Slowman....treating partners, suppliers, customers, colleagues, superiors and employees with dignity, respect, fairness, honesty, and decency is pretty well standard fare in all industries I have worked in. I don't see why it would be any different in the triathlon world.

wait, are you talking about that IM louisville poster like thing that fronts hillary's current blog entry? that's maik? yeah, i see your point. so, what you're saying is that WTC photoshopped out all the logos on that as well?

just to be clear. let's say we're a car tv commercial, and there's cyclists riding in the commercial, and these aren't famous cyclists, just nondescript riders, and the bikes are purchased by the production company, and they paint over the logos and decals and so forth. fine. it's their bikes, they own them, there's no personal services contract to consider.

but once a known athlete's personal services contract enters the arena, that's another story. it's bad juju messing with that. it was clear, in my contracts with my athletes, that ANY image used of, by, or on behalf of that athlete MUST not have my trade names compromised. maybe i'm the only one who had this clause in his company's contracts.

every pro any triathlon race promoter is really interested in makes his or her living primarily off their sponsorships. if you're peripheral to those deals - whether you're a race promoter or media - don't devalue those sponsorships. if anything, enhance those sponsorships.

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Dan Empfield
aka Slowman

Well yes. I am referring to that picture. I do not know if WTC photoshopped or not, it is an assumption. Maybe a big one, maybe not a big one at all. After all, are Ceepo bikes still the official IM bike? The bike that hung in Seinfeld was a Klein or Cannondale or Trek or at least two of them, fitting more with your paragraph about car commercials and bikes.

Yes, your last 2 paragraphs are pretty well spot on. Hillary is part of Trakkers/Rev3, a competing company to WTC in some respects. So, yes Rev3 is one her sponsors probably her main one since the entire team is on the same bikes and gear much like Commerzbank and TeamTBB. And, even though Commerzbank is going away, Mathias was in full gear at 70.3 European Champs in Germany. So, I suspect that contract goes through at least the end of the year or through Kona.

I guess and I think that the point has been brought up, not that I agree with it...is that if ASI Photos has the contract with WTC and WTC effectively owns those photos, then they can likely do what they will with them.

Added: So, what is a pro to do? If it is a case of the above that ASI sells or whatever the photos to WTC, is there anything we can do? It goes back to the "rule" that was mentioned in the paying athletes article. Does Hillary say something or Maik? If they do will one of their sponsors that may somehow be connected with WTC drop them? Will they be labeled as difficult or complaining? I can pretty well guess that Bjorn and Chrissie would say something since those were the two mentioned as being two who are "exceptions" to the rule about commenting.

Added #2: I do not know if a race brochure or race guide qualifies...but as a pro, if I have media bonuses and my sponsor logos are effectively taken out and my image used, I am being denied that bonus if you want to get particular about it. So, yeah, maybe something should be said.

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Brandon Marsh - Website | @BrandonMarshTX | RokaSports | 1stEndurance | ATC Bikeshop |

I would think that the use of that image that they own to promote their own race would still be trademark infringement if they did not remove it.

A small note on that. Arent all past champions allowed back (after the 5 year automatic bids now under the new guidelines), they just have to race in the AG or non pro field?

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@brooksdoughtie
USAT-L2,Y&J; USAC-L2
http://www.aomultisport.com

"I would think that the use of that image that they own to promote their own race would still be trademark infringement if they did not remove it."

several problems with your reasoning. first, not all the logos were removed, just one. second, think about what you're saying: that companies are paying to get exposure, then they're going to sue if that exposure occurs. does that make sense? third, when these athletes race (and by "these" athletes you yourself are often included in this), there are typically clauses in the waiver, and perhaps additional clauses if you're a pro, in which you explicitly allow the use of your image in certain contexts.

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Dan Empfield
aka Slowman

For bikes, helmets, shoes and other industry related companies that are non-competitors, I agree with you completely. One would never bring a suit for getting free exposure; however, that does not mean that an infringement has not technically occurred. Now when you talk about a business competitor, this could get hairy, and it may have been a legal decision. I think this makes complete sense. We also don't know what permissions may have been sought and approved or rejected.

