Wednesday, August 17, 2011

Can I Reproduce Magazine Cover When My Product Is Featured?

Dear Rich: My product has been recently featured in a national magazine along with my company name. I've asked the magazine's permission to use their magazine name and the pictures that display my product, but they haven't responded. Could I use a picture of their magazine cover and state that my product was featured in their magazine on my ecommerce site without their permission? Wow, congratulations on getting some serious inka-dinka-doo and good luck with your product sales. Reproducing the magazine cover without permission is most likely an infringement of the copyright owned by the magazine, the cover artist/photographer, or both. But there are ways you can use it that can seriously lower your risks.
Copyright issues. The safest use (and one that would likely be excused) would be to use a thumbnail of the magazine cover -- something in the ballpark of the illustration size above. Recent cases have considered thumbnails as permissible fair uses, including a case in which magazine covers were used in a book. You can probably even claim fair use successfully using larger sizes, though we must always remind readers that fair use is a defense that you have to prove in court (a scary proposition). You can also consider another factor that we mention to Dear Rich readers. Will the magazine find out about your use and will they care? Obviously -- based on the zillions of unauthorized reproductions of product reviews -- many people in your position take this "stop me if you don't like it approach."
Trademark issues. We know that the writer of the magazine article endorsed your product (Yay!) but that doesn't necessarily mean that the magazine endorses your product and it may have a policy that asks readers not to associate the magazine's name with product or service advertising. Other magazines may have a policy prohibiting use of the logo or other trademarks in advertising. Check out the magazine's trademark rules (usually posted at its website or within the magazine) and look for any blanket prohibitions. As a general rule you should be okay with straight informational statements like "Our cool binoculars were mentioned in Bird Magazine and the writer called them "extraordinary." (You can probably include a few lines from the review without running into copyright problems.)