Fair Use and Permissions Toolkit: Clearing Copyright, Trademark, and Publicity Rights

By Casey Scott McKay · 2024-01-11

This toolkit is the curated shelf for anyone who has to decide whether a piece of content can ship — a marketing campaign, a documentary, a podcast, a product page, a training corpus — when that content contains something the company does not own. It maps the five separate bodies of law that a single frame of video can trigger: copyright and the fair use defense in 17 U.S.C. § 107 after Andy Warhol Foundation v. Goldsmith, trademark and the two doctrines that both go by "fair use," expressive use after the Jack Daniel's decision, the state-by-state right of publicity, and the contract terms in licenses a company already holds and routinely breaches. It routes each problem to the Marksy article that supplies the doctrine, the guide that supplies the procedure, and the checklist that supplies the working paper, annotating when in the workflow each document earns its place, and adds a comparative risk table showing which right is cheapest to be wrong about, a four-tier escalation matrix keyed to who signs, a branching reading path for six common situations, and a table of controlling statutes and cases with one-line holdings. It covers the clearance problems that actually stall productions — music's two copyrights, crowd shots and tattoos, stock library restrictions, generated images with no human author, and comparative claims that convert a trademark defense into a false advertising counterclaim. It closes with the escalation sequence for the day a demand letter arrives and the forms a clearance desk should keep on the shelf.

IP and Technology > General IP | Toolkit | Published 11 January 2024 - Updated 10 December 2024 | Casey Scott McKay - marksy.us

Summary. This is the curated shelf for anyone who has to decide whether content can ship when it contains something the company does not own. It maps the five bodies of law a single frame of video can trigger — copyright and § 107 fair use after Warhol, the two trademark doctrines that both go by "fair use," expressive use after Jack Daniel's, the state-by-state right of publicity, and the license terms companies already hold and routinely breach — and routes each to the Marksy article that carries the doctrine, the guide that carries the procedure, and the checklist that carries the working paper. It supplies a comparative risk table showing which right is cheapest to be wrong about, a four-tier escalation matrix keyed to who signs, a branching reading path, and a table of controlling authority with one-line holdings. It covers the clearance problems that actually stall productions: music's two copyrights, crowd shots and tattoos, stock library restrictions, generated images with no human author, and comparative claims that turn a defense into a counterclaim.

Keywords: rights clearance · fair use · 17 u.s.c. 107 · trademark fair use · nominative fair use · 15 u.s.c. 1115(b)(4) · rogers v. grimaldi · jack daniel's v. vip products · right of publicity · name image and likeness · music licensing · sync license · stock image license · appearance release · dmca takedown · escalation matrix · permissions workflow · clearance file · errors and omissions insurance · comparative advertising

Start Here

Everything in this toolkit answers one situation: you are about to publish something, and part of it belongs to somebody else.

That is the whole field. It does not matter whether the thing is a photograph, a guitar riff, a competitor's product name, a stranger's face in a crowd shot, or forty thousand books scraped into a training set. The questions are the same three, in the same order, every time:

Which rights does this touch, and who owns each one? A ten-second clip can carry six owners. Getting a signature from one of them feels like clearance and is not.
Can I proceed without permission — and under which doctrine, specifically? "Fair use" names two unrelated defenses in two different statutes. Naming the wrong one in a demand response costs you the good-faith record.
If I proceed and I am wrong, what does it cost, and who inside the company signs for that? Clearance is not a legal question with a right answer. It is a priced decision with a named signatory.

This toolkit is for the people who own those decisions: in-house marketing and brand counsel, agency clearance staff, documentary and podcast producers, brand and campaign managers, founders shipping a first website, litigators who just caught a demand letter, and platform trust-and-safety teams working both sides of a takedown.

If you read only one thing, read the Fair Use Risk Assessment Checklist. It is the single document that converts a vague worry into a dated, signed decision, and it carries one matter through ten phases so you can see what a finished file looks like — including the point where the same photograph scores a −4 on a coffee can and a +5 in a book.

The Five Rights Hiding in a Single Advertisement

Hollow Pine Roasters, a Milwaukee company, shoots a forty-five-second spot in its own café. The shot list is unremarkable. The clearance file is not.

