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Dimitry K., Esq.
Dimitry K., Esq., Attorney
Category: Intellectual Property Law
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Experience:  I assist my clients with IP questions that arise in their daily course of doing business.
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Can we use a photo containing a Playboy magazine on the cover

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Can we use a photo containing a Playboy magazine on the cover of our new book?
Thank you for your question. Please permit me to assist you with your concerns.

In this image, is the magazine the primary focus of the image, or is it simply part og a multitude of other items?
Customer: replied 3 years ago.

It is on the floor or maybe the coffee table of a littered room. It's supposed to be a guy who is a slob and the girlfriend has about had it with him. He's on the couch sleeping in all this mess. Beer bottles, etc., of which there is a Playboy...or two. It's a gag book with jokes about the things men do not know about women.


Generally the use of a copyrighted image is protected unless that use is not primary or is otherwise incidental to the image. If this is a small part of the picture and is not the primary focus, it can be argued under fair use especially since this isn't a means of profiting from the cover but is, as you stated, just one of many items in the picture and not the primary focus of work. Arguably there is still a risk of being sued, but that risk is very low and highly unlikely. It is not likely that this will cause a lawsuit, as there are excellent defenses available. Purely going by your facts it does not appear to be a situation where you would be in direct violation.

Good luck.

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