So my client wants to show a photo image of their competitor's product in an ad of theirs. The ad is implying that the competitor's product is bad/obsolete. Is this legal?

I know that you can't use a photo of the product without proper rights, which the competitor is unlikely to grant. And lifting it off of Google Shopping probably won't fly either. If it shows up in a stock photo though, that might work?

Any other reasons I can tell my client to stop trying to do this?

  • 1
    Probably very much depends on where you are etc. Also on your definition of "legal". Criminal? Maybe not. Are they able to sue you? More probable.
    – Cai
    Oct 13 '16 at 18:46
  • 1
    Also worth noting that there is Law
    – Cai
    Oct 13 '16 at 18:47

You can definitely do it. It's risky and you have to be very careful. Basically, you want to imply that it's your competitor's product without ever showing one of their images or mentioning their brand or product name.

The best way to keep you and your client out of the line of fire is to hint at the competition rather than openly addressing them. One of the best, most recent examples of this is ads created by competitors to the iPhone.

The iPhone 7 doesn't have a headphone jack, right? So companies like Google (when announcing the Pixel) say things like "and oh yeah it has a headphone jack too." This way they get to poke fun at the iPhone 7 without ever mentioning Apple or its specific product. It's a risk-free jab.

Now for an example with a picture. (I swear I don't have an issue with Apple.)

Motorola makes fun of iPhone

So here, you can see that they displayed the competition's product openly, but removed all of their branding (in this case, they didn't have to do much for that). However, everyone who is in the market for a smartphone knows that the phone on the left is an iPhone. (And "#iLost" clues you in if you weren't already getting it)

Basically, what I'm saying is that it can be done but you have to be very smart about it. Depending on where you are and how much your client wants to rip on the competition, you could be facing a slandering lawsuit if you're not careful.

If your client still insists on going ahead with using the competition's imagery, just make sure you don't lie about their product and its capabilities.

Additional note! Do not pull images off of the web unless you are certain that you have a right to use them in your own ad.

  • If you do use a photo of the competitor's product, even with taking out the branding, it must be a photo you or the client took. If you use a competitor's own product photo, even with the logo removed, that's infringement right?
    – TCDesigner
    Oct 13 '16 at 21:35
  • It's tricky. If you alter it in a way that can be considered "parody/satire" then you're in the clear. However, if someone were to take up a copyright infringement claim with you, the jury gets to decide if it's really satire or not. My personal opinion is that you're better off buying a stock image and manipulating or using that as you wish. If you want to read some other people's opinions, I recommend this forum. Oct 13 '16 at 21:44

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