Can I Publish This?

Nominative fair use is a strange category, mostly because you wouldn't think we need it. It seems obvious that, if you're discussing a product, service, or other entity, using the official logo to identify that thing would be a fair use.

Well, it is, and now you know the name of it: nominative fair use.

As long as this is the actual, official logo, you can use the logo to identify the thing you're discussing, provided that typical consumers would not actually confuse your use with sponsorship.

In general, that means using the logo in a small enough way, clearly identified by context, that no reasonable observer could be confused as to why the logo is appearing there.

Nominative fair use is a strange category, mostly because you wouldn't think we need it. Something is a nominative fair use when it uses a trademark to refer to the actual thing the mark is intended to identify.

As long as this is the actual, official logo, you can use the logo to identify the thing you're discussing, provided that typical consumers would not actually confuse your use with sponsorship.

In general, that means using the logo in a small enough way, clearly identified by context, that no reasonable observer could be confused as to why the logo is appearing there. In the Levi's example, that means people can understand, at a glance, that the advertisement is not placed by the manufacturer of Levi's, but that it's identifying that Levi's are for sale. As always, the key goal of trademark law is to avoid confusion. (Of course, if the trademark owner is actually providing the advertisement — for example, if Denny's places an ad for Denny's — they can authorize you to use their own trademark.)

This is really risky. If you intentionally use a logo (that is supposed to refer to a good or service) in a way that you know doesn't refer to that thing, and you use it in a place where people might be confused (however briefly), that sounds like plain old trademark infringement.

No online tool can accomodate all the possible wrinkles to intellectual property law, and if you feel you still want to proceed, this is the time to seek help from an expert.

I don't blame you. Copyright duration is really tricky to calculate, and the rules can change without much warning.

If you can't tell, it's safest to continue onward and assume it's protected.

The good news is that this isn't the end of the road—you might still be able to use part or all of this work. But the bad news is that it's tricky from here on out.

There are two basic ways to use a copyrighted work lawfully. One is to obtain and comply with a license, and the other is to make a fair use. Fair use is a limitation on the rights of copyright owners.

If you need to be absolutely certain you have a right to use a work, you need a license. Nothing is ever 100% safe where fair use is concerned, though tradition has made some uses safer than others.

Remember, fair use law is vague by design. It is intended to be flexible enough to reach uses we haven't envisioned yet, while also prohibiting creative attempts to "sneak around" copyright law. Unlike a lot of areas of law, your good intentions actually do, to a point, matter here.

Also, because nothing is ever 100% certain in fair use, this tool can only give you a general sense of whether your use might be fair or not. You might still end up needing to contact someone for more specific help.

Great! Just checking.

To make any fair use, however, you need to know at least three things:

1. Who owns the content? This doesn't necessarily mean "which site did it come from," since sometimes sites get licenses from third parties.
2. How is the owner using the content? For example, is this a movie screenshot used to promote a movie premiere? An image on a social media profile to share birthday wishes? A news photographer's shot of a current event?
3. How do you want to use the content? In particular, do you want to use the content in a way that the owner ordinarily offers a license to permit?

When you know these three things, let's continue on…

For more information on trademark, copyright and fair use, check out our resources page and consider reaching out for help at 1-717-734-SPFI or through our online form.

You've hit a weird pocket of fair use. In general, there is no fair use of an unpublished work. There may be exceptions to this, but they would be rare. You need to talk to an expert at this point.

Making fair use of once-private-but-published works is another touchy area, and the conclusions you might get from a general fair use analysis would be more misleading than helpful. Again, this is the time to get expert help.

Nominative fair use is a strange category, mostly because you wouldn't think we need it. It seems obvious that, if you're discussing a product, service, or other entity, using the official logo to identify that thing would be a fair use.

Well, it is, and now you know the name of it: nominative fair use.

As long as this is the actual, official logo, you can use the logo to identify the thing you're discussing, provided that typical consumers would not actually confuse your use with sponsorship.

In general, that means using the logo in a small enough way, clearly identified by context, that no reasonable observer could be confused as to why the logo is appearing there.

Reporting, research, and education are three categories that get a little more leeway under fair use than, say, commercial use in a for-profit publication. The idea is that society thinks these uses benefit the public, so we want to encourage these uses—at least, when they won't do undue harm to the owner of the original work.

So some fair use should be permissible, if you're using a small enough portion.

Fair comment is the type of fair use that governs the use of some small portion of a work in order to criticize the work itself (e.g., a few seconds of a song) or its owner (e.g., a paragraph from a blog post).

So some fair use should be permissible, if you're using a small enough portion.

Satire is the type of fair use that governs using a work to be critical of something else (for example, using a song associated with a city to make fun of the city; see Elsmere Music v. NBC).

So some fair use should be permissible, if you're using a small enough portion.

Parody is a type of fair use where you use part of an original work to make fun of that work or its owner (for example, taking a well-known photograph and superimposing a comedian's head on someone else's body; see Leibovitz v. Paramount Pictures Corp.).

So some fair use should be permissible, if you're using a small enough portion.

This sounds like a fair use—you've got a legitimate purpose, you're using as little as possible, you're not taking the "heart of the work," and you're not displacing the original work in the market.

That said, because of the nature of fair use, nothing is ever entirely certain.

This may not be a fair use, unfortunately. It's a close call.

You've got a legitimate purpose, but if you're taking as little as possible and your work is still a market replacement for the original, the waters are murky.

Great! There's one more test to consider: the market replacement test.

This doesn't really sound like a fair use—at least, not a traditional one. If you want to use a substantial portion of a work, or the most interesting part, that's generally what licenses are for.

That said, there's another type of fair use analysis that might apply.

This doesn't sound like a fair use. If you aren't adding a new meaning, and/or your work is a replacement for the original, the transformative use test probably won't apply.

Great! There's one more factor to consider: the market replacement test.

This sounds like a transformative fair use. If you're really adding a new and different meaning than the one intended by the original owner, and you're not replacing the original in the market, this use is likely to be fair.

It's still a good idea to check with an expert, though. Transformative use is a new doctrine and can be tricky.