Photoshop job used for album cover - am I safe?

[twiggyreal]

I am in the state of Illinois...


Before I say anything, let me first say yes, I know, I should have consulted a lawyer directly before assuming I'd be covered by fair use. I'm still pretty confident that I am, but anyhow, here's the situation.


For an album cover for a compilation of local bands, we took a picture of a university statue that had its arms outstretched and photoshopped one of the hands so it was making the "rock" sign. I'm relatively certain that this is covered under fair use / parody law. A few notes:

- We took the picture ourselves, rather than taking someone's copyrighted photo and using that
- It may or may not be relevant, but the creator of the statue has long since passed away
- Again I'm not sure if it's relevant, but the angle/view at which we took our picture is such that it can not even be confused as being a photo lifted from the university's "campus photo library" where they sell photos of various campus locales


We have not been served with any sort of cease and desist or anything, but someone at the university noted to a member of my organization that he noticed our cover had a picture of a copyrighted statue, and that we "may get a phone call". Thing is, a search using locis came up empty as far as a copyright claim on the statue. It's entirely possible, though, that they do have a copyright on the statue - I don't know...


Anyhow, I guess I'm just looking for peace of mind - is there any reason why taking our own picture and photoshopping it would not fall under the category of fair use? I think we're okay here, but I'd like to know from anyone who knows more than I do...

 

[divgradcurl]

"We took the picture ourselves, rather than taking someone's copyrighted photo and using that"

Not an issue here. Any copyright owned in a photograph of the statue is seperate from any copyright in the statue itself.

"It may or may not be relevant, but the creator of the statue has long since passed away"

Since copyrights can last up to 70 years after the death of the creator, this probably isn't relevant!

"Again I'm not sure if it's relevant, but the angle/view at which we took our picture is such that it can not even be confused as being a photo lifted from the university's "campus photo library" where they sell photos of various campus locales"

See above.

"is there any reason why taking our own picture and photoshopping it would not fall under the category of fair use"

It very well could be a "fair use" if it is found to be a parody -- the problem is, "fair use" is a defense to a charge of infringement, and is not a "right." In other words, if you are sued for copyright infringement, one of the defenses you would likely use is "fair use." The problem is, of course, that this type of thing requires an attorney...

One other thing -- is the statue just a statue, or is it a statue of the school's mascot or some other distinguishing feature of the school? If the latter is the case (a mascot), then the University may also hold a trademark, and your use of the photo as you described would be likely to be found to be trademark infringement.

You could talk with an attorney, but as you correctly note, it's a bit late now. If the University takes action, however, you should talk to an attorney to ensure that your use is indeed a fair use and that you are not steppin on anyone's trademarks.

 

[twiggyreal]

thanks for the response! I have a question:

I'm told by one source that the university has a trademark on the statue (it's not a mascot or anything, it's called the Alma Mater, done by Loredo Taft)... however, I've used uspto.gov's website and cannot find anything as far as a registered trademark is concerned (using TESS)...

I've also used LOCIS to search for copyrights to see if that had any relevance (though I believe it would be a trademark, not a copyright in this case, right?)... I found nothing about the statue there either...

Am I using the wrong tools? Using the tools wrong? Or am I looking in the right place and maybe they just don't have it trademarked?

 

[divgradcurl]

"however, I've used uspto.gov's website and cannot find anything as far as a registered trademark is concerned (using TESS)..."

That's a good place to start -- but just because there isn't a federal trademark doesn't mean that there isn't a state or common-law trademark. You could contact the secretary of state in the state in which the university is located to see if there is anything on record in the state, but this will only help if the state registers trademarks, and won't tell you if the univeristy has acquired "common law" trademark rights -- that can only be determined in court. You could talk to an attorney locally to see if the school has ever tried to assert a trademark in the statute before, and whether or not they were successful.

Of course, the easiest, and often overlooked, way to find out the status of something is to ask the owner -- in this case, ask the univeristy if they hold a trademark on the statue. If they do, you'll either have to get permission to use the picture, or just go with it, and, if they decide to sue you, make them prove they have a trademark in court. But that can get expensive...