Photography and Copyright Question?

Question

This is what istock says below in quotes about copyright of figurines. So, are they saying that figurines that are generic and mass produced do not fall under the copyright/trademark law and can be used as the primary subject of a photo and do not have to have a property release? For example, like knick knacks bought at the dollar store, or any knick knack that is massed produced for general sale (does not include figurines such as Lenox)?

"Generally speaking, figurines that are not generic and mass produced will be protected under copyright/trademark law by the creator/manufacture r and cannot be used as the primary (or only) subject of a photo, unless accompanied with a property release.

Allowed: Incorporation into a composition where the figurine is incidental to the predominant focus of the image." - from Istock.com

Answer 1

Essentially anything can be in a photo so long as something that is trademarked is not the SOLE subject of the image.

So, if you had a hubble figurine in your picture, but it was not the dominant subject of the photo - you would be fine as far as copyright. However, if you took a picture of a hubble figurine as the sole subject of the photo - you would be guilty of copyright infringement since the hubble figuring company owns all the rights to their creations.

You can't just take a picture of a GI Joe and sell it as a GI Joe picture - Hasbro owns the rights.

Give me an example of a generic figurine... almost any figurine is going to have been created by someone and there will be a pressence of a trademark ™, copyright ©, or registration mark ® somewhere on the figurine or the packaging it came in.

Now, this is where copyright becomes cloudy. Let's say you were taking a picture of a group of figurines that you had placed in various poses - army men in a war scene for example - as something you were going to enter in a photo display or something you were going to use - NOT FOR PROFIT. So long as you aren't trying to sell the photos of whatever you are shooting claiming ownership to the image of the figurine (as already discussed, the figurines "image" is owned by the creator of the figurine) then you should be fine.

Answer 2

Some excellent answers here. Stock photos are used for advertising and other commercial uses which is why they enforce copyrights so rigidly. If your figurine is recognizable (A lladro statue or a GI Joe..or maybe Gumby??) you need a release unless it is not the main subject of the photo. If the figurine is not recognizable (a little plastic stick figure from a crackerjack box) than you can post a photo of it without a release.

Answer 3

Andy Warhol perhaps one of the most recognized artist to come out of the United States during the modern era made his living making prints of popular american products all without having to deal with copyright issues or legal action. If you are not familiar with his work here are some examples. http://www.poster.net/warhol-andy/warhol-andy-100-campbells-dosen-2602634.jpg
http://www.poster.net/warhol-andy/warhol-andy-three-coke-bottles-2104105.jpg
So how did he avoid legal action? Nominative fair use is what allows critics or authors of works of fiction to mention or show brand names without having to get permission from the trademark owner. It's another reason Warhol was safe, as a matter of trademark law, in copying the soup cans. Whether Campbell's had an enforceable copyright or not was irrelevant.
Fair use is a form of free speech protection. Mattel recently lost a lawsuit against artist Tom Forsythe for trademark and copyright violations based on his series of photographs called "Food Chain Barbie," which "depicted Barbie in various absurd and often sexualized positions." In addition to finding that most of Forsythe's work was a fair use of Mattel's copyrighted and trademarked products, the U.S. Court of Appeals for the Ninth Circuit found that the First Amendment protected Forsythe's use of the trademark because Mattel's mark "'transcend[ed] its identifying purpose' and 'enter[ed] public discourse and become an integral part of our vocabulary.'" Mattel has lost a few other cases involving the Barbie mark, including one concerning the Aqua song "Barbie Girl."
As an example of classic fair use, a grocery store can advertise in its weekly flier that it's having a sale on "all Coca-Cola soft drinks." The grocery store doesn't own the Coca-Cola trademark, and it's using the term to sell something, but presumably it has a stock of Coca-Cola products in its possession and is legitimately selling them.
If you want to know more about Fair use and photography try googling these words.