Because we have a following, it could be said that they are using our image as marketing by associating us with the pub.
The fact that you have a following is really irrelevant -- the important issue is whether or not the picture is used in such a way to constitute endorsement. Not every use of a picture, even a famous person's picture, constitutes endorsement. If I have a restaurant, and joe public comes in and I snap his picture and put it on the front page of my website in such a way that is appears that he is a spokesman for or otherwise endorses my restaurant, that's not legal, and whether or not anyone knows who this person is is irrelevant.
If Clint Eastwood comes into my restaurant, and someone snaps a candid photo of him eating, and I put the picture on my website under a link called "photos" or something, then it is very unlikely that he could make a case that my use of the picture would confuse someone into believing that he endorses the retaurant. The FACT that he ate at my restaurant is just that -- a fact -- and as long as I am not advertising my place as "A place Clint Eastwood lies to eat" the FACT that he did eat there is not the type of commercial speech that we are talking about under trademark law.
So the FACT that you played at the club is just that -- a fact. Unless the pub owner was using your image and logo in such a way that his use constituted endorsement of the bar by your band, I doubt you would have much of a case.
Now, all that said, there could be privacy rights involved here -- but it sounds as if the pictures were taken with knowledge and permission, so privacy isn't an issue here.
This is a well known business, and an internet website for a business is 100% marketing, all the time. They would certianly write off the fees as marketing expense I am sure. Thus wouldn;'t our image be being used for marketing purposes.
The fact that the website is used for marketing purposes isn't the issue -- of course any photos are up for marketing purposes -- they want to make the bar look as fun and happening as possible -- but as long as the pictures they use are NOT being used in such a way as to imply endorsement, then thhere really isn't a problem here. You cannot protect your image 100% -- the law simply isn't set up that way. The fact is, you DID play at the club, and he is allowed to advertise that FACT.
Could they then use that image on a television commercial or print ad? I'm saying t
This is a fine line, but potentially they could. Again, the test is whether or not they would be using the picture in such a way as to constitute "endorsement." This of the "Girls Gone Wild" ads you see on TV -- they can photograph women taking off their clothes in public, and there is nothing that the girls can do about -- you simply don't have an expectation of privacy in a public place -- but the publishers have to get permission from the girls if they want to use their photos in certain ways on print ads -- they were using the images in such a way that the coruts found that it constituted "endorsement," and the producers lost the case. But the key wasn't that they used the pictures -- it was HOW they used the pictures.
Look, if you don't want pictures of your band floating around, you need to make sure that nobody takes pictures of your band. I guess you could include that in your contract to play. However, if you don't have such a contract in place, you really can't control every use of your picture. Admittedly we don't have all of the facts here, and only one side of the story, but from what you've written, it sounds like the bar owner more likely than not had a righht to have those picutres where he did, and took thenm down just to avoid a fight, not because he was legally in the wrong.
