MediaTech Law

By MIRSKY & COMPANY, PLLC

Pinterest: Fair Use of Images, Building Communities, Fan Pages, Copyright

Posted October 4, 2012 by Andrew Mirsky 0

When using Pinterest (and Flickr and YouTube and Facebook and on and on), what copyright, fair use, trademark and other issues weigh on building communities and fan pages and social media generally?  A hypothetical “Company” has plans for its Pinterest “community”, and in particular, wonders about these situations:

  • Using Images of Identifiable People
  • Fair Use and Images
  • Trademarks: When is a “Fair Use” Argument Strongest?
  • Why Attribution and Linking to Original Sources is Important

3 introductory questions:

Question #1: Someone used to be a paid Company sponsor or spokesperson.  They are no longer.  Can the Company continue to post a photo of the old sponsor to Pinterest?  Short Answer: If the contract with the sponsor expressly permits it, yes.  Ordinarily, the contract would specify engagement for limited time, and that would prohibit rights to use images beyond the contract period.  But it really depends on what the contract says.

Question #2: Can the Company post a photo of a fan of the Company?  Short Answer: Express consent is required, either through a release or the fan’s agreement (whenever the photo is submitted) to terms of service.  Exceptions are discussed below.

Question #3: Can the Company post a photo of a Coca-Cola bottle on its Pinterest page?  Short Answer: If the use of the image does not suggest (implicitly or explicitly) endorsement or association, then yes.

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Tootsie Roll vs. Footzy Roll: Clever Marketing or Trademark Infringement?

Posted August 14, 2012 by Britnie Morris 0

As a twentysomething female who likes to dress for success but not suffer without end in the unrelenting DC humidity, flat, practical shoes can offer a sweet reprieve from uncomfortable heels.  Rollashoe’s premier product, the Footzy Roll, a ballet-style, compactible slipper can be stored easily for the girl on the go.  They’re great to casually slip on after a night out on the town or for happy hour after a day in the office.  They’re also edible.  Just kidding.

Tootsie Roll seeks to block Rollashoe’s trademark for “Footzy Rolls” in the US Patent and Trademark Office, as Reuters reported last fall.  Tootsie, which, as reported in the Chicago Tribune, earned $521 million in 2010, filed suit against Rollashoe, LLC in federal court in Chicago, claiming that Footzy Roll will confuse and deceive consumers and dilute Tootsie’s trademarks. 

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What is a “Trademark Use”? Using Other’s Trademarks

Posted October 14, 2011 by Andrew Mirsky 0

What is a “trademark use”?  This question comes up in this way: You want to use a trademarked name or brand or logo (not yours).  You want to make commentary about the trademark, or simply reference the trademark in some way.

Trademark protections give their owners the right of exclusive use to the trademark, but only when used “as a trademark”.  If the use of the mark is for any purpose not a “trademark use”, that use does not fall within the exclusive rights of the trademark owner.

The Good and The Ugly – Trademark Use Examples

Some examples illustrate the point:

1. A magazine story features a photograph of a woman wearing a tee-shirt with picture of a Marvel Comics character.  The story is about the woman and her battle with a difficult disease, having nothing to do with the Marvel trademark.  The trademark is clearly incidental to the photo and to the story.

2. A cash-for-gold jewelry dealer in Toronto (featured in a New Yorker profile this past week) promotes his business through television commercials featuring the character “Cashman” dressed in a red cape and pair of blue tights and dollar signs on his chest.  “Cashman” bursts out of telephone booths to frighten desperate Torontonians into parting with their family heirlooms.  The owner of the Superman trademarks felt compelled to ask – nicely at first, not so nicely in the subsequent lawsuit – that “Cashman” stop trading on the Superman goodwill.

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