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Video footage of toys

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Crypto
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PostPosted: Thu Sep 20, 2012 8:20 am    Post subject: Video footage of toys Reply with quote

Is it legal to take video footage of toys such as action figures or Legos (kind of like the tv show Robot Chicken) and then sell that footage online?

Does this break any laws?

Thank you
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AndyJ
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PostPosted: Thu Sep 20, 2012 11:08 am    Post subject: Reply with quote

Hi Crypto,
(This is my second reply to your post as the original got removed from the system for some unexplained reason when I attempted to update it)

You could take a look at this thread as it covers much the same ground as your query: www.copyrightaid.co.uk/forum/topic794.htm

I have done a bit of research into the Robot Chicken videos you mentioned, and it would appear that the producers of those videos - The Cartoon Network - have obtained licences to use all the characters in their videos from the original rights owners. This is much as I would expect, especially when dealing with the large US production companies such as Lucasfilm or Dreamworks. See here for more details: http://video.adultswim.com/footer/legal/trademark.html

Even if you don't feel this is necessary for your productions, you need to be careful to avoid any implication that your videos are endorsed by or somehow connected to the original producers.
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PostPosted: Thu Sep 20, 2012 9:41 pm    Post subject: Reply with quote

Thanks for the reply. I read the thread and from what I gather I won't be breaking any laws as long as I don't show any logos or trademarks and that I don't imply that my videos are endorsed by or somehow connected to the original producers.

For arguments sake is it safe to say that Cartoon Network only got the licenses as a precaution(and to put the trademark Star Wars on their Robot Chicken dvds for example) since three dimensional objects can only have a design right but not really a copyright?
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AndyJ
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PostPosted: Fri Sep 21, 2012 8:49 am    Post subject: Reply with quote

Hi Crypto,
As mentioned in the other thread, copyright only protects works of 'artistic craftsmanship'* and not mass-produced objects such as Lego bricks or Barbie dolls. The design of these types of object can be protected by either registered or unregistered Design Right (no need to go into the differences here) but that only prevents other people from reproducing the objects themselves. Since you would be using the original item, say some Lego bricks, that would not infringe the design right in the bricks. Finally there is the question of trade marks. This is more complicated because a 3D object such as a Storm-trooper or a Dalek, as well as 2D characters such as Mickey Mouse, could be registered as a trade mark and therefore any use of images of the object could infringe the trade mark, if it was being used for commercial purposes and implied that the new product was connected with the original owner of the mark.
One of the ways to avoid this problem is to clearly indicate in your video that any use of a trade mark is not intended to imply endorsement etc by the owners of the mark, much as The Cartoon Network did on the page I linked to previously.
That's a brief summary of the legal position in the UK (US law is slightly different). But knowing the legal position does not mean that companies like Lucasfilm and the Disney Corporation won't seek to protect their intellectual property using lawyer's letters or by filing DMCA takedown notices on Youtube or ebay etc. Both these companies are well known for being litigious over such matters and tend to use their wealth to get their own way. Hence my earlier suggestion to take care when using figures associated with the large Hollywood companies, as you could end up with additional expense and hassle despite being on firm ground legally.

* It is probably worth mentioning that since you will be making films which have a story to them, story ideas as expressed in books or screenplays can be protected as literary works. So if you reproduce a scene from, say, a StarWars film, using the film's characters but with some twist, (as Robot Chicken have done here) you could run into difficulties. This is an area of law which is still developing, especially in the US, and so it is hard to give general advice, other than to try to avoid slavishly following scenes or dialogue from the original. Unfortunately, at present UK law does not provide a defence for pastiche or parody (although this is due to change fairly soon) which would otherwise protect you from claims of infringement in such circumstances.
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PostPosted: Fri Sep 21, 2012 2:32 pm    Post subject: Reply with quote

Sorry I forgot to mention I'm located in the US. These forums seemed really helpful so I came here.

Okay so let me write out a list to make sure I have it straight.
1. Don't show any logos or trademarks.
2. Don't imply that my videos are endorsed by or somehow connected to the original producers.
3. Don't reproduce story ideas, scenes or dialogue.
4. Avoid trademark characters from big name companies like Lucasfilm or Disney.
5. Put a notice at the end of each video footage such as "This video footage is not endorsed by or connected to their original producers. All related characters and elements are trademarks and property of their respective owners." Would this be adequate?

