Law on taking photos of toys and posting them online

truckmount

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Is this legal: taking a photo of an action figure (or any toy in that matter) like let's say a action figure hulk (or anime characters) on top of a cake then post the picture online BUT give credit and links to he creator of that toy (marvel/Disney) and links to their website but also at the same time where people can also purchase that toy if needed.

Is this legal? The photos will not be in galleries or anything just on my website and Instagram. I am not selling photos.

What if these pictures become popular etc. any legal action can be taken against me even though I provide credit to those toys / manufactures and so on?
 
<I am not a lawyer>

You don't even need to give credit, as long as you're not trying to misrepresent your product as a product of the company that created/sold the thing you're photographing. It has to be pretty clear, but if you're selling a cake with the Hulk on top, you should be fine.

Years back I sold t-shirts with pictures of old computers and corny sayings.

That said...

</I am not a lawyer>
 
The only way to truly find out is to do it until you get sued, then the result of the trial will let you know.
 
The thing is though that almost every picture we take of cakes will have different characters on them constantly - some posts go viral and I'm just not sure if it's legal to use these toys in the images or not.
 
Is this legal?
Who is co-opting the images for the purpose of decorating cakes? I think that is the point at which someone might have an objection.
 
If you have a business that sells the cakes then you need to consult an attorney familiar with copyright law, trademark law, and publication law.

If we are considering US laws, I agree with manaheim that there would be no legal issues regarding trademark and you would not need to credit the toy creator nor acknowledge the toy creator in any other way, if photos on your web page are for display only. United States Patent and Trademark Office

Legal issues regarding US copyright would hinge on if you use the photos on your web site and social network accounts to promote your business. If so, then I would strongly recommend consulting a qualified attorney because displaying the photos would likely be considered a commercial use. Commercial use may require the copyright owners written permission. The US Fair Use doctrine clearly states that there is no substitute, like giving credit, to getting a copyright owners permission to use their copyrighted property.
 
I am also not a lawyer, nor do I play one on television and I did NOT stay at a Holiday Inn Express last night. That said, while I agree it could (likely 'would') be construed as commercial use, since you're using the physical toy you bought & paid for and not a likeness you've created, I'm not sure there's too much that's actionable, HOWEVER... giving credit means NOTHING. Nada, zilch, the big goose-egg. You can give credit from here 'til doomsday, and it won't matter an iota. Also, be aware that many companies (esp. Disney) protect their brand very, very carefully, and even if they don't really have a case, they can afford wayyyy better lawyers than you can, so....
 
I too am not a lawyer.

Typically if you are documenting a cake that features a copyright or trademark, you will not be in violation.

However, this is not a simple area of copyright law at all, and things can get very complicated.

If the images are not commercial (i.e stock photography or sold to a third party), for your own educational or personal practices, or for journalism then my guess would be that this isn't a problem.
 
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Usually a release is needed for retail use (on T shirts, mugs, buttons, etc.) or for commercial use (advertising etc.). It usually isn't needed if the photo is for personal use or to be sold as a fine art print (intended for the buyer's personal use, framed to hang on a wall). Releases aren't usually needed for editorial use (newspapers) but may be requested by a media outlet. Property and Model Releases American Society of Media Photographers

If this would be to promote and advertise your business that could be where you'd need to check into permission/releases. I don't know enough about trademark to know what's legal and I don't know if you can use a specific brand name character without licensing usage if you want to use it to make money (thru your ads/promotions).

Maybe you'd need to make your own no-name decorations and in your promotions indicate that decorations could be customized as specific characters (possibly by using commercially made decorations being sold for that purpose). If that's legal, I don't know, but the intent would be for the cake buyer's personal use.

I don't think linking to the company's website would work if you haven't licensed usage of their brand name products. This might get into advertising more than just photography. I'd check further into it.
 
. . . if the photo is for personal use or to be sold as a fine art print (intended for the buyer's personal use, framed to hang on a wall . . .
That is an example of an editorial use, not a commercial use, even though a print of the photograph was sold.
 
Yeah I would be promoting the cakes recepies (for free), not actually selling the cakes - just throwing on characters to give it a more unique look from a fan (me). I'm not really doing it for commercial as I'm a fan but I would have ads on my website so I would be making money off of that where I direct people.

But you all gave me this idea; If I am a Amazon affiliate then why can't I take pictures of things I buy (like the toy action figure) and state here's where you can buy this figure from and a direct link to buy it. Wouldn't I be a licensed seller of products like this since I am an Amazon affiliate and get a % of each sale.

Just brain storming.
 
No. You would not be a licensed seller.
As an Amazon Affiliate you are an Amazon.com sub-contractor.

Your web site is a commercial web site because of the Amazon affiliate/Google advertising on the site.

You need to consult a qualified attorney.
A photography forum is not a good place to seek legal advice.

Note the responses you got at the expertlaw.com forums to the same query.
 
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Yes, sometimes photographers win, sometimes they lose, and big companies often sue as a way to bully an individual.
Mr Forsythe had struggled to find a legal team to defend him until the American Civil Liberties Union, a civil rights group, stepped in.
Without the ACLU, Mr. Forsythe likely did not have the financial resources it takes to defend oneself against an infringement action in Federal court.
 

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