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Tis the season to be wary

News and Notes Focused on the 3 Public Faces of IP Law

  • Brand Image Protection - Trademark Law
  • Visual Image Protection - Copyright Law
  • Personal Image Protection - Right of Publicity Law

The Image Protection Law blog has been created in order to share stories and information on the legal aspects of: 1) the marketplace reputation of a company or product captured in its trademark, 2) published or publicly-displayed artwork, photography, and any created visual design, and 3) use of a person's photograph or likeness for product promotion or other commercial purposes.

The "IP3" share at least one thing in common: Image is everything. In these posts let's look at what that means in the realm of intellectual property in the news, but let's also be prepared to explore if there's something more beyond "everything." Don't forget, the intellectual in "intellectual property" doesn't mean smart or brainy, although by nature true creators often are. The word is used to refer to any creation, i.e., a "product of the mind." While this blog will be regularly updated, you are encouraged to share your thoughts on these posts.

If you're doing any holiday shopping this season, chances are at least a portion of that activity will be happening online. Google and all the other search engines out there do an amazing job of delivering opportunities for getting just the right item at the best price. Sometimes the product comes direct from a manufacturer or brick and mortar retailer. Just as often, the same images and product descriptions appear on sites like YouTube, Amazon, eBay or Craig's List from third-party sellers.

Reselling online this way seems straightforward. But it might be worthwhile to ponder the question: Is it legal as a matter of fair use, or is it a violation of copyright law to show photographs of products with copyrighted material on them? What about the marketing text that's separate from the photograph of the product? The answer depends on the specifics.

Some fundamentals

Most photographic and written marketing text that a third party copies and pastes to an online sales outlet site likely enjoys copyright protection. In the U.S., the protection remains intact for the life of the creator and 70 years after his or her death.

Fair use exceptions do afford the right to take and display photographs of useful articles being resold without fear of a copyright claim, e.g., a photograph of the product in its packaging with a copyrighted image on the packaging. However, if you don't take your own photography but scrape one from a manufacturer or retailer site and post it so you can sell the product, you've likely just infringed somebody else's copyright in the image. You need to take your own photograph of the product before posting it online for sale unless you've obtained permission.

However, the right to take and publish photographs of a product for purposes of reselling (Section 113 of the Copyright Act) does not apply to text that someone else created that merely accompanies an image of the product itself. Other rules may apply. It's always best to run it by an experienced copyright lawyer until you have the hang of the rules.

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