Union Pacific Writes Back

Dear readers, what follows is an actual e-mail exchange, reprinted here in the best interests of informative news.

Dear Editor,

You recently posted on “www.modelrailroadnews.com” an editorial relating Union Pacific Railroad Company’s licensing program to photographs. Union Pacific has never disputed individual’s rights to photograph railroad equipment or their ability to claim a copyright to their photographs. The Company does not object to private or media use of railroad photographs. The licensing program is only concerned with individuals who attempt to make commercial profits from the Union Pacific’s trademarks or the goodwill associated with the marks.

Union Pacific recognizes that many rail fans enjoy photographing railroad equipment. Nobody has been required to obtain a license to take, use, or even sell a railroad photograph. So long as photographers do not trespass to obtain their photographs, Union Pacific does not object to the activities of photographers. However, if an individual or business engages in commercial use of Union Pacific’s name or trademarks, they must first obtain Union Pacific’s permission by entering into a formal licensing agreement.

The licensing program is primarily focused on merchandise branded with Union Pacific’s name, heralds, and historical marks. It is unfortunate that our licensing program has been misrepresented, particularly as it applies to the use of photographs.

Sincerely,

Brenda Mainwaring
Director, Corporate Relations
Union Pacific Railroad
1400 Douglas Street, Stop 1550
Omaha, NE 68179
(402) 544-4749

Dear Ms. Mainwaring,

Thank you for writing. While I agree with everything you say, I also take it farther than you do.

First, as a photographer with over forty years of experience, I was trained and still believe that not only can I have whatever I capture with my lens, I may also make commercial use of the image that results unless I voluntarily enter into a contract with the subject for special cooperation. I realize that there is some debate in the legal community over this issue, but there is none whatsoever in photographic circles. Thus, if I capture your logo in my photograph and choose to create a commercial work with that image, your logo gets to go along for the ride, at no charge to you. Under the Lanham Act and other copyright laws, this doesn’t appear to constitute an infringement of your use of your logo for your business purposes. Your logo isn’t what is selling my photograph; it just happens to contribute some of the pixels and nothing more.

Second, I don’t happen to feel that the use of the words Union or Pacific, in that order, necessarily constitutes a grab of your rights to do business under the name. If, in fact, those two words are used to indicate the category or subject matter, then that is perfectly legal. For example, for a calendar to be sold with that name to indicate the category of subject matter should constitute no threat whatever to the railroad of the same name. I think it all boils down to your point of view. If you have in mind to provoke a legal shootout at noon on the streets of Omaha, that’s what you’ll get. If you have in mind to advance the best interests of the railroad, I’m sure you can find that many people are producing very nice works that portray your brand in a very respectful manner that enhances your marketability. If you portray the railroad as not being able to withstand less than two thousand copies of a calendar showing photos of UP trains in history, then Union Pacific must indeed be very frail. On the other hand, you could purchase all of the copies and sell them for a nice profit while treating your railfans to a really nice calendar of a sort UP wasn’t going to produce, anyway. Best of all, you don’t have to preside over the ongoing train wreck of legal misery.

I want to thank you for reconsidering the threshold being set for small producers and manufacturers. They are all very appreciative, and I can assure you that the more of that you do, the more you will enhance corporate relations for a great railroad.

John Sipple, Editor
Model Railroad News

Mr. Sipple,

Setting aside our philosophical differences on the issue, I hope that you will share my response with your readers in the same forum as your original editorial.

Thank you,

Brenda Mainwaring
Director, Corporate Relations
Union Pacific Railroad
1400 Douglas Street, Stop 1550
Omaha, NE 68179

So, gentle readers, Ms. Mainwaring does not dispute the facts as I have set them out, just the philosophy underlying our given positions. We have granted her request and are publishing her letter extant. Now, let us hear from a retired California judge on the more legal aspects, not just of calendars but also on small models of big trains. This letter has been sent to several model railroad magazines, including ours, and is also published extant.

Order in the Court

JOHN E. BUFFINGTON, Retired Judge

SUPERIOR COURT OF THE STATE OF CALIFORNIA

4705 Fawnwood Cove, Austin, Texas 78735-6614 Telephone: 512-899-0343
E-mail: jbuff63@yahoo.com

March 1, 2006

Mr. James R. Young
President and Chief Executive Officer Union Pacific Corporation
1400 Douglas Street
Omaha, NE 68179

Re: UNION PACIFIC BRAND IDENTITY, Model Railroad Licensing Program

Dear Mr. Young:

I have recently read the editorial written by Mr. Robert L. Hundman, the Editor/Publisher of Mainline Modeler. That editorial indicated that Union Pacific has filed suit against Mr. Nils Huxtable a photographer who has photographed various railroad scenes for many years. His editorial caused me to read some of the online comments about Union Pacific’s lawsuit and trademark policy. [I cite the Model Railroad News of August 2005 and the Steamscenes Legal Defense Fund web site as examples.] Your company’s web site states the following:

“In order to protect the company’s trademarks from unauthorized use and potential harm, Union Pacific requires a licensing agreement for any use of a current or historic trademark of Union Pacific or its constituent railroads. Anyone wishing to use these logos must file a licensee application and obtain a licensing contract from Union Pacific. Applicants are reviewed carefully to ensure they will positively represent Union Pacific brand values. These restrictions do not apply to in-home model railroad hobbyists who create Union Pacific-branded equipment for personal use.”

