Monday, June 27, 2011

Can We Use Sam's Club Photo in Manual?

Dear Rich: I have a photo of a bunch of electrical conduit inside a main electrical room at a Sam’s Club. The store manager gave the person who took the photo verbal permission to use it for educational purposes. There is no way to tell that the photo was taken inside a Sam’s Club. It’s just a bunch of nicely installed electrical conduit inside a small room. I want to use the photo in some electrician training curriculum my organization is developing, and we want to sell the curriculum to a client. Your book talks about using photos people take of trademarks but not about photos of locations that can’t really be associated with a specific trademark holder or location. If we use the photo in our curriculum are we violating copyright law? The Dear Rich Staff is wondering why Sam's Club? Is there something about the store's wiring that makes it particularly photogenic? (Alas, the nearest Sam's Club is 47.1 miles away, so we're unlikely to find out.)
Right you had a question. Yes, you are free to use the photo of the conduits. Rules about trademarks in photos only apply if a company's trademark or trade dress or some other visual identifier is visible in the photo. Even if a trademark is visible in the photo, you can still use it without permission for informational purposes such as your instructional manual. (You can even caption it as originating from Sam's Club.) You will of course need the permission of the photographer (unless the photographer is your employee or has signed a work made for hire agreement). There's also the (very) outside possibility that the electrical wiring contains a trade secret -- that is, the manner in which Sam's Club wires its buildings provides an advantage over competitors. Even if that's the case, it should not be a problem for you as the store manager has permitted the photograph; it wasn't done surreptitiously.