Hypothetical situation: I’m writing a story about a nationally known U.S. company, for a blog, and need a photo to go with it.
I’ve decided to take a screen shot of the company’s logo, and I’ve placed it on my own blog as an enhancement. It looks great, so I publish it.
Suddenly, there’s an unhappy attorney on the phone: I didn’t obtain proper permission to use this logo.
The company has spent a lot of time and money developing and distributing the logo, and a lot more time and money ensuring that its affiliates are using it properly in their materials. Now, apparently, I’ve brought the whole thing crashing down.
Are they coming to take me away? Am I going to jail for life?
Of course not.
According to the Copyright Act of 1976, which places general boundaries on the use of stuff like this, I have some leeway under “fair use.”
(A caveat for all you aspiring lawyers: when I’m talking about “fair use,” this is not to be confused with the Fair Use Act of 2007, which was proposed but never enacted.)
This set of provisions found in Title 17 of the U.S. Code was put in place as a privilege for authors like me to use copyrighted and/or trademarked material in a “reasonable manner” without the owner’s permission.
That’s because intellectual property law is designed to foster the creativity in authors like me. Strict enforcement of the owner’s exclusive rights to its trademarked logo or copyrighted written material could stifle that.
According to John Reid, in-house corporate counsel at TempWorks Software, there are two types of fair use for trademarks: classic and nominative.
The nominative “occurs when the plaintiff’s actual mark or logo is used,” Reid said. “Typically, ‘nominative fair use’ is brought up when a competitor wants to do a comparative advertisement, showing why its product is superior to the other.”
Well, this situation sounds pretty nominative to me. Only I don’t want to prove I’m superior. I just want to use the logo as an aesthetic, so my blog post doesn’t look boring. And since the post is actually about this company, I want to be as clear as possible whom I’m talking about.
According to Reid, the courts will generally rule for “fair use” if the owner’s product can’t be easily identifiable without the use of the trademark, and the author (myself) uses as little of it as possible – in other words, I can use it to identify the trademark owner’s services, but not to suggest that my work is in any way sponsored or endorsed by the owner.
So I’m good, right?
Again, not necessarily. Reid told me that in this case the owner could, in fact, try and prosecute me here because I didn’t have to use the logo.
“Instead of using the entire logo, the least-invasive route would be to say [their name] and even include a brief explanation of their products/services,” he told me.
Still, I’m sticking to my guns. I cite the 1998 amendment to Title 17 called the Vessel Hull Design Protection Act (VHDPA). Don’t ask me why it’s called that.
This amendment has got some artillery behind it; it was enacted as Title V of the Digital Millennium Copyright Act (DMCA). It appears in the code as Chapter 13, and it sets forth statutory design protection that’s independent of existing copyright law.
At “§ 1302 · Designs not subject to protection,” it says, and I quote:
Protection under this chapter shall not be available for a design that is…
(4) dictated solely by a utilitarian function of the article that embodies it.
If I’m an author, which I am, I’m keeping these things in mind for my next big legal battle. Hypothetically, of course.