advertising and copyright infringment

Say a person takes a photograph of a scenic waterfall and decides to license it for use on magazine covers, calendars, posters, and books. Once they negotiate the price and the number of items that will be printed, do they have any control over how and where the finished product, which prominently displays the photo, will be advertised? For instance, if the photo is used on the cover of a book, can the copyright holder demand from the publisher that the book cover not be shown in a third-party catalog that sells their book? Can the copyright holder demand that a calendar with their photo on the front not be displayed for sale at a commercial internet site?

Is the display of the book(cover) or calendar considered fair use of the photograph because it is "advertising"?

At <http://lcweb.loc.gov/copyright/title17/1-113.html>, it says:

   (b) This title does not afford, to the owner of copyright in a work    that portrays a useful article as such, any greater or lesser rights    with respect to the making, distribution, or display of the useful    article so portrayed than those afforded to such works under the law,    whether title 17 or the common law or statutes of a State, in effect    on December 31, 1977, as held applicable and construed by a court in    an action brought under this title.

I interpret this to mean that the photograph copyright holder does not have any say in how the "useful article" is advertised or distributed if

1. it does not have a deleterious effect upon the potential market for or value of the copyrighted work.

AND/OR B: the original work has not been intentionally distorted, mutilated, or other wise modified in a way that would be prejudicial to the copyright holders honor or reputation

Am I correct? Does anyone have an opinion, comment, experience, etc?

Doris Grazulis
<tornproj[_at_]plainfield.bypass.com> Received on Thu Feb 04 1999 - 01:13:03 GMT