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If someone publishes an article about advertisements that included screen captures from a website, is there any risk of being sued or would that qualify as fair use? If it makes a difference, assume the article is a criticism of the advertisements and the underlying businesses.

Are there any other considerations such as trademarks when reusing images from internet advertisements in this way?

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  • advertizement? Trademark you might fear more
    – Trish
    Jun 13 at 14:58
  • @Trish I've updated the question based on your feedback.
    – JimmyJames
    Jun 13 at 15:00
  • @Trish, It's not really a Trademark issue either. Remember that trademark law is a consumer protection law (unlike Copyright and Patents). Its goal is to ensure that you get a Coke when you want a Coke. Since the mark isn't being used in commerce, and since a critique can't be assumed to be an endorsed use, this isn't a trademark violation.
    – ikegami
    Jun 13 at 19:20
  • @ikegami you can get in trademark trouble if you show for example... a banks page when you advertize that they made their page with your software when they didn't.
    – Trish
    Jun 13 at 19:24
  • @Trish, Yes, and that's a completely different situation. "We use StackExchange!" is very different than "This is the problem with StackExchange's ads." Trademark is all about preventing the former (if untrue). I already explained a use in a critique wouldn't be seen as an endorsement.
    – ikegami
    Jun 13 at 19:37

2 Answers 2

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Fair use is always a fact-driven issue, and the details matter. That said, copying a single ad in order to criticism the ad, or comment on it, is very likely to be found to be fair use. If only a section of the ad were shown, to illuminate the point being made, that would make a fair use holding more likely. Or if the entire ad was shown in low resolution's for context, and a detail shown in higher resolution, that would also help.

Such an ad is largely factual, not creative in the way that a work of fiction or fine art is, which leans toward fair use. Such a reproduction of the ad will not serve as a replacement, nor harm the market for the ad, which leans toward fair use. The use seems to be transformative, which leans significantly toward fair use. If the whole ad is shown that leans somewhat against fair use, but that does not prevent the use being held to be fair use.

As for trademark protection, that is not likely to be an issue. Trademarks are protected against being used in trade (also known as "in commerce") without permission. This means using the mark to label, identify, or advertise a product or service of the same general type as the product the mark is properly associated with. Using the mark, or a similar mark, in such a way that people are likely to be confused into thinking that a product or service came from the same source as the mark, or approved, endorsed or sponsored by the mark owner, is usually infringement. Using the mark to discuss the product or service, and in particular using it as the name of the product or service, is nominative use. Nominative use is not infringement. Using an ad that includes trademarks to discuss the associated product is a form of nominative use.

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  • Thanks. Since you mention a ''single" ad, what about a number of different ads to demonstrate a larger trend/phenomenon? I assume that doesn't change things but could you confirm?
    – JimmyJames
    Jun 13 at 16:46
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There is the concept of "fair-use", which you have tagged in your question that covers both copyright and trademark and allows for unauthorized use under certain circumstances.

For example, under the US Copyright law, fair use allows:

Fair use is a legal doctrine that promotes freedom of expression by permitting the unlicensed use of copyright-protected works in certain circumstances. Section 107 of the Copyright Act provides the statutory framework for determining whether something is a fair use and identifies certain types of uses—such as criticism, comment, news reporting, teaching, scholarship, and research—as examples of activities that may qualify as fair use.

Reference: Fair Use - Copyright

As far as trademarks go, there are similar provisions. For example:

Trademark owners have challenged unauthorized use of their trademarks not only in domain names and metatags, but also in search engine advertising campaigns and keyword purchases. Typically, marketing advisors recommend these campaigns as a way to direct traffic to the advertiser’s website, to achieve a higher ranking in search results, and perhaps also to divert traffic from a competitor’s website. If the advertiser uses a trademark belonging to its competitor in a sponsored ad, it is likely to be infringing. However, the unauthorized use of another’s mark can be legitimate fair use, such as in comparative advertising that compares the advertiser’s product to the product of the trademark owner, or a gripe site that criticizes the products or services of the trademark owner.

Reference: Trademark Fair-Use

Added emphasis is mine. Nothing here, however, will guarantee that you will not be sued for infringement. But fair-use is a valid defense against their case.

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