Use of logos in critiques

[Pullet]

I went to a street festival the other day and someone was critiquing a major company (let’s pretend it was Bob’s Foot Cream), passing out fliers. To add some artwork to the piece, they had the unmistakable logo for Bob’s Foot Cream featured pretty prominently.
Is that legal for them to do? Is there a muckraker loophole in the copyright law? Obviously, one loon passing out fliers might not be important enough to prosecute. What about someone who writes a news article? Or starts a website? Does all of it count as libel, or does it depend on the specific accusations made, or how widely they might get distributed?

In a similar vein, when museums feature old labels/advertisements for companies that still exist, do they have to get permission to display the pieces, or do they fall under some sort of archiving loophole? Generally, museums are more in the vein of fact recording as opposed to opinionated critiques, so maybe they get a pass on copyright?

[Stentor_2.5]

Logos aren’t copyrighted, they’re trademarks. It’s a different set of protections entirely. The guy is probably in the clear. I say probably because it might depend on state law.

[Pullet]

Huh. Thanks for the clarity on Trademarks vs copyright. Explains why my google-fu was failing. Also, didn’t realize state law would have much to say on the topic.

Makes me extra curious about the museums, though.

[Pullet]

One sad bump.

[bordelond]

@Pullet

Makes me extra curious about the museums, though.

Don’t trademarks expire after some time? If they’re not renewed?

Checked Wikipedia’s article on “Trademark” … the following is probably what keeps the museums in the clear:

Trademarks rights must be maintained through actual lawful use of the trademark. These rights will cease if a mark is not actively used for a period of time, normally 5 years in most jurisdictions. In the case of a trademark registration, failure to actively use the mark in the lawful course of trade, or to enforce the registration in the event of infringement, may also expose the registration itself to become liable for an application for the removal from the register after a certain period of time on the grounds of “non-use”.

EDIT: from the same article, re: keeping a trademark current:

Unlike other forms of intellectual property (e.g., patents and copyrights) a registered trademark can, theoretically, last forever. So long as a trademark’s use is continuous a trademark holder may keep the mark registered with the U.S. Patent and Trademark Office by filing Section 8 Affidavit(s) of Continuous Use as well as Section 9 Applications for renewal, as required.

Specifically, once registered with the U.S. Patent and Trademark Office the owner of a trademark is required to file a Section 8 Affidavit of Continuous Use to maintain the registration between the 5th and 6th year anniversaries of the registration of the mark or during the 6-month grace period following the 6th-year anniversary of the registration.[10] Note, if the Section 8 Affidavit is filed during the 6-month grace period additional fees to file the Affidavit with the U.S. Patent and Trademark Office will apply.[11]

In addition to requirement above, U.S. trademark registrations are also required to be renewed on or about every 10-year anniversary of the registration of the trademark. The procedure for 10-year renewals is somewhat different from that for the 5th-6th year renewal. In brief, registrants are required to file both a Section 8 Affidavit of Continuous Use as well as a Section 9 Application for Renewal every ten years to maintain their registration.

[RealityChuck]

@Pullet

In a similar vein, when museums feature old labels/advertisements for companies that still exist, do they have to get permission to display the pieces, or do they fall under some sort of archiving loophole? Generally, museums are more in the vein of fact recording as opposed to opinionated critiques, so maybe they get a pass on copyright?

It’s not a copyright issue: they’re showing an original, not making a copy. If you make a legal copy of something, the owner can do anything he wants with it. Thus, the person who has the copy of the ad could sell or donate to the museum, or he could abandon it and have the museum find it and put it on display.

It’s like a book – if you buy a book (non-electronic, for simplicity’s sake), you can do what you want to with the book. You can sell it, give it away, or burn it. Copyright isn’t an issue.

It doesn’t have to be a museum – you could take an ad from a newspaper, frame it, and display it in your home. No copy is made, and copyright isn’t an issue.

[Dewey_Finn]

Wouldn’t the use of the logo fall under fair use?

[Acsenray]

@Pullet

I went to a street festival the other day and someone was critiquing a major company (let’s pretend it was Bob’s Foot Cream), passing out fliers. To add some artwork to the piece, they had the unmistakable logo for Bob’s Foot Cream featured pretty prominently.
Is that legal for them to do?

Yes, it is.

Is there a muckraker loophole in the copyright law?

As Stentor said, the applicable law is trademark law, not copyright law. No loophole is required. The major protection under trademark law is for trademark infringement. This can’t be infringement because to infringe a trademark you must have a “use in commerce,” which means that you are selling goods or services and you are using the mark to indicate the source of the goods or services. This guy wasn’t selling anything branded as coming from the company that makes Bob’s Foot Cream, so it’s not infringement.

“Famous” marks get an extra level of protection, from what is known as dilution – dilution by blurring and dilution by tarnishment. Dilution by blurring, again, requires a use in commerce, but doesn’t require all of the components of likelihood of confusion. Dilution by tarnishment is a separate issue altogether and doesn’t apply to this kind of situation.

Obviously, one loon passing out fliers might not be important enough to prosecute. What about someone who writes a news article? Or starts a website? Does all of it count as libel, or does it depend on the specific accusations made, or how widely they might get distributed?

Libel is again a completely separate issue. In order for something to be defamatory you must be making a defamatory statement of fact that you know to be false. If you are making a statement that you believe to be true or if you are making a statement that is opinion and not fact, then it’s not defamation. In other words, Bob’s Foot Cream has to show that flyer guy is deliberately lying in order to make a defamation claim stick.

In a similar vein, when museums feature old labels/advertisements for companies that still exist, do they have to get permission to display the pieces,

No.

or do they fall under some sort of archiving loophole?

Again, no “loophole” is necessary, because this is not use in commerce. The museum isn’t selling something associated with the mark in a way that will make people think that the goods are coming from the company that owns the mark (likelihood of confusion).

Generally, museums are more in the vein of fact recording as opposed to opinionated critiques, so maybe they get a pass on copyright?

There are actually some small exceptions for museums and archives under copyright law, but, again, this situation doesn’t implicate copyright law.

Furthermore, neither “fact recording” nor “opinionated critiques” are disfavored under trademark law. Broadly speaking, you are allowed to show whatever logos you want to show unless you are creating a likelihood of confusion.

[Acsenray]

@Dewey_Finn

Wouldn’t the use of the logo fall under fair use?

No, fair use isn’t implicated here, because flyer guy isn’t selling anything. It simply isn’t infringement in the first place. Fair use under trademark law is different than fair use under copyright law.