Law on taking photos of toys and posting them online

[truckmount]

I spoke with an 'online' attorney (im still waiting for a local one to get back to me) but the online one stated this when I asked:

Me: One last question, what if I contacted a legit Anime licensed seller of these products and help promote his company and get paid from their company who is licensed by affiliate links? Wouldn't this be legal?

Them:
That would be legal. That said, I encourage you to have a written agreement with this entity as to your usage and proof of their license integrated within the agreement. I think that will give you an extra layer of protection here that you are dealing with a licensed entity...with permission to enter into such agreements with businesses like you business.

 

[unpopular]

However, I am unsure how it would work if you held the copyright to te images, rather than transfering rights or work for hire.

 

[truckmount]

However, I am unsure how it would work if you held the copyright to te images, rather than transfering rights or work for hire.

I'm not sure what you mean? Does my images have to be copyrighted after I take them or do they auto become copyrighted? Sorry for the newb questions, photography is seriously not my area of expertise. lol

 

[unpopular]

Unless specified otherwise, you hold the copyright upon creation - this goes for everything you've ever created. Registration adds additional protections. I don't know if this has any impact on the issue at hand or not. I'd think that if the work isn't "for hire" it might get complicated.

 

[KmH]

. . . what if I contacted a legit Anime licensed seller of these products and help promote his company and get paid from their company who is licensed by affiliate links? Wouldn't this be legal?

Yes. You can legally promote the anime licensed seller and get paid for doing so.
That does not give you rights to use the toys in photos you make for the commercial purpose of affiliate sales advertising on your web site.

The "online" attorney is talking about a "use license" which originates from the copyright/trademark owner.
The "legit anime licensed seller" can only grant the usage of a copyright to a 3rd party if the copyright owner has given the "legit anime licensed seller" a copyright use license granting 3rd party use licensing by the "legit anime licensed seller".

Once/If you have 3rd party copyright usage rights, you no longer need to help promote the "legit anime licensed seller".

What is "licensed by affliliate links"?
A license to sell a trademarked product is not the same as a copyright use license.

 

[photospherix]

I have always wondered this same question about products that we shoot. If I shoot a product for a reseller, but I have the final image on our site, am I in breech of copyright? I have always felt that if we are, let us know and we will be more than happy to remove the image.

 

[<error>]

What a world we are living in ... having to think about whether taking a photo is illegal. I'd say there is something wrong, but this is a different subject.

If taking a photo of a toy, or anything else for that matter, would be illegal, then this would put eBay and Amazon and many others out of business : They would not have any customers anymore (all broke or in jail) and in big trouble themselves for diffusing these images.

Architectural photography: Dead. Street photography: Dead. Selfies: Endangered species, unless you take off your clothes.

Note that I didn't even say that I am not a lawyer! That alone appears to be suicidal.

 

[KmH]

Taking the photo is not illegal.
Personal use of the photo is not illegal.
Editorial usage of the photo is not illegal.

Using the photo for a commercial purpose without permission from the copyright owner is.

A photo of an item you own that you are selling on eBay is not illegal.
Amazon.com gets the photos, and a use license, they use from the product maker.

 

[truckmount]

Taking the photo is not illegal.
Personal use of the photo is not illegal.
Editorial usage of the photo is not illegal.

Using the photo for a commercial purpose without permission from the copyright owner is.

A photo of an item you own that you are selling on eBay is not illegal.
Amazon.com gets the photos, and a use license, they use from the product maker.

And see.....this is where it gets confusing. Even though I purchased and 'own' the toy, take a few photos of them and state here you can buy this same exact toy at Amazon.com with a link to the direct toy. But your stating if I take a picture, then put it up on Amazons site - then Amazon owns that picture VS if I put it up on my website inside a 'blog post' / ig post etc. then I will be sued?

I do have a question when you state Editorial usage, what if I write up a review on my website of the toy but at the same time put the toy on the cake giving out the cakes free recipe on IG/Website.

 

[snowbear]

No, Amazon does not own the photo you upload to Amazon's site. You own the photo and the copyright to that photo.
You also own the toy that you bought, however, the company that made the toy owns the copyright to that toy.

I make maps. Let's say I made a map showing which soft drink is most popular in each state. I place an image of the soft drink can within the boundary of each state on the map. I went out and purchased each can, and took a photo of each for the map.

I can display the map on my wall in a frame and it's OK (personal use)
I can also post an electronic version of the map in my blog with a commentary on how geographic and cultural differences effect soft drink purchasing and it's OK (editorial use)
But, if I get a lot of "Oh, that's cool; can I buy one?" comments and decide to actually sell the maps, I have to get permission from the soft drink companies to use their property: the logos and can designs to which they own copyrights.