"I guess and I think that the point has been brought up, not that I agree with it...is that if ASI Photos has the contract with WTC and WTC effectively owns those photos, then they can likely do what they will with them."

i'm not lawyer, but, as i read the definition of tortious interference, it "occurs when a person intentionally damages that plaintiff's contractual or other business relationships." further, from wikipedia:

"Tortious interference with contract rights can occur where the tortfeasor convinces a party to breach the contract against the plaintiff, or where the tortfeasor disrupts the ability of one party to perform his obligations under the contract, thereby preventing the plaintiff from receiving the performance promised. The classic example of this tort occurs when one party induces another party to breach a contract with a third party, in circumstances where the first party has no privilege to act as it does and acts with knowledge of the existence of the contract."

now, to be sure, i'm not accusing anybody of anything. i'm just answering your question. i would think that if the owner of a photo, or the user of a photo, places an athlete in the position of breach through the manipulation of the photo, that seems to me to fit the above description pretty neatly. so, no, i don't see how anyone who owns a photo can do what they want with the photo with impunity, especially if a personal services contract is in place.

otoh, i've been surprised in the past at how the simple reading of the law was not how a law has come to be interpreted. further, i can imagine the confusion that might occur when two parties each think they've established the preeminent contract with a third party, such as an athlete. or, if the athlete misrepresents, or fails to mention when asked, the existence of an offending relevant clause in a personal services contract. so, please filter what i'm writing above through my prism of fog and uncertainty.

however, and again, i don't think this is a legal matter. the law, in general, mirrors what we in society consider decent, civil comportment. so, irrespective of personal services contracts and what they stipulate, the implication is that i give you money, maybe a bike, a wetsuit, apparel, and i expect consideration in return. that consideration is your appearance using my stuff, my clothes, my logo, when training and racing, for the term of the contract. setting aside the question of what's legal, that's just what's cool. that's your reasonable expectation as an athlete. if somebody's going to give you $1 million dollars to appear on someone else's bike, then, fine, buy me out of our contact, and you're free to ride whatever you want.

further to that point, because i didn't pay huge money to athletes, i built the remedy for breach into the contract. this, for the athlete's benefit. if you want to breach, it'll cost you this much. we had breaches from time to time, and they were "friendly" breaches, that is to say, a company would come along and offer an athlete 5 times what i was paying. i almost forced the athlete to breach, in each case, because it was way in favor of the athlete to breach. but, unless you're prepared to offer me consideration for the breach, then, by god, you'd better honor the contract.

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Dan Empfield
aka Slowman

Three pages over not displaying a competitors logo in an advertisement? And I thought I had too much time on my semi-retired hands! As an attorney who dealt with trademark issues for sometime, I'd have been rather shocked if WTC had not removed Rev3's logo. If they have rights to publish the picture, and they almost certainly do, they're also, for the most part, well within their rights to alter it most ways that aren't deceptive. There's nothing deceptive about showing Ms. Biscay running a WTC race sans Rev3 logo. Now, if they had phtoshopped a picture of her from of of her Rev3 races into a WTC race locale -- that'd quite possibly be another story.

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The difference between stupidity and genius is that genius has its limits. -- A fake Albert Einstein "quote"

Either way, Rev3 has gotten more out of this by WTC having it done.

Suck a rope WTC.

Rev3 rules OK.

The issue is not a real easy one since their are a lot of assumptions. I know I am biased to believe in the worst in the WTC because I have heard personal stories which are evident and easily verifiable that show them in not only what is an unflattering light, but to call it dirty or s*^tty is doing a gross injustice to excrement.

I am probably in a similar sort of position. I enjoy photography, have invested in so-so equipment... as a hobby it is more expensive than triathlons in many regards to gear... One of the new Canon lens that just got released that is seriously sweet is $12K which is about what all my lenses, cameras and strobes are worth. I enjoy being able to merge my passions and loved being able to photograph some of the Rev 3 Quassy Pros, Providence 70.3 and Timberman 70.3. When I have contact with the pros, I will even send them shots if I think they are decent and have had at least one ask if their sponsors can use it. Go for it. For where I am at in how I view my skills, that is nice kudos, and I think for a lot of the Pros, many don't get the chance to shoot with much more skilled talents like Eric Wynn.

For me, I am pretty much in my opinion giving away my creative and licensing rights to these images, but in return, fingers crossed, I am hoping that my images help the athletes with their own marketing and popularity, better yet, an image that they enjoy, and maybe, just maybe a few get published, used, and down the road when my knees are shot, I can do more of this as a side gig and while I will never make a living off of it, if I can get to the level where I can write off gear, that is more than reward for me.