Is there anything else you can think of?
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AndyJ
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PostPosted: Fri Sep 21, 2012 5:16 pm    Post subject: Reply with quote

Hi Crypto,
I'm partly to blame by assuming you were based in the UK.
I will try and come at this from a US perspective but my knowledge of US caselaw is not that extensive, so you may need to speak with an attorney in the US for a more definitive answer.
First off, US law allows certain categories of fair use which do not infringe copyright, and one of these categories includes parody. Unfortunately the statute alone provides very little detail on this and most of the current situation is based on caselaw. There are a number of landmark cases, such as Campbell v Acuff-Rose Music and Suntrust v Houghton Mifflin which have established that provided a parody is sufficiently transformative it will be covered under the fair use doctrine. In other words you are probably even safer doing this in the US than you would be if you were based in the UK. What's more, the legal departments at Lucasfilm or Disney should know all about this stuff and so are less likely to hassle you, knowing that the courts would probably decide in your favor, and they do not want to lose cases in the courts as it causes bad publicity and undermines their ability to pursue others for infringement.

The situation with using Trademarks in the US is pretty much the same as in the UK and there is no specific defence of parody, but clearly if you are obviously making fun of something, the public is going to be less likely to confuse your film with a film put out by the registered owner of the mark. Nonetheless it would do no harm to stick with the precautions I mentioned previously. If you do speak with an attorney, ask about any local State laws which may affect the use of trademarks or similar matters. Copyright is only dealt with under Federal law.

Finally I mentioned Design Right in an earlier post. This doesn't exist under that name in the US. The nearest equivalent is the Design Patent, and once again if you are using the real product and not making reproductions of it then that does not infringe a design patent.
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PostPosted: Sat Sep 22, 2012 8:34 am    Post subject: Reply with quote

Just a quick follow-up.
I know it was me not Crypto who introduced Lucasfilm and Star Wars to this topic, but I did so because George Lucas is notorious for protecting his 'brand'. For those not aware of it, many years ago (1978 to be precise) an official spin-off called The Star Wars Holiday Special was aired on US and Canadian TV. George Lucas hated it and later, after the film had gone the 1978 equivalent of viral, he said "If I had the time and a sledgehammer, I would track down every copy of that show and smash it."
If that's how he reacts to an official Star Wars film (albeit one he did not direct) imagine how worked up he gets over external productions.
More on this story on Wikipedia.
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PostPosted: Sat Sep 22, 2012 5:15 pm    Post subject: Reply with quote

Thanks for the information. Just to be clear I don't plan on doing parodies, the stories will be of my own. But I guess it will end up being like one since I'll be using recognizable figures which some people might find funny.

It still sounds like I should be okay since I'm using mass-produced three-dimensional objects like you said to make my videos and put a notice at the end if using trade marked figures.

A few more questions:

1. Is it illegal to use the official figures' names such as "Darth Vader" in my video footage descriptions if it is trade marked? I would have to ask for permission correct?

2. Is it illegal to take pictures of figures/toys and sell those images?
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PostPosted: Sat Sep 22, 2012 6:13 pm    Post subject: Reply with quote

Hi Crypto,
Parody can be a fairly wide description: it can be a comment on the original (eg Star Wars) or on some other social phenomenon using the medium of Star Wars etc, so as long as what you produce is sufficiently transformative, I think you will still covered by the parody fair use doctrine.
The words Darth Vader and Lord Darth Vader have been registered as trade marks in the UK and European Union by Lucasfilm in a number of classes of goods, so, although I haven't checked, I would be amazed if they weren't registered in the US also. On that basis you need to be equally careful about how you make reference to them. Normally names are not subject to copyright, but given that this name is somewhat unusual (say, as opposed to 'Harry Potter' which you can find in the phone book), a court might be persuaded that it could be subject to copyright due to its originality, so again I would urge caution: don't overplay the use of the words and the character in your films in a way that leads to an accusation of exploitation of someone else's original creativity. This is basically at the heart of why copyright and trade mark laws exist. There's a lot of difference between creating a story using a toy figure of Buzz Lightyear which immediately summons up the Toy Story background even though you may have written a different scenario, and using characters made from Lego or Playmobil which have no backstory of their own. The creativity in the latter case would be entirely yours.
As far as the second question is concerned, I don't think there is any problem photographing toys etc and selling the images as long as you acknowledge any obvious trademarks.
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PostPosted: Sun Sep 23, 2012 1:58 am    Post subject: Reply with quote

Okay I'm still a little confused about my first question.

To rephrase my question, does putting the words Darth Vader or Buzz Lightyear for example as part of the title or in the description of one of my videos and putting one of those toy figures in one of my videos with no mention of the Star Wars or Toy Story universe or any social phenomenon related considered exploiting someone else's original creativity?

