotel, or a supermarket and faced the flash of a camera. Precisely what have these people been able to do about that? Nothing. Not a single thing. If you lift a frame out of a DVD, you are violating copyright laws; we all know that. If you copy a logo and publish T-shirts, you are infringing upon a trademark. That much is clear. But if you print a photo you have taken of a locomotive bearing someone’s trademark, you own the photo and their trademark just goes along for the ride.

Judges have as much as suggested that celebs not show their faces in public. The famous folk surround themselves with bodyguards to fend off the paparazzi, but mostly to no avail. They resort to disguises, with mixed success. Fame has its price. If a railroad doesn’t want to have its face shown in public, it shouldn’t put that face out in public. So let’s split the legal hair and be done with it: UP owns its shield as a trademarked logo, but once that logo is captured as part of a photograph, they have no control or recourse over the use or content of the photo. Their attempts to collect notwithstanding, they don’t have a leg to stand on. Even if the court in Omaha should prove to be unjurisprudently kind to UP, almost certainly the Appellate Court will follow the Mount Everest of precedent that should have prevailed in the first place. That’s called stare dicisis or “precedent rules.” Of course I’m not a lawyer, but this all seems pretty clear to me.

Now let’s settle another issue while we’re on the subject. If you should happen to be trespassing while taking your photograph, you may face criminal actions or proceedings as a result of that malfeasance. Whether you have a camera or not, the customary procedure would be to direct you to leave railroad property at once. Someone might yell at you in the process. They might even have you arrested, and you could undergo some form of legal detention, which would include the right to have an attorney of your choice present during questioning and the right to call that attorney immediately. However, nothing in the issue of trespass entitles the complainant to destroy your camera, images you have taken, or to even see what you have captured with the camera. In theory at least, you should also be able to use that camera to photograph the arresting officers as they go about their sworn duties. Mind you, I wouldn’t do that myself, but that ought to be perfectly legal.

This Nils Huxtable photo shows an example of weathering that could be applied to models — for those of you who can stand to treat the American flag that way. Hmmm... how did the shield get so clean?
The business of national and local security is another matter entirely. In the midst of the grand paranoia regarding who might be a terrorist taking photos for use by bombers, we need to remember that the London police really wanted all of the photos they could get, taken by ordinary citizens. It seems that the more of us are taking photos, the more likelihood exists that one of us will capture the bad guys at work. In the case of national security, the more photos, the better. Now if we can get all of the security people to understand that, we’ll be that much better served.

So, not only do you own that photo, you can also make your own calendars with that photo and sell it, making a profit, and you don’t have to have Union Pacific’s permission nor do you need to share a single penny with them. I believe Union Pacific has been very lucky so far that none of its schemes have been proven unworkable by a court. They’ve been even luckier that there have been no UP calendars filled with photos of train wrecks and filthy locomotives. If they continue in their confrontational ways, their luck just may run out.
— John Sipple
To respond to this month's Editorial, send comments to: Editorial@modelrailroadnews.com