Using a photograph with incidental branding

I'm using a photograph of race fans taken by a licensed photographer at a local racetrack. Must I remove any branding from their clothing (via photoshop) before I use the image for advertising purposes?

The image is to be used to advertise the racetrack, the clothing is not the emphasis. These are everyday people wearing everyday clothing. This was not a pre-planned photoshoot, but there is legal copy on every fan's ticket stating that they may be photographed and their likeness may be used in advertisments for the racetrack (I don't have the exact wording, but this was confirmed by racetrack executives). It would require quite a bit of work to remove any and all brands being worn (i.e. Disney characters, superheroes, etc.)

My copywriter is insisting that I remove these elements, but we are not promoting any of these.

Alasdair Taylor's answer to Using a photograph with incidental branding (433215120)

Assuming English law applies here, there are two main areas of law to think about: copyright and trade marks.

Usually, logos will be protected by copyright; and usually, the copyright will be owned by the brand owner. Use of a substantial part of a copyright work without permission is prima facie infringement. However, under UK copyright, the incidental inclusion of a copyright work in an artistic work (such as a photograph) may not infringe copyright.  This exception is set out in Section 31 of the Copyright, Designs and Patents Act 1988. See: https://www.legislation.gov.uk/ukpga/1988/48/section/31

A lawyer would need to see the images in question to make a proper assessment of whether the incidental inclusion rule would apply.

For more information on this, see: See also: http://www.cms-lawnow.com/ealerts/2003/10/copyright-infringement-and-inc...

The question of incidental inclusion of trade marks was considered in the Trebor Bassett case in relation to cards with images of footballers wearing shirts showing the trade mark.  The court in that case found that the publisher was not "using" the trade mark within the meaning of the trade mark legislation.

Similar considerations may apply in your case but, again, a lawyer would need more details before advising properly on this.

For an account of the case, see: http://swanturton.com/incidental-inclusion-defence-fails-for-club-badges...