Licensing of Trains

[inversnecky]

The issue of licensing by TOCs arose in a railway simulator forum (whereby licensing has been required to included branded trains in routes).

 

I presume this must obviously happen nowadays, with Hornby et al following similar procedures, but these are changed times from the past, and it begs the question of what happened in the older days of model railways: did Hornby in the 1970s have to be ‘licensed’ by British Rail to manufacture BR trains? Did they need to do anything, even? Or was BR, as a nationalised industry, presumed to be ‘public property’?

[MarkSG]

I'm not 100% certain, but I think that licensing of things like liveries became a thing after privatisation. But, more specifically, I think that the key change was the Copyright, Designs and Patents Act 1988, which codified and regularised a previous mishmash of laws and formalised some principles that had previously been found only in case law rather than statue law.  

 

In particular, it's doubful whether, pre-1988, a livery alone was protected as any form of intellectual property. A logo certainly was, but the mere arrangement of different coloured paints on different parts of an object would have been very hard to assert ownership on. And, at least back in the 1970s, it would have been questionable whether a low-resolution and small scale copy of a logo (as found on a model typical of the era) was sufficiently similar to the original to be an infringement. 

[Wheatley]

What also became more common after privatisation was the belief amongst the private TOCs (or at least, the corporate branding wonks in their owning groups) that their 'brand identity' was something to be protected at all costs and not given away to load of nerdy soap dodgers to bring into disrepute. 

 

What I always failed to understand was how a toy train with a corporate logo on it could bring a train company's reputation into disrepute. It's not like Hornby et al were producing sex toys or cluster bombs. 

 

Others of course realised that their brand could be flogged to the highest bidder, which is how we ended up with horrors like this - https://www.bradford.co.uk/fstreebge.html

[eldomtom2]

A further point - who owns the rights to the BR trademarks?

[inversnecky]

1 minute ago, eldomtom2 said:

A further point - who owns the rights to the BR trademarks?

The British Railways Board still exists with two directors as a sort of shell company because it was a signatory to the Channel Tunnel.

 

I imagine it might?

[Revolution Ben]

 

Hello all,

 

It is an interesting point.

 

As has been said above, what we consider 'licensing' is a shorthand term that we use to cover a variety of issues around trademark, copyright and intellectual property, and there tend to be lots of assumptions made about all of these things.

 

The basic principle of the trademarking laws is to prevent 'passing off'; that is to say it is to stop, say, Joe Bloggs painting his van in the livery of a reputable company then claiming to represent that company.  Companies trademark their identifying logo etc in certain categories, clearly listed, to protect themselves against this in their core line of business.

 

A scale model is clearly *not* attempting to pass off: no one is suggesting that a 1:76 scale Class 66 in DRS livery could turn up to haul a real train, which is DRS's core business.  This creates difficulties for companies trying to sue model manufacturers.

 

To my knowledge each time it has been tested in the courts in Europe and the US (perhaps most famously in Opel v BHG second para here: https://www.lawgazette.co.uk/legal-updates/trademarks-in-toys-and-games-part-one/70997.article) the model company has won as the courts have tended to take the common sense approach that a consumer purchasing a model is unlikely to believe they were purchasing the real thing and not a small scale replica.  Furthermore, the nature of a good scale model is that it needs to incorporate all the detail to be accurate.

 

Having said that, it is hugely beneficial for model manufacturers to work with the licence holders (as Revolution has with lots of companies in the past, and is doing with Stadler and ROG on the forthcoming Class 93) because it eliminates the risk of potentially costly legal action and also guarantees access to the best data in terms of drawings, colour references and logo forms to ensure everyone gets the best possible model.

 

cheers

 

Ben A.

 

 

[TravisM]

When I used to model North American railroads, it was mentioned that in the 50’s, 60’s and into the 70’s, railroads used to pay the likes of Lionel, Athearn, Atlas etc, to decorate their models in that railroads paint scheme as it was cheap promotional tool.

 

Things started to change in the late 80’s and early 90’s when loco, freight and passenger car builders, railroads all started wanting licensing agreements because as @Ben A put, a badly made model could possibly look badly on the prototype railroad.  Also with a licensing agreement, you have access to company records, paint chips, any in house modifications etc.

 

People started moaning about the agreements putting up the prices of models, which is complete nonsense.  On a £150 loco, the cost passed on is about 1%.

 

It’s not just model railway’s that need licensing agreements but also those modelling airlines, car manufacturers, ships, basically anything now because of certain copyright laws.

Edited March 5, 2021 by jools1959
Added information

[adb968008]

There was an interesting case on this in the US 15 years back, which lead to a number of changes in how model manufacturers engage with railroads in the US.

