Monday, September 13, 2010

Copyright on toy photographs

Dear Rich: I am a photographer and I have been taking pictures of toys. If I take a picture of a toy action figure am I in violation of copyright or do I own that picture to use as I want? (See my example.) I have been asked to have a show of these photos in a college gallery but someone told me I could get sued and that they are copyright violations. I have worked hard on images like this and hate to see all my work go to waste. First of all, (and second and third of all, too), theDear Rich staff loves Smurfs. And we love your beautiful portrait!  We feel if there is any justice that your work should be shared with the world. (BTW, we used to be real close with troll dolls, too, but then we had a sad falling out.)
Right, you had a question. The owner of the Smurfs and other live action figures control the right to reproduce their copyrighted imagery. That's what allows them to make Smurf movies (andtroll movies, too), etc. By the way, if you're selling or commenting on the sale of these items, copyright law, (Sec. 113(c)) permits you to reproduce these products (referred to as  "useful articles") if your use is "in connection with advertisements or commentaries ..." This "commerce" rule allows merchants to reproduce images of the products and others to comment on these products. However, we don't believe your photos would qualify for this exemption because your use or commentary is not in relation to commerce; it's all about making an art statement.(So why bring it up? Because we are copyright nerds and don't know when to stop chattering.)
But there's always fair use. We're usually hesitant to trot out "fair use" as the basis for using somebody's copyrighted work because there is no certainty that the defense will succeed (or that you can even afford to bring it). Still, it's worked for some artists in your position. Artist Thomas Forsythe created 78 images of Barbie dolls "in various absurd and often sexualized positions" and was able to beat back claims by Mattel. Fair use would might also succeed in this use of troll dolls in a fine art spat, as well.
Bottom line dept. We believe that your limited display in a college gallery is not the kind of thing that triggers a C&D letter. You're more likely to run into a problem if you anger the copyright owner (by disparaging the work) or by competing in some way  (for example, by selling prints online). Good luck with your show!