A Lawyer’s Random Musings – Is It Commercial Use?

A Lawyer’s Random Musings on Intellectual Property and Other Legal Stuff, Mainly for Visual Artists and Occasionally for Other Creative People.

Cheryl Adams, J.D. Law, is licensed to practice law in Maryland, U.S.A. She attempts to provide entertainment and basic general information about U.S. law. Enjoy. To learn more about her: ‘Getting To Know Cheryl‘ To see her artwork; Fine Art America

Question:  I am a photographer.  I am interested in taking photographs at venues that do not allow “commercial use” without first getting permission from the venue.  How do I know whether what I plan to do with my photos is “commercial use?”  I’m not interested in trademark or copyright law “fair use,” I already know about that.

Answer:  The best practice, of course, is to ask the venue for permission.

If you don’t want to ask the venue for permission, the answer is, very broadly:  If you’re doing something commercial, selling, engaging in trade, that might be commercial use, and the venue might object to it.

Sometimes other interests (U.S. constitutional rights to free expression, other public policy objectives, etc.) can override prohibitions on commercial use.  Sometimes any money or profit that flows from the commercial use is so incidental that courts will decide this tiny bit of money, or profit, or whatever, doesn’t matter under the circumstances, and determine that the use is not “commercial” for purposes of whatever law the court happens to be applying.

Therefore, it matters which law is applied.  I do realize that playing “Guess Which Law I Might Have To Apply” can be very unhelpful when you are trying to predict whether your use is going to be held “commercial” or not.

I now turn to definitions of the word “commercial,” or, where a definition of the word “commercial” isn’t available, the word “commerce.”  If you’re not interested in the fine points of comparing and contrasting definitions, you should probably stop reading now.  However, the exercise of looking at various definitions does help set some general parameters for the concept of “commercial use,” and, at the very least, helps explain why most photographers have not ever received a satisfyingly clear answer regarding what “commercial use” is.  The focus is on sales, profit, trade, etc.   Otherwise, “commercial” is a very broad and flexible concept.

I only found a discussion of “commercial use” as an entire phrase in one source, Words And Phrases, Permanent Ed., Vol 7B.  “Words and Phrases” is a legal research tool, I had to go to a law library to find it.  As far as I know it is not available for free on the internet.  It provides a list of cases that include definitions of “commercial use.”  Unfortunately, most of the cases listed were pretty much useless for photographers (more detail about the list of cases that at the end of this article, for geeks like me who want to read about it anyway).

So…I turned to easier game.  Just the word “commercial” all by itself, without the word “use.”

 

DICTIONARY:

adjective

  1. of, relating to, or characteristic of commerce.
  2. engaged in commerce.
  3. prepared, done, or acting with sole or chief emphasis on salability, profit, or success:
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a commercial product; His attitude toward the theater is very commercial.

able to yield or make a profit:  We decided that the small oil well was not commercial.

  1. suitable or fit for a wide, popular market: Communications satellites are gradually finding

     a commercial use.

  1. suitable or catering to business rather than private use: commercial kitchen design…

Source:  https://www.dictionary.com/browse/commercial

LAW DICTIONARY:

“What is COMMERCIAL?

Relating to or connected with trade and traffic or commerce in general.

U.S. v Breed, 24 Fed. Cas. 1222; Earnshaw v. Cadwalader, 145 U.S. 258, 12 Sup. Ct. 851, 36 L.Ed. 693; Zante Currants (C.C.)73 Fed. 189.”

Source:  https://thelawdictionary.org/commercial

LEGAL ENCLOPEDIAS:

Legal encyclopedias contain articles on lots of areas of law written by notable legal scholars.  They are generally only found in a law library, or online through a paid subscription service like LexisNexis or Westlaw.  You can’t read them online for free.  Not American Jurisprudence, or Corpus Juris Secundum anyway.  They are multivolume sets of books.  You would expect that from an encyclopedia, lots of volumes.  Each encyclopedia set takes up several shelves in the library.

