# Law on taking photos of toys and posting them online



## truckmount (Jul 26, 2015)

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?


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## manaheim (Jul 26, 2015)

<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>


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## 480sparky (Jul 26, 2015)

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.


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## truckmount (Jul 26, 2015)

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.


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## Designer (Jul 26, 2015)

truckmount said:


> 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.


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## KmH (Jul 26, 2015)

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.


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## tirediron (Jul 26, 2015)

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....


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## unpopular (Jul 26, 2015)

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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## vintagesnaps (Jul 26, 2015)

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.


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## KmH (Jul 26, 2015)

vintagesnaps said:


> . . .  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.


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## truckmount (Jul 26, 2015)

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.


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## KmH (Jul 26, 2015)

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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## unpopular (Jul 26, 2015)

KmH said:


> You need to consult a qualified attorney.



Agree 100%. This is one of the most dicey areas in copyright and trademark law. It's well beyond the scope of conjecture.


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## truckmount (Jul 27, 2015)

I will be contacting a lawyer this week about it just letting you all know. I've also found this where a photographer actually won a case: Mattel loses court battle to defend Barbie s honour World news The Guardian


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## KmH (Jul 27, 2015)

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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## truckmount (Jul 27, 2015)

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.


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## unpopular (Jul 27, 2015)

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


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## truckmount (Jul 27, 2015)

unpopular said:


> 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


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## unpopular (Jul 27, 2015)

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.


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## KmH (Jul 27, 2015)

truckmount said:


> . . . 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.


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## photospherix (Jul 28, 2015)

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.


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## <error> (Jul 28, 2015)

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.


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## KmH (Jul 28, 2015)

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.


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## truckmount (Jul 28, 2015)

KmH said:


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


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.


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## snowbear (Jul 28, 2015)

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.


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## truckmount (Jul 28, 2015)

snowbear said:


> 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.
> ...


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.


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## RobinMS (Jul 30, 2015)

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.


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## Didereaux (Jul 30, 2015)

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.


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## Dao (Jul 30, 2015)

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."


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## Buckster (Jul 30, 2015)

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.


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## mama tee (Aug 1, 2015)

I'm not a lawyer.

I think this is online practice for most sellers and I'm not aware of anyone running into trouble with the law.

Nice share by the way re: Mattel loses court battle to defend Barbie's honour.


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## KmH (Aug 2, 2015)

Lots, and lots of sellers have gotten into trouble with the law over copyright.
Lots of sellers have been forced out of business because of the big dollar copyright infringement penalties they owe to copyright owners.

If a copyright owner is able to prove an infringement was willful, and seeks statutory damages, each infringement  can be worth as much as $150,000 plus the copyright owners attorney fees and court costs. If you are found to have infringed the copyright on 5 action figures in a suit seeking statutory damages that can add up to $750,000 plus the attorney fees and court costs. Call it an even $1,000,000.
If the action is for actual damages, they can also seek all monies the infringer earned from the infringement and attorney fees and court costs.

A lot of infringement actions get settled before the parties get to court, and massive attorney charges are accumulated by both sides.
It's pretty stupid to fight a battle you can't possibly win. Settle out of court and minimize your losses.


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## unpopular (Aug 2, 2015)

Buckster said:


> 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.



This is where things get really complicated. Say you have a licensed Disney character which you are selling. Taking a photograph of that product for demonstration purposes is not likely a copyright violation. You are documenting the product, and not creating a derivative work.

However, if you do the same in an advertisement promoting your business you would *certainly* be in violation, as you're implying an association or endorsement by Disney through a derivative work. (it's not "would be enough", rather, this is the more significant example of infringement)

And this is where it gets complicated for the OP. Because s/he's selling cakes and not Disney figures, I just don't know. This is compounded by the fact that the figure is licensed, and is demonstrative of the product - a product that happens to have a licensed Disney figure.

There is a temptation to over-simplify copyright law, but this is an extremely complex aspect of a very complex area of law.


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