Understanding Trademark and Copyright Issues: Implications for Using Trademarked Material in Commercial Photograph Sessions
Trademark issues arise due to the unauthorised use of a trademark or a brand name, logo, or design that is protected by law. The owner of a trademark has the exclusive right to use it in commerce and prevent others from using it without their permission. The use of Barbie and Ken’s names and likenesses in a photograph session may be considered a violation of trademark rights if the creators of the session do not have permission from the trademark owners, Mattel Inc.
There are a few reasons that trademark owners are protective of their intellectual property rights. For one, they have invested significant resources, time, and money in creating and marketing their brand. If others are allowed to use their trademark without permission, it dilutes the value of the brand and can lead to consumer confusion. Moreover, trademark infringement can negatively affect sales and customer loyalty, and may damage the reputation of the owner. (This also relates to keyword use in publishing your images or stories).
Those who are looking to create Barbie or Ken themed photo sessions should receive permission from Mattel or appropriate licensing agreements to avoid infringing on trademark issues. Using trademarked material without permission could lead to legal action, including injunctions, damages, and other legal penalties.
Like with Barbie and Ken, using images or other trademarked material related to Marvel (for example) or celebrities, without permission, could lead to trademark infringement issues. For example, using images of Spider-Man, Iron Man, or any other Marvel character without permission could be a violation of the trademark rights of Marvel Entertainment, LLC. Using celebrity images in a commercial context without permission could also potentially be a trademark issue. This does include selling prints or products of those images.
Copyright is another area of intellectual property law that is related to the use of images and other creative works. Copyright law protects the owner’s exclusive right to use, distribute, and create derivatives of their original work, such as photos, music, movies, and books. Using copyrighted material without permission can be a violation of copyright law and could result in legal action.
It is important to note that fair use exceptions in copyright law might apply in some cases when using copyrighted material for educational, news, (like this post),
or transformative purposes. However, the exact definition of fair use can vary depending on the specific circumstances and can sometimes lead to legal disputes.
In summary, it is important to obtain permission or licensing agreements when using trademarked or copyrighted material in a commercial context such as a photograph session. Failing to do so can result in legal action, damages, fines, and reputational harm.
Great article Abbie! It is good to remind artists about this kind of thing. Artist tend to think about the artistic aspects, but not about all the baggage that comes with it. Clothing and furniture are also things to pay attention too . I remember some big lawsuits a number of years ago by Christian Louboutin and a french furniture makes whose name escaped me.
Yes, I have to remove images ALL the time, daily, for trademark or copyright infringement