Discussion in 'The Real Thing- North America' started by N Gauger, Jan 15, 2006.
..... I have a sick Headach
ah the greedy so and so are at it again
Legally, UP has the right. It's really not any more different than if I were to post some of my artwork on the internet, or anywhere for that matter and others were making money off of it. I'd be inclined to ask for royalties. It IS my inttelectual property. As for being good PR, probably not. I give alot of my artwork away in the hopes of procurring future work, and it works.
I'm glad I model defunct railroads, but I'm sure if some arse were determined and had a good lawyer (?) they would find a way to retrieve royalties for use of abandoned railroad's heralds.
Whether UP legally has the right has never been adequately challenged in the courts, as the railroad's previous targets have all done a very complete job of knuckling under. (The fact is that such lawsuits are extremely -- ha! to say the least, expensive! -- to defend, and most manufacturers take their attorneys' advice and settle.) It can -- and really should, at some point -- be argued, however, that Union Pacific long ago allowed its logos and liveries (trademarks, service marks, etc.) to become "genericized" by failing to bring action decades earlier against any alleged "infringements."
You'll note, for example, that McDonald's legal department religiously chases down any and all commercial uses of the term, "Mc", which might in any way, shape or means cause confusion with the hamburger chain, or otherwise allow their client's name to fall into the public domain. Additionally, corporations such as Levi Strauss and Xerox, for example, take steps to ensure that any written reference to "Levi's" or "Xerox machines" are properly punctuated and that they do, in fact, refer to Levi's (as opposed to any blue jeans) or Xerox machines (instead of an unspecified brand of copier). Not to do so would eventually allow their brandnames to become "generic" and unenforceable in a court of law.
Union Pacific is approximately eighty years -- dead minimum -- late in coming to the table in this manner. Additionally, there may be at least one instance (back in the 30s) where that currently-litigious railroad actually paid a toymaker (Lionel?) to come out with models of its equipment.
I'd love to see some manufacturer not wave the white feather . . .
As to your original artwork, you of course retain copyright to it regardless of whether you give it away or sell it. Were someone else then to duplicate it in some way without your consent, you'd be entitled to sue. But not after letting decades pass.
My favourite story about the Golden Arches appeared on one news show or another several years ago... McDonald's sued a little hamburger restaurant in Scotland - the propriators had used their family name for the restaurant. Corporate giant came down on them until the Head of the McDonald clan (an offical position handed down through the ages and well established in historical documents and court) wrote them a letter. He stated that clan records had no evidence that McDonalds Restaurants (TM) had never applied for permission to use the family name in business, as required in ancient (and still applicable) law. Of course the little mom & pop hamburger joint had. End of story.
I believe Atlas and a couple other or most all manufacturer of our hobby items now adds $5.00 extra for UP Locos and 50 cents for rolling stock. They figure if the hobbyist wants UP items, then they will pay for it. I suspect other owners of logo will start this also if they see dollars in it for them. I guess that UP does not look at it as FREE advertising for them. This is what Wall Street does to all of us.:curse:
I do love it when David nails Goliath. Ah but then, as my memory of Scottish history serves me, the Clan McDonald has never been exactly your run-of-the-mill "David . . ."
Atlas was one of the first to cave. Athearn, et al . . . even Walthers in their catalogues are very careful to delineate "licensed" usage. The part that probably galls me the most, of course, is UP's (and CSX's) application of this licensing requirement to the "fallen-flag" railroads they've absorbed. Which should send the modeler of even the most "defunct" railroad scurrying through corporate histories to make sure that his or her favorite dead carrier isn't still, in fact, "alive" through the magic of UP's "Heritage" program . . .
The link to UP's licensing agreement page follows:
Quote: "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."
This seems like it lets most of us off the hook (although I myself don't model UP, and have no plans to ever do so). However, it seems like there's a lot of gray area. If I post my own picture of a non-licensed or scratchbuilt UP model to The Gauge, am I in violation of copyright? In this case, my UP branded piece of equipment moves from "personal use" to public presentation, and seems to run into trouble. What about if I post a picture of a model of a derailed UP boxcar? Presumably this runs afoul of the "postively represent UP brand values" and is doubly bad because it's published in a public forum. And zedob, UP claims full licensing rights over a host of other fallen flags that they've absorbed over the years.
This are of course exaggerated examples, but these lawyered up big companies with deep pockets scare the crud out of me. This woman's case against the RIAA shows how really hard it can be to do anything except roll over when faced with the might of big corporate attorneys...
Just some food for thought.
