Abingdon, MD asked in Copyright for Maryland

Q: I'm a barber I want to put a marvel character on a flyer to promote my Barber business Is this copy right infringement?

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1 Lawyer Answer
Mark Oakley
Mark Oakley
  • Rockville, MD
  • Licensed in Maryland

A: There's a joke among lawyers: "A picture is worth a thousand words, but when that picture is protected by image copyright, the picture is only worth three words: cease and desist."

No, you cannot use a copyrighted or trademarked image owned by another in the sale or marketing or other profit generating activity of your own. The owner of a copyrighted work or image has the exclusive right to:

(1) Reproduce the copyrighted work;

(2) Display the copyrighted work publicly;

(3) Prepare derivative works based on the copyrighted work; and

(4) Distribute copies of the copyrighted work to the public by sale, rental or lending, and/or to display the image.

Non-copyright owners (e.g., everyone else) are only permitted "fair use" display of such works, typically limited to

purposes such as criticism, comment, news reporting, teaching (for classroom use), scholarship, or research. Use of such works to generate customers, or to market or sell a product or service, is not only an illegal infringement, it will subject you to significant potential civil damages, such as forfeiture of all profits derived from use of the work, payment of the owner's legal fees and costs, plus either (1) actual damages suffered by the owner, or (2) statutory damages equal to $750 to $30,000 per each unauthorized use for non-willful copyright infringement, or up to $150,000 per each use for willful infringement. Multiply those damages by every business card you hand out and every advertisement placed, and you get the idea of what you are risking.

The only way to use the image as you propose is to obtain the express written consent of the owner. Marvel is unlikely to agree to lend its image, in which it has invested perhaps millions of dollars in marketing and positive public recognition and which it uses to generate millions more in revenues, to someone else to profit from it for free, or who may use the image in ways that ultimately diminish its value or even cause unwanted negative publicity.

Vasilios Peros agrees with this answer

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