Is it considered copyright infringement to use a picture or symbol of something common if someone else also uses it?

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Is it considered copyright infringement to use a picture or symbol of something common if someone else also uses it?

For example, using an animal to represent something if someone else also uses the same animal to represent that? So if a company uses a symbol of an elephant to represent a tea from Africa, can they sue you if you use a completely different symbol of an elephant to represent the same kind of tea? They claim to have copyright because an elephant is not a typical association with rooibos tea and that they have been using it for years.

Asked on April 13, 2012 under Business Law, Florida

Answers:

SJZ, Member, New York Bar / FreeAdvice Contributing Attorney

Answered 9 years ago | Contributor

It would not be copyright infringement, unless you were using the same pciture they were. However, it may well be a trademark violation. Unlike copyright, which only protects a specific original or creative expression (hence, a particular photograph or picture of an elephant), trademark protects slogans, designs, graphics, pictures, etc. which are associated with and thus serve to identify a product or service as coming from a particular business. Trademark can be violated by an image  which is close enough to the trademarked imaged so as to potentially confuse reasonable consumers as to the source of the product. So, for example, if company A uses an elephant as their trademark for rooibos tea and consumers have come to associate the elephant with *their* tea, then it would be infringment to use an elephant in connection with marketing another company's or business's tea. You could likely use some other large African or  Indian mammal, like a rhinoceros, for your image.


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