I’m starting a record store. (See the full thread here.)
My question is for lawyers and/or trademark experts: Can I use images of album covers I own and intend to sell in my promotional materials? Or would this run afoul of trademark or copyright protections?
Thought I saw this yesterday. I’ll post as an early bump to keep it alive in case you didn’t get answers.
If you are selling a used item you own you should not have a problem advertising it with a picture of it. That’s a little different from promotional materials when you may not have all the particular items shown for sale. Then your promotional item could be considered a work of art of it’s own that is incorporating copyrighted material. That may still be allowed as some kind of fair use in a compilation if properly credited, but can’t say for sure.
Thanks for that reassurance. So let me run a couple of what-ifs by you:
I see a record store on my FB feed all the time that features photos of albums they have for sale, if that helps any.
The use of album art (or book and magazine covers, and other art materials) falls under the doctrine of ‘fair use’. Of the scenarios you presented, only #3 (above) is potentially suspect insofar as you describe it as a “decorative element” which suggests that it is part of a photomontage or other unique creation for the purposes of promoting the store or event vice promoting the album in question as an item for sale, possibly requiring permission. (Hanging the album on a wall and putting it in the background of a social media post is ‘incidental use or display’ that could be challenged by the IP holder but unless it was done in a way that would harm the reputation or do some other damage probably wouldn’t past legal scrutiny.)
Here is an extensive discussion on copyright and fair use with regard to cover art:
Stranger
Thank you for that response and the link!
I agree that #3 may be dicey, and the article is pretty clear about getting permission to use any album art for any commercial purpose.
Of course, most of the albums are at least 40 years old. I wonder if Alice Cooper still gives a damn whether anyone uses his 53-year-old album cover to promote their record store.
Alice Cooper has lawyers, and they might care.
Alice Cooper may not care, but unless he is the exclusive copyright holder, his opinion may not matter. With media (and especially music) there are often complicated ownership rights to various aspects of images, lyrics, production, licensing, and promotional components, and they may not be held by obvious parties like the actual creator or publisher. (Witness Taylor Swith’s recent issues with master tapes of most of her work being sold to a private equity firm.)
Technically speaking, in order to make lawful use of the album art outside of a ‘fair use’ interpretation, you’d need to figure out who all of the stakeholders are and obtain permission or a licensing agreement. Realistically, it is very unlikely that someone is going to come after a small business for just using an image in promotional material unless it actually does some kind of harm to reputation or deprives the rightsholder of revenue, and at most you would be the recipient of a cease and desist letter directing you to discontinue further use of the image. So, I wouldn’t really worry over it.
Stranger
IANAL.
But I’m also not sure that any of this is truly okay.
The problem is you really can’t argue that yours is not a commercial (ie, a business venture intended to make you money) use. The Fair Use laws are tougher for for-profit uses than they are for non-profit and/or academia.
If it were me, I’d probably see if an Intellectual Property attorney would give me a free consultation … just to get their take.
Very few bright lines in this area, AIUI, but an IP attorney could give you their best guess.
@Stranger_On_A_Train link has a very relevant and unambiguous section:
Using Album Cover Art For Commercial Purposes
The First Sale Doctrine and Fair Use should cover the use of a picture of the album itself for resale. In this case we are talking about a physical record album and you are entitled to resell it. Taking a picture of it for advertising is part of fair use. If you copy an image of it from some other source you’re supposed to provide attribution.
Once you use the image for some purpose other than advertising the specific item for sale things can get blurry but if you aren’t selling the image or claiming to be the creator of it then there’s little chance of anything more than a request to stop doing that. An easy way to protect yourself is attribute any copyrighted images in your materials to the owner, though that can be difficult to determine, but even just listing the record company that shown on the album at the time it was made would show you didn’t intend to claim ownership.
You could get in trouble if you start selling your promotional materials containing copyrighted images. At that point you decide whether you’re selling enough of them to cover the cost of the lawyer who could tell you what financial risk you face so you could decide whether it’s worth selling enough of them to fight it out in court later if you have to.
The key here is “why are you using the art?”
As others point out, if it is advertise the items for sale, either directly “this album for sale” or indirectly “here’s a montage of the sorts of artists we feature at Bob’s Record Shoppe” then you are doing the opposite of harming the market for the product (or creating confusion)> I doubt there’s a case for the lawyer sharks jumping in the day you sell out your stock and are waiting for another shipment. Indeed- I recall record stores back in the day had giant posters of the album covers in their window, sent to them by the record companies.
IANAL, but I would guess the line not to cross is one that suggests a link that is not there - i.e. are you promoting yourself as “the Alice Cooper Shop!” without an actual endorsement from AC? Are you suggesting that Living Next Door to Alice you are someone special who sells his merchandise? This would be where creating confusion comes into play.
