You may have heard an appalling number in the news indicating how much “Brand X” paid a celebrity to use their image or signature quote in an advert/product. It would make sense that a person’s image, catchphrase, or in this case a quote would belong to that individual as a right. At the same time, there are countless instances of small businesses, Etsy shops, and blogs using quotes from famous people, films, and media in their own products or marketing without directly having the rights or licensure. Are all these activities illegal? Actually, many of these uses are in fact legal, but only when meeting a few criteria.
There are two things to keep in mind when using quotes. First, is there a form of intellectual property placed on that specific phrase (i.e. have they registered it as a trademark)? Second, is how the quote is being used with the material. Does it make any claims of endorsement or sponsorship?
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While we offer trademark searches at Miller IP Law, we always recommend you do some of your own research before talking with a lawyer. It can save time, money, and better prepare you for the conversation you will have with them. To research trademarks, you can search the USPTO database to find domestic trademarks at the USPTO website.
Many famous quotes seen commonly on products and blogs are ones that have entered the public domain. Public domain material has no individual owner. This means that the owner’s rights to the mark(s) have been transferred to the public and are now fair use to use freely.
Whether or not the work fall’s into the public domain is a little challenging, however, as even if the person who the quote is attributed to has passed on, the work may still be apart of their estate or belong to another entity. Unless the author/owner has explicitly declared that the work is licensed for public use, it may take quite a bit of research to determine if the quote falls into this category.
If the quote does not contain a phrase that is trademarked, it does not explicitly fall under public domain, or you have not been able to get the permission of the person who said the quote, the mark may still be considered fair use. Fair use may apply if the use of the quote does not imply that person has sponsored the work in which you are using it. You can say “Friday is my favorite day” on a sign for instance, but saying “Friday is my favorite day” by Brock Phillips if you did not get “Brock Phillips” permission would falsely imply sponsorship.
Fair use does not guarantee that the person you quoted will not hold you liable, however. If your product is large enough to attract the attention of that author, show, or celebrity, fair use does not stop them from taking you to court. The message here is to be careful and considerate of what you use and why.
The answer to whether using a given quote in a product will fall under fair use or theft of intellectual property is determined on a case by case. We hope that this information helps you answer some of the questions you may have, and as always, we invite you to chat with one of our attorneys to better understand how intellectual property factors into your business.
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