Is that copyright infringement or fair use under the law?

Your company has invested substantially in the creation and marketing of a copyrighted image, a character or even a trademarked logo for your brand. When your company creates something new and the public begins to associate it with your business, other people using those same images or logos could cause your company substantial hardship.

Regardless of whether or not you have filed formal copyright documentation with the government, creative works that your company produces and owns have protection under the law. However, there are circumstances in which the other party could reasonably defend against their use of your intellectual property through the so-called fair use standard.

How do you define fair use in the world of intellectual property?

There is no simple answer as to what constitutes fair use and what does not, as the courts often have broad interpretive rights when it comes to reviewing what one person or company claims is a copyright infringement. Someone using a copyrighted or trademarked image for the purpose of social commentary or cultural criticism generally gets classified as fair use.

However, there are limits to how far a person or company can push the fair use of copyrighted or trademarked intellectual property. In general, the courts will look at how much the other party changed your original work and what their intent was. When the intention is commentary, criticism or parody, the fair use doctrine typically applies. However, using a brand name or logo with the intent of generating revenue for another company is likely a violation of your intellectual property rights.

The distinction between a violation of your rights and fair use is blurry in many cases. For example, someone could create a parody of your company’s logo or copyrighted character, which would technically be fair use even if they distributed it publicly. If they turn around and sell t-shirts, your company may have a claim. Still, if they can show that they have substantially altered or modified the design, the claim may not be successful.

Carefully looking at images or merchandise that you believe violates your intellectual property rights with someone familiar with the concept of fair use can give you a better idea of what options do you have. An attorney can provide more information.

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