Copyright Question

[Teri]

I plan to start a small business making handmade greeting cards for kids. They feature photos that I have taken of used children’s toys and figurines. In some cases, the characters are famous (ex. Mr. Potato Head), but many of my other “models” are unknown (unlabeled) ones that I have picked up at thrift shops. I’ve been researching copyright/trademark laws on-line, but am still confused. Any ideas on what I need to do to keep it legal? Or how I can (inexpensively) go about obtaining permission for usage?

Thank you! Teri

 

[tac]

This is a legal question; seeking legal advise on the internet doesn't sound like a very good business strategy- save yourself a headache- talk to a copyright/business lawyer.

 

[Gary Holliday]

Depends which country you are in. UK copyright law states that you can have a copyrighted image in the background of a photo. Say a famous painting behind a person standing. But if the painting is the main subject of a photo you are technically breaching copyright.

I see all sorts of products in shops and stalls and I doubt they have gained copyright permission for producing pop art images of Jimi Jendrix and Audrey Hepburn to name a few.

If you are selling the card with a title of Mr Potato Head birthday card then you will certainly run into problems.

 

[justcorbly]

Find a copyright lawyer. Also, a trademark lawyer. Can easily be the same person.

The net is full of a lot of mumbo-jumbo about what you can and cannot do with copyright and trademark. Ignore it. It doesn't count. The only thing that counts is the whether or not the specific images you want to use are still under copyright or still trademarked. That's why you ned legal assistance to chase this down.

If any of those images are copyrighted or trademarked, and their holders take offense at you use of them, you can believe they will bring in their own lawyers.

Don't leave yourself defenseless. "I Googled it" won't hold up in court.

 

[David H. Bebbington]

I plan to start a small business making handmade greeting cards for kids. They feature photos that I have taken of used children’s toys and figurines. In some cases, the characters are famous (ex. Mr. Potato Head), but many of my other “models” are unknown (unlabeled) ones that I have picked up at thrift shops. I’ve been researching copyright/trademark laws on-line, but am still confused. Any ideas on what I need to do to keep it legal? Or how I can (inexpensively) go about obtaining permission for usage?

Thank you! Teri

The advice given in previous postings is sound but depends on a) you living close enough to a big city to be able to visit a copyright/intellectual property lawyer and b) you being willing and able to pay the associated fee (I would think, start talking at $500 an hour, minimum fee one hour!). Advice from a general-practice small-town lawyer will be worth no more than the assembled wisdom of APUG but will cost money (wasted money).

You have gone more than half-way to answering your question by distinguishing between well-known recognizable brands and unidentifiable ones. As a very rough guide, for you to feature in your cards any toy product which is still on sale in toyshops and being exploited commercially is likely to lead to trouble - your selling operation may be so small that it gets "under the radar" but the risk is real and I for one wouldn't take that risk. Defunct brand names or anonymous products, while also in theory subject to the laws of copyright, are virtually certain not to lead to trouble, since the copyright owner is not receiving income from the licensing or sale of these products, will not therefore be applying any effort to police the use of images of his/her products, and is impossible to contact in any case. The key factor in this instance is that your use of an image of the product is not depriving the copyright owner of a license fee.

If you wish to verify the accuracy of this advice (which for your peace of mind you should), a cheaper option compared with consulting a lawyer is to buy a book on publishing and the law of copyright. A good one is available in the UK from the Bureau of Freelance Photographers - if you are in the US, I am sure a comparable book is available over there.

Regards,

David (retired UK professional photographer)

PS: Several good candidates here:
http://www.amazon.com/s/ref=nb_ss_g...ywords=photographer's+copyright&Go.x=7&Go.y=6

 

[tac]

The advice given in previous postings is sound but depends on a) you living close enough to a big city to be able to visit a copyright/intellectual property lawyer and b) you being willing and able to pay the associated fee (I would think, start talking at $500 an hour, minimum fee one hour!). Advice from a general-practice small-town lawyer will be worth no more than the assembled wisdom of APUG but will cost money (wasted money).

Not true;
Telephones, email and faxes will take care of a); and as for b), if a small town general practice lawyer gives you legal advice, which turns out to be false or inaccurate, and you are damaged thereby, you have a malpractice claim against the lawyer. The lawyer knows this and will either 1) not give any advice regarding subjects he/she is unfamiliar with; or 2) research the h*** out of the subject until he/she feels competent to advise (or bring in someone who is).

Further, even at the exorbitant rate of $500/hr., that is far cheaper "insurance" than the hundreds of thousands of dollars a trademark or copyright infringement suit may cost, in fines, penalties, court costs and lawyer fees.

Yes, you can run a business, or buy a house without legal counsel. I could take out my own appendix, too, but why would one want to do so?

And I would suggest that, in the USA at least, giving legal advice, even over the internet, may be construed as practicing law without a license, a crime in most if not all jurisdictions. The reason they make it a crime is to protect the public from bad advice, and subsequent harm.

