Legal Question in Technology Law in Missouri
Copyright & Trademark Infrigement
We operate a small, home based online business. One of the products we offer are personalized magazine covers created from your photos.
Our understanding of infringement defenses allow for ''fair use'' where our parody covers, as we consider them, do not compete commercially in any way with the originals, which we do not believe they do. In fact, we belive our products enhance the promotion of the original publications.
We clearly state on our website and on the covers we produce that these are replica covers for entertainment purposes only and claim no association with actual publications.
Time magazine has sent us email request to remove the online samples we have as well as any other commercial offerings featuring their magazines. They also called telling us they were going to refer us to their legal department for action and that they were ''going to come after us''.
Is our position defensible and at what cost? Total sales for our magazine covers at this point are well under $2500 per year.
Thank you for your reponse.
1 Answer from Attorneys
Re: Copyright & Trademark Infrigement
You haven't provided enough information for an authoritative answer, but your position seems quite weak to me. Even if it is stronger than it appears, defending it in court will be very expensive.
The products you sell aren't parodies regardless of what you "consider" them to be, and they don't have the legal protections real parodies would receive.
People are willing to pay for your product because it looks like a real magazine cover, and the reason it looks real is that you are using the magazine's distinctive design. You are thus making money off of its intellectual property, and that is a no-no unless you have permission.
It doesn't matter that you think you are helping Time rather than harming it, and it doesn't matter that you don't compete against it. Disavowing any connectiond to the magazine doesn't protect you either.
Time isn't claiming that people will confuse your product with the real magazine, so your arguments are generally irrelevant. The problem isn't that you are competing against Time, it is that you are using a graphic design that Time owns. Its publishers get to decide who can use that design, and you don't.
Keep in mind that the publishers of Time publish many other magazines as well and that the others are all aware of you by now. They may very well share information about infringers with their competitors, too. This means you will probably be getting more demand letters in the near future.
Chances are that this part of your business is doomed.
Related Questions & Answers
Looking for something else?
10,200 active attorneys ready to answer your legal questions today.
Featured Attorneys
Earn additional revenue and grow your business.