As I understand the suit, its bases are premised on the ideas that Union Pacific’s trade name, or trade mark, may be lessened, or diminished in the public eye, if Mr. Huxtable sells his pictures without obtaining a license from Union Pacific for the use of the name or mark in commercial endeavors. I doubt that Mr. Huxtable sells more than 10,000 of the calendars involving Union Pacific and Southern Pacific engines annually. These sales are probably made to rail fans and model railroaders. It is difficult for me to understand how that sort of commerce harms your company. Brenda Mainwaring, your company’s director of corporate relations, says Union Pacific will take measures to protect its trademark, logo and its name:

Mainwaring said, “The company has authorized more than 100 companies to use its trademark for various products, including calendars, but Huxtable made use of the company name without its permission. It’s important for any company to protect their trademarks.”

“A great deal of the value of a company is in its name and reputation. Therefore, it has to protect the way its name and reputation is portrayed.” [Emphasis added by the writer of this letter.]

(The preceding quotes are from a report by Glenn Bohn published by the Vancouver Sun on Tuesday, Feb. 14, 2006.)

I must confess that I agree “... that a great deal of the value of a company is in its name and reputation.” It is for that reason that I write this letter because it seems to me that the conduct of Union Pacific, in regard to the licensing of trademarks and names of Union Pacific and its predecessors, is the sort of conduct that devalues a company’s name and damages the company’s reputation. For many, many years the model railroad industry, and allied hobbyists such as rail fans and others, used the trademarks and names of Union Pacific, Southern Pacific, Chicago and Northwestern, Katy, Missouri Pacific, and other names and trademarks now owned by Union Pacific, without any obligation to pay for such use. Suddenly, in the most recent past, Union Pacific has decided to license the use of these items.

The conduct of your company in obtaining these licenses can best be described as browbeating and demeaning to both the company licensed and your company. Small companies, such as some of the sole proprietorships or partnerships in the modeling industry, are rightly concerned when they are threatened with legal action by a company the size of Union Pacific. Yet that is what Union Pacific did; obtain a license or face a lawsuit was the choice given by the lawyers of your company. According to Ms. Mainwaring, some 100 companies have been forced to accede to a license which requires that they submit their projects to Union Pacific for approval and then pay a percentage of their sales to you. I cannot imagine that the income to Union Pacific is worth the public relations deficit caused by your company’s high-handed and bullying tactics used to obtain the licenses.

In addition, your company’s conduct has, or will, increase the cost of products purchased by modelers and others. That fact will certainly not endear Union Pacific to those who must pay more. Your conduct will, no doubt, cause some manufacturers to simply go out of business and that is a shameful loss to the business community of this country. It looks a lot like the giant of railroads has decided to flex its muscle for some reason that is really not fathomable by the general public or by me.

Any person who knows a thing about modeling will tell you that a good modeler can create a model of a Union Pacific [or fallen flag road] engine, or piece of rolling stock, and then paint and decal that model so as to make it a realistic model of the original. So your licenses simply will not control use of the trade name or trade marks within the modeler’s realm. The licenses will create a harmful bar to the small businessman who may be in this sort of business. The licenses will be a restraint that will cause some companies to abandon the manufacture of such items. Ultimately, the enforcement of the licenses will tend to harm small businesses, diminish the supply of parts and models available for purchase and deny some less skilled modelers the ability to create the models that they would otherwise create. I submit that those results will also cause the public to view Union Pacific as a huge, money-grubbing corporation that has little concern for members of the public.

Union Pacific may have some reason to license its name and trademark to protect them from diminution, but how can Union Pacific believe that there is any damage to it by members of the public freely using the names and trademarks of the fallen flags now owned by Union Pacific? Can you truly say that Union Pacific will use any of these fallen flag logos or trade names in any future railroad endeavors? If not I would posit that these fallen flag names and logos are, and probably were years ago, legally abandoned. If Union Pacific is trying to motivate members of the public, who normally support and laud Union Pacific for many of its programs, to become so angry as to unite in opposition to Union Pacific’s policy in this matter, then you may well succeed. I would think that you, your attorneys and your public affairs department ought to consider whether the licensing policy being applied to model railroaders and other train related hobbyists, is really worth the negative feelings that you are so obviously generating in the model railroading and allied media.

There are people in the public who simply do not understand what commercial value Union Pacific believes it will generate by enforcement of these license agreements. Can you give me a cogent explanation of how Union Pacific will be protected from “potential harm” caused by the use of a fallen flag name or trademark? Can you do the same for Union Pacific? If you cannot do that, without consulting some Philadelphia lawyer, I believe you have answered my questions.

Thank you.
Sincerely,
John E. Buffington

Dear John, thank you for sharing with us what might have been deemed to be a private letter to Mr. Young. I sincerely hope your letter has an effect toward a more peaceful and amicable hobby atmosphere. — Ed.

