Legal Question in Intellectual Property in New York

Revised query on copyright and trademark law with regard to ‘fair use’.

I am creating a for-profit acting tutorial videotape. This product will be sold to the public for private home use and not for broadcast on the air or presentation in public forums. This videotape would employ a variety of actual commercial advertising copy (written text or script in its entirety, including the actual product brand name) as material for the purpose of students to use as a tool in experiencing a commercial audition and the recreation of a commercial audition scenario. This commercial copy (text) and product brand name will be used in an editorial and teaching context and will not be used to promote, market or endorse this videotape product. In that regard, none of the trademark symbols, brand names or any portion of the commercial copy will appear or be spoken in connection with the packaging, print ads or any other marketing or promotional materials for this videotape product. Would my business be within the category of ‘fair use’ with regard to copyright, trademark or any other applicable laws?

Asked on 6/02/02, 8:36 pm

2 Answers from Attorneys

Sarah Klug Law Office of Sarah Scova Klug PLLC
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Re: Revised query on copyright and trademark law with regard to ‘fair use’.

I think in the context in which you are using copyrighted commericals and registered trademarks, you should be very careful and seek the permission of the intellectual property owner.

What you consider to be a fair use ("teaching" or "editorial" context) may be viewed as an infringement by the trademark/copyright owner. Such differences in opinions are what keeps litigators busy!

If I can be of any assistance, please contact me.

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6/10/02, 4:07 pm
Ken Feldman Feldman Law Group
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Re: Revised query on copyright and trademark law with regard to ‘fair use’.

Ok. You raise a new point. The "advertising copy". Who wrote that? If you do not have an assignment or license from the author and copyright holder of that, you will be infringing a copyright. If you do, get it clearly in writing and it should not be a problem. As to the trademarks, you seem to now understand the issue: will anyone be confused into thinking these companies endorse or are connected with your product? One other issue to keep in mind is, even if nobody would get confused, would these companies allege in a lawsuit that such confusion is likely? One last question: why not make up fictitious brand names and avoid the whole problem? If you make them creative and entertaining, you may even have a better learning tool.

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6/02/02, 10:12 pm

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