My read on the transfer of rights is that the shooter of the shot gave the pic to HB much in the same way I have given some of my shots to others. It is pretty much free and clear. Some of it may have been implied "for personal use" and once it makes it to "commercial use" that can get a little tricky. I have also shot a lot of models as a hobby, and generally do TFP (trade for print) which is much more defined with a model release that is signed by both that states not only the length of use, but the types of media and compensation. Again, because my skills are growing, I pretty much let the model take the images and if they want to have a more talented retoucher completely re-work the image, I am giving them that because I want them to have the maximum use of the images for their time. Now as my abilities grow, that is something I will probably pull back more. But for now I consider it a learning curve and paying my dues.

I am not sure the conversation HB had with WTC, but more than likely, I would guess that they asked if they could use the shot, she said yes, and they did the retouching without asking. That is just my opinion, but fits my view of how the WTC "rolls" and "behaves". From my moral compass, I think it is completely wrong to commercially use the image and start hacking off individual sponsors, especially when it is more than apparent that it was a competing event logo.

To my knowledge, commercial use is never implied. So if a photog like me takes a picture of a Pro and sends it to a pro, no commercial usage rights have been transferred, and in fact personal usage is limited. By strictest adherence to my knowledge, even posting to their facebook or blog might be over stepping usage, as would say taking to a shop to have the images printed. You might be surprised how many places ask for a photographers release to take professional/semi-professional images and print them. Now it was really sloppy of the WTC. I don't know if they had HB sign anything for usage, but the original shooter still likely has the commercial rights to the image, and at a minimum, if I was the photog, I would state that it was my image and ask for either one of the posters for my own portfolio or media credentials to a future race of my choosing.

Either way, Rev3 has gotten more out of this by WTC having it done.

Which amounts to 50 people watching this, which is really sad if true.

Styrrell

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Styrrell

Slowman,

If HB was an athlete you were sponsoring and the rev3 logo was "slowtwitch.com" instead what would you do when you found this pic? Not trying to be an ass, genuinely curious. Go after HB, WTC, no one?

I'm curious also, but I don't think he could go after WTC. I doubt they did anything illegal or wrong in that sense. I'd be curious to know what HB's actual role is in this. I'd be surprised if she was asked of its OK to remove a sponsers logo.

Styrrell

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Styrrell

Sure they did. They used an image without securing the licensing from the photographer in writing for commercial purposes.

Even if the photographer gave HB full use of the image, they would still need to have either a signed release, or at least an implied full release for commercial purposes. This is why one pro emailed me and asked if the the sponsors could use my image. My saying yes gave them the rights to reproduce the image and since I made no stipulation, alter it as well.

The moment a commercial purpose is created, you pretty much need a release. This can be just a model release, or in the case of a photographer, their release is generally more important. In many cases the photographer has more rights than the subject.

Now for "informational" purposes, a release is generally not needed, though one has to be careful not to defame the person. So shooting a picture of HB and posting it on your blog is generally considered editorial and fair use, as long as it is not defaming.

So this brings an interesting twist... Was the poster usage "informational" or was it commercial/advertising. Given that the "productt" Ironman is being sold/endorsed, I tend to view the usage as commercial. Then again... The courts have been sketchy on the subject... vis-a-vis Montana v. San Jose Mercury News. The Newspaper sold posters of Montana after winning the Super Bowl and did not have a release or contract, but the court ruled that it was related since it was closely tied to the news event. I really don't think that ruling was right, but that is just me.

More to the point might be Hoffman vs Capital Cities. LA Magazine took Dustin Hoffman's head and put it on a Richard Tyler modeled dress. Original court ruled it was commercial use, but was later reversed under free speech standards. That too real iffy to me.

These cases are also a little off base because most of these are whether a model release is needed, not whether the photographer has given commercial rights for use of image.

Has it been in fact established that they didn't have permission to do what they did?

Styrrell

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Styrrell

From other posts I have seen from Jaimev, what I gathered was he took the pic, sent it to HB, and the rest was news to him. That fact that he is asking about copyrights, cash, etc., tells me that he did not explicitly give a blanket statement like "feel free to use this image any way you want".

WTC should know better, and even if HB gave them the picture, the 1st words out of the WTC are do you own all rights to the usage of the image and/or who is the Photog and do you have a usage release.

Fact of the matter is, IMHO, WTC didn't think they would get caught and what were the chances that a random image taken out of Brazil would be recognized as a poster at another race. In fact if the WTC wasn't stupid enough to remove the Rev 3 Logo, it probably would have gone unnoticed that they did not have usage.

