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There's a current kerfuffle regarding a campaign photo used by the Biden campaign.

Biden with son

The photo shows the logo for the Washington Redskins in the original photo but removed in the photo displayed on CNN. Since the original story, though, the Biden campaign has said that they supplied the altered photo to CNN and the campaign had removed the logo because it is "copyrighted" and that such a step is "a very common practice on campaigns."

The original photo is still located on Facebook where it was initially used to celebrate Father's Day.

Is there anything about copyright, or trademark, law that would require such editing?

Harper - Reinstate Monica
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Dave D
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    Comment as this is only an anecdote: in Europe I see logos removed from photographs very often in order to avoid an inadvertent endorsement or political connection. Example: photos of car interiors have manufacturer logos removed in driving instruction books even though you can clearly tell what brand the car is. – Pavel Sep 10 '20 at 08:10
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    While he said "copyright", if anything it's probably more of a trademark issue. Conflcating the two is extremely common. – Barmar Sep 10 '20 at 15:26
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    Just FYI - I am almost positive this was erased because of the native american/indian aspect of their logo not because of a copyright issue. – blankip Sep 10 '20 at 17:49
  • Second, please ask yourself whether "… a campaign photo used by the Biden campaign…" reads as eloquent, or confused?

    Before that, if it's a published photo then it's also a Copyright photo and may not be used without permission of the copyright owner, except for study or comment .

    Who owns the copyright might be a very complicated Question and that doesn't change the fact that anyone using any photo without permission would be infringing the owner's copyright.

    However, that's over-ridden by what's "in the public domain" which rather clearly includes your photo-example.

     – Robbie Goodwin Sep 10 '20 at 19:11
  • @Barmar No, it's clearly a copyright issue. How could this possibly be a trademark violation? Does anyone think that Biden is claiming to representing the Redskins? – Acccumulation Sep 10 '20 at 19:15
  • @Acccumulation I suppose it could be both. IANAL, but my understanding is that trademarks are also involved when you suggest endorsement. E.g. the Olympic rings can only be displayed by companies that the IOC has endorsed. – Barmar Sep 10 '20 at 19:19
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    @Pavel: in France, we took it further into the lazy way: we mirror the image. This is typical on TV news where they interview someone in, say, a shop and you see AEKI (with letters mirrored) and there is of course simply no way you can read the logo anymore... Funnily, this happens more with big brands (our well-known shops for instance) than with small companies where the same TV news will often name the company when presenting the interviewee. And sometimes, without clear reasons, they do not flip the image in the same shop two days later. All this in one TV news (no consistency). – WoJ Sep 11 '20 at 05:54
  • @WoJ Such ideas are weird, but probably deemed technically okay - everybody did what they were required to. Funnily, the interviewee is still considered to be recognizable? And what if another shop across the street is mirrored in the shop window and by mirroring becomes legible? This technique also clearly fails with the rounded M of McDonald's or with the Starbucks logo as such (until you try to really read the text, which you don't - in fact, you'd of course 100% be sued if you created a logo for your own brand with different text but the same rounded M or mermaid) – Hagen von Eitzen Sep 12 '20 at 11:00
  • @Barmar The Olympic rings are perhaps a abd example as they have special treatment in copyright law (IIRC, adjusting their national copyright laws in accordance with what the IOC suggests is requirement for a country to have olympic games) – Hagen von Eitzen Sep 12 '20 at 11:02
  • @HagenvonEitzen: yes, usually the person is fully named (first name last name, sometimes only first name) and then "store manager" or something. The store is completely recognizable when they occasionally blur the logo (not usual, in that case you could still see the colour and the general shape) and obviously when they just flip the image. Like you are saying, I am sure this is technically OK and never mind if it does not make much sense. Quite typical for my country (it has its good and bad aspects). – WoJ Sep 12 '20 at 13:08
  • I think the answer to the question "is it required by copyright or trademark law" is "almost certainly not": it's very unlikely that a complaint from the copyright/trademark holders would be upheld by the courts. But is it advisable? Absolutely yes: use of the image may cause some people to get upset, especially in the case of this particular image, because of racial sensitivities. – Michael Kay Sep 12 '20 at 16:08
  • It may be that they don't want to make it look as if the Washington Redskins endorsed them. Or it may be that they don't want to make it appear that they're endorsing a team name that some find objectionable. Or it may be that even if the law does not forbid this display of a logo subject to copyright or trademark, the policies of the Biden campaign forbid such display of things subject to copyright or trademark, so that "because it's copyrighted" could still be a valid reason. – Michael Hardy Sep 12 '20 at 17:39

