Copyrighted material within photo?

Hey guys,

Quick question regarding the capture of copyrighted materials within a photograph. I'm doing some album design for a client that wants to use the below picture on the back of a cd jewel case. There are a couple of items within the photo, mainly the Bob Marley poster, that we don't have the rights to and we're concerned about using the image on the back of a product that is going to be sold.

I'm a complete novice in these legal waters, and would be very grateful for any advice you guys could offer.

Is it okay to use? I'm inclined to think we are fine, but thought I'd ask anyway. Thanks!

You would normally be okay if it's clear that inclusion of a copyrighted work in the background was purely incidental--the appearance being mere happenstance.

In this particular photograph, the poster appears to be as much or more of the subject of the image as the musician--it hardly appears incidental, but rather an intended element of the compostion.

That's not to say you can't and would not get away with it, but for the particular discussion of "copyrighted works appearing within other works," the question under consideration is always whether the included copyrighted work is merely incidental or forming a substantive part of the composition.

You always need a release/grant of rights for commercial use, EVEN if its not predominant in the image. Movie studios obtain the rights or create their own images even for incidental photographs in the background such as those on a fireplace mantle, etc, to avoid copyright issues. They have been sued and settled for that very example.

sfaust wrote in post #12510945
You always need a release/grant of rights for commercial use, EVEN if its not predominant in the image. Movie studios obtain the rights or create their own images even for incidental photographs in the background such as those on a fireplace mantle, etc, to avoid copyright issues. They have been sued and settled for that very example.

That's certainly what your lawyer would tell you.

OTOH, http://www.jazzhostels​.com …51-new-york-times-square/

And I would I'd listen. Why pay them $400 an hour and then clearly ignore their advice in their area of expertise?

And why would stock agencies and photographers go to the trouble of blurring logos for commercial use stock images/video if it wasn't needed, while others with logos clearly visible are noted they are for editorial use only?

http://www.istockphoto​.com …-logos-pal.php?st=7c6ac2b

http://www.istockphoto​.com …n-new-york.php?st=0d15ee1

Not a copyright attorney, but I would say yes you'd need a release for commercial use. And it would be my view the Times Square example is an editorial use and not a commercial use, therefore it would not be subject to a release.

sfaust wrote in post #12510945
You always need a release/grant of rights for commercial use, EVEN if its not predominant in the image. Movie studios obtain the rights or create their own images even for incidental photographs in the background such as those on a fireplace mantle, etc, to avoid copyright issues. They have been sued and settled for that very example.

So if you shot a street scene in someplace that had all kinds of electronic billboards and could make out ads for Pepsi, McDonalds, The Gap, etc..., say someplace like Times Square, you would have to request a release from every single one of those that you could make out in the photo? Even if say you're clearly shooting a person for an album cover or something similar?

Village_Idiot wrote in post #12515404
So if you shot a street scene in someplace that had all kinds of electronic billboards and could make out ads for Pepsi, McDonalds, The Gap, etc..., say someplace like Times Square, you would have to request a release from every single one of those that you could make out in the photo? Even if say you're clearly shooting a person for an album cover or something similar?

If you are going to use it commercially, any good IP attorney would advice you that is the case and will cite both copyright and trademark issues. They would also advise you its a steep uphill battle if you do get sued, and one they probably won't win.

Can you do it and get away with using it without releases, probably. Could you and/or your client get tied up in a lawsuit if you do use it without a release, probably. Flip a coin?

I bet small local child daycare centers never thought they would get sued by Disney for trademark issues just because they painted a Mickey Mouse on their internal walls, but quite a few did. Disney needs to prove they actively protect their trademarks or they could loose them, and the daycare centers turn just happened to be up. Rarely do you find Disney characters there anymore. The word got out, which was their intended purpose.

Showing trademarks in times square images could be next. Who knows. But I do know if I listen to the attorneys it will be someone else, and not me And as IP creators, how can we expect others to respect our IP rights if we violate the IP rights of others?

sfaust wrote in post #12515550
If you are going to use it commercially, any good IP attorney would advice you that is the case and will cite both copyright and trademark issues. They would also advise you its a steep uphill battle if you do get sued, and one they probably won't win.

Can you do it and get away with using it without releases, probably. Could you and/or your client get tied up in a lawsuit if you do use it without a release, probably. Flip a coin?

I bet small local child daycare centers never thought they would get sued by Disney for trademark issues just because they painted a Mickey Mouse on their internal walls, but quite a few did. Disney needs to prove they actively protect their trademarks or they could loose them, and the daycare centers turn just happened to be up. Rarely do you find Disney characters there anymore. The word got out, which was their intended purpose.

