Using Trending Images in Marketing

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This question came up today from a client, so I thought it would be a great opportunity to share again. The client wanted to do some flyers and promotions using Game of Thrones trending images in marketing (which they’ve seen used on social media) and asked my thoughts.
Here’s what I said (plus links to a couple of related articles):
 
Game of Thrones is big right now and a lot of people know the show.
 
However, there is a huge difference between people using a copyrighted photo on social media (which is still illegal but most companies don’t bother prosecuting), and a company using someone else’s copyrighted images to promote their product or services.
 
Remember, the holder of a copyright doesn’t have to prove that you had any financial benefit to sue you – but when they can prove you probably did (a flyer promoting your company), they can sue you for much more money. And they win. Always.
 
I never recommend using copyrighted images. Do not even use images found on a Google search (you don’t know the copyright status unless you check carefully). Never. I could send you links to articles of how easily you get sued for simply using one on their blog (with no financial gain) and have to fork over thousands of dollars for each individual use.
There are multiple websites providing low-cost or even free royalty-free images which you can use instead.
 
Plus, when you use a person’s likeness (their proposed images had a couple of characters from the show), there is additional liability. You must have at a minimum a photo release or compensate them for using their likeness. That compensation amount would be larger when they are a famous person and the use of their likeness may constitute “endorsing” your service.
 
So not only would I not use flyers like these for business purposes, I also would not use the images even on social media, email, or anywhere else if I’m a business (these rules apply as well if you’re an individual). Too much potential liability, and you only need to be hit once to feel the very big pain (oh – and general liability insurance doesn’t usually cover copyright infringement since it would fall under negligence).
 
So while connecting to trends is great, finding a different way to do so is best.
Note I am not a lawyer, and therefore definitely not a copyright lawyer.  A little common sense will go a long way – best bet is to assume everything is copyrighted, and only use it if you know you have permission to do so (preferably in writing!).  When in doubt check with the person who owns the image/article you want to use … or your attorney.

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