11

There's a current kerfuffle regarding a campaign photo used by the Biden campaign.

Biden with son

The photo shows the logo for the Washington Redskins in the original photo but removed in the photo displayed on CNN. Since the original story, though, the Biden campaign has said that they supplied the altered photo to CNN and the campaign had removed the logo because it is "copyrighted" and that such a step is "a very common practice on campaigns."

The original photo is still located on Facebook where it was initially used to celebrate Father's Day.

Is there anything about copyright, or trademark, law that would require such editing?

  • 12
    Comment as this is only an anecdote: in Europe I see logos removed from photographs very often in order to avoid an inadvertent endorsement or political connection. Example: photos of car interiors have manufacturer logos removed in driving instruction books even though you can clearly tell what brand the car is. – Pavel Sep 10 at 8:10
  • 6
    While he said "copyright", if anything it's probably more of a trademark issue. Conflcating the two is extremely common. – Barmar Sep 10 at 15:26
  • 4
    Just FYI - I am almost positive this was erased because of the native american/indian aspect of their logo not because of a copyright issue. – blankip Sep 10 at 17:49
  • Second, please ask yourself whether "… a campaign photo used by the Biden campaign…" reads as eloquent, or confused? Before that, if it's a published photo then it's also a Copyright photo and may not be used without permission of the copyright owner, except for study or comment . Who owns the copyright might be a very complicated Question and that doesn't change the fact that anyone using any photo without permission would be infringing the owner's copyright. However, that's over-ridden by what's "in the public domain" which rather clearly includes your photo-example. – Robbie Goodwin Sep 10 at 19:11
  • 2
    @Pavel: in France, we took it further into the lazy way: we mirror the image. This is typical on TV news where they interview someone in, say, a shop and you see AEKI (with letters mirrored) and there is of course simply no way you can read the logo anymore... Funnily, this happens more with big brands (our well-known shops for instance) than with small companies where the same TV news will often name the company when presenting the interviewee. And sometimes, without clear reasons, they do not flip the image in the same shop two days later. All this in one TV news (no consistency). – WoJ Sep 11 at 5:54
21

As far as I am aware both these answers are incorrect, but as I am not a lawyer let me quote the World Intellectual Property Organization (part of the UN):

Photos of trademarks

Unlike copyright law, trademark law as such does not restrict the use of a trademark in a photograph. What it does forbid is the use of a trademark in a way that can cause confusion regarding the affiliation of the trademark owner to the image. If consumers are likely to mistakenly believe that the trademark owner sponsored a photograph, then there may be trademark infringement. For example, if a Nike logo was visible on the t-shirt worn by the boy in our photo-shoot scenario, this could be seen as an attempt to appropriate consumer goodwill associated with the Nike trademark. So, caution is required if photographing someone wearing or consuming a trademarked product.

Source: IP and Business: Using Photographs of Copyrighted Works and Trademarks (emphasis mine)

So the basic idea is that if the Washington Redskins would not want to be associated with the Biden campaign, they could file a lawsuit claiming that the photo suggests there might be an affiliation between the campaign and the sport organization. In other words, the question one has to ask is: Is there a chance we might benefit in any way from the goodwill associated with the trademark?

The way it was explained in a copyright course1 I watched was that:

  • you don't need to worry about a McDonald's in the background of your photo
  • you need to be careful where you use a general photo of a specific McDonald's
  • and taking a photo of a political candidate in front of a McDonald's is not acceptable without permission2

The verdict

The biden campaign claimed that

A campaign aide told Fox News the logo was removed from the photo because it is "copyrighted" and claimed that such a step is "a very common practice on campaigns."

To my knowledge that are no actual copyright concerns here, but - just like with the aforementioned course - trademark matters often get covered in the same setting as copyright laws, so I have a very easy time believing that this is 'a very common practice on campaigns'. It's incredibly unlikely that for this specific photo the Washington Redskins would have actually claimed that Biden was benefiting from the goodwill associated with their brand (especially considering all the controversy surrounding them), but it's a completely believable general policy. The interesting thing is that they didn't care as much about postings on social media compared to more traditional channels, but this is in line with what I have seen in many companies and organizations.

