Commercial Photography - Is Using Products of Other Brands Infringes Copyright?

[TechnicGeek]

Hi quincy,

In commercial product photography, using products of other brand names for props that support overall scene in which all the attention is on main product infinges on copyright? I am not talking about using products of competing brand names but just brand names that are in same category or something?

Example #1: Main product is a pencil by brand name X and a pencil sharpener is of brand name Y is placed next to it
Example #2: Main product is a ceramic plate by brand name X and next to it is a wine bottle by brand name Y
Example #3: Main product is a wine bottle by brand name X and next to it a corkscrew by brand name Y

All depends whether other brand names were used to support scene versus support main product? I mean using other brand names products for decorative purpose that would complement scene as a supporting objects versus purpose that would somehow imply comparison to audience?

Thank you

 

[quincy]

Hi quincy,

In commercial product photography, using products of other brand names for props that support overall scene in which all the attention is on main product infinges on copyright? I am not talking about using products of competing brand names but just brand names that are in same category or something?

Example #1: Main product is a pencil by brand name X and a pencil sharpener is of brand name Y is placed next to it
Example #2: Main product is a ceramic plate by brand name X and next to it is a wine bottle by brand name Y
Example #3: Main product is a wine bottle by brand name X and next to it a corkscrew by brand name Y

All depends whether other brand names were used to support scene versus support main product? I mean using other brand names products for decorative purpose that would complement scene as a supporting objects versus purpose that would somehow imply comparison to audience?

Thank you

Hi, TechnicGeek.

It would be trademark laws that you need to concern yourself with rather than copyright laws and, yes, your use of other brand name products commercially, even if these products are used in a "supporting role" only, could lead to legal problems. The trademark holders could find infringement or dilution in your placement of their products in your advertisements.

It is best, in other words, to avoid showing any trademark in an advertisement without prior permission from the holder of the mark.

If you photograph a wine bottle when advertising a corkscrew, it is safest to photograph a "generic" wine bottle with the corkscrew's label showing. It is the corkscrew you are selling. You do not want your ad to appear as if it is trading off the reputation of the other brand.

It might be best if you have your proposed ad mock-ups personally reviewed by a trademark lawyer in your area, for a better determination of your legal risks.




edit to add: I received your private message and the answer to your question is "no" - although it might seem to visitors to this forum that this is the case.

 

[TechnicGeek]

It is best, in other words, to avoid showing any trademark in an advertisement without prior permission from the holder of the mark.

Thanks for your reply.

If I sell a pencil, can I place pencil sharpener of other brand but make sure brand name is not exposed i.e. turn that part away from facing camera?

In case brand name is so visible that turning it away would not make a difference, can I digitally retouch that pencil sharpener to conceal brand name?

 

[quincy]

Thanks for your reply.

If I sell a pencil, can I place pencil sharpener of other brand but make sure brand name is not exposed i.e. turn that part away from facing camera?

In case brand name is so visible that turning it away would not make a difference, can I digitally retouch that pencil sharpener to conceal brand name?

You should not alter or modify an existing trademark.

It is best if you do not use a pencil sharpener that is recognizable from its design as belonging to a specific company. Generic is the legally safest way to go.

But, that said, the specific products and how they are displayed in the ad and what sort of advertisement they are appearing in would need to be personally reviewed to determine if your uses of these products are at risk of spawning a notice of infringement or a lawsuit.

Commercial uses of others' trademarks will always be riskier than the use of these trademarks for private purposes or in news reporting and commentary. You really have to be careful in advertising not to imply that a trademark holder is affiliated in any way with your own product or service. Most trademark holders will aggressively pursue anyone who uses their mark in a way that can dilute the value of or market for their own product or service or that can be seen as trading off its reputation.

Again, having the specifics of your uses reviewed personally can help protect you from a trademark holder's legal challenge to your use.

Good luck.

 

[TechnicGeek]

You really have to be careful in advertising not to imply that a trademark holder is affiliated in any way with your own product or service. Most trademark holders will aggressively pursue anyone who uses their mark in a way that can dilute the value of or market for their own product or service or that can be seen as trading off its reputation.

I have seen numerous times where disclaimers are used that state that trademark holder is in no way affiliated with advertised product and that all trademarks are propery of their respective owners.

Should a text with same statement used on photo of advertised product to show good faith?

 

[quincy]

I have seen numerous times where disclaimers are used that state that trademark holder is in no way affiliated with advertised product and that all trademarks are propery of their respective owners.

Should a text with same statement used on photo of advertised product to show good faith?

Disclaimers do not prevent lawsuits. They can help mitigate damages awarded in a lawsuit should you be sued over the use of another's rights-protected material, however.

Because you are in Israel, you would be smart to consult with an IP attorney in your country. What has been written so far by me applies to US laws but there are often differences in these laws (sometimes small, sometimes significant) depending on where in the world you are located.

Good luck, TechnicGeek.

 

[Zigner]

I have seen numerous times where disclaimers are used that state that trademark holder is in no way affiliated with advertised product and that all trademarks are propery of their respective owners.

Should a text with same statement used on photo of advertised product to show good faith?

Let me rephrase your question:

If I put the copyright holder on notice right there in the advertisement that I KNOW I'm using their intellectual property in a way that they may not agree with, would that be ok?


Now, think through the answer.

 

[quincy]

Because I failed in the last thread you created on the forum to provide you with links to the IP laws that apply to you in Israel, following are two links to Israel's IP laws (all IP and trademark-specific), from the World Intellectual Property Organization (WIPO). If you are sued over your use of another's rights-protected material, it will be under the laws of your country that you will be sued.

http://www.wipo.int/wipolex/en/profile.jsp?code=IL

http://www.wipo.int/wipolex/en/details.jsp?id=8200

And, as an additional note: Zigner's post supports my earlier answer to your PM question.

Good luck.