Have you ever taken a photo of a busy city street filled with billboards and neon signs? Or maybe a shot of your new car to show it off to your friends? Have you gone around your home identifying photographing all your possessions for insurance? If so, you’ve probably taken a picture of items bearing trademarks. Are you worried you’re infringing the rights of those marks’ owners?
Well, if you’re sticking the pics in your family album, don’t worry – you are almost certainly not violating anyone’s trademark. The situation grows more complicated when your photos are used more publicly or commercially, however.
Trademark law is all about customer confusion – the likelihood that a customer will be confused by the display of a mark on a product or service – and thus generally requires some sort of sale or advertisement of a product or service along with the display of the mark.
When you take photos for your own personal use and show them only to family and friends, there is no sale or ad, there is no customer, there is no confusion – your images don’t really suggest a trademark owner is sponsoring your photo just because its logos appear in it.
Putting your photos on Flickr is safe as well. Again, no one would assume that there is a link between the trademark owner and the picture, so there is no confusion and no trademark liability.
However, let’s say you took a photo of an old-fashioned, rusted, shot-filled Coca-Cola sign like this one that you thought was especially interesting. Put that picture in your photo album or use it on your computer desktop, and you’ve got no problem. Start printing the image up on postcards and selling it at a local festival, and you may be violating Coke’s rights in the trademark. Why the difference? Because someone buying the card might conclude that Coke, and not you, created the postcard for sale. Your use of the Coca-Cola mark has moved from a mere personal, or perhaps artful, use of the mark, and has transformed into a commercial taking that suggests that Coke could be the source of the postcard.
The distinction between infringing and non-infringing use is, of course, less apparent between these two extremes. For example, painting a Rockwellian mural on the side of a building and drawing Coke bottles in the hands of the children isn’t as likely to suggest that Coke had a role in the creation of the mural as the postcard situation, but it isn’t as clear cut as a simple photo in a family album. Is it better to leave off the Coke symbol on the bottle altogether? Maybe, maybe not. These are the grey area scenarios that require more detailed, situation-specific examination.