Copyright.

Discussion in 'Large Format' started by emile_de_leon|9, Mar 14, 2003.

  1. I was curious about taking photos of statues or plastic dolls etc.
    and if arranged in the photo as props, if that would constitute
    copyright infringment.I know Mickey Mouse or such could be
    problematical but for an art photo in a show or gallery? Maybe
    Godzillas, Buddahs, etc? Not moneymakers, just for artistic
    purposes. And what if someone actually wanted to purchase one? Would
    there be infringement issues?
     
  2. Emile,

    It takes a specialist to be sure (if even then) but what you
    describe certainly sounds like "Fair Use". You aren't reproducing
    the dolls, you're placing them in a tableau of your own creation.
    As long as your photograph is a "substantially different work"
    from the original, it's not an infringement. It would be much more
    tricky if you were using them in an advertisement for some other
    product: in that case you could run into either copyright or
    trademark problems.

    If you put a Mickey Mouse doll in an ad for a brand of milk or
    cookies, you'd need permission for Mickey's "endorsement" of
    the product. An art photograph showing the dolls on the shelf in
    a child's room would almost certainly be protected
    expression.---Carl
     
  3. You are actually asking about trademark as wel las possible copyright infringement. <P>But more to the point, it would only possibly be infringement if you are making the photographs for commercial usage. That does not include editorial usage, or for personal artistic usage.
     
  4. Back in 2000 or 2001 Mattel sued Tom Forsythe for taking shots (and making art exhibition) with
    their favorite doll, Barbie. Mostly in erotic or provocative poses. Mattel have lost. Art is art
    whatever you choose as subject as long as you don't violate someones privacy... as Long as
    Barbie (or any other doll) herself can't complain, there is no violation of privacy...
     
  5. Speaking of copyright, the Ninth Circuit Court of Appeals decided the Ets-Hoken v. Skyye Vodka case (for the second time) today. This is the case in which a photographer (Ets-Hoken) photographed a Skyye Vodka bottle for an ad then sued the company after it hired other photographers to photograph the bottle for subsequent ads. Ets-Hoken claimed that the later photos violated his copyright. Today the court held that, because there are a limited number of ways to photograph a vodka bottle, Ets-Hoken would have to show that the later photos were virtually identical copies of his, which he couldn't. You can read the case (which is relatively short for a federal appellate opinion) at http://caselaw.lp.findlaw.com/data2/circs/9th/0117411p.pdf.
     
  6. There is no bright line answer to this question because whether or not the copyright is infringed depends on whether the copying constitutes fair use. Fair use depends on several factors such as the purpose or character of the use, nature of the copyrighted work, amount copied, and the effect of the copying on the market for the copyrighted work.
    For example, a statue that appears incidentally in the background of a newspaper photograph illustrating a parade would likely be fair use whereas having the statute appear prominently in a marketed art print could easily be construed as infringement. There was a case a few years ago where a photographer actually recovered damages for infringement after someone used one of his photographs as the basis for a statue. The court held that one cannot lawfully make art by copying another artist's work in another media. There was another case in which a toy manufacturer sued a film company after a mobile was shown in a film. The court said big deal, the use would not affect the marketability of the toy.
    Trademark infringement requires a finding that consumers are likely to be confused over whether the manufacturer of a good is endorsing the use. In other words, so long as the use of the image will not mislead consumers then there is no legal prohibition against copying.
    These issues are covered in more detail in my book Legal Handbook for Photographers if you are interested.
     
  7. Here is a novel idea. Contact the manufacture and ask.
    They may even be willing to provide you with a big
    ol box of baby Godzillas. Big corporations can be
    surprisingly kind.....
     

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