On some message boards you can have a small picture next to your board name called an avatar. If that image is part of someone’s corporate logo am I violating some law or is that considered fair use of the image?
Short answer, it depends. I’ve seen corporations get upset about that kind of thing but it would really depend on all the factors.
Things in your favor:
- you’re not using their image to sell things or provide services or otherwise make money.
- most people would not assume that you are an authorized reprentative of that company, and you’re not misrepresenting yourself as such.
Things against you:
- they may have a very broad scope of protection if they are a very famous brand, extending even to message boards on the internet in class 38.
- a company will be concerned that, through your actions, you’re bringing disrepute to their mark.
- the company may also be concerned that if they fail to try to stop you using it, they will be seen to be ‘soft’ on enforcement, and may be actually giving people defacto authorization by laying on their rights.
If they were upset, they’d go after both you and the message board admin, because it’s too difficult to find you, the poster, but easy enough to find the message board owner.
To expand on the previous, I think the main issues would be:
- Could the message board be considered “commercial”, for example, if it carries advertising and thus brings in revenue for the owner it might be considered commercial activity.
- Is the message board offensive, i.e, is it for NAMBLA members or somesuch group?
- Does it look like you’re speaking on behalf of the company when you post?
- How famous is the company?
These things could all effect the outcome.
The other thing is, how likely is it that someone who works for that corporation will see your avatar and decide that something should be done about it?
There are several questions here.
-
Is it fair use? Very likely not. Fair use of a trademark has to to with using the term to describe the genuine goods or services of the mark owner. You aren’t using “Coca-Cola” to describe genuine Coca-Cola products. You’re using it to identify yourself on a message board. Not fair use.
-
Is it infringing? Probably not. In order to be infringement, you have to be using the mark in commerce. You’re not identifying any goods or services with the mark.
-
Is it diluting? Maybe. If the mark you are using is “famous” then you can dilute it through blurring or tarnishment. Does your use of the mark reduce the unique association between the mark and its owner? Does it associate the mark owner with sex, drugs, or other things that it might not want to be associated with?
I know the in-house counsel for large corporations such as Unilever who own a veritable farmyard of brand names. Such companies usually have a more seasoned approach - they look at what you are doing with their mark and weigh up the pros and cons, looking at factors like, “Is this person just a fan of our products?” or “Is this guy trying to make us look bad?” and “Will we be simply drawing negative attention to ourselves if we try to take action against this person?” There’s a matrix of cost/benefit that they apply, having regard to all the factors. Very often they just let it slide.
On the other side, less seasoned operators just take a textbook approach and try to leave nothing but a smoking crater where your message board used to be. I’m not a fan of that approach.
I do a lot of parodies and I get DMCA notices a lot, but I’ve yet (knock wood) had to remove anything.
Basically for fair use, it should be altered to be unique, it should be clear that you are disassociating yourself from the product’s selling point, and you should be making a statement.
Whether it’s commerical or not is a factor but it doesn’t make or break it. For instance if you parodied someone’s writing and it was found to INCREASE the sale of the original you’d probably be OK.
The thing is people get afraid of these DMCA notices and they just pull everything rather than fight. If I was running a message board it would be a lot easier to tell you to take it down rather than risk my site being pulled.
You might want to read up on fair use. Fair use is a defense, not a right per se, so it really falls into the hands of the courts. Your guess is as good as any.
Our company uses a service that scans the internet for stuff like this. The product/field/industry is called “Brand Protection” (Google away). I don’t exactly how well it works, but I would wager the odds are pretty good they’ll catch anyone who is active. Given the way image processing/deciphering/indexing is improving, I can only see corporations getting better at knowing when someone is using one of their images.
No, this is a trademark issue and not a copyright issue.
Wiki does have a page on fair use for trademarks, but notice that the usages are far more restrictive and that none of them seem to apply here.
The other difference is that trademarks, unlike copyrights, must at all times be defended. I find Isamu’s comment to be very strange. Selective enforcement is pretty much guaranteed to lose you your mark in a later court challenge. That’s why most firms send out notices for any possible violation. They’re not being heavy-handed; they’re setting themselves up for any later court appearances, even for a different case.
Strange? You mean when I said:
"Things against you:
- the company may also be concerned that if they fail to try to stop you using it, they will be seen to be ‘soft’ on enforcement, and may be actually giving people defacto authorization by laying on their rights."
Note that by sitting on your rights as a trademark owner, you won’t automatically “lose your mark”, but you might risk being unable to later prosecute the exact same instance of alleged infringement that you initially noticed. Not the same thing at all as losing your mark.
Anyway, this OP is a hypothetical case, presented to us in the broadest possible manner without any facts, and as such we could sit around discussing the ‘ifs’ and ‘buts’ all year.
The question, as it is, has been sufficiently answered. If the OP wishes to introduce specific facts, I can give specific answers.