Re: advertising and copyright infringment

On Wed, Feb 03, 1999, Doris Grazulis <tornproj[_at_]plainfield.bypass.com> wrote:
>
> 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
>
> A: 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?

I have to reply to this situation...

1. The section that you hyperlink to below, 17 U.S.C. sec. 113, refers to representations of "useful articles," which have their own special definition in 17 U.S.C. sec. 101: "an article having an intrinsic utilitarian function that is not merely to portray the appearance of the article or to convey information." A scenic waterfall cannot, by any stretch of the imagination, be considered a useful article, therefore a photograph of the waterfall is not covered by the section you quoted.
2. As copyright holder in the photograph, that person has exclusive rights to reproduce, distribute, display, and prepare derivative works of their photograph, per 17 U.S.C. sec. 106. You mention that the photograph was licensed. So the answer is - it depends what is in the license. If the license allows advertising, then advertising is probably OK. If the license doesn't allow advertising, then it is probably not OK. However, one BIG caveat -- licenses are covered by contract law, not copyright law. Contract law is state law. I suggest that the person contact someone in the state familiar with the state contract laws, and have them take a look at the license.

Of course there are dozens of possibilities depending on the circumstances - is the license valid, was it entered into with free will and understanding, what rights does it convey, was there adequate compensation paid (using non-legal jargon),...

As for the fair use question, I'm sure others will respond to tell you that commercial use is likely not fair use, but that's not the issue if the copyright owner granted a broad license.

Note that these opinions are mine alone, not that of my employer's, etc., etc.

Rick Frenkel
<rfrenkel[_at_]lyonlyon.com> Received on Fri Feb 05 1999 - 16:31:51 GMT