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Can I use the photo of Mickey Mouse in my drawings?
Posted: Sun Jan 08, 2017 6:44 pm
Is it a trademark infringement to draw a mickey mouse bag in a drawing? There is a children room in the painting and there are bags with mickey mouse and quilt with betty boop on it. If I put such a painting online, is it a trademark/copyright infringement?
Posted: Mon Jan 09, 2017 9:29 am
. As long as the characters are not too prominent in the painting, that should be covered by incidental inclusion
. Certainly if you photographed the children's room and the Mickey Mouse and Betty Boop figures were visible in the photograph that would normally be be covered by the incidental inclusion exception. Theoretically with a painting you have the option of not including the characters so I suppose it might be harder to argue that including it was 'incidental'. But I think it would amount to fair dealing for the characters to be there as you intend to capture the room as it is.
. There is absolutely no trade mark use in the circumstances you mention; the marks are not being used in the course of trade to signify to origin of the goods (the painting) and we have to assume that their use on the bags and quilt are authorised, not that that is your responsibility.