6 Answers6

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As far as I am aware both these answers are incorrect, but as I am not a lawyer let me quote the World Intellectual Property Organization (part of the UN):

Photos of trademarks

Unlike copyright law, trademark law as such does not restrict the use of a trademark in a photograph. What it does forbid is the use of a trademark in a way that can cause confusion regarding the affiliation of the trademark owner to the image. If consumers are likely to mistakenly believe that the trademark owner sponsored a photograph, then there may be trademark infringement. For example, if a Nike logo was visible on the t-shirt worn by the boy in our photo-shoot scenario, this could be seen as an attempt to appropriate consumer goodwill associated with the Nike trademark. So, caution is required if photographing someone wearing or consuming a trademarked product.

Source: IP and Business: Using Photographs of Copyrighted Works and Trademarks (emphasis mine)

So the basic idea is that if the Washington Redskins would not want to be associated with the Biden campaign, they could file a lawsuit claiming that the photo suggests there might be an affiliation between the campaign and the sport organization. In other words, the question one has to ask is: Is there a chance we might benefit in any way from the goodwill associated with the trademark?

The way it was explained in a copyright course1 I watched was that:

  • you don't need to worry about a McDonald's in the background of your photo
  • you need to be careful where you use a general photo of a specific McDonald's
  • and taking a photo of a political candidate in front of a McDonald's is not acceptable without permission2

The verdict

The biden campaign claimed that

A campaign aide told Fox News the logo was removed from the photo because it is "copyrighted" and claimed that such a step is "a very common practice on campaigns."

To my knowledge that are no actual copyright concerns here, but - just like with the aforementioned course - trademark matters often get covered in the same setting as copyright laws, so I have a very easy time believing that this is 'a very common practice on campaigns'. It's incredibly unlikely that for this specific photo the Washington Redskins would have actually claimed that Biden was benefiting from the goodwill associated with their brand (especially considering all the controversy surrounding them), but it's a completely believable general policy. The interesting thing is that they didn't care as much about postings on social media compared to more traditional channels, but this is in line with what I have seen in many companies and organizations.

1 - This course was trying to generalize international law in a way that content producers won't get in trouble anywhere rather than exclusively explain US law.
2 - The example didn't use a 'political candidate' explicitly, but something along the lines of a recognizable public figure who is not just getting a burger