On the brick wall behind the espresso bar is a mural painted by a local artist in 2019 — a copyright, owned by the artist, not by the building. Three customers and a barista are recognizable on camera — four rights of publicity, and in some states four privacy claims besides. The grinder in frame carries a visible manufacturer's logo — a trademark. The bed music is a licensed indie track — two copyrights, one in the composition and one in the master, almost never owned by the same party. The voiceover claims "twice the caffeine of the leading canned cold brew" and shows the competitor's can — a trademark fair use question stacked on a false advertising question under 15 U.S.C. § 1125(a)(1)(B). And the stock B-roll of a Guatemalan coffee farm carries an editorial-use-only term the agency's brief never mentioned — a contract problem, which is the one that will actually generate the letter.

Five bodies of law, one forty-five-second file, sharing no vocabulary, burden of proof, limitations period, or remedy.

Copyright protects original expression and hands the owner the exclusive rights in 17 U.S.C. § 106. Fair use under § 107 is an affirmative defense, not a permission slip, and after Andy Warhol Foundation for the Visual Arts, Inc. v. Goldsmith, 598 U.S. 508 (2023), the first factor asks whether this particular use has a further purpose or different character, weighed against commerciality and against whether the copying was justified at all. The distinguishing feature of copyright clearance is that the defense is expensive and late: you rarely win it on a motion to dismiss, and factor four — market harm — is where content cases die.

Trademark protects a signal about source, not a word. Prestonettes, Inc. v. Coty, 264 U.S. 359, 368 (1924), said it in a sentence that still governs: a mark prevents passing off, and truthful reference "is not taboo." Two doctrines follow. Classic (descriptive) fair use is statutory, at 15 U.S.C. § 1115(b)(4), and after KP Permanent Make-Up, Inc. v. Lasting Impression I, Inc., 543 U.S. 111 (2004), the defendant need not prove that nobody was confused. Nominative fair use is judge-made, from New Kids on the Block v. News America Publishing, Inc., 971 F.2d 302 (9th Cir. 1992), and covers using the plaintiff's mark to talk about the plaintiff's product. Both are often winnable on summary judgment, which makes trademark clearance structurally friendlier than copyright clearance.

Right of publicity is not federal, not uniform, and not optional: fifty answers to who may commercialize a person's identity, plus a federal cousin in false endorsement under 15 U.S.C. § 1125(a)(1)(A). California pairs a common-law claim with Civil Code § 3344 — a $750 statutory floor, disgorgement, and prevailing-party fees in both directions. New York's Civil Rights Law §§ 50 and 51 requires written consent and gives no common-law backstop, so an oral okay in New York is worth nothing. Post-mortem terms run from zero (Massachusetts) to a hundred years (Indiana), and domicile at death usually decides which applies before anyone reaches the merits.

Privacy and defamation are the sleeper claims. The four torts collected in Restatement (Second) of Torts § 652A travel with any use of a real person, and a factual claim about an identifiable competitor invites a defamation count that no trademark defense touches. Truth is the defense; a written substantiation record is how you prove it two years later.

Contract generates the most letters and the least legal analysis. Stock libraries impose editorial-use-only restrictions, impression and print-run caps, "no sensitive use" clauses, territory limits, and model releases narrower than the campaign. Platform terms prohibit uses copyright law would permit. A sync license names three media and the client uses five. None of that is infringement; all of it is breach, decided by the four corners rather than by a doctrine you can argue about.

Which right is cheapest to be wrong about

Practitioners misprice this consistently. Copyright gets the worry; publicity and contract generate the bills.

| Right | Claimant must show | Exposure without a license | Where it resolves | | --- | --- | --- | --- | | Copyright | Ownership plus copying of protected expression; registration before suit, § 411(a) | Damages plus profits, or $750–$30,000 statutory per work and $150,000 if willful — only if registration was timely under § 412 | Summary judgment, sometimes a jury | | Trademark confusion | Valid mark plus likelihood of confusion | Profits, damages, corrective advertising, fees in exceptional cases, § 1117(a) | Summary judgment, on a clean fair use record | | Trademark dilution | Fame plus association impairing distinctiveness or reputation | Injunction; money only on willfulness | Rarely — the fame threshold kills most claims | | Right of publicity | Commercial use of identity; elements vary by state | $750 floor plus profits plus two-way fees in California; punitives available | Early, on choice of law or the First Amendment | | License scope | The four corners of what you signed | Whatever the agreement says; libraries demand a multiple of the fee | Not in court — in a demand from the licensor's audit team |

Two arithmetic facts should drive every clearance budget. Section 412 cuts off statutory damages and fees for infringement that began before the effective date of registration, with a three-month grace window from first publication — so a plaintiff's filing hygiene, not your conduct, often decides whether exposure is four figures or six. And a $600 image license, a $3,500 sync fee, or a $1,200 appearance-release package is cheaper than the first week of a defense. Permission is not the fallback; it is usually the answer.