While We’re on the Topic…

This is in response to Mr. Dallmeyer’s letter in the Feb. 2006 issue asking how many Union Pacific trains pass through Allentown, Pa. As an engineer I get to see 20 to 25 UP and BNSF units a week as pooled power. As to cleanliness, they range from fresh to filthy. I realize the tasks performed by the units results in them getting dirty. Since railroads have cut shop forces to a minimum, washing engines is not a priority, but it should be. I thought it was a great gesture that UP chose to put the United States flag on the sides of their engines. However, when the unit is allowed to be covered in dirt and grime, this to me shows much disrespect to our flag. Once while I was waiting at a signal, we took the time to wipe off the flags. Clean units not only result in making a statement of pride, but are healthy to the crews. Ever wonder why the executive trains are always cleaned?

As to sending out harassing letters, can you imagine getting paid to compose and send out nasty-grams? Where do I get a job like that or do I need a college education?

Two more comments if I may. Pound for pound, MRN is the best value on the market. Keep up the great job. To the manufacturers of built-up structures and ready to run cars, THANKS! In our hectic lifestyles of today it is gratifying to open the box, place it on the layout, and get instant enjoyment. This allows time to do other projects on our layouts and build the many great kits available.

Jonathan Reck
Allentown, PA

Thanks for the kind words, Jon. As to the job writing nasty-grams, see the address posted above. Every generation has to discover the hard way the value of good public relations. In a friendly and cooperative atmosphere, dirty locomotives might be dismissed as saving of precious water. In the middle of all this controversy, they are viewed in a different light. Setting all that aside, I’m sure the hobby makers who read your last comments will feel just a bit better about their efforts. — Ed.

More About Car Graffiti

Thank you for running the “Call to Action” in the latest MRN! (Feb. 2006 letters.) This brings some long overdue attention to this blight.

As far as the paint origins, I have checked out some anti-graffiti web sites and learned that a large amount of the spray paint used in committing this crime is stolen. One method is for a group to grab up paint at say a Home Depot and then leave it in the outdoor garden section for later pickup. This can be done by just walking out with it at night when these areas are low on staff or just stealing it after hours. Also, another common thing about these “taggers” is that they really like to get in an “altered” state when committing these acts. These sites are worth a peek.

Once again, thank you so much for printing my letter and the Call to Action! Here’s a link to one of the anti-graffiti web sites:

The Nograf Network Inc.
A Non Profit 501 (C3) Corporation
www.nograffiti.com
(530) 340-1270

Jim Norton
Huntsville, AL

As the New York Subway discovered, Jim, the first job for the operators of the subway system was to really care. — Ed.

TAMR’s Amtrak Question

Being well into my 40s, I usually do not read the TAMR column in Model Railroad News. However, this month’s (February 2006) headline caught my eye, and so I read it. The fate of Passenger rail in the US and Amtrak is something I care very much about. Here are my two cents:

I believe, but do not have the facts to back it up, that we spend too much money on roads and cars and such and not enough on rails. I think as a society, we need to make sure that mid- to long-distance rail travel is in all ways competitive with air, car, and bus travel. I would even take the stand that from an environmental point, rail travel should be preferred. To do this we need to make sure that high-speed rail service is available between most major cities. There may be a distance where air service makes sense, then we need combined air/rail service.

Amtrak is the long distance passenger rail service we have now and I do not want to lose it. What I really do not want to lose is long distance passenger rail service. So, I think we need to look at replacing Amtrak with a new organization that is chartered with bringing a nationwide high-speed rail service on tracks dedicated to passenger service. For environmental, growth, and competitive reasons, this should be no less of an imperative than the moon landing and interstate highway system were.

Michael Wacey
Berwyn, PA

Well Mike, you’ve touched a responsive chord with me. Data from the U.S. Department of Energy strongly supports your stand. The greenhouse emissions from a single railroad passenger mile is a tiny fraction of what comes from a regular automobile. Yet, despite how hard it is to drive to work, find parking, and endure all that automotive commuting entails, it’s still easier to pry a turtle out of his shell than to get Americans out of their cars. — Ed.

More Amtrak Commentary

While I am a bit too old for TAMR, I thought I would comment on your article about Amtrak. One thing that everyone seems to miss (or deliberately avoid) in the Amtrak discussion is the fact that presently there is no method of passenger travel that makes a profit or, for that matter, breaks even.

Cars and buses depend on roads, traffic police, signage, etc. which are supported by all levels of government. If the gas tax were actually high enough to pay for them, we would be paying at least double for gas. Airlines are directed to government owned and operated airports by government paid air traffic controllers and many of them still can’t make a profit. Why would anyone think Amtrak will be different?

Still, the passenger train gets far and away the most passenger miles per gallon of fuel. It would seem that a government that truly wants to reduce dependence on oil should be favoring the train over any of the other methods. It is high time that we switch the entire discussion to something that has somewhat more contact with reality.

Ed Ahrenhoerster
Hartford, WI

Thanks Ed. Speaking of contact with reality, our next letter offers a very realistic solution to part of the problem. — Ed.