Showing trademarks in times square images could be next. Who knows. But I do know if I listen to the attorneys it will be someone else, and not me And as IP creators, how can we expect others to respect our IP rights if we violate the IP rights of others?

I wouldn't think of going after someone if they photograph a scene where an advertisement containing my logo or a photo of mine shows up in the photo as a small background element. Besides the fact that I wouldn't have ever thought that it's something that would be legally possible, I would feel like a money grubbing vulture at that point.

Edit: So the people that took the photos for the Chevy and the Budlight ads in this photo from Google image search, could indeed sue the person that took the photo if they were to use it commercially?
http://www.terroristpl​anet.com …s/2010/05/times​square.jpg

Photoshop it. Remove the name, mirror the image, make enough changes so it becomes a new piece of art and the matter is settled.

I'd retake the photo, so that the image in the background is just a muted faintly recognizable form and focus all my attention on the musician instead.

RDKirk wrote in post #12510797
You would normally be okay if it's clear that inclusion of a copyrighted work in the background was purely incidental--the appearance being mere happenstance.

In this particular photograph, the poster appears to be as much or more of the subject of the image as the musician--it hardly appears incidental, but rather an intended element of the compostion.

Especially given that the poster is in focus and the musician who presumably created the CD is not. You might be on safer ground if you put the musician in focus and Bob Marley and Jerry Garcia over on the right out of focus.

According to the company that owns the two most expensive ad spaces around Times Square, they charge the most expensive billboard advertising rates in the world for those spaces because they get so much additional incidental exposure in other ads, movies, television programs, et cetera.

RDKirk wrote in post #12515881
According to the company that owns the two most expensive ad spaces around Times Square, they charge the most expensive billboard advertising rates in the world for those spaces because they get so much additional incidental exposure in other ads, movies, television programs, et cetera.

That is true for editorial, documentaries, journalsim, news, personal blogs, etc. However, its standard policy by the movie studios and ad agencies to remove all logos and trademarks unless there is some agreement with the trademark owner. When you see a real logo or trademark in a movie its almost always been paid for as product placement if prominent, or the trademark owner has been contacted and some agreement made. You will rarely see it in a print advertisement, and every single ad agency I've worked with has been on top of the trademark/logo issue (I wish they were as good about our copyrights as they are about trademarks/logos!)

Suppose a filmmaker is making a film on prostitution in New York. If there are trademarks or logos that appear in the movie in various scenes, and the trademark owner takes exception to how their logo was associated with the scenario or characters, the studio could end up in a lawsuit. There are so many situations where this could occur that its just standard practice to remove them, or contact the trademark owners. Its not always about usage and money, but liability as well.

I've been on quite a few movie sets where the set design team spent hours or days rigging fake advertisements and signs over existing ones to buildings in the background there were inconsequential to the scene. It was to solely to eliminate the logos and trademarks as the new stuff had nothing to do with the movie plot and were purely generic.

There is a Blog from Harvard Law ('Info Law' I believe) that dove into this article with regard to trademarks, copyright, and movies just a couple years ago. One of their main points were that the trademark laws are being stretched somewhat to suit the trademark owners, and that the entertainment industry is playing it safe to avoid litigation in the gray areas. Even to the point of having trademark owners review their scripts.

To me that is like most laws, where there is always a gray area that could be interpreted either way, and usually argued by high priced lawyers. Its an area to avoid unless you have deep pockets.

angryman wrote in post #12515697
Photoshop it. Remove the name, mirror the image, make enough changes so it becomes a new piece of art and the matter is settled.

I agree, its the safest route and easy. Go to one of the cheap stock photography sites and buy something that fits the scene, manipulate it to mimic the look you already have, and drop it in.

No fuss, no mess, simple, cheap, quick. Charge the cost to your client. If they want to take the risk with the existing images, have an attorney write up an indemnification contract to protect you. Charge that to your client as well. Much better then worrying about whether or not you may need to retain lawyer.

In the Will Smith movie "Hancock," at one point after Smith and Charlize Theron have nearly destroyed Theron's house, Theron looks into the camera and says (to her husband), "Don't worry, I've called State Farm Insurance, they'll take care of everything."

The State Farm company categorically denies having had any prior knowledge of the use of their corporate name in the movie...and State Farm is as careful about the use of their name and trademarks as is Disney. They didn't file suit over that usage, however...but the producers did not have a prior agreement, according to State Farm.