US Other Taking photos of toys/action figures and posting them online, legal?

truckmount

New Member
Jurisdiction
Virginia
We are launching a website soon that will show off cakes and other food items, we would like to know if this is legal:

1. We are a affiliate of a licensed seller of many kinds of toys such as action figures, mugs and other items.

2. We want to take photos of our work such as cakes, desserts and more - but also placing some action figures on or around these items.

3. Provide the recipes for free and the images are NOT offensive in any way.

4. Place our affiliate links to where people can purchase these toys if they like them.

5. Donate the toys to kids who have cancer

6. We only make money from being a affiliate marketer of these toys AND from Google ads within the site plus maybe a meal plan we provide.

We want to make sure we are not infringing any copyright of the toys but putting them into our pictures, we are NOT selling pictures nor putting them into galleries. We are only putting them on our website and our social networks.
 
I forgot to mention that we have the permission to take photos from the company we are affiliated with and whom we buy these toys from BUT I want to make sure I am still not infringing on copyright/trademark of Disney, DC COmics, Marvel, and many other Anime/Cartoon/Toy manufactuer companies.
 
I haven't seen the items you're selling so I can't come to any firm conclusions. Let's just say we're having a discussion about what you've written and a reminder that legal advice for your situation can only come from a proper legal consultation with an attorney.

You may want to take a look at the post I made quite a while ago on the First Sale Doctrine. In short, if you buy something that is a tangible, physical object that is the product being sold, no "copy" is being made when you sell it. If you sell these figures with the cakes and desserts, there really isn't an issue. It's like selling a book or iPad you bought on eBay. Copyright typically comes into play when you make a copy of something - for example you create a copy of the toy or copy the text in a book using a photocopier.

Note: None of these charitable uses and statements will typically matter at all. Good intentions doesn't negate copyright or trademark infringement.

You mention that you're an affiliate of a licensed seller. Did you ask the seller whether they could market the items in the manner in which you are doing? They would probably be the best source since the licensed dealer should be in the best position to know what the company's policies are and whether, regardless of copyright issues, you may market the items in the manner in which you are doing so right now. Note that getting permission from this licensee means only that IF the licensee has permission to do so, you may have permission. Your rights are a subset of their rights.

I think that the only issue you may encounter is trademark. I honestly don't know the extent of how you're trying to market these items. The question is whether (a) the manner in which you are selling may be confusing to the public as to whether your site is affiliated with the creator, e.g. you are a Disney related entity; and (b) whether you're using their trademarks in a way that may infringe upon their rights or tarnish their marks.

If you love superhero dolls and you had a blog about the ones you own, along with photos, I personally don't see how trademark rights would be violated. If you really wanted to be as careful as you can be to ensure that nobody gets the wrong idea as to whether you are associated with the mark owner, you can put out a disclaimer to try to make it clear. For example "This website is not associated with Disney, etc. and is a privately owned blog. The "Disney" mark is a trademark of Disney, etc..." (It's probably doubtful that there will be anyone would be confused anyway.)

If you're selling the items by creating decorations with products you own, I'd be surprised if there is a trademark or copyright issue. You may first want to contact the licensee to discuss your uses to make sure they are on board too. Having explicit permission would be ideal but, unless you're making a whole lot of money (and ultimately the mark owner is too), the cost of them speaking to you will probably not even be worth it to them. I'd be surprised if you'd be able to work out anything formally, which is why I mentioned the licensee dealer.

These are just my thoughts. Good luck.
 
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