NS Licensing

This is a follow up to the thread "CSX Licensing," but related to NS, of course. Last week I sent this message to Mary McNeeley at NS:"Hello. I enjoy doing "reskins" of 3D model trains used in various train simulators for PCs. A "skin" is a 2 dimensional texture map that is applied to a 3D model. A "reskin" is where a person takes the original 2D texture map and works with it in photo editing software to create a new skin that can be applied to the 3D model. I am interested in doing some Norfolk Southern reskins for 3D models. I was told that I needed to register with Norfolk Southern Corp in order to make these reskins available to the general public, and so therefore I am writing you in order to begin the registration process. At this point I have not completed any Norfolk Southern reskins, but would like to do so in the near future (which is why I am seeking the registration). I do these reskins as a hobby and offer them free of charge to the general public through various websites designed and created to handle such material. Please feel free to ask any follow up questions in regards to the matter. I look forward to your response.

Sincerely,

Clayton Notgrass"Today I got this response:"Clayton,

Norfolk Southern is currently in the process of developing a licensing program, so we cannot grant permission immediately. Please contact us again later this year, when we expect to have completed the necessary steps. Thanks for your patience.

Kind regards,

Mary

Mary C. McNeeley
Director Visual Communications
Norfolk Southern Corporation
Three Commercial Place
Norfolk, VA 23510-9224
Phone 757-629-2302
Fax 757-533-4874
mcmcneel@nscorp.com"I guess that answers that question and delays further any release of NS stuff from yours truly.

Clayton

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RE: NS Licensing, ssw_96, May-26-04, 10:38 AM, (1) RE: NS Licensing, mquist, May-26-04, 11:50 AM, (2) RE: NS Licensing, yellowdog, May-26-04, 01:48 PM, (4) RE: NS Licensing, ssw_96, May-26-04, 04:58 PM, (5) RE: NS Licensing, yellowdog, May-26-04, 05:52 PM, (6) RE: NS Licensing, stationmaster, May-27-04, 12:10 PM, (9) RE: NS Licensing, yellowdog, May-27-04, 12:16 PM, (10) RE: NS Licensing, ssw_96, May-27-04, 11:41 PM, (15) RE: NS Licensing, yellowdog, May-28-04, 07:33 AM, (16) RE: NS Licensing, ssw_96, May-28-04, 04:51 PM, (18) RE: NS Licensing, keiffer, May-26-04, 12:06 PM, (3) RE: NS Licensing, chucksc, May-26-04, 05:58 PM, (7) RE: NS Licensing, pwillard, May-27-04, 11:44 AM, (8) RE: NS Licensing, chucksc, May-27-04, 12:35 PM, (11) RE: NS Licensing, pwillard, May-27-04, 05:14 PM, (12) RE: NS Licensing, Claude350, May-27-04, 06:32 PM, (13) RE: NS Licensing, yellowdog, May-27-04, 11:00 PM, (14) RE: NS Licensing, Xacto, May-28-04, 12:06 PM, (17) RE: NS Licensing, Andy J, May-29-04, 03:29 AM, (19) RE: NS Licensing, Andy J, May-29-04, 11:34 AM, (20)

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Well everyone else has released NS stuff. Nothing stopped them from doing it.

The best railroad there ever was

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LAST EDITED ON May-26-04 AT 11:53 AM (EDT)

As long as they don't have a program you should probably not worry about it. Later when the program is in place and you get a non-comercial licence I expect it will retroactivly cover work you have already done. Worst case is the grumble and you can remove the skins they object to. Be Seeing you.
Michael

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LAST EDITED ON May-26-04 AT 01:50 PM (EDT)

SSW_96--No offense, but I've always thought that was THE lamest argument for breaking the law or otherwise doing something stupid.Michael--No, worst case is they haul my butt to court and fine me or toss me in jail for copyright infringement. Especially since I was denied (albeit through e-mail) permission to proceed with repaints. To me, this is not something to play around with. Keith--It looks like they're leaving it up to me to get in contact with them, but if I hear anything from them I'll post an update. If I don't hear anything, I'll shoot off another e-mail in a while and see if I can get an update from them. Either way, I'll keep people informed. EDIT: Darn sentence structure. . .