Run the steps in this order and most clearance problems solve themselves: inventory the rights, identify each owner, decide permission or doctrine right by right, document the reasoning before launch, escalate to the correct signatory, then docket the expiry and the re-clearance trigger.

1. Copyright: The Four Factors, and the File That Proves You Ran Them

Fair use is not a category of works. It is a fact-specific defense applied to a specific use, and the single most common failure is a client who believes a rule that does not exist — thirty seconds, ten percent, "it's on the internet," "we credited them."

Fair Use After Warhol: Transformative Purpose, Market Harm, and the Four Factors is the doctrinal anchor. It traces § 107 from Folsom v. Marsh through Campbell v. Acuff-Rose Music, Inc., 510 U.S. 569 (1994) and Google LLC v. Oracle America, Inc., 593 U.S. 1 (2021), then works each factor as courts now apply it, including the revival of factor two and factor four's licensing-market circularity problem. Read it when you need to know why an answer is what it is, and read its closing section on the AI training cases when a client asks about model training — it separates genuine uncertainty from mere discomfort.

Running a Fair Use Analysis: A Practitioner's Guide for Content, Software, and AI Training is the execution manual: thirteen stages from framing the use through opinion letters, insurance, permission requests, and litigation posture, with model language for a use statement, a purpose memo, a preserved license refusal, and a training-data warranty. Reach for it the moment a use is more than routine — the moment someone will have to write down a reason. Its four client playbooks (publisher, documentary producer, software team, model developer) usually match a real matter within a paragraph.

Fair Use Risk Assessment Checklist: Four Factors, Documentation, and Escalation is the working paper you actually fill out, with a numeric scoring grid, a twelve-tab clearance file, insurance-notice triggers, and a deadlines table covering § 412, the § 512(g) put-back clock, and the Copyright Claims Board opt-out. Use it on live matters; use the guide to understand what it is asking for.

Proving Copyright Infringement: Access, Substantial Similarity, and the Idea-Expression Divide is the half clearance teams skip. Before arguing a defense, confirm there is a prima facie case at all — a great deal of "infringing" content copies facts, ideas, functional elements, or scenes à faire that nobody owns. Read it first when the claim is stylistic similarity rather than literal copying.

Trap. Fair use is decided on the use, not the work. The same 1968 wire-service photograph can be squarely fair in a critical essay about press coverage and squarely infringing on the side of a product package. If the marketing team changes the placement after sign-off, the opinion you wrote is void.

2. Ownership Before Permission: Whom Do You Even Ask?

A permission from the wrong party is worse than no permission, because it manufactures the confidence that stops you looking further.

Who Owns the Work: Employees, Contractors, Joint Authors, and Work Made for Hire explains why paying for a logo, a website, a photograph, or a novel almost never makes you the author — commissioned work qualifies as work made for hire only inside nine enumerated categories and only with a signed writing. Read it before you assume your own agency's deliverables belong to you, and read the joint-authorship section before a co-created project goes to market.

Copyright Ownership and Chain-of-Title Checklist: Assignments, Work-for-Hire, and Termination Windows turns that doctrine into a diligence exercise for a real portfolio. Run it when you acquire content, when you inherit an archive, or when a licensor's authority to grant looks thinner than the license fee suggests.

Transfers, Licenses, and Termination Rights: A Practitioner's Guide to Copyright Ownership Paperwork covers the § 204(a) signed-writing rule, § 205 recordation priority, and the statutory termination windows of §§ 203 and 304(c) that can unwind a grant thirty-five years later regardless of what the contract says. This is the document to reach for on long-lived catalogue assets and on any perpetual license you are paying real money for.

Two more belong in this group because they set your own exposure and your own leverage. What Copyright Registration Actually Buys You: Statutory Damages, Fees, and the Right to Sue explains the two gates of § 411(a) and § 412 and the arithmetic of § 504(c) — read it to price both the claim against you and the claim you might bring. Registering a Copyright: A Practitioner's Guide to Applications, Deposits, and Group Registration is the filing procedure, including group options for photographs and serials; run it on a calendar, not on the day you find an infringer.

3. Trademark: Saying a Competitor's Name Out Loud

Most third-party mark uses in advertising are lawful and most companies clear them badly — by asking whether they may "mention" a brand rather than asking which of two defenses applies.

