Trademark vs. Copyright
Can I Use A Public Domain Image With A Trademark On It?
I recently got an email from one of our visitors about using a vintage illustration from a Vogue Magazine that was printed in 1920. The question was a very good one and one that I haven't ever addressed on our website but I do get asked quite a lot via email. So, I decided to publish my lengthy email response to her on our site so that others can gain access to this info as well. Here is the question that was asked and my response.
When you say the images are public domain does that mean they can be used for anything. I was looking at your fashion plates - they look like they are from 1920 but some of them are attributed to Vogue, surely doesn't that mean that Vogue and the illustrators still have the copyright on them and if I used them they could sue me?
As always with anything that could get you into legal issues as far as copyright infringement goes it's always best to do your research. I am no lawyer but I have done a lot of research. I can't give you legal advice but I can tell you what I know based on my research. First off, make sure you click this link and read the article that I wrote on public domain images.
Secondly there is a difference between a trademark and a copyright.
1) A trademark may never expire, as long as the registrar continues to renew it. A copyright will expire and when it does the work will be released into the public domain. The name "Vogue" would be a trademark and you would not want to use this name or you might get sued. I did some research and if you visit the US Patent and Trademark Office website you find a ton of resources explaining what a trademark is and what the renewal schedule is for a trademark. To keep things simple I have quoted from the USPTO.gov website what the terms of a trademark are.
How long does a trademark registration last?
The registration is valid as long as you timely file all post registration maintenance documents. You must file a “Declaration of Use under Section 8” between the fifth and sixth year following registration. In addition, you must file a combined “Declaration of Use and Application for Renewal under Sections 8 and 9” between the ninth and tenth year after registration, and every 10 years thereafter. If these documents are not timely filed, your registration will be cancelled and cannot be revived or reinstated.
To read more visit: http://www.uspto.gov/faq/trademarks.jsp#_Toc275426707
2) A copyright is different. A copyright protects works of authorship, such as writings, music, and works of art (illustrations) that have been tangibly expressed. Copyright laws have changed over the years but before they changed and got totally confusing there was one copyright law that was easy to follow. This law is what we use to validate almost every image on our website as a public domain image. The law states that any work that was copyrighted before 1923 is now in the public domain and all copyrights for works created before 1923 are now expired. Copyrights that are expired can never be renewed. So, if there is a Vogue fashion sketch illustration from 1920 and it has the name "Vogue" at the top of the illustration. You can use the illustration but you can not use the trademarked name "Vogue".
Here is another website with a lot of great info about the public domain: http://web.law.duke.edu/cspd/publicdomainday/2012/faqs
I especially love this quote from the site:
Who benefits from the public domain?
Artists of all kinds rely on the public domain — Homer’s The Odyssey has given us Twain’s The Adventures of Huckleberry Finn, Joyce’sUlysses, and the Coen Brothers’ O Brother Where Art Thou?, to name only a few; and the twelve bar blues influenced genres from country to jazz to soul to rock and roll. Journalists and activists use facts and symbols in the public domain to inform the public and spur debate. Hobbyists screen forgotten films and collect old recordings. Commercial publishers reprint public domain works and sell them at discounted prices. Teachers, libraries, museums, historians, archivists, and database operators use the public domain to collect, preserve, and teach us about our past. Scientific and technical research would be impossible without access to data and discoveries. Youth orchestras and church choirs perform public domain works for their communities. Read about other potential uses of the public domain on our why it matters page. The list goes on . . . chances are, you’ve used, enjoyed, and depended on the public domain as well.
Here is a table that breaks down the dates of works that are considered in the public domain: http://copyright.cornell.edu/resources/publicdomain.cfm
Hopefully this helps you understand things a little better. I know it's hard to believe that all of these amazing images can be used completely free, but pinch yourself because it's not a dream, it really is true.
All the best,
So, to use an image that was published prior to 1923 but has a trademark on it, all you have to do is remove the trademark and you are good to go. For example, the Vogue image at the top of this page has the Vogue trademark on it. To be safe when using this image, just remove the trademark like below and then you're good to go!