 

[truckmount]

No, Amazon does not own the photo you upload to Amazon's site. You own the photo and the copyright to that photo.
You also own the toy that you bought, however, the company that made the toy owns the copyright to that toy.

I make maps. Let's say I made a map showing which soft drink is most popular in each state. I place an image of the soft drink can within the boundary of each state on the map. I went out and purchased each can, and took a photo of each for the map.

I can display the map on my wall in a frame and it's OK (personal use)
I can also post an electronic version of the map in my blog with a commentary on how geographic and cultural differences effect soft drink purchasing and it's OK (editorial use)
But, if I get a lot of "Oh, that's cool; can I buy one?" comments and decide to actually sell the maps, I have to get permission from the soft drink companies to use their property: the logos and can designs to which they own copyrights.

But see I am not selling anything at all, no cakes, no recipes or anything. But if people do want to buy those toys they can buy them from those affiliate places.

 

[RobinMS]

As long as you are not selling the photograph for commercial use, you can take a picture of just about anything and use it in an editorial capacity, as far as I understand it.

 

[Didereaux]

For what it is worth. Disney will sue your pants off if you put ANY copyrighted, or trademarked Disney thing on anything you try to market. If memory serves, that scum of a company once tried to sue someone because they used a photo of one of their staff in a downtown area and in the far background was a billboard advertizing a Disney movie.

 

[Dao]

I think in US, legally use or licensed and being sue are totally different things. When a big corporation want to bully a small individual, they can because they have money.

One case was Nissan Motor vs Nissan Computer over nissan.com.
Nissan.com - Lawsuit - The Story

At the end, Nissan Computer won the case, but lost money when defending the case.

"Nissan Computer is entitled to cost under rule 68.
The court ordered NMC to pay $58,000 as cost under rule 68, this is less then 2% of what the cost was to defend this case."

 

[Buckster]

Works of art, including cartoon characters, toys, sculptures, and more, are copyrighted. That means that, except for very special uses, such as editorial, nobody has the "right" to "copy" or use or recreate that work of art in any way without the holder of the copyright granting specific written permission to do so. That means recreating them by making a sculpture, a photo, a painting, a drawing, whatever.

People have been successfully sued for publishing photos of famous sculptures that have tens of thousands of images of it floating about. But it's like speeding. No matter how many other people are violating the law, if you get pulled over, saying that everyone else was doing it too isn't a valid excuse for YOU breaking the law, and you'll end up paying the ticket.

That said, it's usually not worth it to go after someone who uses the image for personal, private and especially non-commercial use. But that doesn't mean they can't and, win or lose, it could cost a small fortune to defend the use in a lawsuit.

On the other hand, if using the copyrighted character in any way helps you make any money, you're in a whole new ballpark of possible financial pain, because copyright holders take that a lot more seriously. And that's 10X as true when the copyrighted work of art is owned by a large and litigious corporation, as most famous cartoon characters are. (see "Disney", for a prime example)

You don't have to be selling the character or its image either, just using it in association with promoting your own business is enough.

As an example, when a business uses one of my photos without my permission, they're rarely trying to sell copies of the photo itself or the object in it. Instead, they're using the photo to promote their business somehow.

So, a tow truck company might be using my photo of an old beat up and rusting tow truck I found out in the desert of Arizona to make their tow truck business web site more interesting, appealing and fun. A real estate company uses one of my cityscape photos on their website to show how beautiful and interesting the area where they sell real estate is. Etc., etc., etc., you get the idea.

Then, as I find the copyright violations, I hand them over to my attorney, and he sends them each a letter demanding they disclose any other ways or places they've used my copyrighted art, pay a reasonable license fee based on their use (what my attorney and I consider reasonable given the circumstances), or they can instead hire an attorney themselves and get ready to be sued for a whole lot more.

They used my copyrighted art without my permission to promote their business, and that's a copyright violation. You want to use someones copyrighted art without their permission to promote your business, and that's a copyright violation in the same way.

Maybe you'll get away with it, maybe you won't. Maybe you could even win in Federal court (where all copyright cases are decided if they're not settled out of court). But it's a monetarily dangerous game to play, and I recommend you don't take the chance.

The proper way to handle anything that has to do with using someone else's copyrighted work of art in any way is to contact the owner of the copyright, explain your situation and ask nicely for permission to do what you intend, get their answer, and go from there.

In many cases, they will grant permission because it helps promote the product(s) they're trying to market and sell, and you are helping them do that with your own business by featuring them on your cakes, so don't think they'll automatically say no or that they'll want a bunch of money.