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Unboxing videos on Youtube showing the product, logo, art, etc.
Anonymous2 views3 answers
There is a bunch of videos on youtube of people unboxing video games, products, etc. My question is, would doing an unboxing video of a video game or product like an xbox be considered copyright or trademark infringement because of the Video game cover art you are showing in the video or the Xbox 360 logo on the game and system, etc.? There are a ton of videos even showing like iPods, cards, computers, and a whole bunch of logos, etc. If considered copyright or trademark then would all of those videos be considered copyright/trademark infringement too?
It depends on the context. If there is a suggestion that the owner of the trademark is associated with the video or the "unboxing" shown therein, then this could constitute trademark infringement. But if the logo or trademark is just used in the background of a scene unrelated to the product or the trademark owner, it is probably not going to be a problem. Unfortunately, there is no one size fits all answer.
Note that many videos that you can find on You Tube violate IP rights of others. The fact that Ip rights are violated and people get away with it does not make this conduct right, nor does it eliminate the risk that if you engaged in similar conduct, you would be held responsible.
This is usually done in the context of a review of the product including commentary on how easy it is to unpackage, the quality of the packaging, the quality of the instructional materials, and the performance of the item. To do that it is reasonably necessary to show unpacking, to show the product and even a minimal amount of how it looks when used. All that is fair use under 17 USC 107. Where you can get in trouble is if you imply that you are associated with or sponsored by the brand owner. If you do your commentary in a matter of fact objective way, there should be no such implication. Another way you can get in trouble is if you unfairly insult the product. The brand owner will not tolerate that if they have any recourse, so that becomes risky whether or not theoretically legal. When in doubt, see an IP lawyer.
This is fair use under copyright law and a non-infringing use under trademark law (nobody would be confused as to the source or sponsorship of anything)
