A few weeks ago I emailed my dad about a post I’d seen concerning the Union Pacific Railroad’s displeasure with railroad enthusiasts of different stripes profiting from its logo and trains. It turned out that the controversy was nothing new and my dad sent back some links to the most recent issue of Model Railroad News.
The specific discussion is interesting: does a photographer have a right to take pictures of Union Pacific trains and then sell those images at a profit? But what fascinates me more is the wider intellectual property rights involved.
Take, for instance, Cleveland’s Rock And Roll Hall of Fame. While the building is operated by a foundation, it’s construction was heavily subsidized by tax payers in the City of Cleveland and Cuyahoga County. Shortly after it opened a photographer (I forget his name) was sued because he included a photo of the building in a calendar of Cleveland landmarks. I also forget how it came out, but that the Rock Hall’s handlers thought it OK to sue someone for taking a picture of their building is instructive.
When we were a nation that made things we didn’t care much about people making money off of pictures or reproductions of the things we made. For those of us who grew up building plastic models of cars, trucks, tanks and airplanes, the idea that we were somehow ripping off Ford or Boeing would have seemed silly.
But in today’s world where ideas, concepts and visions are more important than bricks and mortar, the idea is not so silly.
Gene Rodenberry created a universe that became the cash cow for Universal Pictures. The Star Trek universe spawned hundreds of fan-created stories and illustrations. It was fans who early on conceived of things like selling blueprints of the U.S.S. Enterprise, NCC-1701. To attempt such a project today would bring more than the wrath of Kahn down upon the fan.
And, from my point of view, rightly so. Fans of Anne Rice were shocked to learn that she did not appreciate that budding writers were using the Vampire LeStat as a character in their fanzines. She told them in no uncertain terms that LeStat belonged to her and that they should create their own characters.
The April letters-to-the-editor section of Model Railroad News contains three letters offerring the view points of Union Pacific, John Sipple, the magazine’s editor and retired California Superior Court Judge John E. Buffington. Two sections from those letters caught my attention.
First, from Union Pacific:
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. [Emphasis mine, JH]
As I read that, Union Pacific is taking a position very close to that of Creative Commons, a standard used by many bloggers. In essence, it states that you’re free to copy what I’ve written in part as long as you give me credit and you’re not making money off of my words.
Second from Judge Buffington:
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 judge is absolutely correct here. And that is why, I’m sure, Union Pacific clearly states in the emphasized portion above that it is not interested in hammering modelers like my dad who have no intention of marketing their handicraft, but rather do it for the personal enjoyment.
But he continues:
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.
What is the harmful bar to the small business? Union Pacific offers two options:
The first option asks businesses to pay Union Pacific a royalty of three percent is payable on any product bearing a modern, historic, or constituent logo licensed by Union Pacific. The licensee will pay an advance on royalties based on the wholesale price of the product(s) and estimated annual sales of UP-branded products.
The second options asks for an annual fee of .5 percent (one half of one percent) of total licensee gross sales of all model railroad products will be paid to Union Pacific. Gross sales will be calculated on the most recent completed year of sales and will be based on an audited financial report.
In addition, Union Pacific offers a third option to not-for-profit organizations. For places like railroad museums, etc., there is no fee for licensed non-profit use of Union Pacific logos or names, but ALL uses must be approved in advance. Non-profit organizations may distribute Union Pacific-licensed items only through an on-site gift shop, internet-based gift shop or to organization members. Distribution beyond these categories requires specific approval from Union Pacific and may incur a use fee.
This harmful bar does not seem to have been so harmful to the long list of licensed companies.
Model manufacturers could create their own logos. (My dad has his own.) But a lot of buyers want the more authentic big names. And as a business, I think it’s reasonable to pay a portion of your receipts for the privilege of making your product more salable by including those logos.
My Soundtrack: Handcuffed To A Fence In Mississippi by Jim White on WOXY.