1 - This course was trying to generalize international law in a way that content producers won't get in trouble anywhere rather than exclusively explain US law.
2 - The example didn't use a 'political candidate' explicitly, but something along the lines of a recognizable public figure who is not just getting a burger

| improve this answer | |
  • I'd suggest only boldfacing the last bullet (and removing the other bolds), as that's the one that's relevant to the question that was asked. – T.E.D. Sep 10 at 15:54
  • I have actually dealt with directly the last bullet item. Yes it may be an example in a book but it is hardly enforceable. What is the penalty of a someone taking a photo in front of McDonalds? What keeps the person from retaking it to seem like they could be a customer? Good side note but really no real world practicality. Yes if it is some kind of extreme photo op that is orchestrated McDonalds "may" be able to ask that the photo is not used... but there are infinite loopholes around this. – blankip Sep 10 at 17:48
  • 3
    @blankip - "Enforcable" isn't entirely the issue though, is it? Technically Springsteen telling a campaign not to use his music isn't enforceable either. But its a bit of a black eye when someone that famous makes an issue about it, almost like getting a negative endorsement. Plus the NFL is rather famous for sending lawyers in over this exact kind of stuff, and perhaps the Biden campaign would rather spend their limited funds on more ads rather than on lawyers fighting the NFL. – T.E.D. Sep 10 at 19:35
  • 1
    @DavidMulder - how does photo "give a false impression of connection, approval or sponsorship by the owner of the...mark"? It's difficult for me to believe that anyone looking at this photo would think there's a sponsorship connection between any of the parties. Additionally, it looks like Mr. Biden and his son are "just" attending a football game. I'm guessing the answer is not wanting to be associated with the Redskins naming controversy or the Biden campaign always removes logos from campaign photos. On the other hand Mr. Biden did an interview on a stage in front of huge Ford logos today. – Dave D Sep 10 at 21:54
  • 1
    It's true that using a trademark in such a way that implies endorsement or otherwise intentionally attempts to use public goodwill toward the owner of the mark for the benefit of the person/entity using it is a tort, but nothing about the photo in question here suggests that that's what's happening. Aside from the unlikelihood that the owners of the Redskins would actually sue here, it's extremely unlikely that they'd succeed if they did. Now, if Biden's campaign photographed him in front of a giant Redskins sign and used it in an ad, then, yeah, they would have a trademark case against him. – reirab Sep 11 at 6:23
19

There's nothing in trademark law or copyright law that required the removal of this logo before the campaign could use the photograph. The campaign probably does not want to deal with the possible perception that it is claiming endorsement by the company whose logo it removed. Rather than publishing a disclaimer, they found it simpler to modify the photograph.

| improve this answer | |
  • 13
    I suspect the campaign was more concerned about appearing to endorse the trademark than appearing to have been endorsed by its owner. – bdb484 Sep 10 at 4:39
  • 4
    Can you elaborate why no law "required the removal of this logo"? Is the logo not copyrighted, or is its appearance in the photo not a copy, or is it a copy but considered fair use, or what? – nanoman Sep 10 at 9:22
  • 3
    @T.E.D. the logical conclusion from the presence of the logo on the child's hat is that one of the child's parents supports both the team and the campaign, not that the team supports the campaign or vice versa. – phoog Sep 10 at 16:07
  • 2
    @phoog - The question isn't what you as a human being feel like arguing might be the "logical conclusion". The question is what is typically done in this situation, and what's the law. Is it required to get "express written permission" before using a team logo in your own advertising? The NFL certainly says it is. – T.E.D. Sep 10 at 19:27
  • 3
    @T.E.D. In particular, displaying a picture of someone who incidentally happens to be wearing something with a trademark on it isn't "exploiting the mark," nor "capitalising on the associated goodwill by suggesting an association or implied endorsement between the owner and a third party without the owner’s consent." – reirab Sep 11 at 6:15
5

A Standard Operating Procedure Influenced by the Law

I'm not a lawyer, but I do have years of experience in the graphic arts industry, and when you work in an industry were lawsuits are common, you need to know how to avoid those lawsuits without being a lawyer yourself.