"in-home model railroad hobbyist" may be fine, but your decal maker will be paying unless you can hand-letter in a way I can't.
I guess what goes around comes around..After all MTH sued Lionel..
Have computer, will decal.
I've never done it, but it can't be all that hard. I'd like to buy the kit and try it for S&Gs. I don't find too many NYNH&H cars with the OLD logo, not the Mcginnis era orange and black scheme, so I'm inclined to try it.
It leans hard on the decal maker, but with the increadible tech at our fingertips today there is not reason any modeler, barring the ones who don't/won't touch a computer, can't help themselves.
The end of the world
I was just reading a thread on Atlas's forum about this whole thing. Everybody seems to think the world is going to end.
If people truly are concerned about the issue, just don't buy any factory UP models. When they see the representation of the market going to rivals, they MAY reconsider.
Or else you paint and decal your own and avoid the hassle.
Or think about Joe Railroader who goes on the Today Show to show off his ATSF layout he can mention that he couldn't afford the UP models.
My limted understanding of the main issue, at least what I've read from some industry sources is that it wouldn't be so bad if U.P. had a clue. Unfortunately U.P. is as clueless about the whole licnesing issue as they are about running a railroad. Some manufacturers have tried in vain to find out exactly what U.P. wanted and basically got an answer to the effect of "We don't know for sure, but we'll sue if we don't like what you do." Thankfully, I've already bought all of the kits that I could possibly build in my lifetime, so most of my future purchases will be for dcc decoders for existing locomotives.
Why can't they all just get along. You swear that no one is happy unless they are sueing someone for something or another.
This is rediculous. It just goes to prove that those who have money want only one thing: more money. Why would the nation's biggest railroad want to sue a toy company over logo useage? UP claims it's so their brand and logo will be properly represented. How's that for PR spin-doctoring?
MTH claims that modelers should not have to pay more for a UP product, and they're right...we shouldn't. The sad thing is, they're also wrong...because we will. UP modelers WILL pay the extra premium, and the corporate officials at UP know that. A modeler isn't going to change their whole layout over a few more dollars.
I'd like to see the consumers band together here and have a protest of book burning proportions, and not buy any UP products...but that won't happen. Like so many other things, we the consumer, will end up footing the bill for this one.
:curse: What gripes me the most is the fact that they (UP) forced the best calender company in the country out of bussiness because they couldn't afford to fight them. CEDCO took most of their own pictures for the calenders. That meant that they legally owned the pictures and were therefore not obligated to UP in any way. But UP still sued and CEDCO had to knuckle under and went out of bussiness. I blame the judicial system as much as UP for allowing this kind of thing to happen. My 2 cents worth. (Would you believe a nickle)?
The real issue is.....
I was following a similar thread in another forum. This had to do with UP going after the calendar maker for the "Union Pacific Calendar 2006." Standard copyright issues applied there and there really isn't anything else to say.
It all come down to usage. If you are making a buck off of a Company/Person's logo/property, you need permission and usally a fee to use it. Nothing new there. (stock photos, music, fonts, Apple, etc....)
The real rub seems to be that because they haven't enforced it in the past, because they start now is evil. As much as I don't like the tactics, they may be seeing the current state of copyright piracy and decided to draw a line in the sand. In all honesty, I'm surprised that it has taken until the 21st Century for them to get royalties on the usage.The fact that they haven't enforced it in the past may hurt any court battle, but the greater issue is that THEY ARE Union Pacific and can control what their likeness is used on. I think it is great that the other roads have smaller to no license issues, but don't hold your breath.
If they end up putting the kibosh on MRR models, one of their largest fan bases, that is their choice. Not a good one, but their choice.
I've got no idea what the figures are, but I wouldn't be suprised if it is costing them more to keep track of the license issues that they are taking in. In this case, I really don't think it's money. The problem seems to me to be the way they are going about this, not that they are doing it. Whether we buy UP stuff or not isn't going to make a bit of difference to them. As far as the calendar goes, I suspect they are thinking the if it says "UP 2006 Calendar", it is produced by the UP, it's not, and they don't want the credit or the blame. If it said "Railroads of the West 2006 Calendar", they probably don't say a thing. For me, if I want the stuff I'll just have to pay, and they will get there nickel.
I think you are right... I read an editorial in MR a while back that said UP makes millions of dollars per day and all the licensing from UP and all the predecessors would only amount to several hundred thousand over the year - a drop in the bucket.
But the editorial also rightly pointed out that 1) UP's approach leaves something to be desired, and 2) just becasue it is not a lot of money for UP, doesn't mean it is not a lot for those who have to pay the fees.
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