Similarly, if you took the blank side wall of the record shop and painted a 20-foot-square reproduction of a classic album, someone might object. Worse yet, if the caption below it said something like “Bob’s Record Shop and Bill’s Hamburgers!” and you charged Bill next door a fee to be on that mural.
Or you painted yourselves into a mural as part of Sgt. Pepper’s Band… Some might see that (especially lawyers) as less of a parody and more of a commerical misuse.
I should also add that some bands have also trademarked their names and logos, making the ability to go after (mis)use of their IP even easier.
We have been talking about physical media being resold. Once you get to the modern world where music companies allege they don’t sell music and all you buy is the right to use a pattern of bits on your media player to make it produce some copyrighted sounds then all bets are off. It will take years for the courts to settle out what is going on there.
Just as a data point, the Henrietta NY branch of Rochester’s Record Theater used to have four oversized copies of album covers by the store name, all internally lit. They rotated, but which I mean that they changed the four every now and then to keep them current. I’ll bet they didn’t ask permission to do this.
This is what I’m kinda hoping.
It’s absolutely a commercial venture. I know that makes it harder.
Yes, but those were new records on which the record company was earning money. I’m selling used records so no one’s making jack except me.
No … once I sell that record, Alice doesn’t live here anymore. 
Sorry, couldn’t resist.
(this may be totally irrelevant, I don’t know–but it is an interesting issue regarding copyright law: )
I sometimes watch youtubes of Rick Beato. He is a music critic who does analysis of rock songs.
And he is very, very careful about copyright issues. And specifically with one group: the Eagles. He says that the Eagles are one of the biggest “blockers” in the music business.
Beato will say “this is a real classic which you will recognize, but I’m not allowed to say its title or their name.” Then he plays a few chords of , say , Hotel California, --a true classic. But he will not say the word “eagles”, or the words “hotel” or “california”.
here’s an example: (which the software won’t accept ;I get an error saying " you can’t embed this". So I added a space after the www. )
www. youtube.com/watch?v=9UNuqYFP-pM&t=10m4
(oops-missed the edit window)
in the link above, skip ahead to 10:43
I think that’s more a function of Youtube’s content matching and demonetization than specifically The Eagles. Now, maybe The Eagles are on high alert about it but I watch numerous channels where they’ll take some 1945 album of children’s songs and still cut it off after two seconds so they don’t get dinged by the Youtube robots.
Those are being provided as promotional material with the implicit permission to use them as is for advertising.
Murals, and in particular using the likeness and image of a real person, are a vague area of intellectual property with a lot of latitude for use provided that that there are not obvious financial or harmful motives. A mural (or painting, drawing, and any other manual form of recreation) is an original creation that is a representation of another image, but is unlikely to be considered a direct reproduction of another artwork or protected image. “Name, likeness, and image” aren’t generally trademarkable (although icons and other symbolic representations of a likeness or image may be) and instead fall under state and local privacy laws, which are mostly concerned with whether someone is defaming the subject or using their image directly for profit and promotion via deception i.e. Jimmy McGill appropriating the appearance of a senior partner of the law firm Hamlin, Hamlin, and McGill specifically to draft off of the latter firm’s renown and reputation.
Making a mural (or comic image) that is in the style of an iconic image but inserting other people would likely fall under the parody application of fair use and be protected as long as it does not do unfair harm to the reputation of the subject being parodied or the people actually being portrayed. This is essentially what political cartoonists rely upon.
Copyright holders can register with YouTube to impose specific limitations or protections, and the channel interprets those in a highly (many would so onerously) restrictive manner even when it is obvious fair use (as Rick Beato’s music analysis channels clearly are). YouTube doesn’t go back to copyright holders and ask if they want to allow a particularly creator; they just block via algorithm, and you have one appeal before the video (and videos with very similar content) are automatically blocked or demonitized. For most creators, it just isn’t worth it to make a legal challenge to YouTube which can basically set its own rules and change them at will.
Stranger
No argument on any of that. Just saying that I’ve noticed channels treat ALL commercial music to a two-second style rule, even stuff that you wouldn’t assume anyone gives a shit about these days. The only exception being albums/songs specifically made to be played royalty free on Youtube.
I haven’t seen Hotel California treated any differently from no-name antique records you’d likely never recognize. It’s rapid on/off for all of them.
[Edit: I also realize this is well off the path of the OP so won’t reply to this tangent beyond that]
in my link to Rick Beato, he discusses 20 top songs of all time, plays a clip of each, and names each one and the group who played it–except for Hotel California and the Eagles, three words which he cannot say in public.
I mention this because it might be relevant to the OP’s record store idea. If his store or its website displays photos of record covers, or plays short clips of famous songs, he might face the same legal issues which Rick Beato faces on his youtube channel, for doing the same thing.
(I don’t know.)