Legal Question in Civil Litigation in Maryland

Re: Can I be sued for altering a tabloid cover, and using it as part of a cover

21 May 2002

You have potential issues of trademark, copyright, and

protected personal image. The trademark would be the

look, feel, and style of the tabloid. If the ordinary person

would recognize that you have used this tabloid as

the basis for your published product, this could be

a violation of a style or trademark even if there is no

direct economic harm to the tabloid. The tabloid would

need to show that its look is so distinctive that it

deserves protection in the marketplace from authorized

use even in altered form. One example is if you had taken

the distinctive cover design of a popular magazine

such as National Geographic or Time. If you deliberately

appropriate this look without consent, it could be a trademark

violation that could put you on the business end of an injunction.

It depends on how seriously the tabloid would take this,

whether their design is subject to a trademark claim, etc., and

whether you are worth suing. Many of the cartoon characters

that show up on t-shirts sold at the beach (usually accompanied

by off-color content) is surely NOT done under license. But

who could track that all done. The question to you is

whether you want to take that chance.

Celebrities do have a right of protection in their image. So-called

supermarket tabloid might photograph them without their consent,

but many feel it is not worth the trouble suing and others feel

there is no such thing as bad publicity. Do not assume that a

celebrity photo is public domain. Many celebreties do guard the

right to the commercial use of their image. For those who have

died, that right passes to their estate. Another possible

injunction.

If you are using special phrases in your publication that

are copyrighted or otherwise linked to a person or product,

that may also be a violation if done for commercial use

without permission or consent. Another area to be careful.

Perhaps you are contending that this use is "fair use" or that

the objective of your publication is satire and so may come

under a copyright or trademark exception. That may succeed under

certain conditions. But you may be called upon to defend your

contention and it does not always work.

Use of the tabloid's design is a close call. Use

of celebrity photos could be a violation but might not

get on their radar screen. If you know enough to ask

the question, you know what the answer could be.

My suggestion is get permission or re-think the design.