Using a famous picture in an ad - legal/copyright question

March 11, 2013 11:00 AM

We have an ad which will be printed, and *ideally* would love to use that picture from the superbowl ad of the nerd kissing the model (godaddy ad). I know this is a longshot since they paid millions for it, but is my only legal option to ask GoDaddy and go this route? THANK YOU!
posted by livin4u to Law & Government (14 answers total)

That photo would be easy to recreate and much less hassle too.
posted by zippy at 11:02 AM on March 11, 2013 [1 favorite]

Have a different nerd and a different model. Flip the script, and have a nerdy girl kissing a male model.
posted by Sidhedevil at 11:10 AM on March 11, 2013 [6 favorites]

You could try stock photo websites such as istock, Fotolia, etc.
posted by humph at 11:11 AM on March 11, 2013

Response by poster: Part of wanting to use that photo is the recognition, since many people recognize it right away.
I looked earlier on istockphoto.
posted by livin4u at 11:13 AM on March 11, 2013

Part of wanting to use that photo is the recognition, since many people recognize it right away.

That's exactly why you need their permission to use it.
posted by DWRoelands at 11:15 AM on March 11, 2013 [25 favorites]

People might recognize the premise, but if you get it reasonably close, no one will say, "Hey, those aren't the same actors!"

In my uneducated opinion, there's no way GoDaddy would give you permission to piggyback off their nationally-recognized campaign, but they can't trademark "nerd kisses model".
posted by supercres at 11:15 AM on March 11, 2013 [1 favorite]

Yes, your only legal option is to ask GoDaddy to use it, since they likely own the copyright (or have licensed it from whoever owns the copyright). Do not use it without their written permission for a commercial purpose.
posted by bedhead at 11:17 AM on March 11, 2013

Yes, your only option is to get permission from the copyright owner. There are exceptions for fair use, but no way will your ad qualify.
posted by payoto at 11:17 AM on March 11, 2013 [1 favorite]

Response by poster: Thanks! You are all right.
posted by livin4u at 11:18 AM on March 11, 2013

Part of wanting to use that photo is the recognition, since many people recognize it right away.

And that is why what you want to do is against the law unless you have the permission of the copyright holder, which there is no chance they will give. What you want to do is unfair competition.

If you do this, they will squash you like a bug.

IAAL, IANYL, TINLA.
posted by Tanizaki at 11:19 AM on March 11, 2013 [2 favorites]

I think you could create a picture that everyone will recognize as that one (few even realizing it's not the same one), for not very much hassle.

(Skirting closer to trouble, you may even be able to use one or both of the same people.)
posted by anonymisc at 11:20 AM on March 11, 2013

Since the model is Bar Rafaeli, I'm guessing that she will also have to be cleared, as well as licensing from GoDaddy. The guy, Jesse Heiman, might also have to give approval. It's unlikely that you're going to be able to afford her.
posted by Ideefixe at 11:22 AM on March 11, 2013 [1 favorite]

Go Daddy can't copyright "nerd kissing model" but if you exactly re-create the photo so much so that it's still "recognizable" as the Go Daddy image they might still have a copyright claim against your new photo. This comes down to the idea vs expression distinction in copyright law. There was a semi famous case over a Kate Spade ad (linked to in that article I linked) that basically re-did a famous photo which speaks to this "let me just recreate that photo myself".
posted by lyra4 at 11:53 AM on March 11, 2013 [2 favorites]

People aren't going to recognize it. No one cares about that ad.
posted by AppleTurnover at 8:43 AM on March 12, 2013 [1 favorite]