Clayton

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LAST EDITED ON May-26-04 AT 05:50 PM (EDT)

>SSW_96--No offense, but I've always thought that was THE
>lamest argument for breaking the law or otherwise doing
>something stupid.
If thats the way you look at it. But I dont look at that as breaking the law or doing something stupid.

The best railroad there ever was

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You don't look as INFRINGEMENT OF COPYRIGHT LAWS as BREAKING THE LAW or DOING SOMETHING STUPID? Morality check. . .

Clayton

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It is not as clear as you might think. WARNING - The opinions expressed here are not from professional legal counsel!First of all, it is TRADEMARK LAW, not COPYRIGHT LAW and there are significant differences. Trademarks were created by law to protect consumers of goods and services from being mislead by imitators. If one were to create a transportation business and use logos and trade names similar to Norfolk Southerns, that would be infringement. There are also, however, anti-dilution statutes that protect "famous marks" from use in other goods and services. The definition of "Famous" is quite vague and rulings seem to be inconsistent. However, it is my understanding (again, not based on professional research of case law) that there are significant exemptions:1. Non-commercial use
2. Artistic expressionThe use of "Fallen Flag" trademarks is a separate issue. If a trademark is not used in commerce for 2-3 years, it is considered abandoned. Do old freight cars in service count? I have no idea. The fact that NS does not promote "Norfolk and Western" brand transportation services might be a factor.Also at issue, especially for fallen flag logos, is the fact that for many decades, most if not all railroads chose to ignore and in some cases even encourage use of their marks on model trains.This does not mean that the issue can be ignored. Virtually no one can afford to defend themselves against even a frivolous lawsuit from a corporation with deep pockets. But do not assume that someone who is creating realistic skins is breaking the law, being stupid or immoral.I have not noticed any model RR manufacturers suspending production while NS develops their license program.

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Regardless, I can take it or leave it. It's not a matter of life and death and while I appreciate your clarification, I'm perfectly happy waiting for things to become legal (especially since it's MY skin, both figuratively and literally!).

Clayton

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Well excuse me for not knowing every law of the land.

The best railroad there ever was

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If you didn't know, why were you even offering an opinion in the first place?

Clayton

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Because I can!!

The best railroad there ever was

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Well this could backlog me for a couple of months...Weird I released the C40-9s and never heard anything...Clayton please keep me updated on these events?!

Keith
NS Fan
"The way to be safe is never be secure"

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Keith talk to me off line about this as we are covered!Chuck Schneider
Chief Cook, Bottle Washer and (Virtual) CEO

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Curious. How can you be "covered" if they don't have an official program or policy? Is that possible?Pete Willard


http://www.trainsimstuff.com
If a product has a wall-wart, don't buy it. Force peripheral makers to find a more innovative way to power their devices, and leave wall-warts where they belong: in the waste bin of history.

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LAST EDITED ON May-27-04 AT 12:36 PM (EDT)

Written Permission prior to any policy even being considered!We always ask 1st!
Chuck Schneider
Chief Cook, Bottle Washer and (Virtual) CEO

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COOL!
Pete Willard


http://www.trainsimstuff.com
If a product has a wall-wart, don't buy it. Force peripheral makers to find a more innovative way to power their devices, and leave wall-warts where they belong: in the waste bin of history.

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LAST EDITED ON May-27-04 AT 06:32 PM (EDT)

Way to go Chuck.Glad you got that end covered.I'm about to kill over waiting for the spartan cab SD70s.

Claude350 NS Piedmont Division Raleigh East

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See, I think that's where I'm screwed. I got written denial even though there's no policy in place. So I suppose I've got to wait for the license. But, like I said, it's really no big deal for me to wait.

