Topic: Intellectual Property
Time Investment: 8 Minutes
Suggested Product: BizRevamp
As photographers, we don’t just have shoots in a studio. We are out and about, constantly scouting fun and unique backgrounds.
This might bring us downtown, where we might utilize a unique storefront as a backdrop or having an engagement shoot in a bookstore for two bookworms.
In these instances you might purposefully capture a unique business logo or book cover in a shot.
Do you need to worry about copyright issues photographing a logo?
Maybe, but it depends on how you want to use it.
In today’s world where information and images are easily accessible and shareable on the web, it is becoming more and more vital for photographers to have a working knowledge of how the law can affect you. This includes not only how to follow the law, but also how the law can protect you.
Two main areas of the law that often apply to photographers are copyright and trademark law. The two are similar and often confused, but are actually quite different.
So, let’s start with the basics. There are two areas of the law that may apply in these situations; copyright and trademark laws. They are similar, but actually quite different, so let’s briefly go over the two.
Copyright and Trademarks
What is a copyright?
A copyright is the legal right of the creator of a ‘work of authorship’ (i.e., photograph, sculpture, novel, dance, etc.) to control the future use of that work. This means that the copyright owner controls any reproduction, give permission to use the work as they choose, and display the work in the manner they deem fit. These rights attach as soon as the work is created, thus registration is not a requirement.
However, copyrights can be registered with the Copyright Office, which may give the owner additional benefits.
Copyright infringement is using another’s work without permission. For example, using a photograph taken by another on your photography website without their permission to do so.
What is a trademark?
According to the United States Patent and Trademark Office, a trademark is, “a word, phrase, symbol, and/or design that identifies and distinguishes the source of the goods of one party from those of others.” For example, a trademark protects the relationship between a company/person with the word/phrase/symbol/design, otherwise known as ‘mark’. A trademark comes into effect when someone is the first to use the mark in commerce or when it is registered with the Patent and Trademark Office.
Trademark infringement is when a mark is used by a non-owner if it is likely to cause consumer confusion about the source of the good or confusion of whether the good is being endorsed. Trademark dilution is when the mark is weakened due to identification with someone else’s good. For example, if a company tried to sell bicycles under the name Ford.
Differences Between Copyrights and Trademarks
An important distinction between a copyright and a trademark is their goals. A copyright’s goal is to control the future use of the work and protect the rights of the owner. A trademark’s goal is to control the relationship of the mark to the owner.
Another difference between copyright and trademark are the restrictions on legal uses of the work or mark by others. In general, a copyrighted work can only used by others with permission/license from the owner. On the other hand, marks can be used without permission of the owner under certain circumstances.
Marks may be used without permission of the owner as long as it isn’t being used ‘in commerce’ and does not cause ‘consumer confusion’.
- ‘In commerce’ means that your use has of the trademark has a substantial effect on interstate commerce, such as an interstate advertising campaign.
- ‘Consumer confusion’ means a consumer might believe there was some sort of association or endorsement between the mark and your business/product. For example, you can’t put the Canon logo on your ad for your photography business that might be used in an interstate manner.
Logos and Book Titles
Do copyright or trademark protections apply to logos and book titles?
A logo that is used commercially clearly falls under the protections of trademark law. Some more complex logos may also be protected under copyright laws as a work of art.
A book title may fall under the protections of trademark law, but the writing in the book falls under copyright protection. In order to fall under the protection of trademark law a book title must meet one of two criteria.
- The first is when a series of books has been developed under one title, to the degree that the public associates the title with the series (e.g., “Chicken Soup For The Soul” book series.)
- The second instance is when a title is also applied to related products/services (e.g., A book that has been turned into a movie with associated merchandise.)
Photographing Logos and Book Titles
Under these protections affecting logos and book titles, what are you, as a photographer, able to do with them?
If you want to use a photograph with a trademarked logo you can do so under the right circumstances. You can use it as long as you aren’t using it ‘in commerce’ AND if it doesn’t create ‘consumer confusion’.
So what does that mean for you?
Say you have a photograph of a couple in front of a Krispy Kreme Donuts store with the logo clearly visible. You can most likely use this photo on your website, since it wouldn’t reach the level of substantially effecting interstate commerce and there is little chance that a consumer will think you are selling donuts.
It is important to keep in mind that if a logo is more complex it may also be copyrighted, in which case you will need permission, or license, from the owner to use it. Permission may be gained by contacting the copyright owner (which may not be the original creator). Make sure you get permission in writing before using the copyrighted material.
As for a book title, you must first determine whether the book title falls under one of the two requirements for trademark protection. Is it a series or is the title also applied to related products/services? If not, then it isn’t trademarked and it can likely be used. If so, then it is trademarked and it can only be used if you aren’t using it ‘in commerce’ AND if it doesn’t create ‘consumer confusion’. For example, if you take a photo of a baby on a Winnie the Pooh book you can likely post it on your website.
When in doubt ask for permission for the use of the logo or book title from the owner and/or consult an attorney for help with specific trademarks as they can be tricky!