Trade mark Issues/ cease and desist letter

[LosAngeles]

The cover design includes a photo of the latest convertible version of the luxury, Rolls Royce and the characters of the song, which is a parody & a social commentary on the financial crisis.
Our concerns are as follows:
(a) Re: Copyright of the photos:
• Is using a stock photo (purchased on line) of the vehicle ok ?
• In the event that we cannot find the appropriate stock photo, can we take our own at a dealership and use it in our cover art?

(b) Re: Rolls Royce's trade mark:
• Are we likely to receive a 'cease and desist' letter from Rolls Royce, arguing that we are diluting their mark if one of the following treatments is adopted:

(ii) A stock photo of the Rolls Royce would be used where the car would be portrayed as a first class luxury vehicle driven by a very wealthy and successful banker (even though he represents corruption and the lyric of the song portray him as arrogant and non caring individual) but the vehicle's image would not be in any way demeaned.
There is no chance of a similarity of the businesses, as we are not in the luxury car business,
which could cause a likelihood of confusion amongst consumers.

(a) Creating our own luxury car by drawing an illustration / a rendering of a non branded car, , i.e. the car would be not look like any other luxury car, but be a fusion of several photographic images fused together digitally to create an amalgamation, i.e. a imaginary luxury vehicle.

The real name of the branded car (Rolls Royce) is a part of the 2 word title of the song and appears on the cover art. The title of the song (containing the word Rolls Royce) will then be placed in a very prominent position above the illustration of the car. Hence, there would be an association of the non branded luxury car with the title of the song, in which the 2nd word contains the word Rolls Royce.
Please advice as to which direction is safer to take regarding the vehicle, i.e. either the illustration or our own photo. Any other advice, comments and recommendation would be greatly appreciated. We are certainly trying to do this right, but at the same time maintain some level of creative freedom.
Thank you

 

[Michael Wechsler]

There are two issues - copyright and trademark. Without knowing exactly what you are doing, I'll say the following:

(1) Just because someone believes that their usage of an item is "funny" does not make it parody in the sense of an exemption from a copyright infringement claim on account of "fair use." If you bought a licensed photo, this might not be an issue since you'd have right to use the photo, provided it is within the terms of the license.

(2) Anyone can send a C&D letter, which they would if they don't like your usage. It's nothing but a scare tactic until they decide to sue you, which anyone can do - and they have deep pockets. Winning is another story. If you want to argue merits, it's not only a question only of "likelihood of confusion" but also using someone else's trademark for your benefit. There is also an issue of Trademark Dilution (see the act) which deals with diminish the product's uniqueness. If you are doing this solely for parody that's one thing - but my guess is there is a profit motive here and I'm guessing they probably won't care for it.

My advice is that if this is more than just a little joke or parody, your best bet is to make a real investment in a lawyer who can review the entire project and best advise you. My gut feeling is that there is more than just a brief connection with their car here and they may send a C&D when they hear about it. I'm telling you this because I would.