David Mulder
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  • I'd suggest only boldfacing the last bullet (and removing the other bolds), as that's the one that's relevant to the question that was asked. – T.E.D. Sep 10 '20 at 15:54
  • I have actually dealt with directly the last bullet item. Yes it may be an example in a book but it is hardly enforceable. What is the penalty of a someone taking a photo in front of McDonalds? What keeps the person from retaking it to seem like they could be a customer? Good side note but really no real world practicality. Yes if it is some kind of extreme photo op that is orchestrated McDonalds "may" be able to ask that the photo is not used... but there are infinite loopholes around this. – blankip Sep 10 '20 at 17:48
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    @blankip - "Enforcable" isn't entirely the issue though, is it? Technically Springsteen telling a campaign not to use his music isn't enforceable either. But its a bit of a black eye when someone that famous makes an issue about it, almost like getting a negative endorsement. Plus the NFL is rather famous for sending lawyers in over this exact kind of stuff, and perhaps the Biden campaign would rather spend their limited funds on more ads rather than on lawyers fighting the NFL. – T.E.D. Sep 10 '20 at 19:35
  • @T.E.D. - one of the first law classes I took and maybe the first week (Theory of Rules and Laws) covered a basic concept of what is a law. One of the basic tenets of a law is its ability to be enforced. His bullet point isn't law, it is more about ethics and reputation. Doing something "wrong" or "bad" isn't necessarily illegal no matter how bad our society thinks it is. – blankip Sep 10 '20 at 20:06
  • @blankip Why would it be impossible to enforce trademark law? The Washington Redskins have the ability to sue the Biden campaign. It's probably not worth the negative press for them, but there is a very clear road on how to enforce such laws. This article seems to be a good overview of the exceptions when you can use a trademark in your advertising: https://www.gfrlaw.com/what-we-do/insights/beyond-brand-x-using-another%E2%80%99s-trademark-your-own-advertising – David Mulder Sep 10 '20 at 20:39
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    @DavidMulder - how does photo "give a false impression of connection, approval or sponsorship by the owner of the...mark"? It's difficult for me to believe that anyone looking at this photo would think there's a sponsorship connection between any of the parties. Additionally, it looks like Mr. Biden and his son are "just" attending a football game. I'm guessing the answer is not wanting to be associated with the Redskins naming controversy or the Biden campaign always removes logos from campaign photos. On the other hand Mr. Biden did an interview on a stage in front of huge Ford logos today. – Dave D Sep 10 '20 at 21:54
  • @DavidMulder - well I guess you count enforceable as $$$ paying law firms to create such a legal mess that they would rather oblige than to pay their own lawyers. People do this all the time and doesn't make their reasoning "lawful". Also people oblige even when not breaking the law to not have to deal with costs of even answering. Answering one company might be a photo editors yearly salary. Not allowing a photo of your trademark infringes on 1st amendment areas. I would like to see some example from that firm where they won - not swamped someone. – blankip Sep 10 '20 at 22:00
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    It's true that using a trademark in such a way that implies endorsement or otherwise intentionally attempts to use public goodwill toward the owner of the mark for the benefit of the person/entity using it is a tort, but nothing about the photo in question here suggests that that's what's happening. Aside from the unlikelihood that the owners of the Redskins would actually sue here, it's extremely unlikely that they'd succeed if they did. Now, if Biden's campaign photographed him in front of a giant Redskins sign and used it in an ad, then, yeah, they would have a trademark case against him. – reirab Sep 11 '20 at 06:23
  • The paragraph quoted refers to "our photo-shoot scenario". Until I read it the third time, I missed that this is a different scenario from the one in this question. Quoting the paragraph without describing the scenario in the article, and without its careful analysis of exactly what makes some uses acceptable and others not, is potentially misleading. – Michael Kay Sep 12 '20 at 16:15
  • @MichaelKay Having looked at the provided source, do you believe that it is actually misleading, or do you believe it could be potentially misleading? Because throwing out "it could potentially be misleading" is pretty... vague. I don't see the reason to include the scenario, because it doesn't change anything, and it's by far the most similar situation I was able to find from an authoritative source. – David Mulder Sep 12 '20 at 17:28
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There's nothing in trademark law or copyright law that required the removal of this logo before the campaign could use the photograph. The campaign probably does not want to deal with the possible perception that it is claiming endorsement by the company whose logo it removed. Rather than publishing a disclaimer, they found it simpler to modify the photograph.