Clayton

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It may be just a matter of semantics, but you were not denied permission, they just couldn't grant permission. Unless they already have a publicly stated policy indicating that you can not use their logo on non commercial items, there should be no problem.Cliff

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LAST EDITED ON May-29-04 AT 03:31 AM (EDT)

Actually having just re-read NS’s website, it appears 100% clear!From NS’s website {underline added}
----------------------------------------------------
http://www.nscorp.com/nscorp/application?pageid=About%20NS&category=About%20NS&contentId=english/nscorp/about_ns/request_logo.html“NS prohibits the use of its logo for the sale of goods and services and for purposes of endorsement, either literal or implied. Also prohibited is use relating to the provision of transportation services other than those specified by NS and its subsidiaries. If your logo request falls in these areas, contact Mary McNeeley at 757-629-2302 or Frank Wright at 757-629-2301 for more information.”----------------------------------------------------------There it is STRAIGHT from the horse’s mouth so to speak!A freeware “item” should NOT need special permission for use, according to this, ask for money for the”item”, you will have problemsAnd since we are talking about MSTS, the rest of that paragraph does not apply to usThe even offer free downloads of their logo and how to use it properlyIf it was a problem, it would have reared its head long ago.What about the “artistic” part of trademark law?? A MSTS Car or Locomotive COULD CLEARLY be considered art! Especially in light of what some folks call art today.BTW I am NOT a lawyer, nor do I play one on TV, but I am a real good reader!!!But it appears that according to this, you do not need to ASK permission to use NS's Logo for a freeware car or locomotive,it CLEARLY does not fall under a "restricted" catagory--------------------------------
R.I.P Norfolk and Western,at least I got to know ya
you MAY find me hanging out on the Pocahontas and Radford Div of NSAndy J

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I Goooooooooooooogled for hours to find the trademark law itself, and HERE is the section of the law about infingments
{underline added}
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§32 (15 U.S.C. §1114). Remedies; infringement; innocent infringers
(1) Any person who shall, without the consent of the registrant—(a) use in commerce any reproduction, counterfeit, copy, or colorable imitation of a registered mark in connection with the sale, offering for sale, distribution, or advertising of any goods or services on or in connection with which such use is likely to cause confusion, or to cause mistake, or to deceive; or (b) reproduce, counterfeit, copy or colorably imitate a registered mark and apply such reproduction, counterfeit, copy or colorable imitation to labels, signs, prints, packages, wrappers, receptacles or advertisements intended to be used in commerce upon or in connection with the sale, offering for sale, distribution, or advertising of goods or services on or in connection with which such use is likely to cause confusion, or to cause mistake, or to deceive, shall be liable in a civil action by the registrant for the remedies hereinafter provided. Under subsection (b) hereof, the registrant shall not be entitled to recover profits or damages unless the acts have been committed with knowledge that such imitation is intended to be used to cause confusion, or to cause mistake, or to deceive. As used in this paragraph, the term “any person” includes the United States, all agencies and instrumentalities thereof, and all individuals, firms, corporations, or other persons acting for the United States and with the authorization and consent of the United States, and any State, any instrumentality of a State, and any officer or employee of a State or instrumentality of a State acting in his or her official capacity. The United States, all agencies and instrumentalities thereof, and all individuals, firms, corporations, other persons acting for the United States and with the authorization and consent of the United States, and any State, and any such instrumentality, officer, or employee, shall be subject to the provisions of this Act in the same manner and to the same extent as any nongovernmental entity.(2) Notwithstanding any other provision of this Act, the remedies given to the owner of a right infringed under this Act or to a person bringing an action under section 43(a) or (d) shall be limited as follows:(A) Where an infringer or violator is engaged solely in the business of printing the mark or violating matter for others and establishes that he or she was an innocent infringer or innocent violator, the owner of the right infringed or person bringing the action under section 43(a) shall be entitled as against such infringer or violator only to an injunction against future printing.
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It appears clear to me, for our reskins, we are okay, as long as we don't ask for moneyhere is the law itself, http://www.uspto.gov/web/offices/tac/tmlaw2.html#_Toc52344320--------------------------------
R.I.P Norfolk and Western,at least I got to know ya
you MAY find me hanging out on the Pocahontas and Radford Div of NSAndy J

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