Hello,

If I am understanding your scenario, you want to use the advertisements / logos of various companies as examples for your research/study of subliminal advertising? Can you please provide more info on your use: Is it for a book, article, video documentary? Are you re-playing tv commercials or print ads? Will you be selling this work or is it for school/educational purposes?

Subject to the details of your situation, it sounds like your activity may fall within the fair use or nominative use exceptions to copyright law. In determining whether the use made of a work in any particular case is a fair use the factors to be considered include:

1. the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes;

2. the nature of the copyrighted work;

3. the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and

4. the effect of the use upon the potential market for or value of the copyrighted work.

If you are using a company's ad then it may contain copyrighted material such as music or artwork. Also, you are likely dealing with more of a trademark issue than copyright because of the use of the trademarks/logos in the ads (e.g. Pepsi or McDonalds). Just make sure you give the proper credit to these companies (e.g. "Pepsi One is a registered trademark of Pepsi Co.") and include any copyright notices as well. This won't be hard because the copyright and trademark notices will appear whenever you see the ads.

The Lanham Act permits a non-owner of a registered trademark to make "fair use" or "nominative use" of a trademark under certain circumstances without obtaining permission from the mark's owner. The fair use and nominative use defenses are to help ensure that trademark owners do not prohibit the use of their marks when they are used for the purpose of description or identification. Fair use or nominative use may be recognized where the consumer/viewer is clearly able to understand that the use of the trademark does not suggest sponsorship or association with the trademark owner's product or services and therefore is not being used in a manner to confuse the viewer.

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So just make sure that someone viewing your work recognizes that you are using the trademarks for analysis/critique purposes and not to promote your own goods/services or to suggest that the trademark owner is sponsoring or related to any goods/services you may be offering. If I understand your scenario correctly, the view would not experience a "likelihood of confusion" by your use of the trademarks--and this is the standard for TM infringement, whether a viewer would be confused as to the origin of the goods/services with which the TM is associated.

Separate from these third party issues, if your work as a whole is creative and original (easy standard to meet) then your video/book/article etc. will be your copyright. With more info I can provide more clarification. thanks

Hi, I attempted to send you a PM (private message) but that didnt work and my lengthy message was lost. I would be happy to do additional research or review, but it is difficult to predict outcomes and not responsible to provide "assurances" but the best course is to do more research upfront to avoid issues in the future. Litigation is always expensive but you may be able to avoid it by negotiating a compromise with the company to change the content, remove that ad/content, or give them a small royalty etc. Litigation defense costs vary greatly depending on the other side, your attorney's rates, how far the suit goes, etc. etc. You should do all you can to stay within the fair use exception.

That sounds risky. In that case you would be manipulating the logo and using it to advertise your own goods (clothing). There would be a potentially strong argument that you are using the logo in a disparaging way that would dilute their TM or that consumers may be confused as to the origin of the goods upon seeing your logo. Similarly, the logo (like the red lobster design) may also be also protected by a copyright and you would be using it to promote your goods without much of a fair use purpose. Once you go from (1) analysis of the logos/ads for amusement or educational purposes to (2) manipulating the logos to create your own LOGO for goods/services then your use changes completely and you enter dangerous territory for TM infringement and perhaps copyright infringement as well.