Please if possible avoid legalese jargon in the answer.

Can a person use a brand citation (e.g. reproduce the brand logo and/or the brand name) under fair use or is permission required?

I would also like to know what rule applies to advertising: can a writer cite an advertisement (a few screens or a little piece of the entire ad) freely or does a writer need a special authorization?

Can a person lawfully produce and distribute a work in which brands and ads are cited, without needing to ask permission for such use for each brand?

  • If you feel the need to avoid asking permission, that's a bad sign isn't it? – Studoku Feb 11 at 13:13
  • @Studoku not always. Fair use was invented precisely so that one making limited citations or quotations does not need to ask permission from the copyright holder. – David Siegel Feb 11 at 13:49
  • @Skary You do not say what country this would be in. "Fair use" is a specifically US legal concept, and does not exist elsewhere, although something somewhat similar called "fair dealing" exists in several other countries. Whether something is fair use depends very much on the purpose of the use, and the amount of content copied from each source. – David Siegel Feb 11 at 13:53
  • As edited, I do not think this is a request for specific legal advice, and I do not think it should be closed as such. – David Siegel Feb 11 at 13:54
  • I think it needs to be closed as too broad, since it treats copyright and trademark as interchangeable. It also lumps text and art together when they are radically different under copyright law. Brand names are clearly not protected by copyright. That reduces the question to copying of advertising artwork, where the fact of being a logo is irrelevant. – user6726 Feb 11 at 17:05

"Fair use" is a specifically concept in copyright law. I will therefore assume US law in this answer. If the US is not the relevant country, this answer may not apply.

Fair use was first created to allow comment about a protected work, such as by a reviewer, or a teacher or scholar, without the need to get permission for every short quotation made. It is broader than that, but that kind of use is at the heart of the concept. It was originally a court-made concept, adopted by Congress in the Copyright Act of 1976, now 17 USC. It is specifically defined in 17 USC 107.

Whether a use is a fair use is always a highly fact-dependent determination. There is no single clear formula or rule. There are uses which are highly likely to be held to be fair use, and uses pretty clearly not covered, but between those is a wide area where the details matter.

Whether a use is a fair use depends on the nature of the work making use of copied or derived content, on the nature of the work copied from, on the kind of use made of the copied content, on the amount of the source work that is copied, and on the effect of the copying on the market or potential market for the source work. None of these dominates, a balance is struck in each case that a court considers. The law lists the factors to be considered as:

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.

It is essential to examine the details of a proposed use to see how the four factors apply in each case. Unfortunately here details are lacking as to the nature and purpose of the use, and as to how much content would be quoted from any particular source.

If the proposed work is an analysis and discussion of various published works, one which does not compete with them, that would tend to favor fair use. In general a short quotation can be made when the purpose is to analyze or discuss that quote or the work from which it comes. An image may be used when that image is being commented on, or in some cases to identify the work in question. It should include no more of the source image than is needed for such a purpose, and should often be at a reduced resolution.

If the new work serves as a replacement for the source work, so that people are less likely to purchase the source work, that weighs against a finding of fair use. This may be the most important factor in the analysis.

The more of the source work that is used, the less likely it is to be a fair use. But there are cases in which the entire source work was copied but this was held to be a fair use, and in Harper vs Nation the copying of about 300 words from a 500-page book was held to be too much.

Valid fair use usually includes attribution, listing the source and authorship of the work from which content has been copied or derived.

The more the use is for a different purpose than the original, the better the case for fair use. For example, a popular song is written and published to make an emotional effect on the listeners. A text on how to write popular music quotes the song to discuss meter and rhyme scheme, a very different kind of use. A stirring line in a famous speech may be quote4d ironically, to argue that the ideals of the original have not been achieved, again a very different use. Such different uses are called transformative in copyright law. Transformative uses are more likely to be held as fair use than uses that are not transformative.

Advertisements are no different from other protected works. The same rules apply when quoting an ad as when quoting a novel, or a poem, or a news story. However, creative works, such as poems, songs, and novels, are generally more strongly protected than factual works such as news stories, advertisements, or textbooks. When the source is a creative work fair use is somewhat less likely.

The question also mentions trademarks. Trademarks are only protected against being used in trade. That is, one may not, without permission, use someone else's trademark to advertise or identify a product or service, or to suggest that it is endorse or approved by another when it has not been. A trademark may be used to identify a trademarked product, for example in comparative advertising ("Brand X performs better than Brand Y.") But if the proposed work is not itself advertising or selling anything (except perhaps itself) then trademark law is probably not an issue.

Without more specifics on the proposed, this set of general principles on fair use is the beat answer that I can give.

  • Thanks for the incredibly detailed and comprehensive answer.I think that my scenario belong to what you called comparative advertising.So if I haven't misunderstood I can cite brand and its Ads, and even if one tuple of the brand-ad perform worst (compared to others) I haven't to fear legal repercussions (as long the results sticks to "data" and are not "opinion based") – Skary Feb 16 at 21:48
  • @Skary Comparative advertising is where one product is advertised by comparing it to another product, such as the classic "Rolaids is better than Tums". In that case one3 may use the other product's trademarked name to identify it, but usually not the other product's logo. A commentary on ads, or a review of ads, comparing one to another, while not itself selling anything, is a different matter and generally need not worry about trademark protections at all. – David Siegel Feb 16 at 21:54

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