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I have a question similar to this one here but with circumstances that are a bit different.

I purchased a logo from a seller online through Fiverr a few months ago. Since then I have incorporated this logo in various areas and have spent a lot of money on it. Unbeknownst to me, a large part of it includes a stock graph they found online. I found this out after doing a reverse image search of the graphic online. I traced that stock image to multiple stock photo websites and a lot of them mention that their content can't be used for logos or trademarks, which was my whole intent when purchasing a logo.

Could I still use the logo I bought and trademark it in the US granted that the seller had made some revisions to the stock photo he found?

Here's all of the relevant info I have:

  • The seller had changed up some parts of the stock image, this includes color scheme, orientation, and made the picture look a little low poly.

  • The original artist of the stock photo is based in Russia and as far as I can see there is no registered copyright on it and don't think they could apply for US copyright anyway.

  • While I'm not sure where the seller (located in Pakistan) officially downloaded the logo, I had nothing to do with the final design of it or downloaded anything from a stock photo website myself, so I'm not sure if I'd be bound by any terms of the stock photo website

  • The stock image is very niche and a bit random. Across all the websites the artist has published it on, it has about 5 or 6 downloads altogether.

  • As far the copyright of the seller's work goes, the Fiverr terms state that buyers have all the copyright, though I don't know if this is nullified by the use of the stock image.

phoog
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Matt
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    there is no registered copyright on it and don't think they could apply for US copyright anyway. You don't apply or register for copyright. Copyright is automatic. – jcaron Jun 06 '22 at 10:35
  • Do you have the logo in a format with separate layers that allows easy substitution of the image? It would be wise to remove the copyright layer and substitute your own as soon as possible. Try to take your own photo that replaces the same layer. – Criggie Jun 06 '22 at 20:26
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    @Criggie I did get the image in an adobe illustrator format which contains all of the layers but it makes up a huge chunk of the logo and it might be hard replacing everything. I'll just be looking into getting a more legitimate logo made from someone reputable as that's likely the best scenario – Matt Jun 07 '22 at 00:23
  • You could try to contact the original artist who created the stock photo and work out a deal with them. – ProgrammingLlama Jun 07 '22 at 09:27

1 Answers1

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Not only can’t you trademark it, you can’t use it

The original logo is covered by copyright which belongs, prima facie, to the original artist. It doesn’t matter that they are based in Russia; Russia and the US are both signatories to the Berne Convention which means they protect each other’s copyright. That means you can only use it if it is fair use (it isn’t) or if you have the copyright owner’s permission (you don’t).

Could I still use the logo I bought and trademark it in the US granted that the seller had made some revisions to the stock photo he found?

Not if the seller didn’t have permission to make those changes. Creation of a derivative work is one of the exclusive rights copyright gives.

  • The seller had changed up some parts of the stock image, this includes color scheme, orientation, and made the picture look a little low poly.

See above.

  • The original artist of the stock photo is based in Russia and as far as I can see there is no registered copyright on it and don't think they could apply for US copyright anyway.

They already have copyright. They would need to register it in the US before they could sue but there is no impediment to them doing so.

  • While I'm not sure where the seller (located in Pakistan) officially downloaded the logo, I had nothing to do with the final design of it or downloaded anything from a stock photo website myself, so I'm not sure if I'd be bounded by any terms of the stock photo website

Makes no difference. Just because you didn’t steal the car, that doesn’t make it ok for you to drive it.

  • The stock image is very niche and a bit random. Across all the websites the artist has published it on, it has about 5 or 6 downloads altogether.

Not relevant at all.

  • As far the copyright of the seller's work goes, the Fiverr terms state that buyers have all the copyright, though I don't know if this is nullified by the use of the stock image.

You can’t sell something you don’t own. If the seller had no right to upload the photo (as it seems they didn’t), the terms of the website don’t matter.

The true owner never agreed to those terms and isn’t bound by them.

Dale M
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    So the solutions are: Start fresh, or find the copyright holder and offer them money for permission to use the image and hope they accept. – gnasher729 Jun 06 '22 at 02:35
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    @gnasher729 Orion 1 is easier than option 2. Just because someone is the first to post an image on the net doesn’t mean they own it. – Dale M Jun 06 '22 at 04:40
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    @gnasher729 And in parallel, contact Fiverr and the "artist" who supplied the logo and and try and get back some of the money spent on their labor – Peter M Jun 06 '22 at 13:12
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    @PeterM: The OP likely paid an extremely inadequate wage for designing a logo to begin with. They should not try to claw it back but learn their lesson to hire actual graphic designers with professional qualifications, reputation at stake, possibly even insurance for covering issues like this, rather than using scummy gig economy sites exploiting overseas sub-standard and often even sub-minimum-wage labor. – R.. GitHub STOP HELPING ICE Jun 06 '22 at 13:41
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    @R..GitHubSTOPHELPINGICE Then what you are proposing is to enable every scummy sub-standard "graphic artist" who will willingly ignore any and every IP law as long as it it gets $$ in their pocket, and screw their client. I don't know the OPs financial or business situation, but that doesn't excuse the "graphic artist" from screwing him, over. – Peter M Jun 06 '22 at 16:11
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    “The seller had changed […] color scheme, orientation, and made the picture look a little low poly.” — all of which look like the seller was trying to disguise the image and make it harder to trace its origin…

     – gidds Jun 06 '22 at 17:25
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    @PeterM: The scum is the platform (Fiverr) not the people trying to scrape by doing something they barely know how to do using it. – R.. GitHub STOP HELPING ICE Jun 06 '22 at 17:25
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    They should probably do both things - contact Fiverr and ask for a refund, and proceed to pay a proper wage to a vetted artist. Just because Fivver is the perpetrator here doesn't mean they should surrender any recompense (in fact, if they don't contact Fivver about this directly, it means the company can keep getting away with it) but they should also learn from this mistake and pay a reasonable wage for the artwork they want for a special purpose. – Zibbobz Jun 06 '22 at 18:08
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    @R..GitHubSTOPHELPINGICE that’s just the common law of business balance: “There is hardly anything in the world that cannot be made a little worse and sold a little cheaper, and those who consider price alone are that man’s lawful prey.” – Dale M Jun 06 '22 at 21:08
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    Fiverr won't lose anything significant if OP initiates a clawback. Instead they'll in turn steal back the wages from their misclassified and unauthorized-to-work-in-the-jurisdiction employee who did the work, without any due process to determine that the employee actually broke the law or the terms of their contract. – R.. GitHub STOP HELPING ICE Jun 07 '22 at 00:33
  • I'll be staying away from Fiverr from now on. Part of the reason I went with Fiverr is that it's convenient and well-known. I often see advertisements for it online, and their homepage even claims they're trusted by Google, Netflix, etc. Though I can say this is not the first time I've had an issue with Fiverr. With the way the platform is set up, it's all people from foreign countries selling to US customers. That alone may not be an issue, but often times the sellers aren't proficient in English and can't understand the requirements to complete the gig. Unfortunately Upwork is also the same – Matt Jun 07 '22 at 00:34
  • In the end, you get what you pay for. – htmlcoderexe Jun 07 '22 at 09:33