Descriptive and Nominative Fair Use: When You Can Legally Use Someone Else's Trademark separates the two doctrines cleanly and maps the three-way circuit split on nominative use — the Ninth Circuit's replacement test, the Third Circuit's burden-shifting approach in Century 21 Real Estate Corp. v. LendingTree, Inc., and the Second Circuit's additive approach. Read it before you write a single word of advice, because the doctrine you pick determines who carries the confusion burden.

Raising a Trademark Fair Use Defense: A Practitioner's Guide to Classic Fair Use, Nominative Use, and Comparative Advertising runs twelve stages from the first forty-eight hours after a demand through the verdict form, with model affirmative-defense paragraphs under Fed. R. Civ. P. 8(c), a demand-response letter, 30(b)(6) topics, and summary judgment posture mapped circuit by circuit. Its Stage 11 advertising-review workflow is the part most in-house teams should implement before any dispute exists.

Trademark Fair Use Audit Checklist: Clearing Third-Party Marks in Advertising and Content is the campaign-level instrument: eleven phases that build a use register of every appearance of every third-party mark, classify each one, apply the governing test in your circuit's version, substantiate comparative claims, and clear the channel surfaces — paid search, marketplace titles, subdomains, hashtags, alt text, influencer disclosures — that generate most complaints. Use it on catalogs and content calendars, not on single assets.

You also need the plaintiff's theory. Trademark Infringement: Proving Likelihood of Confusion is the short orientation to the multifactor test that every trademark clearance question ultimately answers to; read it first if trademark is not your daily practice, because fair use analysis is unintelligible without knowing what confusion looks like.

Three specialized fact patterns recur. Resale and refurbishment run through the first sale doctrine and its exceptions, unpacked in Gray Market Goods: The First Sale Doctrine, Material Differences, and Parallel Imports — reach for it whenever a client sells, repairs, or refurbishes goods bearing someone else's mark. Buying a Competitor's Name: Keyword Advertising and the Death of Initial Interest Confusion explains why buying the keyword is usually lawful while the ad copy is where cases are lost; pair it with the Keyword Advertising Compliance and Enforcement Checklist to audit a live account. And because dilution has more generous fair use rules than infringement — § 1125(c)(3) excludes nominative and descriptive use, comparative advertising, parody, criticism, news reporting, and noncommercial use — Trademark Dilution Under the TDRA: Blurring, Tarnishment, and the Fame Threshold is worth reading precisely for its exclusions.

The counterclaim that turns a win into a loss. A comparative ad can be perfectly good nominative fair use and still be false advertising under § 1125(a)(1)(B) if the performance claim is unsubstantiated. Substantiate to the FTC's reasonable-basis standard (16 C.F.R. pt. 255 for endorsements; the Guides' substantiation principles for objective claims) before legal signs off on the mark use, not after.

4. Expressive Use: Parody, Criticism, and the Merchandise Table

Jack Daniel's Properties, Inc. v. VIP Products LLC, 599 U.S. 140 (2023), did not kill Rogers. It relocated it. The threshold question is now whether the accused designation is being used as a source identifier for the defendant's own goods — and if it is, Rogers v. Grimaldi, 875 F.2d 994 (2d Cir. 1989), and the § 1125(c)(3) exclusions both drop out.

Rogers, Jack Daniel's, and the Trademark Parody Problem traces the artistic-relevance test from movie titles through video games to dog toys, explains exactly what the Court cut off, and then maps what survives: parody as an input inside the ordinary confusion analysis under the Louis Vuitton Malletier S.A. v. Haute Diggity Dog, LLC conjure-differentiate-communicate framework, the dilution exclusions, and the separate registration-bar line running through Matal v. Tam and Vidal v. Elster. Read it before advising on any creative use of a famous brand.

Litigating Expressive-Use Trademark Disputes: A Practitioner's Guide After Jack Daniel's v. VIP Products is the fourteen-stage operational companion, covering the first-hour source-identifier screen, Rule 12(b)(6) practice, state anti-SLAPP motions and their fee-shifting stakes, the preliminary injunction bond nobody asks for, survey design, and five settlement postures with what each one buys. Its Stage 13 pre-launch counseling section — a four-tier risk matrix, disclaimer language that actually helps, and guidance for print-on-demand sellers — is the part a clearance desk uses most.

