JT,
I respectfully disagree. Commercial use can almost never be fair use, which is generally reserved for news reports, commentary or analysis.
You are correct that you cannot copyright a fact, but by definition any picture is not a fact itself, it is someone's "interpretation" as captured on film or other medium. There is always some creativity in deciding how to take the picture, even if very little, such as the angle of presentation, lighting, background, etc. Would you argue that any nature picture is a fact? Can we all copy Ansel Adams' pictures to sell our own products? No way.
It also makes no difference to infringement that the copier is selling a knife, not the picture. You cannot copy someone else's work to sell your own product, and I know of no rule of implied consent. For example, there are a number of cases of songs being used in commercials for beer, cars, etc. without permission, and it is always infringement.
The problem is that, as I mentioned, the other person can take his own picture of the same model knife (or even the very same knife, if he could get it), as some people have tried to imitate Ansel Adams by taking pictures in the same places. And it does make a difference as to damages (not liability) that the copier is not selling the picture but the knife, and thus I believe that the courts would find that the value of the stolen picture, and thus the damage, is quite small.
To Wolfmann's point, taking a picture of a copyrighted work without permission is still infringemnt because it is a form of reproduction. However, he is correct in that the more generic and less artistic the picture, the harder it is to prove copying.
In short, I still think fossilhunter has a valid gripe, but it's tough to do anything cost effective about it.
