Generally, yes. 

Let’s consider the extent of Trademark Protection and Copyright Protection. 

Trademark Protection

In the US, trademark infringement occurs when an unlicensed third party uses a registered or unregistered (common law) trademark in a manner that is likely to cause confusion as to the source of the goods or services represented by the trademark.   15 USC §§ 1114 and 1125(a).   Our trademark law does not impose liability on all uses of a trademark – only those uses that are likely to cause consumer confusion.  Bosley Med. Inst., Inc. v. Kremer, 403 F.3d 672, 676 (9^th Cir. 2005).  Even if no specific customer was actually confused, there can be infringement if any customer is likely to be confused as to the source of the goods or services. 

That your product and product trademark are displayed in a photo on a stock photo website is not an actionable infringement.  The owners/sponsors of stock photo websites are not offering goods or services that compete with your business.  Hence, actual confusion by consumers is not likely.  In similar situations, websites that have displayed images of logos that were uploaded by third parties have not been found liable for infringement of trademark or copyright in the US because the websites do not control the content of the postings.  Milo & Gabby LLC v. Amazon.com Inc., 693 F. Appx 879 (Fed. Cir. 2017); Kremer v. Reddit, Inc., 2022 U.S. Dist. LEXIS 153988 (M.D. Tenn. 2022)(no trademark or copyright infringement found where photos of business location and logo on signage were posted by third party on social media website).

Actionable trademark infringement requires that the trademark owner can show consumers are likely to be confused as to the source or sponsorship of the goods/services.  The stock photo websites are not trying to divert customers away from your business, and in the scenario under consideration here, the stock photo websites do not disparage your business or your products (or services) in any way. 

Sometimes the stock photo websites include photos that are of low quality.  Notwithstanding the low quality, mere display of photos of your business or your products (and the associated trademarks thereon) likely will be deemed within a “fair use” exception to trademark infringement called “nominative fair use.”  Nominative fair use occurs when referencing a trademark to identify the actual goods and services that the trademark holder identifies with the trademark.  Trademark law cannot be used to stop all publicity about, or to suppress criticism of, a company or product. 

The nominative fair use defense states that one party may use or refer to the trademark of another if: (1) the product or service cannot be readily identified without using the trademark (e.g. trademark is descriptive of a person, place, or product attribute); (2) the user only uses as much of the mark as is necessary for the identification; and (3) the user does nothing to suggest sponsorship or endorsement by the trademark owner.   For example, it is not a trademark infringement to refer to a pound of ground coffee sold at DUNKIN’ as “DUNKIN’ coffee” or to describe a photo of a package of ground coffee as “DUNKIN’ coffee”.  The nominative fair use exception to trademark infringement in the US in general permits anyone to reference trademarks in an accurate manner, whether in the nature of news reporting, comparative advertising or any other descriptive manner. 

An appeals court decision from 1992 is instructive.  In New Kids on the Block v. News America Pub., Inc., 971 F.2d 302 (9^th Cir. 1992) the court held that it was permissible to use the trademark NEW KIDS ON THE BLOCK as part of a contest asking readers to choose which performer was their favorite in the band.  The use of NEW KIDS ON THE BLOCK in this manner did not imply sponsorship or endorsement by the NKOTB band, and was not confusing consumers as to the source of the music or other goods or services authorized by the NKOTB band.  The NKOTB band did not have the right to control all public mentions of them or their band. 

In another example, in Tiffany (NJ) Inc. v. eBay, Inc., 600 F.3d 93, 103 (2d Cir. 2010) eBay was permitted to display TIFFANY on its website to describe goods offered for sale even though eBay’s on-line sellers had no affiliation with the actual Tiffany company.  The continued display of TIFFANY was permitted because there was no confusion by consumers as to the source of the goods – this despite the fact that eBay may have known that some of the goods on its website could be counterfeit.  In many cases, similar to what was done in the Tiffany case, the courts have decided disputes in favor of website hosting entities.

The nominative fair use defense can apply even if the nominative use is commercial, and nominative fair use has extended also to metatags.  If a use is found to be nominative fair use, it cannot dilute the trademark. 

