I am an artist and I want to create album covers with specific imagery. For example, possibly using a Hennessey bottle or wearing branded clothing, like Nike or Adidas. I am aware that things such as SoundCloud have looser rules since nothing is for profit, but since I am posting music to Apple Music and Spotify, I don’t want to run into any lawsuits for using a name brand product as a part of my album cover.
Look at other album art, and for that matter, look at film and TV still images. The best practice is to avoid using brand name products in order to avoid consumer confusion about the entertainer's association with the products and their manufacturers, which constitutes trademark infringement.
You don't NEED a specific liquor, or to wear specific brand of clothing, so don't.
And don't assume there are "looser standards" anywhere. Infringement is based on infringing USE, not by profit, and the liability is statutory, $2M per infringed work, without regard to how much profit.
See your own IP lawyer. You probably haven't registered your musical compositions or sound recordings with the Copyright Office, or your compositions with ASCAP or BMI for performing rights royalties, or your sounds recordings with SoundsExchange doe digital uses.
Avvo doesn't pay us for these responses, and I'm not your lawyer just because I answer this question or respond to any follow-up comments.
Generally, if you use someone's trademarks without permission you may be liable for trademark infringement.
You may make arguments of deminimis use, fair use, and first amendment arguments which may or may not succeed depending on all of the facts.
You should discuss with an intellectual property attorney in a private consultation.
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The issue will depend on whether you are creating any false association with a given brand. Merely being photographed wearing brand name apparel or holding a bottle of a popular beverage does not have be a problem, but it's possible.
Before you commit to anything, I suggest that you consult with a lawyer in private and discuss your objectives in more detail. You can start by calling around to several for a free phone consultation, get some insights then pick the best fit to work with.
DISCLAIMER: this is not intended to be specific legal advice and should not be relied upon as such. No attorney-client relationship is formed with the law firm of Natoli-Legal, LLC on the basis of this posting.
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