Wednesday, June 9, 2010

Should we gamble on using band belt buckle?

Dear Rich: I work for an art publishing company and a question arose recently. We'd like to publish a photo of a girl playing a fiddle and she is wearing a belt buckle that says the name of her band. Should we remove the band name or is it safe to publish as-is? This issue came up in another instance. We publish the work of an artist who paints farm scenes and he has several brand-specific tractors in his paintings (John Deere, etc.). If he removes the tractor name is he in the clear? Or would the colors need to be changed as well so the imagery doesn't "suggest" John Deere? And is he free to publish prints of a barn image with the "Chew Mail Pouch Tobacco" advertisement painted on the side? I'm always uneasy making a call on these issues. I see you have a couple books, I might have to check them out! We hope you check out our books because from the looks of it, the Dear Rich Staff isn't having much luck at the slots. We included this photo just to let you know that we're not worried about reproducing trademarks in our photos. That's because editorial uses (yeah, that's us - ed) of trademarks don't require permission. Of course, we're not clear if your company is making editorial or commercial use. If you're publishing art books it's probably editorial; if you're publishing prints, it's more likely to be commercial. 
Okay, so if your use is commercial ... Things can get a little murky when trademarks are included in commercially reproduced artwork. (By the way, we're assuming you have permission of the copyright holder of the photographs.) One court recently ruled that the use of a university's trademarks was okay in a painting of a former football player. The court concluded that "the depiction of the uniforms in the paintings is incidental to the purpose and expression of the paintings." In other words, the artist's first amendment rights trumped the trademark issues. We think you're in the same ballpark. In the case of the fiddle player, we think you're okay not just because it's incidental to the photo but also because it's difficult to imagine that the band would object to the use. (A lawsuit seems like bad PR for the band.) As for the tractor photos, that also seems fine. Removing the trademarks seems more objectionable from John Deere's POV. 
Finally ... If we were a betting blog, we'd also bet that you're also okay with your use of "Chew Mail Pouch Tobacco" because it's tough to imagine a lawsuit (especially since so many similar images are already available). BTW, that really reminds us of Episode 12, Season 1 of the Real McCoys when Grandpa and Luke kind of screwed up Kate's chances at being part of some church thing when they let some huckster advertise on their barn. Spoiler Alert: Turns out the same huckster tricked the local reverend, too.