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Protect Yourself from Infringement

Have you ever heard a song or seen a photo that seemed like a perfect means of conveying your company’s image or identity?

Unless handled properly, using someone else’s artistic creation can land you in hot water, as a recent lawsuit over a Miami street artist’s murals readily illustrates.

In this case, American Eagle Outfitters took photos of fashion models wearing its clothing in and around Miami’s Wynwood neighborhood.  The problem was that a well-known street artist’s murals were prominently featured in many of the shots, which were used in a subsequent American Eagle advertising campaign.  Because no one apparently thought to obtain the street artist’s permission, American Eagle is now embroiled in an infringement lawsuit in federal court.

Problems of this sort can arise in numerous contexts:  using snippets of a song in commercial advertising, reproducing stock photographs without permission from both the photographer and the people in the photo, or utilizing a licensed photo in a manner that exceeds the scope of any authorization initially obtained from either the photographer or the models.  While it is not always possible to avoid these kinds of situations in a world filled with copyrighted imagery and sounds, a number of precautions can minimize the possibility that you or your company will be accused of infringement.

1.       Keep in mind that virtually anything you see or hear is potentially copyrightable or subject to trademark protection:  a jingle on the radio, an apparently abandoned sculpture out in the countryside, a photograph, video or other artwork you stumble across on the Internet.  When in doubt, assume someone owns it.  Just because it is possible to freely download something does not mean you can use it for commercial purposes without permission.

2.       When you discover artwork you want to use, contact the owner to obtain a license, or in the case of Internet sounds or images, check to see if the terms and conditions of the web site where you found them specify whether and to what extent the sounds or images may be used, with or without paying a royalty.

3.       Just because someone says they own something does not necessarily mean that is true.  A website may merely be a collection of others’ works, and may not have the authority to license them, at least for the use you intend.  Closely examine whatever representations are made by the person you are dealing with regarding their rights to license another’s work.  Those rights may not exist, or are so minimal as to be worthless.

When in doubt, go elsewhere, or deal only with reputable, well-known purveyors of stock photographs or other materials.

4.       Licensing the copyright in a photograph for use in, say, an advertising brochure does not necessarily mean that you have the consent of whatever people appear in the photo to use their images for commercial purposes.  Ask the licensor whether they have obtained permission from the subjects appearing in the photos and, if so, the extent of that permission.  Insist that whatever representations are made on this subject be in writing, or ask to see the written permission from the subjects.

Again, dealing with a reputable purveyor of photographs is the safest course.  Otherwise, you could be facing a claim not from the photographer but from the models themselves – or even individuals who had no idea that they were being photographed.

5.       In the age of Photoshop, it is possible to alter photographs to suit your needs.  If that is something you might want to do, make sure that your license allows for the creation of derivative works from the licensed subject matter.   And if your alterations portray the persons depicted in ways which arguably exceed the scope of their original authorization, you should clear the alteration with them first or obscure their identity.

These are just a few of the copyright, trademark and related issues that can arise in the context of commercial advertising.  Keeping the above pointers in mind will go a long way toward eliminating problems – or at least enable you to recognize them before they spin out of control.

To learn more about how you can protect yourself from infringement, contact us today.


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