If this is true I'll avoid using original names all together and just use the figures.
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PostPosted: Sun Sep 23, 2012 9:39 am    Post subject: Reply with quote

In a sane world you should be able to use words like Darth Vader etc in a title without the risk of trademark infringement, which legally speaking I don't think would be the case, much as the way I have used the words several times here in this thread does not infringe. But as I have tried to indicate, the large production companies such as Disney and Lucasfilm don't always see things the same way and tend to get the lawyers to work pretty quickly when they feel their brand is being diluted or disparaged. They have the financial resources to make life difficult for the little guy even though they may recognise that at law they have very little to go with. The people in suits tend to take a binary view of the commercial aspect of this: a sale of one your products is a loss of a sale to them. This of course is nonsense, but somewhat simplisitically it sums up their business strategy.

Perhaps the best test you can apply is to ask yourself why you want to use a particular character's name in this way. If the intention includes drawing in people who are Star Wars fans and may be searching Youtube or other sites for Darth Vader material, then you can see how this might be viewed as taking advantage of the film's popularity (and thus Lucasfilm's creativity) when your actual story will have nothing to do with the Star Wars franchise. If you substitute John Doe, does the title have the same appeal/effect that you want to create?

If you can achieve the same aim without putting this sort of words in your titles you will tend to stay under the radar for longer and so reduce the hassle factor. Having said that, you have the first amendment on your side so you could go right ahead and see what happens.
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PostPosted: Mon Sep 24, 2012 2:43 am    Post subject: Reply with quote

Yes you using the words Darth Vader in this thread does not cause trademark infringement but then again you're not using the words to try to create a profit. Are you sure that by using those words for say a title of one of my videos and trying to create a profit it won't cause infringement?

I was just thinking and there must be something we're missing because I don't think The Cartoon Network would have gone through the hassle of obtaining the licenses to use all the characters in their videos. Instead they could of just put a disclaimer and hid behind the fair use doctrine correct?

Also why do you think that external productions like this to turn a profit have not been done before when Robot Chicken has successfully been going on now for 6 seasons?
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PostPosted: Mon Sep 24, 2012 12:07 pm    Post subject: Reply with quote

Hi Crypto
The starting point is not so much the fact of making a profit, more the general idea that using a trademark may confuse the public into thinking your film is made by the owner of the trademark. So long as you adequately distance your work from that of the trademark owner then the risk of this diminishes.

Here's an example of flagrant abuse of trademarks, which you clearly need to avoid: Brave and Braver

Companies like The Cartoon Network understand intellectual property rights very well and so they will make sure that they secure licenses to use other companies' work as it protects their business and assists them to have a firm foundation when it comes to taking others to court. It's routine for them, just as it is for most of the bigger TV and movie producers, to clear all the rights issues with contracts and so forth. That's why they have full time legal departments.

I have taken a very cautious line in the advice I have provided so far because I don't specialise in US trademark law and I wouldn't want you give you bad advice. If you feel you need more guidance, I strongly advise speaking to an attorney in the US who specialises in the subject.
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PostPosted: Mon Sep 24, 2012 5:41 pm    Post subject: Reply with quote

I understand. Haha sorry I'm just trying to squeeze as much information out of you as I can. Thank you for all your advice, much appreciated.

So my last question is I noticed in the other thread you were talking about Playmobil figures having a copyright symbol on their feet. But this doesn't just account for Playmobil figures, copyright symbols are on virtually every mass produced toy around the world. How can they have this if they can only have a design patent? Is it because the design patent was created after the copyright and companies decided to just keep printing them anyway?
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PostPosted: Mon Sep 24, 2012 6:44 pm    Post subject: Reply with quote

As I said in the Playmobil thread, I have no idea what the makers are claiming copyright in when they put this notice on their figures. Since there is no offence of falsely claiming copyright, I guess they do it to try and prevent people copying, knowing that most people vaguely understand copyright, but they may not understand design patent. Also in the case of some jurisdictions (including the USA prior to 1989) there is requirement for a copyright notice or to be displayed on the work before protection can be claimed. A similar situation applies with regard the symbol used for unregistered trademarks, the for registered ones and the ℗ symbol for a phonogram protected by copyright.
If you want a really technical exposition of how the courts decide whether there has been trademark infringement, take a look at this judgment from the UK House of Lords (at the time our equivalent of the US Supreme Court). It's 23 pages long but the first 6 or so cover the principles of the UK and EU law on the subject.
R v Johnstone [2003] UKHL 28.
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