If I photograph a clown in the circus and the picture appears in a magazine, can the clown sue me for depicting his trade dress without permission?
If the photo appears as an editorial illustration, rather than an advertisement, he could sue you, but he probably would not win. Just like trademarks, trade dress can be shown in photographs as long as the use does not create confusion in the mind of the public as to the origin or ownership of the trade dress and the usage doesn’t damage the value of the trade dress.
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