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Robert McEwen, Esq.
Robert McEwen, Esq., Lawyer
Category: Intellectual Property Law
Satisfied Customers: 16050
Experience:  Licensed Texas General Practice Attorney
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Can a business use an image of a previously published magazine

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Can a business use an image of a previously published magazine cover along with a quote from an article (Less than 40 words) when including a reference to the article in a company brochure -

Such as "Time Magainze calls it the next big thing" - provided there is adequate attribution? Or must you get permission from the publisher first?

RobertMcEwenEsq :

Thank you for using JustAnswer. I am researching your issue and will respond shortly.

RobertMcEwenEsq :

The use of the quote is more likely to be "fair use" than the image, although it would be best if you could get the permission to use this image and quote.

RobertMcEwenEsq :

The law on "fair use" is as follows: 17 USC s 107: "Notwithstanding the provisions of sections 17 U.S.C. § 106 and 17 U.S.C. § 106A, the fair use of a copyrighted work, including such use by reproduction in copies or phonorecords or by any other means specified by that section, for purposes such as criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research, is not an infringement of copyright. In determining whether the use made of a work in any particular case is a fair use the factors to be considered shall 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.


The fact that a work is unpublished shall not itself bar a finding of fair use if such finding is made upon consideration of all the above factors."

RobertMcEwenEsq :

Fair use is a defense to a charge of infringement.

RobertMcEwenEsq :

The fact that it's for a commercial reason is not dispositive and does not automatically disqualify it from fair use, although that would be considered.


 

RobertMcEwenEsq :

Now saying that "Time Magazine calls it the 'next big thing'" is a fact, not an expression of an idea, and would not be infringement. The use of a 40 word quote would be the use of something that would be copyrightable, and copyrighted, and if fair use does not apply, you would need permission to overcome any infringement claim.

RobertMcEwenEsq :

That being said, even if you did use the picture and quote, Time will almost certainly not do anything about it, because it would not be suffering any "harm".

RobertMcEwenEsq :

Litigation is expensive, and they're only going to be concerned about uses of the magazine's intellectual property that is taking money out of its pockets. It doesn't sound like your use of the image and quote would do that.

RobertMcEwenEsq :

Hope that clears things up a bit. If you have any other questions, please let me know. If not, and you have not yet, please rate my answer. Please note that I don't get any credit for my answer unless and until you rate it a 3, 4, 5 (good or better). Thank you, XXXXX XXXXX luck to you!

RobertMcEwenEsq :

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RobertMcEwenEsq :

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