Are Logos and Clip Art “Free for the Taking?”
by Nathan J. Breen and Naomi R. Angel
“Save Picture As …”
Just right-click over nearly any image on the Internet, and this phrase appears. While the function offers the convenience of easily duplicating images, its ease has helped fuel an epidemic of copyright infringement.
The popular mindset appears to be, “If it’s online, it’s free for the taking.” Actually, that’s not the case. When an image or logo is posted online, its owner’s rights are still protected by law.
Under U.S. copyright law, an image is granted the full scope of copyright protection upon its creation. Among other things, the creator or owner of the copyright has the exclusive right to reproduce, distribute, and publicly display it.
This concept also protects the creator from having his/her original work reproduced in a different media by another without consent. The owner of the copyright does not need to register the image with the copyright office or even affix a copyright notice to it. However, both of these measures are advisable since they maximize the scope of remedies against an infringer.
The amount of creativity required for copyright protection is extremely low, which means that even pictures of ordinary images such as springs, garage doors, or other household items are protected. Clip art, though designed to be reproduced for use in a variety of settings, is also protected by copyright and is not “free for the taking.” Several years ago an association learned this the hard way when it was found to have committed copyright infringement by copying clip art onto its Web site.
In addition to protecting images, copyright law applies with equal force to articles, essays, and other written materials. The appropriate boundaries for use of text are more difficult to articulate; unlike images, individuals are likely to use only a portion of an entire written piece.
No infringement will result from using a portion of a written piece, provided that the end product is not “substantially similar” to the source material. It is difficult to draw a clear line as to what is substantially similar, since each case must be evaluated individually. As a rule of thumb, however, the longer the excerpt and the more essential it is to the original piece as a whole, the more likely it is that using such material will be seen as infringing.
A slightly different analysis applies to using a company’s logo. Images, text, and other mediums of original expression are protected by copyright law. However, a logo functions as a trademark because the logo is used in connection with goods or services in commerce.
The key issue in trademark law is whether using the logo is likely to cause confusion among the consuming public. With this in mind, logos can be used for comparative advertising purposes but cannot be used to generate confusion as to the source of any goods or services or as to sponsorship.
A person who unlawfully takes another’s intellectual property can be found liable for direct infringement. In addition, an individual who facilitates such direct infringement can be held liable for contributory infringement. Contributory infringement claims are most commonly brought against an individual or entity that is aware of infringing activities, can stop the infringement, yet nonetheless allows it to continue.
Intellectual property can be extremely valuable. Garage door and gate companies should protect their images by using simple programs to trademark or copyright important information. Door and gate companies must also refrain from using others’ images and text without authorization.
Nathan J. Breen and Naomi R. Angel are attorneys with the law firm of Howe & Hutton in Chicago. This article is provided solely for informational purposes and does not constitute legal advice. If you have specific questions or concerns about a legal issue, consult your company’s legal counsel for guidance.
This article is provided solely for informational purposes and does not constitute legal advice. If you need specific legal advice, consult legal counsel.