HEADSHOT © DAVID LINDNER
Q: I'm an aspiring sports photographer and am currently interning for a number of teams at my school. I'd like to start selling these images on the Internet but someone told me I'd need to remove logos from my images first. Why is that necessary? It seems like it would take a lot of work.
A: If you want to sell your sports images, either online or in print, you should first understand the requirements and limitations for how they can be sold. Whether you must remove logos or obtain permission from the team and/or the players depends on the intended use.
Logos represent the identity of a team, just like any other brand, such as the Apple logo on an iPhone, the Nikon logo on a camera and the Nike logo on a shirt. Even the stripes on a sneaker can identify the brand. The legal parameters for the use of any photograph containing a visual depiction of branded products is generally determined by trademark law. Trademarks, unlike copyright, do not protect the illustration or design as artwork, so not all reproductions violate trademark law. Trademarks are source identifiers of goods or services. For example, when you see a Nike swoosh on a product, hopefully for Nike you immediately recognize the goodwill the company has generated over the years by selling quality products. The purpose of a trademark is to avoid consumer confusion, so Nike would want to prevent another company from selling sports products using a similar mark.
You can depict a company’s trademark in your photograph without violating the brand owner’s right if the use qualifies as a “fair use” under trademark law. This type of fair use is described as nominative fair use and permits the use of a mark to describe the trademark owner’s product. The test for nominative fair use is whether (1) the trademark owner’s product or service is not readily identifiable without the use of the mark; (2) you use only so much of the mark as reasonably necessary to identify that product or service; and (3) the use does not suggest sponsorship or endorsement by the mark holder.
In applying this test to the sale or licensing of sports images, retaining the team logo in your images would be allowed in the following circumstances: 1) selling the images to the athletes or their fans as prints for personal use or as digital files for use on social media 2) licensing reproductions of the images to a newspaper, blog, magazine or documentary film to illustrate an article or story on the team, the players, or some issue relating to the subject of the image.. Under these conditions, you would either be making an artistic use (selling the print) or an editorial use (licensing the image to illustrate a truthful event). You would not want to remove any aspect of the team’s clothing or equipment so to represent a truthful depiction of the event. The team logo is a necessary part of the event, and neither of the above types of uses would suggest sponsorship or endorsement by the team.
On the other hand, if you’re licensing the image to a manufacturer of sneakers, athletic clothes or sporting equipment, for example, you would not want to include the team logo in your image without permission from the team or the player. This type of use would be considered commercial and if the image appears as an advertisement, it could suggest sponsorship or endorsement by the team. (For this type of commercial use you’ll also need a model release from any identifiable player in the image, but that’s a separate issue.)
If you want to sell or license your sports images containing recognizable logos, you should clearly communicate to clients that the license is limited to editorial use or for personal prints and that no commercial or advertising use is granted. Having a strong online license agreement is also important, which can be agreed to electronically by clicking “I accept.” As a practical matter, you should display images in low resolution online and only provide a higher resolution image for reproduction once an agreement is acknowledged. Many stock photography sites, such as Getty Images, Corbis and Shutterstock, among others, offer images for editorial use only and have license terms on their Web sites. If you just want to sell prints for personal/family use, sites such as Shutterfly offer professional photographers a package for image sales.
Nancy E. Wolff is a partner at Cowan, DeBaets, Abrahams & Sheppard, LLP. Her practice focuses on intellectual property and digital media law.
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