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I want to use a photo like below, but with a different screenshot for my product.
If I take a similar photo, can I still use an iPhone in the shot?

enter image description here

Kirk Strobeck
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  • I agree with MikeW in his comment in response to Aaron's answer. If possible, do not use another brand or trademark that is visible in photo of your product, especially since Apple has in the past went against other companies. Consult a lawyer or someone with relevant marketing experience. – Global nomad Jan 31 '13 at 20:06
  • So what is your product? Is it an app for the iPhone, an accessory? – MikeW Feb 02 '13 at 04:40

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If it is for an app in the App Store, then Apple has some pretty strict guidelines on what you can and cannot do with product images here: https://developer.apple.com/appstore/AppStoreMarketingGuidelines.pdf (iOS Developer account may be required to view)

colincameron
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I'm not real clear what you're asking. If you're asking if you can put something on the screen of an iphone, take a picture of the whole thing, and use that in marketing materials or brochures to sell something else, the answer is of course. Are you thinking that because there is an iphone you would have to pay a license fee to Apple for using their product in a photo you took? That is not the case at all.

Aaron
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    So you're saying anyone is free to use an image containing a well known brand and use it for commercial use, without restriction? – MikeW Jan 31 '13 at 19:59
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    I wonder if there's an exception if the product in question is an app in the apple App Store? I've seen quite a few apps advertised like that. – ElendilTheTall Jan 31 '13 at 21:21
  • I think this is tricky. I know about actual fights between companies because one (let's say an insurance) used a product (let's say a bottle of Champagne) in their ads in a way where you could recognize the brand. The Champagne company asked for licensing rights for that picture. – uncovery Feb 01 '13 at 04:40
  • Right, so can anybody offer something more objective than opinions? – Kirk Strobeck Feb 01 '13 at 04:42
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    Contact Apple, and get something in writing if they give you the go-ahead. It's the only way you can be sure. – ElendilTheTall Feb 01 '13 at 07:01
  • @MikeW: If you have the right to reproduce the photo (i.e., it's yours or you've licensed it), that's exactly what he's saying. If the designers of objects could take anyone to court over those objects being in others' photos and the hand in the OP's picture was holding a rock, Libbey would have standing to sue over the use of the Duratuff Gibraltar glass behind it, too. That doesn't mean a lawyer without better things to do can't threaten you over it, but you have a lot more to lose than he does. – Blrfl Feb 01 '13 at 15:18
  • @Blrfl a rock isn't a recognisable brand, neither is that blurry glass. You can take all the images of iPhones or Coke cans that you want, but if you want to use them commercially, put them up on billboards, especially if they are not flattering, the trademark holders may come after you. This is why stock photo agencies do not permit images containing recognisable brands. See Car-Freshener Corporation v. Getty Images (http://www.pdnonline.com/news/Getty-Loses-Round-in-3867.shtml) – MikeW Feb 01 '13 at 18:07
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    @MikeW from that URL: 'Infringement depends upon whether the trademark itself is used to sell the photograph, and whether sponsorship or endorsement of the trademark owner is implied.'. I guess I'm on the mindset of 'If an iphone happens to be in the picture, it happens to be in the picture' stance. – Aaron Feb 01 '13 at 20:37
  • @MikeW: An image of a Coke can contains Coke's trademarks. No such material appears on the front of an iPhone, so the question is whether the object itself is trademarked and the use is infringing. Apple's penchant for wanting to approve everything that enters its walled garden implies at least some endorsement of the OP's application on its platform. I think that would make it difficult to successfully assert that depicting the application running on the product is an infringing use. (The glass, by the way, is very recognizable to anyone in the restaurant business.) – Blrfl Feb 02 '13 at 14:59
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I am not a lawyer, but "nominative use" is a well-established affirmative defense against trademark infringement. That is, trademark grants a limited right to the owner, and not full ownership of the term. If you have an app which runs on the Apple iPhone, you can certainly say so legally even though both Apple and iPhone are trademarks. Likewise, you can show your app running on such a device. However, you can't do anything that will introduce customer confusion: you can't imply that your product is made by or endorsed by Apple.

If you ask Apple, they will probably claim protection greater than that actually afforded by law. That's the way these things work. If you have a contract with Apple, though — for example, if your product is an app distributed through their App store, or of you're part of the MFi accessory program — they can impose all sorts of additional restrictions beyond the basic legal protection, and you need to read that carefully (or better, have your lawyer do it).

If you're making an unlicensed product which is explicitly for the iPhone (a protective case, say, like this one), you're on pretty strong ground even if Apple says otherwise.

mattdm
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