Expressive Use and Parody Risk Checklist: Clearing Creative Uses of Third-Party Marks is the pre-launch instrument, and its first move is the one clearance teams skip: split the project into one row per distinct use, because a film and the T-shirts sold alongside it are two cases under two frameworks. Use it whenever a creative project touches a real brand, and use its Phase 9 to freeze the contemporaneous design record that will decide the intent factor two years later.

Because parody cases are usually lost or won on consumer evidence, keep the survey pair nearby. Consumer Surveys in Trademark Cases: What Eveready and Squirt Actually Measure explains what the two dominant formats do and do not prove, and Commissioning and Attacking a Trademark Survey: A Litigator's Guide to Design, Universe, and Daubert covers universe definition, control cells, and admissibility under Fed. R. Evid. 702. Read them when a parody dispute survives the pleading stage — a survey without a properly designed control cell in a parody case measures nothing.

5. Faces, Names, and Voices

The right of publicity is where a competent copyright clearance most often fails, because the photographer's license says nothing about the person in the photograph.

Your Face Is Not Public Domain: The Right of Publicity, NIL, and the State-Law Patchwork is the doctrinal map: the split between privacy-rooted and property-rooted regimes, California's two statutes and common-law claim, New York's written-consent rule, the state-by-state post-mortem table, identity beyond name and face from Midler v. Ford Motor Co. forward, the four competing First Amendment tests, Lanham Act false endorsement, and the § 301 preemption split. Read it whenever an identifiable human being appears in commercial content, and read its choice-of-law discussion before anything else in a post-mortem matter.

Clearing and Licensing Name, Image, and Likeness: A Practitioner's Guide for Brands, Creators, and Athletes walks one national campaign through fifteen stages, with model language for the grant of rights, exclusivity and category definitions, morals and reverse-morals clauses, usage sunsets and sell-off periods, and the separate digital-replica consent that California Labor Code § 927 now requires. Its Stage 10 is the section producers need: crowd shots, tattoos, vehicles and liveries, stock library restrictions, look-alikes, and AI composites.

Name, Image, and Likeness Clearance Checklist: Releases, Licenses, and Post-Mortem Rights is the eleven-phase working document — the frame audit that finds every identifiable person, the release triage for archives you inherited, the extra formalities for minors, union talent, and college athletes, the estate diligence chain with California's and New York's registration prerequisites, and the docket that makes an expiry impossible to miss. Keep it open during production, not after.

Practice tip. Clear to the most protective state, not the average one. A national campaign is one publication under the single publication rule, which means the plaintiff picks the forum. A release drafted to satisfy New York's writing requirement, California's specificity expectations, and the digital-replica statutes clears everywhere; a release drafted to the median fails in exactly the two jurisdictions where you will be sued.

6. Music, Stock, and the Licenses Nobody Can Compel

There is no compulsory license for putting a song to picture. If the publisher says no, the answer is no, and the answer arrives three weeks before delivery.

Two Copyrights, One Song: Music Licensing, Sampling, and the Clearance Maze is the structural explanation every producer needs: the musical work under 17 U.S.C. § 102(a)(2) and the sound recording under § 102(a)(7) are separate copyrights, separately owned and separately administered. It covers the § 115 mechanical compulsory license as rebuilt by the Music Modernization Act, the performance right and the consent decrees, sync and master licenses, and the unresolved sampling split between Bridgeport Music, Inc. v. Dimension Films, 410 F.3d 792 (6th Cir. 2005), and VMG Salsoul, LLC v. Ciccone, 824 F.3d 871 (9th Cir. 2016).

Clearing a Track: A Practitioner's Guide to Sync, Mechanical, Master, and Sample Licenses is the thirteen-stage procedure, including owner identification across the MLC, Songview, the PROs and SoundExchange, quote requests, most-favored-nations control, split sheets and producer agreements, and the representation-warranty-indemnity-insurance stack a distributor will demand. Start it at the clearance calendar in Stage 1, months before you think you need to.

Music Clearance Checklist: Sync, Master, Mechanical, Sample, and Performance is the eleven-phase working document with a license-type matrix, the § 114(b) replay alternative when a sample will not clear, cue sheet filing, and a deadlines table. Use it on every project with music, including the ones where "we're just using library tracks."

Stock and library assets deserve their own discipline even though no single Marksy document owns them. Read the actual license, every time, for five terms: permitted media and channels; territory; term and whether the grant survives campaign end; impression, print-run, or seat caps; and the model-and-property-release representation. Editorial-use-only assets cannot appear in advertising at all. "Royalty-free" describes the payment structure, not the scope. And a library's model release almost never covers a use that implies endorsement of a product — which puts you right back in Section 5 of this toolkit.