American Jurisprudence 2d, Vol 7B:

“Commerce defined

…The term ‘commerce’ is the equivalent of intercourse for the purpose of trade, and comprises every species of commercial intercourse, including the purchase, sale, and exchange of commodities and transportation of persons and property by land, water, and air.”

Corpus Juris Secundum, Vol. 15:

“The word ‘commerce’ denotes not only commercial intercourse, in all its forms and parts, but also some aspects of social intercourse between citizens of different states.

‘Commerce’ is a word of extensive import, with wide implications and ramifications.  It is difficult to give a full, clear, and precise definition of the word, with the result that no all-embracing definition thereof appears to have been formulated.

The question of what is commerce is to be approached both affirmatively and negatively; that is, from the points of view as to what it includes and what it excludes.  While the term ‘commerce’ includes trade, traffic, the purchase, sale, or exchange of commodities, and the transportation of person or property…according to various definitions of the term, nevertheless the term ‘commerce’ is broader than terms such as ‘trade,’ ‘traffic,’ ‘transportation,’ or the purchase, sale or exchange of goods or commodities.”

So there you are.  It is a very broad term, that covers a lot of territory.  The only hope is that sometimes, when laws, or contracts, or other kinds of rules and restrictions are overbroad, the courts step in and require more narrow tailoring, that is more appropriate to the situation.

When we look at U.S. Constitutional law, and application of the Commerce Clause and Congressional authority to regulate interstate commerce, the word gets even broader.

“Transactions or activities may be commerce, within the Commerce Clause of the United States Constitution, even though they are noncommercial, illegal and sporadic, and even though they involve intangibles and do not utilize common carriers or concern anything more tangible than the flow of electrons and information.”

BACK TO “WORDS AND PHRASES, PERMANENT ED.”

As mentioned earlier, this is a list of cases that address the meaning of the phrase “commercial use,” usually under very specific circumstances.  The cases involve interpretation and application of various laws, ordinances, or other rules.

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These cases involve:

– eligibility requirements for reduced fees for records production, where “commercial use” affects the fee structure;

– various zoning ordinances and restrictive covenants, which restrict or allow commercial uses;

– some SMRA mining reclamation cases

– insurance liability cases, where the policy involves coverage (or lack thereof) for commercial use of a vehicle

– some tax law cases (commercial use affecting whether or how much something gets taxed)

– a couple of different state law based right of publicity / appropriation of name or likeness cases;

– several trademark / Lanham Act cases (commercial use as part of a “fair use” analysis); and

– a trade secrets case.

When we read through the cases, the common thread is that each use deemed “commercial” has some connection with making a profit, or operating a business.  Uses not deemed “commercial” either didn’t involve profit or operating a business, or if there was profit, there was very little money involved and/or it was incidental to the primary purpose of the activity.



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DISCLAIMER

Disclaimer: This column is intended to provide entertainment, and basic general information about the law. It is not legal advice. No attorney-client relationship exists or is created between the author and the reader or any other parties. This information is not a substitute for legal advice from your attorney. If you think you may need legal advice or if you are engaged in or contemplating litigation, you are encouraged to seek the services of a licensed attorney in your jurisdiction.

The author makes no attempt to protect from public disclosure any attorney-client privileged or other information provided to her. Your attorney may have a more difficult time representing you effectively if you have disclosed attorney-client privileged information, so please don’t be stupid and send to the author information that you don’t want your adversaries to know. All of the ideas, opinions, errors, random thoughts, digressions and everything else she wrote are her own, and are not to be blamed on anyone other than the author.

Copyright Cheryl Emerson Adams, all rights reserved.

For more free basic information on U.S. intellectual property law, see the following websites:
Copyright: Copyright Gov
Patent and Trademark: USPTO Gov

Cheryl Adams

Cheryl Adams

Artist at Cheryl Adams
Cheryl Adams, J.D. Law, is licensed to practice law in Maryland, U.S.A.

She attempts to provide entertainment and basic general information about U.S. law.Enjoy.

To learn more about her: Getting To Know Cheryl Adams
Cheryl Adams

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