[legal question] using pictures of objects in a for-sale game

[komradebob]

Okay, I know that you should ask lawyers legal questions, but maybe one of you folks already knows the answer to this one:

What are the restrictions on using a photo of an object in a game that you're planning to sell? I'm not talking about using someone else's photo, I'm thinking more of what happens if I take a photo and want to use it for an example of play. Specifically, I'm thinking in terms of uses for the toy-rpg I'm working on. I'd like to take pictures of some sample set ups, which would include images of models made by various companies. I'd also like to take photos of alternative toys that might be used.

Any thoughts?

[JarrodHenry]

Well, what you describe, be it for sale or not for sale, does sound like an interesting question.    It wouldn't fall under Copyright, since copyright is for the images themselves (the actual photos you take would be copyright you, for example.)  It also wouldn't fall under Trademark as I would wager you are not competing directly with them for sales. 

My belief is that you would be safe.  If it were me doing this though, I'd contact an Intellectual Property lawyer and ask them for their opinion. 

[Blankshield]

I would contact a lawyer on this one.  In terms of copyright, you're pretty much OK, if either you took the picture, or you have permission from the person who took the printer.

However, when you're talking toys, you're talking about distinctive imagery and branding and trademarks.  And that's a whole murky kettle of sharks.  Toy companies are notoriously protective of their trademarks, and it's hellish trying to figure out who's going to flip, and over what.

Personally, I've chosen to take the risk with Brick Battles, and I've got pictures of Lego toys in it.  But that's one instance, and one company, and I've consciously decided to risk it.  Lego has shown strong community support of their fanbase, and has a history of serving 'cease and desist' orders before they sue.

thanks,

James

[Eero Tuovinen]

Blankshield's right in general, it's a potential problem. The design of the toy is potentially valuable IP which can be protected. Thus you couldn't, for example, photograph a toy and use that as a cover for your book. The fact that the resemblance of the toy has been published as a three-dimensional object (toy) in no way gives you the right to use a photograph of it without permission, any more than you could with a painting. Toys are just as protected as paintings as regards photography. Otherwise you could do stuff like, say, use Optimus Prime and other Transformers as illustrations for your clone-product.

However: many possible uses are allowed by fair use rights, because often you're not using the picture of the toy for it's aesthetic or IP value, but rather for some concrete reason. Thus you can take a picture of children playing with toys and use it in an article about children playing, for example, because the toy is a coincidental part of the picture. There's also the matter of work derivation: a clearly framed photograph in good lightning of a posed toy is clearly a derivative work based on the toy itself, because there's hardly any original artistic interpretation in it. But if you took pictures of many toys and cut and pasted a chimeraic monster out of them, for example, then you'd be again within fair use and just using the toy photographs as raw material for an independent work of art. The same principle could arguably hold for any lego structures you'd care to build, because the lego blocks themselves aren't that special visually (won't hold for the lego men and other props, which are quite distinctive).

The solution: ask for permission from the people who own the toy's resemblance. A polite letter explaining the intented use and making the scale of your operation clear will soon tell you whether they're likely to cause trouble. The answer could be any of outright permission, request for a licencing deal or denial. Only after they answer negatively is the reasonable time to consult an IP lawyer to find out whether they have a case if you go ahead anyway.

This particular case: personally, I'd be comfortable with using toys in play examples if there were several toys from different companies and people or other play materials, so that the picture clearly depicted the activity and not especially the toys. I'd also mention somewhere in the book that the toys in the pictures are for demonstration purposes only, and their distinctiveness is owned by their owners etc. I would also choose something other than top product lines for my toys; if my work's not riding on Transformers then there's no reason to use Transformers particularly in the examples, when I can use some no-name generic toys. Within those limits I'd be comfortable enough to do this kind of stuff without consulting a lawyer, but that's something everybody has to decide for themselves.

[Brendan]

I would also choose something other than top product lines for my toys; if my work's not riding on Transformers then there's no reason to use Transformers particularly in the examples, when I can use some no-name generic toys.

Er, no-name generic toys are often just as trademarked as big-name toys.  But yes, they are also probably less likely to sue.

The other answer, of course, is to write the companies' PR departments and ask permission.  You might come to an agreement (like, photograph the toys but erase any trademarked logos) that suits both parties involved.

[Josh Roby]

Eero and Brendan speak wisdom.

Contact the companies.  If they don't respond, you having sent them a letter is actually a pretty good defense (we do it all the time).  Don't write the letter as "Can I use your product..." -- write it as "Can I feature your product..."  Make it something that they'd want in on, rather than something they allow you to do.  You never know, the PR department may even link your site and pimp your product!

Include a notice on the imprint page that the toys depicted in the work are used as examples and use of the images is not meant to infringe on their copyrights or trademarks in any way.

Erase distinctive logos with Photoshop or equivalent.