7. Generated Content in the Clearance Chain

Generative tools do not remove a clearance step. They add three: whether the output is protectable, whether it infringes, and whether the vendor's indemnity is worth anything.

Who Owns What the Machine Made: Copyright Authorship in the Age of Generative AI explains why the answer to "who owns this image" is so often nobody — tracing the human authorship requirement from Burrow-Giles Lithographic Co. v. Sarony, 111 U.S. 53 (1884), through the Thaler v. Perlmutter litigation and the Copyright Office's registration guidance, and covering the disclosure duty on the application form and its consequences under 17 U.S.C. § 411(b). Read it before promising a client exclusivity in a generated asset.

Deploying Generative AI Without Losing Your IP: A Practitioner's Guide to Authorship, Disclosure, and Contracts covers the workflow and contract changes that manufacture registrable subject matter rather than merely prohibiting tools, plus the vendor provisions that decide whether an indemnity actually pays. Generative AI IP Compliance Checklist: Policy, Provenance, Disclosure, and Contracts is the eleven-phase program build — inventory, policy, authorship capture, registration, supplementary registration to repair earlier filings under 17 U.S.C. § 408(d), training-data provenance, and output clearance for third-party marks, synthetic voices, and generated faces. Its Phase 9 is a clearance-desk document in its own right.

8. The Platform Layer and the Escalation Matrix

Takedown is not clearance, and a demand letter is not a lawsuit. Both get overreacted to.

The DMCA Safe Harbor: How Section 512 Shields Platforms and Binds Rights Holders explains the four harbors, the § 512(i) threshold conditions where safe harbors actually die, red-flag knowledge, and the repeat-infringer line of cases through the Supreme Court's decision in Cox Communications, Inc. v. Sony Music Entertainment. Read it if you run a platform, and read its § 512(f) section if you send notices at scale.

Sending and Fighting a DMCA Takedown: A Practitioner's Guide to Notices, Counter-Notices, and Misrepresentation Claims is the fifteen-stage manual for both chairs, including the fair use look that Lenz v. Universal Music Corp., 815 F.3d 1145 (9th Cir. 2016), requires before a notice goes out, the consent-to-jurisdiction trap in a counter-notice, and the ten-to-fourteen business day put-back window. The DMCA Takedown Notice Checklist: Statutory Elements, Counter-Notice, and Repeat-Infringer Policies is the element-by-element working paper; use it every time, because a defective notice does not trigger a takedown obligation and cannot be used to prove knowledge.

When a letter arrives about your content, Responding to a Cease-and-Desist Letter sets the posture — confirm the facts, calendar the deadline, assess options before answering — and Sending an Effective Cease-and-Desist Letter is the mirror image for the days you are the rights holder. Read both before drafting; the first response frequently decides whether the knowledge element is satisfied for everything after it. If the matter outgrows correspondence, Filing a Copyright Infringement Complaint in Federal Court: A Litigator's Guide covers the registration prerequisite, pleading, venue, and remedies.

The clearance function also has to live inside a product. The Legal Layers of a Website: IP, Contracts, Privacy, and the DMCA Before You Ship maps what is protectable across five layers and explains why designated-agent registration under 37 C.F.R. § 201.38 is the highest-return six dollars in technology law; the Website and App Launch Legal Checklist is the pre-ship instrument.

The escalation matrix

Set this once, in writing, and the clearance desk stops arguing about who decides.

| Tier | What it looks like | Who signs | Required before launch | | --- | --- | --- | --- | | 1 — Routine | Licensed stock used within scope; nominative reference in body copy; own-brand assets | Marketing lead, logged in the use register | License PDF and register entry | | 2 — Reviewed | Comparative or performance claim; third-party logo in creative; crowd footage; short quotation | Clearance counsel memo | Substantiation file; disclaimer and typography spec | | 3 — Opinion | Unlicensed use relying on § 107; parody of a famous mark; look-alike or sound-alike; generated asset from an unindemnified tool | Outside counsel written opinion plus GC | Insurance notice; litigation hold ready; privileged file closed | | 4 — Business decision | A refusal already on file; national spend on an unresolved right; identifiable living person with no signed release | GC plus the executive who owns the budget | Reserve set, indemnity papered, hard sunset date docketed |

The single most valuable line in that table is Tier 3's "insurance notice." Media liability and errors-and-omissions policies carry prior-knowledge exclusions and notice conditions. A clearance file that documents the risk and never tells the carrier converts a covered claim into an uncovered one.

