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Selling digital and printed photos of toys

Discussion in 'Copyright, Trademark, Patent Law' started by Hue hughes, Dec 2, 2016.

  1. Hue hughes

    Hue hughes Law Topic Starter New Member

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    I would like to sell digital downloadable stock photos of toys. These toys are of a well know product. I would make the usage rights clear for the downloaded stock photos as editorial use only. I have seen similar ones for sale on stock footage sites like istockphoto and Getty. The website would also include text on the main page stating that the website is in no way affiliated with the creator of the toys, etc.

    I also want to sell prints of these images online.

    These photos in some cases have copyrighted logos like Marvel, Batman etc.

    I've read that this Is a grey area of the law and up to court to decide if any infringement occurs if the creator of these toys wants to sue.

    What do you recommended I do to protect myself?
     
  2. adjusterjack

    adjusterjack Super Moderator

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    How you protect yourself is don't do it.

    All the disclaimers in the world is going to change the fact that you will be infringing on somebody else's copyright and trademark protection and you can be sued.

    The other sites that are selling those photos may have gotten a license from the toy manufacturers or they may be operating from some third world country where nobody can find them to sue them. You won't be that fortunate.

    If you don't believe me, just hire yourself an intellectual property lawyer who can examine what you propose to do and advise you accordingly.

    And you're right, it is up to a court to decide. While you are waiting for that decision you'll be spending tens of thousands of dollars on a lawyer to defend you against the lawsuit.
     
  3. Hue hughes

    Hue hughes Law Topic Starter New Member

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    Thank you for your reply.

    Would a ceast and disest be the first order of action? What is the law in that matter?
     
  4. army judge

    army judge Super Moderator

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    Yes, generally the owner of the trademark or copyright sends the alleged offender a C&D letter, or a takedown letter, whichever applies.

    That doesn't preclude any lawsuit, as its the precursor to all such lawsuits.

    Be smart and don't even "GO THERE", mate.
     
  5. Michael Wechsler

    Michael Wechsler Administrator Staff Member

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    Copyright and trademark certainly may be an issue. Consider a photo of a toy store which happens to reveal several different trademarks. There may be no likelihood of confusion as to the origin of the photo with the trademark holders or an endorsement. As to copyright, some of the copyrighted works may be incidental to the main image and de minimis. Now consider taking a photo of only one toy for which a copyright exists or trademark is visible and you try to sell those photos, perhaps even a framed set. What you're doing may even be competing with the company's desire to do the same. One should assume that a photo where a primary object has a visible trademark is probably going to involve some trademark or intellectual property dispute.

    Now as to what you want to do - there was an interesting Barbie doll case - Mattel v. Don Forsythe. The artist was apparently placing naked or scantily clad Barbie dolls among various kitchenware in provocative positions and selling photos of his art. It was found to be within the fair use exception under the Copyright Act and constituting a parody and a free speech right. Hence "Malted Barbie" (a naked Barbie doll in a blender) did not constitute copyright infringement. I don't know if what you're doing would fall within this exception. Do appreciate that Forsythe was awarded almost $2 million as a result of legal fees suffered in defending his case. So if you're intending to sell the photos, consider whether you want to buy yourself a lawsuit to find out whether you're not infringing upon copyright or trademark.

    Have a consultation with an intellectual property attorney to get the best answer. These are just thoughts.
     
    army judge likes this.

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