 

This move by Union Pacific for royalties

https://www.chicagotribune.com/news/ct-xpm-2004-06-27-0406270424-story.html

Lead to this legal case..

https://casetext.com/case/union-pacific-railroad-company-v-mikes-train-house-7

the result lead to Union Pacific back tracking

https://mthtrains.com/news/287

Edited March 6, 2021 by adb968008

[kevinlms]

8 hours ago, Wheatley said:

What also became more common after privatisation was the belief amongst the private TOCs (or at least, the corporate branding wonks in their owning groups) that their 'brand identity' was something to be protected at all costs and not given away to load of nerdy soap dodgers to bring into disrepute. 

 

What I always failed to understand was how a toy train with a corporate logo on it could bring a train company's reputation into disrepute. It's not like Hornby et al were producing sex toys or cluster bombs. 

 

Others of course realised that their brand could be flogged to the highest bidder, which is how we ended up with horrors like this - https://www.bradford.co.uk/fstreebge.html

I still don't see how those horrible Bradford products have supposedly a large following. Although I do note that production hasn't started and they're waiting to see what the demand is, before they start making them. So perhaps the demand isn't there and they have been caught with previous 'models'. Lets hope so!

I don't see how people can give them house room, let alone pay 150 odd pounds!

[Wheatley]

5 hours ago, eldomtom2 said:

A further point - who owns the rights to the BR trademarks?

The Secretary of State for Transport owns the trademark to the double arrows, but the NSE Society has managed to trademark the entire NSE livery !  https://www.nsers.org/trademark.html

 

BRB Residuary went in Dave's bonfire of the Quangos in 2013.  Its former responsibilities are dispered between the DfT, RSSB, Highways England and London & Continental Railways. 

[corneliuslundie]

I seem to remember that some of the earlier preserved railways were prevented from using BR liveries on their stock by BR - the Lakeside & Haverthwaite comes to mind.

Jonathan

[rodent279]

So where in all this does a photographer stand in photographing a train (or anything else, for that matter) with a company logo/s on, and selling that photograph for personal gain?

Or a really good artist/painter, reproducing a scene with a corporate brand in it?

 

Do they need permission? A licence? Are royalties due?

 

Edited March 11, 2021 by rodent279

[westerner]

I seem to remember when Hornby (I think) wanted to do an HST in Virgin branding. Virgin originally said no until some one far higher, it may have been Branson himself, realised that having a load of toy trains in Virgin branding was good free publicity.

[Bernard Lamb]

18 minutes ago, westerner said:

I seem to remember when Hornby (I think) wanted to do an HST in Virgin branding. Virgin originally said no until some one far higher, it may have been Branson himself, realised that having a load of toy trains in Virgin branding was good free publicity.

Chris Green I believe.

Bernard

[kevinlms]

1 hour ago, rodent279 said:

So where in all this does a photographer stand in photographing a train (or anything else, for that matter) with a company logo/s on, and selling that photograph for personal gain?

Or a really good artist/painter, reproducing a scene with a corporate brand in it?

 

Do they need permission? A licence? Are royalties due?

 

No, because the photo or whatever, is the artists work and that is what might be sold.

 

Usually for business, logos and corporate ID is put on vehicles, expressively for the purpose of being 'noticed'. So it's hard to see how a corporate identity can go fighting a claim, when that's exactly what the owner wants.

[John Harris]

2 hours ago, rodent279 said:

So where in all this does a photographer stand in photographing a train (or anything else, for that matter) with a company logo/s on, and selling that photograph for personal gain?

Or a really good artist/painter, reproducing a scene with a corporate brand in it?

 

Do they need permission? A licence? Are royalties due?

 

 

I have heard of some museums pursuing a "royalty" payment if you take a photo of an exhibit and sell it.  Some museums actively try to ban within their premises, as private property they can do that, but other charge a "photography fee", but the latter does not permits sales of the photos.

 

Obviously, taking a photo from public property this does not apply, but taking photos on a station platform (private property) raises some interesting  issues.

 

jch

[MarkSG]

4 hours ago, rodent279 said:

So where in all this does a photographer stand in photographing a train (or anything else, for that matter) with a company logo/s on, and selling that photograph for personal gain?

Or a really good artist/painter, reproducing a scene with a corporate brand in it?

 

Do they need permission? A licence? Are royalties due?

 

 

For photos, provided that the copyright or trade mark material is merely "incidental" to the photo, then it's not an infringement. So if you take a photo of a train, and the train has a logo on it, then the inclusion of the logo is not an infringement. Similarly if you take a photo of a street scene at Piccadilly Circus and there are adverts in the backdrop of the photo, that's not an infringement. But if you take a close-up of the logo, specifically for the purpose of photographing the logo, then that would potentially be an infringement.

 

Much the same applies to paintings that are intended to be a representation of a real life (or realistic) scene. But a painting that's just a stylised version of a logo would be an infringement.

 

[corneliuslundie]

I believe that there are also issues with photographs of people, if they are a significant part of the photo. Not copyright as such but within the overall framework of intellectual property rights.