A Suggested Reading Path

Pick the branch that matches your situation. Each is ordered.

A. You have a live campaign and thirty days. Trademark Fair Use Audit Checklist → Fair Use Risk Assessment Checklist → Name, Image, and Likeness Clearance Checklist → Music Clearance Checklist. Doctrine later; registers and signatures now.

B. You are building a clearance function from nothing. Fair Use After Warhol → Descriptive and Nominative Fair Use → Your Face Is Not Public Domain → Stage 11 of Raising a Trademark Fair Use Defense → the escalation matrix above.

C. A demand letter arrived this morning. Responding to a Cease-and-Desist Letter → Stage 1 of Raising a Trademark Fair Use Defense if the claim is trademark, or Stage 11 of Running a Fair Use Analysis if it is copyright → Phase 12 of Expressive Use and Parody Risk Checklist if the use is creative.

D. The project is a documentary, series, or podcast. Two Copyrights, One Song → Clearing a Track → the documentary playbook in Running a Fair Use Analysis → Stage 10 of Clearing and Licensing Name, Image, and Likeness.

E. The project is a parody, satire, or brand-adjacent art piece. Rogers, Jack Daniel's, and the Trademark Parody Problem → Expressive Use and Parody Risk Checklist → Stage 13 of Litigating Expressive-Use Trademark Disputes.

F. The content was machine-generated. Who Owns What the Machine Made → Generative AI IP Compliance Checklist → the model-developer playbook in Running a Fair Use Analysis.

Primary Authorities

| Authority | One-line holding or rule | | --- | --- | | 17 U.S.C. § 107 | Codifies fair use; four non-exhaustive factors; no per-work or per-percentage safe harbor | | 17 U.S.C. § 109(a) | First sale: the owner of a lawfully made copy may sell or dispose of that copy | | 17 U.S.C. §§ 411(a), 412 | Registration is a precondition to suit; late registration forfeits statutory damages and fees | | 17 U.S.C. §§ 301, 512 | Preemption of equivalent state claims; four safe harbors, takedown, and the repeat-infringer condition | | 15 U.S.C. § 1115(b)(4) | Classic fair use: use otherwise than as a mark, descriptively, fairly, in good faith | | 15 U.S.C. § 1125(a)(1) | False association and false endorsement (A); false advertising (B) | | 15 U.S.C. § 1125(c)(3) | Dilution exclusions: fair use, parody, criticism, news reporting, noncommercial use | | Cal. Civ. Code §§ 3344, 3344.1 | Statutory publicity claim; $750 floor and two-way fees; 70-year post-mortem right with registration | | N.Y. Civ. Rights Law §§ 50, 51, 50-f | Written consent required for advertising or trade use; 40-year post-mortem right | | Tenn. Code Ann. §§ 47-25-1101 to -1108 | ELVIS Act: protects voice expressly and reaches cloning tools | | 16 C.F.R. pt. 255 | FTC Endorsement Guides: disclosure of material connections; reasonable basis for claims | | Campbell v. Acuff-Rose Music, Inc., 510 U.S. 569 (1994) | Commercial parody can be fair; parody comments on the original, satire does not | | Harper & Row v. Nation Enters., 471 U.S. 539 (1985) | Taking the qualitative "heart" of an unpublished work defeats fair use | | Google LLC v. Oracle Am., Inc., 593 U.S. 1 (2021) | Copying declaring code to build a new platform was fair use | | Andy Warhol Found. v. Goldsmith, 598 U.S. 508 (2023) | Factor one asks whether this use has a further purpose, weighed against commerciality and justification | | Fourth Estate Pub. Benefit Corp. v. Wall-Street.com, 586 U.S. 296 (2019) | "Registration" means the Copyright Office has acted, not that you filed | | Lenz v. Universal Music Corp., 815 F.3d 1145 (9th Cir. 2016) | A sender must consider fair use before submitting a § 512(c)(3) notice | | Prestonettes, Inc. v. Coty, 264 U.S. 359 (1924) | A mark bars passing off, not truthful reference | | KP Permanent Make-Up v. Lasting Impression I, 543 U.S. 111 (2004) | A classic fair use defendant need not negate likelihood of confusion | | New Kids on the Block v. News Am. Publ'g, 971 F.2d 302 (9th Cir. 1992) | Nominative use: necessity, minimal use, no implied sponsorship | | Toyota Motor Sales v. Tabari, 610 F.3d 1171 (9th Cir. 2010) | Confusion burden stays with the plaintiff; nominative use may be trimmed, not banned | | Rogers v. Grimaldi, 875 F.2d 994 (2d Cir. 1989) | Expressive works escape the Lanham Act absent no artistic relevance or explicit misleadingness | | Jack Daniel's Props. v. VIP Prods. LLC, 599 U.S. 140 (2023) | Rogers and the dilution exclusions do not apply to source-identifying use | | Louis Vuitton Malletier v. Haute Diggity Dog, 507 F.3d 252 (4th Cir. 2007) | A successful parody conjures, differentiates, and communicates | | Dastar Corp. v. Twentieth Century Fox Film Corp., 539 U.S. 23 (2003) | The Lanham Act does not police attribution of authorship in communicative works | | Zacchini v. Scripps-Howard Broad. Co., 433 U.S. 562 (1977) | The First Amendment does not privilege broadcasting a performer's entire act | | Comedy III Prods. v. Gary Saderup, Inc., 25 Cal. 4th 387 (2001); Midler v. Ford Motor Co., 849 F.2d 460 (9th Cir. 1988) | Transformative use governs the First Amendment defense; imitating a distinctive voice to sell a product is actionable | | Restatement (Third) of Unfair Competition §§ 46–49 (1995); Restatement (Second) of Torts § 652A | The default appropriation rule, and the four privacy torts that travel with any use of a real person | | Leval, Toward a Fair Use Standard, 103 Harv. L. Rev. 1105 (1990); 4 Nimmer on Copyright § 13.05 | The article that made "transformative" the touchstone, and the standard treatise on § 107 |

