Re: advertising and copyright infringment

On 2/5/1999, Rick Frenkel <rfrenkel[_at_]lyonlyon.com> wrote:
>
> On 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?
>
> 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.

Is the calendar or poster that the photo incorporates considered a "useful article" or am I not interpreting correctly?

> 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.

Interesting point, and one that I hadn't considered. When an agreement is made to use a photograph on a book cover/poster/calendar in exchange for a generous amount of money, I have ASSUMED that the copyright holder expects and tacitly agrees to whatever kind and amount of advertising is necessary to sell the product. If a publisher knew that a copyright holder was going to try to restrict the kind of advertising, why would they bother purchasing that photo, why not go elsewhere?

Apparently, contracts need to spell out every possible contingency, but personally, I find contracts like that not only very intimidating, but suspicious. The longest and most "use-defined" contract we ever signed, for televising one of our videos, was the one that ripped us off the worst. And if our lawyer at the time didn't see it coming, why would we have? Guess I will need to write my own contracts.

> 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),...

Yes, yes, apparently not enough, plenty adequate.

> 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.

I know that the "fair use" provision is very specific, but I know from experience that television stations promote programs with video clips from the upcoming program, and call that "fair use". There IS a brief mention of this in copyright law, although I don't recall where. What is promotion if not advertising? It is occasionally written into the contract as "fair use," but that is the exception. It is more often assumed to be okay (although they sometimes stretch it to the limit of over-use). I am not referring to news programs, because television stations "don't pay for news." I am specifically referring to video clips that they license from videographers to use in "specials" and use small segments of in ads promoting the special. They may run the ad/promotion dozens of times, and weeks in advance of the program. The producers consider the use of video clips in this advertising as "fair use" and that is the term THEY use. Isn't the program a commercial product ;-) sorry, that one was just too easy. So the "image" they purchase is used in the product, but also to advertise the product and it is considered "fair use" both by them and the person who licenses the video.

However, I do believe that Mr. Frenkel has pinpointed the crux of my specific problem: I assumed something that the contract should have spelled out to a greater degree.

In any case, if someone else has any "commercial product" and "fair use" stories, comments, or input on this, I for one would be very interested to hear it.

Doris Grazulis
<tornproj[_at_]plainfield.bypass.com> Received on Sat Feb 06 1999 - 21:32:11 GMT