The ”fair use” exception to trademark infringement is based in equity.  The public and private policy of preventing confusion is weighed against the public policy of protecting free speech in both commercial and expressive use of trademarks.  Hence, facts and circumstances of how the trademark is displayed and used may persuade a court that the use was not “fair”.  Going back to the DUNKIN’ example, if it is demonstrated that consumers have been confused about the source of products or services shown in a stock photo or in a competitive ad, the display of DUNKIN’ trademarks may not have been “fair use”.  Alternatively, if the owners/sponsors of the stock photo websites are displaying images of DUNKIN’ trademarks with specific intent to disrupt DUNKIN’s business interests or tarnish DUNKIN’s reputation, such display may not have been “fair use”.   A court will have some discretion to consider whether there were nefarious motives.

The nominative fair use exception extends not only to words, but also to displaying photos of actual products.  Stock photos that show product packaging, even where trademarks or logos appear on the product packaging, more likely than not will be deemed nominative fair use, provided that the stock photo websites have not removed trademarks or other indicia showing the valid source of the products and services shown in the photos. 

It would be impractical for a trademark owner to pursue trademark infringement claims against the individual photographers who have posted their photos on the stock photo websites.  These individuals are not competing with the trademark owner and presumably have not tarnished the trademark owner’s business, products or services.  As such, these individuals also would have strong “fair use” defenses to infringement liability.

Copyright Protection

In the US, copyright rights are granted to original works of authorship that are fixed in a tangible form.  17 USC §102(a).   Works are original when they are independently created by a human author and have a minimal degree of creativity.   Titles, names, short phrases, and slogans; familiar symbols or designs; mere variations of typographic ornamentation, lettering, or coloring are not sufficiently creative to be protected by copyright in the US.  Moreover, the US Copyright Act denies protection to any idea, procedure, process, system, method of operation, concept, principle or discovery.  Only “expression” is protectable.  Copyright does not protect the functional aspect of a work of authorship.  Thus, the aesthetic design of a useful article (such as a solar inverter) will not be protected by copyright. 

Under the standard for original works of authorship, a company’s trademarks, logos and product configurations generally would not be protected by copyright in the US.  Photographs taken of these items possibly could be works of authorship, but the copyright right in a photograph vests in the photographer, and not in the subject of the photograph.  Hence, photos of a company’s products, buildings or personnel are not owned by the company unless such photos were taken by employees or by persons who have assigned rights to that company.  If the photographer photographed products or other materials in violation of express confidentiality restrictions or by trespassing, the photographer may still have a valid copyright, but could be sued for breach of contract or for trespassing. 

While the US Copyright Act protects architectural works by copyright, a copyright owner (whether architect, developer or building owner) cannot prevent others from making, distributing or displaying pictures, paintings, photographs or other pictorial representations of such buildings that can be viewed from public spaces.  Therefore, a company cannot assert copyright rights to prevent third parties from photographing building exteriors that may be viewed from public streets or walkways (or even building interiors if a building is open to the public).

In the US, copyright infringement occurs when any one of the exclusive rights of the copyright owner is violated.  The exclusive rights include the rights:  (1) to reproduce the copyrighted work; (2) to prepare derivative works based upon the copyrighted work; (3) to distribute copies of the copyrighted work to the public by sale or rental, lease or lending; (4) to perform the copyrighted work publicly; (5) to display the copyrighted work publicly.  17 USC §106. 

But there are many exceptions to the broad rights held by a copyright owner.  The “fair use” defense to copyright infringement is the broadest.  The US Copyright Law does not define “fair use”, but instead sets out factors that are considered:  (a) the purpose and character of the use; (b) the nature of the copyrighted work, including whether such use is of a commercial nature or is for nonprofit educational purposes, (c) the amount and substantiality of the portion used in relation to the copyrighted work as a whole, and (d) the effect of the use upon the potential market for or value of the copyrighted work.  17 USC §107.  Fair use is decided on a case-by-case basis, and on the entirety of the circumstances. 

If any of the photos appearing on the stock photo websites are unauthorized copies of photos owned by you, you may submit a take-down notice to the specific website under the Digital Millenium Copyright Act.  17 USC §512.  If you do not own the original photos for the images that appear on the stock photo websites, then you do not have take down authority.  In such case, US Copyright Law likely offers no remedy to remove the photos from the stock photo websites.  The stock photo websites have been authorized to display and license the photos by the photographers who are the presumed owners of the rights.  The stock photo websites then are making fair use of the photos of your products and buildings.

In conclusion, unless you own the copyright rights to the specific photo displayed on a stock photo website, you are not likely to have an actionable claim to require the stock photo website to take down its display of a photo of your product.