The question becomes is it "informational" or "promotional/Advertising" and once they splash her name along with their name, it generally becomes the Later... This is similar to an implied endorsement and I would reference Cher v. Penthouse where Penthouse Forums used an image of Cher as part of an ad, and their big boo-boo was using her name which made it seem like an endorsement. Just because a person is reconizable, does not imply an endorsement and can be "incidental"

I don't know who he is. If he is an amateur photog I'm surprised WTC even got a hold of the photo. If not who he works for may have given permission. I don't doubt he may have taken it but at a certain point all photos look alike.

Styrrell

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Styrrell

I'm in agreement with Dan's line of reasoning on this one... maybe it's common in marketing and not specifically legally actionable, but it's still fundamentally dishonest and lame as shit. To use the above example, there are SOOO many athletes out there, how flippin' hard is it to just pick a different photo?

It is not that surprising at all. WTC probably got the image from HB or asked if she had any images for an upcoming race. She liked the image which was given to her, but it does not convey usage rights, and a professional organization like the WTC knows better. I know better and I consider myself some where between a hobby photog and an amateur photog, and given some of the hoops I have seen the WTC do with usage of Ironman, 70.3, or images, you know they know better.

Long and short, when it comes to their usage, they likely have to pay the professional photogs when they use an image for such usage, so they went the cheap route and used a decent amateur image which also has a very small chance of ever getting caught, especially if just used for an on site race poster thousands and thousands of miles away. From the original image I have seen that has the Rev 3 logo unairbrushed out, no doubt that the images originated from the same source. The images shown in comparison are difficult to give a full pixel to pixel representation since the poster was shot at a slight angle in both the horizontal and vertical planes, but if I mask and overlay the images there is enough of an overlap where I can determine that the images are from the same source but the distortion areas if the image was properly compensated would mask perfectly. The areas that I see out of alignment are classic keystone distortion related to the angle of the taking of the secondary photo, and even doing rough keystone correction lines up the images extremely closely.

Hypothetical, Micheal Jordan is your athlete, he is wearing nike shoes but his team wearing champion apparel. They have an amazing photo of him at the end of the game hitting a winning shot. If you went into your management and said, well we have this shot of Jordan but we shouldn't use it because its dishonest to remove the logos, so lets just find another athlete. First he would laugh second you wouldn't be working there for too long. As a consumer, I don't expect any company to leave a competing brands logo on an image, thats just silly. If they were marketing a single product instead of the brand well that would be pretty silly to add their logos onto something they don't produce, but as far as the brand when they want a person associated with that brand I don't see a problem with it. Companies don't spend millions a year in marketing to market for for another company. If you think that is still lame as shit, that's fine but I see no fault in removing a competitors brand from an image, assuming they have legal rights to do so.

To leave it clear.
I took the pic in IM Brazil , i am not a pro photog and wasn´t working for any race-photo company.
As someone posted , I sent the pic to HB and she sent to WTC-IM.
The pic was photoshopped .
I have no idea about copyrights and never expected any cash from doing the pics .
Should i get any compensation from it ? No idea , not really interested but a free entry for an Ironman could be a solution (as i am a triathlete) .
:)

I'm pretty sure you have a copywrite automatically. When you sent the pic to HB what was the wording? I suppose it could be inferred that you gave it to her rights and all. I also wouldn't be surprised if when WTC asked HB for a photo, they assumed it was one she was free to give.

But if it doesn't bother you (and if it was me I'd be a bit flattered), you could try just e-mailing and asking WTC if they have a standard compensation package for using photo without prior permission.

Styrrell

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Styrrell

let me be the first to compensate you for the use of your photo, by telling you that your slowtwitch subscription is paid up for the rest of the year ;-)

otherwise, you'll find your image yet again reproduced (in both variations) on the OpEd just published on our home page, this time with an actual photo credit extended to you!

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Dan Empfield
aka Slowman

I believe hillary (and all athletes) are allowed some control over the use of our images. I'd be pissed if my image was being used in advertising without my consent. I'd be even MORE pissed if it was being used and my kit being photoshopped to remove my sponsors logos. Please keep us posted of what you find.

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36 kona qualifiers 2006-'23 - 3 Kona Podiums - 4 OA IM AG wins - 5 IM AG wins - 18 70.3 AG wins
I ka nana no a 'ike -- by observing, one learns | Kulia i ka nu'u -- strive for excellence
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