 

[David H. Bebbington]

Dear tac,

Was it not William Shakespeare who said "Hell hath no fury like a lawyer scorned?" Well, no, it wasn't but ...

My posting was advice given in my capacity as a 40-year media industry veteran (no special legal expertise claimed) to someone who was asking for INEXPENSIVE help. Is that practising law without a license? You have got to be joking!

I am aware of the existence of telephones, e-mails and faxes. I am also aware from experience that a face-to-face meeting is infinitely preferable if a client is to extract maxmium value and benefit from a consultation.

Otherwise, a personal consultation is likely to yield little more than a short time spent reading one of the books I mentioned (which people like me use for day-to-day clarification of straightforward legal points, instead of paying the aforesaid $500 a pop).

Lastly, I agree that it is unprofessional for general-practice lawyers to advise in areas of which they know little, but in my experience this doesn't always stop them from trying!

Regards,

David

 

[juan]

I once practiced entertainment law, which dealt with copyrights and trademarks to a degree - all in the US.
First, a lot depends on what country you live in. In the US, copyright and trademark are mostly determined by federal stature. It can be different in other countries.
Get a lawyer - preferably someone who has experience in copyright and trademark. If you're in a small town, a lawyer who practices business law would be able to help, and should be able to call on specialists to answer specific questions at a reasonable fee.
juan

 

[David H. Bebbington]

I have received the following from "tac"::

Sir
Whether or not you claim special expertise or not, advising (your word) someone (fee based or gratis) on how to deal with legal matters is practicing law; when you do so in a public forum, you greatly increase your exposure to repercussions. Notaries public and real estate agents discover, on a regular basis, that most Bars guard their prerogatives jealously. Further, there is the danger of involving APUG itself. I suggest you refrain. ///END

In reply I would state this:
I would ask tac to re-read my original posting in which I
a) make clear I am a media professional but not a lawyer
b) state an opinion, thus exercising my right of free speech and
c) recommend to the original poster Teri that she consult a qualified lawyer by buying a book written by one!

I do not advise Teri to proceed to do anything on the basis of my advice alone - what appears to annoy "tac" is that I recommend Teri spends $20 on a book instead of $500 plus on a consultation with a lawyer (with him? is this his field? he doesn't say).

It may come as a surprise to "tac" that I frequently, based on life experience and without claimng to be a qualified professional, recommend medicines, automobile tires, books, films, music recordings and 1001 other things to people of my acquaintance. No subpoenas as yet! I think "tac" has fundamentally misunderstood the purpose of a forum like APUG, where people, some expert, some less so, advise each other for free!

Regards,

David

 

[Will S]

Since lawyers are expensive, I would suggest doing some research. If there is a law library in your town try going there and seeing what they have. The librarians in a law library usually are lawyers, but they won't give you legal advice. You should be able to get a few books to read though.

I'd also look at:

Dead Link Removed

But, I think that pictures of Mr. Potato Head are possibly trademark issues, so research that as well.

Good luck,

Will

 

[thebanana]

Notaries public and real estate agents discover, on a regular basis, that most Bars guard their prerogatives jealously. Further, there is the danger of involving APUG itself. I suggest you refrain

Sounds like someone needs a hug

 

[TheFlyingCamera]

I would be very careful in researching the products you are planning to photograph before publishing the images. If the company that made the toy is truly out of business, you're probably in the clear. If the toy is very old (the date will vary based on the country), copyright on it may have expired, even if the company that made it is still in business. A notable exception to this is Disney. Disney is the reason that the length of copyright in the US keeps extending, and now is the life of the artist plus 70 years. I can guarantee you, without any legal background, that if you use Disney products in your images without their written permission, and make a profit from it, they will come after you with the full force of a multi-billion dollar corporation. Mattel is in that same camp - they zealously protect the Barbie brand, and if they even THINK your images may have a detrimental effect on Barbie's image, they'll take you to court.

When in doubt, contact the company that produced the toy and inquire. Some may well allow the image in exchange for credit somewhere on the printed card. If you get the least resistance, err on the side of caution and don't use it. Even if you prevail in a lawsuit, you may not be able to afford to defend it.

 

[Teri]

Thanks for Your Help

I just want to thank all of you for your valuable advice. ..and for taking the time to respond. The more information I have, the better. I do live in a rural area and our local attorneys all seem to deal with either criminal law, or wills and estates. They also cost more than I am willing/able to spend for starting my small, home-based business. I have purchased two valuable reference books (written by attorneys) and have spent time plowing through others. It seems that my next step is to contact the companies whose toys I would like to use as “models” to see what it would take to obtain legal permission to use them—and if I could afford the fees. I have no idea if anyone will even bother to respond to a small fry like me, but I think it’s worth a try. Also, I still need to figure out what to do in a case when the toy/figure is old, has no identifying mark, and I am unable to locate a manufacturer. Anyway, advice is always welcome. Thanks again for all your help!

Teri