Hello. My question is more of a copyright issue. Can I publish another companies advertisment or logo if I am demonstrating subliminal advertising or another odd occurance. What are my obligations regarding mentioning the copyright and such. Will I be shielded under fair use considering I have no way to prove my claims other than to showcase the advertisiment or logo in question?
San Francisco, California
I have researched using martindale hubbel, online legal journals and google. I believe I have 'fair use on my side' however I am not certain.
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.
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
Thank you so much for taking the time to answer my question so thoroughly. To reply, the images related to the question(s) will be used in a book for sale in the future. I originally intended to only use the newly rendered images (my own artwork) for the book but have been encouraged to include the originals if possible. I have idea's for a video developed using 3 second stills of each image, including originals. I would like to create a new medium of looking at contemporary art which advertising is unfortunately in group. I call this medium "reverse imaging" This is where you take a mirror to an image and reflect at some mean point to create a new image. Here are two example pages of marketing using images in question.
I see. Based on this type of use, I think you have a good chance of being within fair/nominative use. You are using the ads/logos as examples for analysis and not as advertisements of your own, and that is a critical issue for trademark. Moreover, you are presenting the ads and not just the name or logo, so there shouldn't be confusion about your use. One thing to keep in mind is if you are using a copyrighted photo that you may need the permission of the photographer etc. but even then you may still be okay under fair/nominative use. In your example, the BK photo may not be sufficiently creative or original to merit a copyright but there may be other photos that are. As a general rule I would use only as much copyrighted material as you need to get your message across, that will help ensure that you stay within the fair/nominative use exception. good luck with your work!
Experienced in intellectual property law
Thanks. How much would you charge to review the entire book. The book includes about 75 images such as movie posters, logos and print ads. If you decided to contract with me what assurances would we have that the work would hold up. And would you be able to estimate the cost of challenging a copyright issue related to the publishing of this book. Thanks. Richard T Monk.
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.
Thanks again. I am sorry that I logged off. I saw that you were offline and assumed that since it was late well..... I will stay on for a bit longer and wait for a reply or pm. Don't you hate losing your work after you click send. It has happened to me and I regret not being online. You can also contact me directly as an alternative XXXXX@XXXXXX.XXXThanks!
Alex,Would it be legal if I applied the newly rendered images to products like clothing? If I understand you correctly then depending on use I would be able to market the images I created as long as I include some mention of the book or my name or reference to the primary product being the book as opposed to their logo or ad. Let's face it some of the images I present are guaranteed to unsettle a few folks. So your advice would be to choose carefully which images get prime promotion and which ones don't. Thanks again.Rich
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.
I see. So it is advised to stay away from claiming ownership of said images. I am interested in hiring you to review my book, as you are proven quite knowledgable in this arena. Will I be able to afford your services and How do we proceed from here?
Alex,It is late and I have taken a great deal of your time. Your generous spirit and obvious passion for what you do make you a great person to work with. Are you sure your a lawyer?? I must log off but please do leave your contact info at my email address here if I will get it after logging off. Thanks again. XXXXX
Alex, I am so thankful for your guidance last night. I never received a reply from you regarding review of my book. How do we proceed. This is my first time on this site. Thanks -Rich
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