phoog
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    I suspect the campaign was more concerned about appearing to endorse the trademark than appearing to have been endorsed by its owner. – bdb484 Sep 10 '20 at 04:39
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    Can you elaborate why no law "required the removal of this logo"? Is the logo not copyrighted, or is its appearance in the photo not a copy, or is it a copy but considered fair use, or what? – nanoman Sep 10 '20 at 09:22
  • So anyone is legally free to use any brand in their advertising to whichever degree they choose without any disclaimer and without the knowledge or permission of said brand? Unless you're saying this "possible perception" could have legal consequences, but that's not at all clear from your answer. Also, if you're saying this specific case is allowed "because reasons", then you might want to go into what those reasons are. – NotThatGuy Sep 10 '20 at 09:59
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    First sentence looks wrong to me. From WorldTrademarkReview: "Trademark law protects an owner’s exclusive right to exploit its marks and to prevent third parties from capitalising on the associated goodwill by suggesting an association or implied endorsement between the owner and a third party without the owner’s consent." The Washington football team certainly isn't going to want to see half their potential fans thinking they endorse the candidate of the other party. – T.E.D. Sep 10 '20 at 14:03
  • @T.E.D. Yeah, this answer is absolutely incorrect. I wrote another answer quoting sources as well, but somehow this answer is getting further upvoted. – David Mulder Sep 10 '20 at 15:45
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    @T.E.D. the logical conclusion from the presence of the logo on the child's hat is that one of the child's parents supports both the team and the campaign, not that the team supports the campaign or vice versa. – phoog Sep 10 '20 at 16:07
  • @phoog Just because that's a possible interpretation doesn't mean that it's the only interpretation and definitely with something as divisive as the American two party political system it's quite easy for an organization to argue that Biden is trying to appropriate consumer goodwill associated with their brand. – David Mulder Sep 10 '20 at 16:39
  • I caught a very similar situation in a Biden TV ad just yesterday. There was a photo of Biden and Beau in his military uniform, evidently taken by the DoD, and there was a small-text disclaimer on the bottom of the screen indicating that the use of imagery owned by the DoD in no way implies an endorsement of the candidate by the DoD. – Darrel Hoffman Sep 10 '20 at 17:31
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    @phoog - The question isn't what you as a human being feel like arguing might be the "logical conclusion". The question is what is typically done in this situation, and what's the law. Is it required to get "express written permission" before using a team logo in your own advertising? The NFL certainly says it is. – T.E.D. Sep 10 '20 at 19:27
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    @T.E.D. the question is about what a judge would find a reasonable consumer's conclusion would be about the meaning of the logo in the photograph. Whether express written permission is required depends on that. So the "logical conclusion" is indeed relevant. – phoog Sep 10 '20 at 22:49
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    @T.E.D. It would be required to get their permission to, say, plaster the Redskins' (or whatever it is that they're calling themselves these days?) logo all over your ad. It would be required to get their permission to sell clothes with that logo. It is not required to get their permission to take a picture of someone who is wearing such a piece of clothing, nor to use such a photo in an ad where its display is incidental and wouldn't be interpreted as an endorsement by a reasonable viewer. – reirab Sep 11 '20 at 06:10
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    @T.E.D. In particular, displaying a picture of someone who incidentally happens to be wearing something with a trademark on it isn't "exploiting the mark," nor "capitalising on the associated goodwill by suggesting an association or implied endorsement between the owner and a third party without the owner’s consent." – reirab Sep 11 '20 at 06:15
  • @reirab one person's "incidentally happens to be wearing" is another person's multi-million-dollar product placement or influencing deal. Of course most cases are not, but to be absolutely certain there is no subtext that would influence a viewer's perception of the advertiser or the brand or both, you'd have to carefully study the cultural status of both parties and how they feature in the discourse of the day. And you might feel safe on that analysis and still get some legal challenge, regardless of the merits. None of this hassle arises with a trademark-free photo. – Will Sep 11 '20 at 11:29
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    @Will I don't think product placement deals are even legal for politicians. I agree that it's perfectly normal to remove logos out of an abundance of caution (and also to simply to avoid controversy or to avoid appearance that the subject of the photo is endorsing the owner of the mark,) but it is certainly not required to get the "express written permission" of the NFL to publish a photo of yourself (or someone else) who happens to be wearing an article of clothing with a Redskins logo as the comment I was replying to mentioned. – reirab Sep 11 '20 at 16:27
  • @reirab the comment you replied to didn't mention a "happens to be wearing" context to the trademark use - that was your embellishment. Of course the Redskins cannot turn a non-actionable use of their trademark to an actionable one, but nobody wants the difference to be decided by means of any legal proceedings and my point was it's perfectly possible for an infringing use to be made unwittingly. Whether caution exercised to avoid such scenarios is "abundant" is a subjective judgement but it's one based on real risks of legal liability. – Will Sep 13 '20 at 21:17
  • @reirab As for the notion that politicians might be immune from infringing uses of trademarks, seeing Ivanka Trump posing with a can of Goya beans leaves me skeptical that there's any categorical legal difference in the relationship between trademarks and politicians compared to any other sort of third parties. – Will Sep 13 '20 at 21:17
  • @Will It wasn't any sort of "embellishment." It's the entire context of this question, see picture in the OP. Saying that I suggested politicians are immune from infringing use of trademarks is, however, quite an embellishment. I said that I don't think it's legal for them to make product placement deals (the case you mention being one that generated controversy for exactly that reason,) not that they're immune from infringing on trademarks. See, for example, 5 CFR 2635.702, which prohibits the use of any U.S. public office "for the endorsement of any product, service or enterprise." – reirab Sep 13 '20 at 22:03
  • @reirab I don't see how the law surrounding political endorsements is relevant to the question whatsoever so of course I extrapolated to guess what point you were making about the trademark question. A politician purporting some to have some endorsement agreement without the trademark owner's consent likely infringes on the trademark irrespective of whether the putative relationship would violate 5 CFR 2635.702. – Will Sep 14 '20 at 01:39
  • @Will It doesn't have anything to do with the question. It has to do with your own comment above, "one person's "incidentally happens to be wearing" is another person's multi-million-dollar product placement or influencing deal." I was merely pointing out that that possibility can probably be ignored in the context of this question, since it isn't even legal. – reirab Sep 14 '20 at 01:48
  • @reirab ignoring the possibility of a particular act because it would be unlawful is a bit of an odd strategy for assessing the possibility that a different kind of unlawful act has been committed. – Will Sep 14 '20 at 08:00
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A Standard Operating Procedure Influenced by the Law

I'm not a lawyer, but I do have years of experience in the graphic arts industry, and when you work in an industry were lawsuits are common, you need to know how to avoid those lawsuits without being a lawyer yourself.