Jonathan

[Quarryscapes]

17 minutes ago, corneliuslundie said:

I believe that there are also issues with photographs of people, if they are a significant part of the photo. Not copyright as such but within the overall framework of intellectual property rights.

Jonathan

 

No there aren't. The only "issue" with photographing people is that you can't do it where they have a right to privacy, I.e. you can't go peering through people's bedroom windows etc. Without delving too deeply because there are naturally some situations where it would fall foul of other laws, but if you're both stood in public grounds, then you can photograph whoever and be photographed perfectly legally. 

[melmerby]

On 05/03/2021 at 16:53, Wheatley said:

 

Others of course realised that their brand could be flogged to the highest bidder, which is how we ended up with horrors like this - https://www.bradford.co.uk/fstreebge.html

One week on and it seems to have vanished from the face of the earth.

[PaulRhB]

As Ben noted there are huge benefits to working with the company and as Coca Cola has proved getting the logo wrong can lead to legal action as it is covered by the trademark rights. 
As the Union Pacific example showed though the accountants will come up with bright ideas to monetise everything and when they get greedy as UP did they rely on their ability to subsidise legal action to scare people off testing the waters. In the case with MTH they ran up against Mike Wolf who also had the money to play that game though and the potential reputation damage soon saw compromises reached. Model companies don’t object to sensible license fees and get useful data in response but occasionally companies get greedy. Back in the early 90’s someone was prepared to finance development of an O gauge Eurostar kit but Eurostar wanted multiple  conditions and large fees on the transfers and livery making it not worth pursuing. On the other hand EMD actively helped and commissioned presentation models with on one occasion their company photographer riding the overhead crane to take detail shots of the Irish 201 prototype for us! Russ Sharp knew a publicity opportunity  

[rodent279]

1 hour ago, Quarryscapes said:

 

No there aren't. The only "issue" with photographing people is that you can't do it where they have a right to privacy, I.e. you can't go peering through people's bedroom windows etc. Without delving too deeply because there are naturally some situations where it would fall foul of other laws, but if you're both stood in public grounds, then you can photograph whoever and be photographed perfectly legally. 

My understanding is that can photograph someone in a public place, publish and probably make money from it, but what you can't do is use it to say or imply that person X endorses product Y.

So you could photograph someone standing outside a well known fast food outlet, but you can't use it to say that they endorse said outlet's products.

[kevinlms]

3 hours ago, PaulRhB said:

As Ben noted there are huge benefits to working with the company and as Coca Cola has proved getting the logo wrong can lead to legal action as it is covered by the trademark rights. 
As the Union Pacific example showed though the accountants will come up with bright ideas to monetise everything and when they get greedy as UP did they rely on their ability to subsidise legal action to scare people off testing the waters. In the case with MTH they ran up against Mike Wolf who also had the money to play that game though and the potential reputation damage soon saw compromises reached. Model companies don’t object to sensible license fees and get useful data in response but occasionally companies get greedy. Back in the early 90’s someone was prepared to finance development of an O gauge Eurostar kit but Eurostar wanted multiple  conditions and large fees on the transfers and livery making it not worth pursuing. On the other hand EMD actively helped and commissioned presentation models with on one occasion their company photographer riding the overhead crane to take detail shots of the Irish 201 prototype for us! Russ Sharp knew a publicity opportunity  

Hasn't there been cases where people have made claims about an international 'restaurant' chains quality of food. You know, the one that sounds like it might serve haggis!

 

While they threw bucket loads of money defending their reputation and indeed won IIRC. Fact is the terms of the settlement and court costs, was such that very few people could afford to pay it.

So they had to back off and not enforce the penalty, such was the public shaming.

[inversnecky]

13 hours ago, rodent279 said:

My understanding is that can photograph someone in a public place, publish and probably make money from it, but what you can't do is use it to say or imply that person X endorses product Y.

So you could photograph someone standing outside a well known fast food outlet, but you can't use it to say that they endorse said outlet's products.

 

Yes, as long as you are in a public place, and are not breaching other laws.

 

It differs obviously by country - a long lens pap shot of celebs in their French garden is against French privacy laws, but would be legal in Britain.

 

There's many jobsworths who don't understand the laws surrounding photography - an issue ten plus years ago in places like London, where innocent photographers were accosted by police under terrorism laws asking to justify their actions. Photographic societies even produced cards to carry so photographers knew their rights.

 

You also had cases when a photographer would take a photo of some building from across the street (i.e. from a public space) and a security guard would come out and say it couldn't be photographed because of "copyright"!

Edited March 13, 2021 by inversnecky
typo

[corneliuslundie]

I have certainly seen it stated in print that if the building being photographed has an architect he/she owns the copyright to the design and you are breaching it by taking a photograph without permission. I was very doubtful at the time though quite authoritative sources seemed to support the idea. However, that was some years ago and perhaps common sense has prevailed (a most unusual happening!).

No, I am not going to ask the architects of every building I model for permission.

Jonathan