Advertising can be an effective way to attract business or to disseminate information. If you are in charge of coming up with an ad, it may be tempting to use familiar images or other content to help sell a product or get your point across. However, unless you obtain permission from the owner of the material, or you qualify for one of the limited exceptions, it is a violation of copyright law to use a magazine cover in your advertisement.
Copyright Law Overview
Copyright protections go into effect automatically after a creative work is generated. This gives the owner, whether that's the person who actually created the work, such as a photographer, or the entity that commissioned the work, exclusive control over determining when the material may be copied. This is true regardless of whether the work features a copyright notice or if the copyright is registered with the U.S. Copyright Office. A magazine cover falls under the definition of a creative work, meaning that in most cases, you would need to obtain permission from the owner before you can legally use it in an advertisement.
Although copyrights last a long time, they do not stay attached to creative works forever. Specifically, if the magazine cover was created before 1923 it is in the public domain, meaning that you do not need permission from the owner to use it in your advertisement. Further, if the work was created between 1923 and 1963 and the copyright was not effectively renewed, it is also deemed in the public domain. You can check the status of copyrights and browse renewal records through online websites like Copyright.gov and The Online Books Page.
If the magazine cover is not in the public domain and you are denied permission from the owner to use it, you may still have some freedom under the "fair use" exception. The fair use defense is in place to allow people some freedom to comment upon, criticize or parody an existing creative work. While there is no bright-line rule for determining fair use, courts generally look at how much of the work was used, the nature of the work, the effect upon the market of the work and whether your use was for commercial purposes. So, if your motive in using the magazine cover is purely to attract business and there is no scholarly or educational component to the advertisement, this usage probably wouldn't be considered fair use. But, if your copying is very limited and only for the purposes of providing social commentary or parody, you might have greater freedom. An example might be if your nonprofit company briefly displayed a conservative magazine cover that depicted young people as lazy and politically uninvolved, as part of a television advertising campaign promoting your mission to get young adults out to vote.
If you use a magazine cover in your advertisement without the permission of the owner and the use does not fall under one of the exceptions, you may be sued. Copyright violations are pursued under federal law and if the owner wins, you can be responsible for paying any damages he can prove in court, such as lost profits. Further, if the owner had the copyright registered with the copyright office, he can instead ask for statutory damages. Statutory damages do not require the owner to prove any damages, meaning that the court can still order you to pay a penalty -- ranging from $750 to $30,000 -- even if your use had no negative financial impact on the owner.