Forms and Templates

The Marksy form library is trademark-first, but four of its instruments do real work at a clearance desk.

Trademark Cease-and-Desist Letter — Template — the starting point when you are the rights holder. Strip the boilerplate demands you do not intend to enforce; an overbroad letter is the fact pattern that produces a declaratory judgment complaint in the other side's home forum.
Trademark License Agreement — Template — the structural model for any permission you grant, and a checklist of the terms your inbound permissions are missing: field of use, territory, term, sublicensing, approval rights, termination.
Trademark Assignment Agreement — Template — for when a permission needs to become ownership; read its recitals against the chain-of-title problems in Section 2.
Trademark Coexistence Agreement — Template — the settlement instrument for a clearance dispute both sides can live with. Channel restrictions and presentation rules do most of the work litigation would not achieve.

Copyright-side paper — image licenses, appearance releases, sync and master licenses, split sheets, training-data warranties — lives inside the guides: Running a Fair Use Analysis for permission requests and preserved refusals, Clearing and Licensing Name, Image, and Likeness for grants, morals clauses, and sunsets, and Clearing a Track for the warranty-indemnity-insurance stack.

Related Toolkits

Trademark Defenses Toolkit: Fair Use, Free Speech, Priority, Abandonment, and Estoppel organizes the nine defenses in 15 U.S.C. § 1115(b) around five practical moves rather than statutory order. It is the next shelf when a clearance question has become a complaint you have to answer.

Right of Publicity and Personal Brand Toolkit: NIL, Endorsements, and Digital Replicas goes deeper than Section 5 on the person side — athletes, creators, estates, synthetic likeness — and is the better starting point when your client is the individual rather than the brand.

Copyright Fundamentals Toolkit: Ownership, Registration, Duration, and Scope supplies the architecture this toolkit assumes, including the duration and public domain analysis that can make a clearance question disappear entirely. Start there when the threshold question is whether the work is still protected.

Copyright Enforcement Toolkit: Takedowns, Demands, and Federal Litigation is the offensive mirror of Section 8, for the weeks when your own content is the thing being used. Music, Film, and Creative Industry IP Toolkit is the production-side shelf: chain of title, E&O delivery requirements, and the paperwork a distributor's clearance counsel will audit. AI, Content, and IP Toolkit: Training Data, Generated Works, and the Ownership Gap expands Section 7 into the full input-and-output problem.

Website and App Launch IP Toolkit: The Pre-Ship Legal Stack and the Keyword Advertising, SEO, and Search Marketing Toolkit cover the two product surfaces where clearance failures are most visible and most automated, and Brand Enforcement Toolkit: Watching, Warning, and Escalating is the counterpart for the days you send the letters rather than read them.