Friday, February 25, 2011

Can I base children's book on "orphaned" toys?

Dear Rich: I am writing a children's book and it is based on two little toys found at a recycling center. I have looked online with no luck to find if they are the property of some entity. Is there a legal issue with using the images of these two characters in a book? If there is do you have any suggestions as to how I might locate the owners of the toys?  Wow, saved from a recycling center and made the stars of their own book. What a great story right there. We assume you've also tried searching for printed notices on the toys -- many toys produced from molds contain wording pressed somewhere into the toy that indicates the manufacturer or trademark owner. It's also possible that sites like TD Directory or the folks from Playthings can help. But frankly, we think you're facing an uphill battle -- not just finding the manufacturers -- but getting permission as well.
You've got two choices: You can proceed without permission or you can use toys that you can verify are no longer made or promoted. Proceeding without permission may be fine, particularly if the manufacturer is gone. The good news is that you probably won't have to be concerned about trademark infringement because you don't know the toy's name. We also think you have a good chance of avoiding copyright infringement assuming your use is transformative. And that perhaps you may even be able to argue that the toys lack sufficient creativity to be protectible under copyright law at all. PS. If you're looking for old toys that may safe to use, check out sites like this.