As I’ve read posts and comments around the web in regards to toy photography, I’ve come across the same set of questions multiple times. So, I’ve decided to do my best to answer those questions from time to time here.
First up, trademark.
Some of these will be applicable to photographers of all genres, but as I photograph miniatures, and that’s where I gathered these questions from, the tips will focus on such.
You can also learn more in my past posts:
As a disclaimer, please know I am not a lawyer or legal professional. My advice below is simply based on my research and personal experience.
First, let’s clear up some confusion.
- Copyright – “the exclusive legal right, given to an originator or assignee to print, publish, perform, film or record literary, artistic, or musical material, and to authorize others to do the same.”
- Trademark – “a symbol, word, or words legally registered or established by use as representing a company or product.”
So, while I often see the question serving as the title of this post using ‘copyright’ rather than ‘trademark,’ what we’re really talking about here is ‘trademark.’
And the answer here is a bit of a grey area.
When I asked Lucas Films (Star Wars) about this directly, they said, in the least, photographing their toys would be ‘inappropriate.’
That said, as I’m sure you’ve noticed, there are photos of trademarked figures absolutely everywhere. And companies like Hasbro and Lego have been known to promote toy photos, hold toy photo contests, etc.
So it seems, if you want to take photos of trademarked figures do and legal action should not follow in most cases. However, be sure to never claim the trademarked items as your own, only the photos of said figures.
The larger issue with photos of trademarked toys comes with selling your photos of them. Once you are making money from another brand’s trademark, they may take issue. Lego, for example, has had photos removed, based on trademark infringement claims, from popular selling site Redbubble.
There are some toy photographers that sell images containing trademarked toys without issue, but I would suggest you tread carefully.
The above is my basis of this post, but I’d like to add some further reading for those interested. With any trademark concern, from Youtube reaction videos to creating collages from magazine ads, the issue of ‘transformative’ comes into play. If a work builds upon the art of another to such a large degree that it can be considered ‘transformative’ trademark and copyright claims will not win out against it.
But note, just because a legal argument can be made for a transformative work, that doesn’t mean a company or artist will not seek legal action. You could inevitably win, but court time, fees, etc. would be involved.
In the toy photography realm, take for example Mattel’s suit against Tom Forsythe and his series ‘Food Chain Barbie.’ In this case, Mattel argued that “the public would mistake these exaggerated and suggestive images for authentic Mattel products, thus diluting or diminishing the commercial value of their property.” In the end, the ruling was in favor of the artist “saying that Forsythe’s photographs were parodies of the iconic plastic doll and contained messages about gender roles and consumerism. As such, the photographs were legitimate free speech and did not infringe on Mattel’s copyright or trademark rights.”
See the source of the above quotes, and learn more here.
What is your take on big business trademark enforcement? Have you dealt with any trademark infringement claims? Do you sell your work?
Any and all comments and questions are welcome.