From the perspective of the graphic artist, a person can file a lawsuit against you for all sorts of stuff, and sometimes they win despite you following what you believe to be the letter of the law. This can become even more complicated when you have a campaign where unexpected state or international laws may come into play, or where your client's entity type may matter, or where the Trademark owner's entity type might matter. Even in cases where the lawsuit is unenforceable, it's still a nuisance to the person being sued; so, many businesses and professionals adopt standard operating procedures where the goal is not to win court cases but to avoid them all together through catch-all policies.

Many, but not all, graphic artists routinely remove all logos from their work even where acceptable use applies to avoid the possibility of a lawsuit. So, this photo is likely to be the result of a standard operating procedure rather than having anything to to with the redskins or enforceability of the law.

To find out if the Biden campaign is being honest about why they removed the logo, you just need to look at the previous work of the graphic artist who did it to see if this was a unique discrimination against the redskins logo, or if it is their standard operating procedure to always do this.

| improve this answer | |
3

Removing a logo, cropping the photo, or otherwise altering a photo is a "derivative work" of the original and would be a copyright violation if permission was not granted prior to use. There are no exceptions for presidential campaigns.

The campaign though may be referring directly to the logo, which could be considered a separate copyrighted work, so if they got permission to use the photo, but not permission to have the trademarked logo on it, they could crop it out and use the photo itself.

It's also possible that the "copyright" part of the Redskins claim is more related to the name controversy than anything else and they are using copyright as an excuse not to get caught up in a debate.

| improve this answer | |
  • 4
    It appears that the photo is one that Mr. Biden can use as it's on his Facebook page. The claim by the campaign is that they had to remove the Redskin's logo because of copyright and that it's common practice among campaigns. The political kerfuffle, which may have been a contributing factor in removing the logo, may be related to wanting to avoid the controversy related to the Redskins and keep the focus on his familial photo. The question, though, is would he actually need the permission of the copyright holder of the Redskin's logo when it appears in a photo? – Dave D Sep 10 at 2:17
  • 2
    @DaveD Their claim that they "had to" is BS, but the claim that it's common practice is true. – reirab Sep 11 at 6:25
  • No, you need to, otherwise the owner of the logo will get angry that you are implying their endorsement. This is most especially important for nonprofits, which lose their nonprofit status if caught endorsing a political candidate.. – Harper - Reinstate Monica Sep 11 at 17:57
1

Many organizations CANNOT be seen endorsing candidates

For instance a 501(C)(3) organization will have its non-profit status revoked if it is caught endorsing a candidate. (because that would be an end-run around the tax law making its donations tax deductible and political donations not tax deductible).

Nonprofits are more widespread than you think. Many hospitals are structured as non-profits. The Green Bay Packers is owned and subsidized by the City of Green Bay - another entity that cannot be seen endorsing a candidate.

I haven't researched the exact corporate structure the Packers or Redskins are organized as - call that an oversight in my answer, but that's exactly the point.

Like me and a lot of creators, campaigns don't have time to deep-dive corporate-structure research on every brand or logo that comes up. And even if that research shows it's in the clear, so what? That still doesn't give permission, or avoid any of the other "cans of worms" you could be opening unawares.

Given that featuring the wrong logo in your material can be a hand grenade in the lap of that organization (or your own), the most prudent course is simply to avoid/remove the art or logo always.

| improve this answer | |
-1

If CNN had effaced the logo like this, then it would be a case of altering a news photo, which has ruined journalist's careers. Their choice should have been to blur it; which is distracting and may have rendered the photo of low value for their purpose, but that's their problem.

But for use in Biden's campaign, I think their question would have been "what makes this photo work best for our purposes". A logo or word that doesn't support them can only be distracting, and any sports logo is going to alienate the majority of fans who support some other team. Add in those who dislike this particular logo, and the campaign had ample reasons to remove it. And within the context of the statement it's making ("dads and kids are cute and therefore you should vote for Biden") there's no dishonesty in doing so.

| improve this answer | |
  • Surely the standards applying to the use of trademarks in reporting the news are different from those applying in the context of political campaigns, not least because the the conclusion that there is a business relationship between the trademark owner and the newspaper is even more unlikely. – phoog Sep 11 at 17:38

Your Answer

By clicking “Post Your Answer”, you agree to our terms of service, privacy policy and cookie policy

Not the answer you're looking for? Browse other questions tagged or ask your own question.