From the perspective of the graphic artist, a person can file a lawsuit against you for all sorts of stuff, and sometimes they win despite you following what you believe to be the letter of the law. This can become even more complicated when you have a campaign where unexpected state or international laws may come into play, or where your client's entity type may matter, or where the Trademark owner's entity type might matter. Even in cases where the lawsuit is unenforceable, it's still a nuisance to the person being sued; so, many businesses and professionals adopt standard operating procedures where the goal is not to win court cases but to avoid them all together through catch-all policies.

Many, but not all, graphic artists routinely remove all logos from their work even where acceptable use applies to avoid the possibility of a lawsuit. So, this photo is likely to be the result of a standard operating procedure rather than having anything to to with the redskins or enforceability of the law.

To find out if the Biden campaign is being honest about why they removed the logo, you just need to look at the previous work of the graphic artist who did it to see if this was a unique discrimination against the redskins logo, or if it is their standard operating procedure to always do this.

Nosajimiki
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Removing a logo, cropping the photo, or otherwise altering a photo is a "derivative work" of the original and would be a copyright violation if permission was not granted prior to use. There are no exceptions for presidential campaigns.

The campaign though may be referring directly to the logo, which could be considered a separate copyrighted work, so if they got permission to use the photo, but not permission to have the trademarked logo on it, they could crop it out and use the photo itself.

It's also possible that the "copyright" part of the Redskins claim is more related to the name controversy than anything else and they are using copyright as an excuse not to get caught up in a debate.

Ron Beyer
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    It appears that the photo is one that Mr. Biden can use as it's on his Facebook page. The claim by the campaign is that they had to remove the Redskin's logo because of copyright and that it's common practice among campaigns. The political kerfuffle, which may have been a contributing factor in removing the logo, may be related to wanting to avoid the controversy related to the Redskins and keep the focus on his familial photo. The question, though, is would he actually need the permission of the copyright holder of the Redskin's logo when it appears in a photo? – Dave D Sep 10 '20 at 02:17
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    @DaveD Their claim that they "had to" is BS, but the claim that it's common practice is true. – reirab Sep 11 '20 at 06:25
  • No, you need to, otherwise the owner of the logo will get angry that you are implying their endorsement. This is most especially important for nonprofits, which lose their nonprofit status if caught endorsing a political candidate.. – Harper - Reinstate Monica Sep 11 '20 at 17:57
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Many organizations CANNOT be seen endorsing candidates

For instance a 501(C)(3) organization will have its non-profit status revoked if it is caught endorsing a candidate. (because that would be an end-run around the tax law making its donations tax deductible and political donations not tax deductible).

Nonprofits are more widespread than you think. Many hospitals are structured as non-profits. The Green Bay Packers is owned and subsidized by the City of Green Bay - another entity that cannot be seen endorsing a candidate.

I haven't researched the exact corporate structure the Packers or Redskins are organized as - call that an oversight in my answer, but that's exactly the point.

Like me and a lot of creators, campaigns don't have time to deep-dive corporate-structure research on every brand or logo that comes up. And even if that research shows it's in the clear, so what? That still doesn't give permission, or avoid any of the other "cans of worms" you could be opening unawares.

Given that featuring the wrong logo in your material can be a hand grenade in the lap of that organization (or your own), the most prudent course is simply to avoid/remove the art or logo always.

Harper - Reinstate Monica
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If CNN had effaced the logo like this, then it would be a case of altering a news photo, which has ruined journalist's careers. Their choice should have been to blur it; which is distracting and may have rendered the photo of low value for their purpose, but that's their problem.

But for use in Biden's campaign, I think their question would have been "what makes this photo work best for our purposes". A logo or word that doesn't support them can only be distracting, and any sports logo is going to alienate the majority of fans who support some other team. Add in those who dislike this particular logo, and the campaign had ample reasons to remove it. And within the context of the statement it's making ("dads and kids are cute and therefore you should vote for Biden") there's no dishonesty in doing so.

CCTO
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  • Surely the standards applying to the use of trademarks in reporting the news are different from those applying in the context of political campaigns, not least because the the conclusion that there is a business relationship between the trademark owner and the newspaper is even more unlikely. – phoog Sep 11 '20 at 17:38