Image Policy
Fair Use
"Notwithstanding the provisions of sections 106 and 106A, the fair use of a copyrighted work, including such use by reproduction in copies or phonorecords or by any other means specified by that section, for purposes such as criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research, is not an infringement of copyright. In determining whether the use made of a work in any particular case is a fair use the factors to be considered shall include:
1) the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes;
2) the nature of the copyrighted work;
3) the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and
4) the effect of the use upon the potential market for or value of the copyrighted work. The fact that a work is unpublished shall not itself bar a finding of fair use if such finding is made upon consideration of all the above factors."
Nominative Fair Use (i.e. Using a trademarked logo)
Nominative fair use is when you use someone else's trademark to identify the trademark owner's goods or services. You're not using another's trademark to describe your own goods or services, but instead to describe theirs.
Nominative fair use can be used as a defense against trademark dilution. People who are sued for trademark dilution can sometimes point to a fair use exception in the Lanham Act, which we discuss below. (15 U.S.C. §1125)(c)(3)(2023).)
Courts have said that nominative fair use can also sometimes be used as a defense against trademark infringement. When someone is sued for trademark infringement, the court has to weigh the user's First Amendment rights against the trademark owner's intellectual property rights. The courts will typically apply a test—a set of factors or requirements—to the case.
To determine whether the nominative fair use defense applies to your case, many courts look to see if your situation meets three requirements:
the product or service isn't readily identifiable without the use of the trademark
you use the trademark only as much as necessary to identify the provider of the goods or services, and
you don't lead consumers to believe that your use of the trademark is affiliated or connected with, or endorsed or sponsored by, the trademark owner.
Here's a trademark scenario where nominative fair use could be a defense. Suppose you're writing a review for baby products and you use "Pampers diapers" to refer to diapers made by Pampers. Most courts would probably agree that your use would be considered nominative fair use. You're using the trademark "Pampers" to refer to the diapers that are sold under that brand and your use likely wouldn't confuse customers.
In terms of our Pampers example:
you need to name the brand of diapers you're reviewing so readers know which diapers you're referring to
you can use the Pampers name only as needed to identify the diapers in your review, and
you can't imply that your review is affiliated with or sponsored by Pampers.
Usually, if you can meet these three requirements (or a slightly different set of requirements used by your court), your use will likely be considered fair.
Fair Use for News Reports, News Commentary, and Academic Works
You can also use someone else's trademark in a news report or academic work when reporting or commenting on the trademark owner or on the associated goods or services.
Suppose a local news channel runs a story about the nation's rising gas prices. In the broadcast, the reporter lists the average gas prices for Exxon, Chevron, and BP. The reporter and news agency can use the trademarks in their story because their use is for a news report.
Even if one of the gas companies believes that the report has tarnished their brand, the news agency can argue their use was allowed under the nominative fair use defense in the Lanham Act.
If sued for trademark infringement, the news agency would likely need to show how they meet the three requirements listed earlier. The agency would probably need to prove that:
they needed to identify the gas company next to the gas price
they only mentioned the gas company's name as much as necessary to report the news, and
they didn't lead their viewers to believe there's some connection between the news agency and the gas company.
News agencies that use trademarks in their reports or academics that use trademarks in their research or papers are often entitled to the fair use defense.
Fair Use for Parody, Criticism, and Commentary
You're allowed to use someone else's trademark to parody, criticize, or comment on the trademark owner or their products or services. This Lanham Act protection stems from First Amendment principles against punishing or limiting free speech.
In addition, there's one popular school of thought that believes it would be bad public policy to limit people's ability to fairly criticize a certain product or service. The idea is that the public should know if a product on the market isn't good or safe.
So, for example, you can write a negative online review about any delivery pizza chain or critique the latest Marvel and DC films without violating trademark law. (Keep in mind that the right to mention a trademark in this context doesn't mean that you have the right to make any defamatory statements about the product or its owner.)
The Lanham Act provides an automatic defense for dilution claims for parodies, criticisms, and commentary that would apply to your fair use review of your pizza chain or the superhero films.
If the trademark holder claimed you infringed (rather than diluted) their trademark, the court would separately need to determine whether your use of the trademarks in your reviews is fair use. Instead of using the three-requirement test in this sort of situation, many courts have applied the Rogers test. The test applies to "expressive works" or works with artistic value—like, some reviews, parodies, and political and social commentary.
If your work is considered expressive and the court uses the Rogers test, then your use will need to meet two requirements for the nominative fair use defense to apply:
The use of the trademark needs to have artistic relevance to the underlying work.
The use of the trademark can't mislead as to the work's source.
For example, suppose you make a parody short film called "The Real Batman." The film features a vigilante that dresses up like a superhero, and it makes fun of the vigilante's detective skills and bat obsession. DC Comics sues for trademark infringement and the court applies the Rogers test.
Applying the Rogers test to our example:
The title of your parody "The Real Batman" has artistic relevance to the content of your film because your film is about a hero obsessed with bats.
Your use of the trademark "Batman" wouldn't confuse viewers because viewers would likely see it as a parody that's not produced by or associated with DC Comics.
Product Reviews
Typically, a product review is considered “fair use,” so, at least in the US, yes, you could use a photo by the manufacturer of the product, but NOT a photo taken from another review.
Example, say, you need to review a gadget by X. You go to X’s Web site and you grab a few photos. That’s probably OK, but it is not OK to copy photos from another product review or random photos you find on the Internet. Best of course is to either take your own photos or use photos provided by X’s marketing department (see note below).
Note that most companies provide on their own stock photography of their products for PR and/or sales, so it is best to contact their marketing department and get good-quality photos.
Film Reviews (images from a movie)
Importantly, I do not know of any court cases involving a movie review website and fair use. Cases that come close often involve documentaries and news reports. The closest court case appears to be the 2003 Video Pipeline vs. Buena Vista Entertainment, because it is dealing with an online service. The ruling specifically speaks about reviewing a film - which was not what Video Pipeline was doing. The company was offering two minute clips from movies as a part of its service to retailers (to help them sell legitimate copies of the films). This is the important excerpt from the Third Circuit Court of Appeals ruling:
"It is useful to compare the clip previews with a movie review, which might also display two-minute segments copied from a film. The movie reviewer does not simply display a scene from the movie under review but as well provides his or her own commentary and criticism. In so doing, the critic may add to the copy sufficient 'new expression, message, or meaning' to render the use fair."
This is the best court reference to fair use, with regards to movie reviews, that I have ever found. I should point out that a reviewer cannot fixate on "two-minute segments" as being gospel, because all situations involving fair use are determined on a case-by-case basis.