Using Copyrighted Toys/Comics in an Animated Film

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adventuremaster18
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Using Copyrighted Toys/Comics in an Animated Film

Post by adventuremaster18 » Tue Jun 04, 2019 5:29 am

Hello, this is my first post here and I was curious about something. I've been working on an animated film concept for a few years now, But I recently started to worry about the possible copyright and trademark issues that might occur from stuff in the film. All characters and settings are original in the film, however, the main character is a huge nerd, so her room is filled with toys, DVDs, comics, figurines, and posters. Now the toys don't come alive or anything, they are mainly just stuff you see in the background. Most or the toys and comic covers are simplified and not copypasted from real stuff. However, the main character does occasionally bring up characters and comics in arguments and such, showing off the toys and comics in the process.
In films like Mallrats, they talk about comic stuff all the time such as Superman and I doubt they got the right to do so. So my question is mainly, is it alright to include simplified designs of copyrighted toys and comics and have them be discussed in an animated film?

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Re: Using Copyrighted Toys/Comics in an Animated Film

Post by AndyJ » Tue Jun 04, 2019 8:15 am

Hi adventuremaster,

I am not entirely clear if your animation features real objects and uses something like stop-motion to create the action, or whether you are entirely drawing the scenes, cartoon-style, or possibly a mixture of both. If you are drawing the scenes, try to make the background objects as generic as possible as this reduces the chances of upsetting any copyright holders. Even though I am pretty sure that you are entirely within the law with what you want to do, that doesn't necessarily mean that, for instance, some big toy manufacturer won't unleash the lawyers to hassle you and involve you in a lot of unnecessary letter-writing.

So, first of all, most toys will not be protected by copyright because they are manufactured items, not artistic works. They may be covered by trade mark law - more on that in a moment. As for the other items, posters will be covered by copyright, as will the covers of DVDs and board games, and comics, but if they are only seen in the background, their inclusion is referred to as incidental and therefore not infringing due to section 31 of the Copyright Designs and Patents Act 1988. Figurines are also unlikely to be covered by copyright if they have been mass-produced. However a hand-carved figure or a hand-sewn ragdoll, for instance, might well qualify as a work of artistic craftsmanship, but again the incidental inclusion exception should apply in such cases.

Trade marks are intended to ensure that the buying public can be sure of the true origin of goods and services bearing a particular trade mark. However since you aren't offering the toys etc for sale, or using them to promote a sale, trade mark law is not engaged simply by a representation of the real product being in the picture.

On that analysis, I don't think you need to worry about infringing either copyright or any registered trade marks. Obviously you should not use anyone else's trade mark in the title of your animation.
Advice or comment provided here is not and does not purport to be legal advice as defined by s.12 of Legal Services Act 2007

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Re: Using Copyrighted Toys/Comics in an Animated Film

Post by MrPunch » Thu Jun 06, 2019 12:53 pm

I have a similar question, but based around usage in a novel - so no visual aspects, just written descriptions.

The novel – a work of fiction – has a character who loves science fiction movies and tv shows. I figure it is okay to reference specific shows in his conversations. Now for example, lets say he is a big Star Trek fan and has a cherished model of the starship Enterprise. But he’s also hollowed it out to contain drugs, and this toy then becomes important to the story.
Would I be right in thinking the rights holders would not be pleased by this?

On a similar theme (and this is a made up example to demonstrate my point) Let’s say Ive created a rip off of McDonalds in my story. To be safe, I’ve called it JackRonalds. They sell BigJack and fries, Jackflurrys, Chicken Jacknuggets, their logo, as described, is a huge golden ‘J’ … you get the idea. JackRonalds is also an evil corporation that uses dogfood for their products and is a front for money laundering.
Is this still okay when it’s clearly a McDonalds analogue?

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Re: Using Copyrighted Toys/Comics in an Animated Film

Post by AndyJ » Thu Jun 06, 2019 5:58 pm

Hi MrPunch

It's worth reminding ourselves exactly what rights copyright bestows on a copyright owner. The main ones are listed below. You can see the complete list as set out in UK law here.
  • The right of reproduction aka copying.
  • The right of distribution is the right to authorize the making available to the public of the original and copies of a work through sale or other transfer of ownership.
  • The right of communication to the public is the right to authorize any communication to the public, by wire or wireless means, including "the making available to the public of works in a way that the members of the public may access the work from a place and at a time individually chosen by them". The quoted expression covers, in particular, on-demand, interactive communication through the Internet.
  • The right to authorise the making of adaptations.
In your examples, it would be the right of reproduction and the adaptation right which we need to examine to see if there had been infringement. Both rights are infringed if a substantial part of the copyright work is reproduced without permission, and there are no exceptions to copyright law which permit the form or nature of the copying. So taking the Star Trek example first, there is virtually nothing being copied. References to words like Star Trek or Starship Enterprise are insubstantial and are being used descriptively, in that they refer back to the actual copyright work. There really isn't a simple way to succinctly convey the idea of the Enterprise without using its name. I suppose you could call a Star Trek fan a Trekkie, but that might well have unwanted connotations of being slightly nerdy or obsessive, whereas 'Star Trek fan' is relatively neutral. There is no right within copyright law for someone else's creative work to be treated with reverance. Indeed two of the exceptions are there to allow for criticism and parody. There is a moral right accorded to authors of certain types of work that their work should not be treated in a derogatory manner which impugns or damages the honour of the author, but that only applies to literary, dramatic, musical or artistic works, not films or TV programs. And any case I don't think using a model of the USS Enterprise as a drug stash would even come close to derogatory treatment under UK law.

When ot comes to the second example, there is no copyright work involved. At best it might be claimed that the use of similar names might infringe McDonald's trade marks, if a real food outlet did start trading as JackDonalds, but since I assume your example was intended to be a work of fiction, McDonalds could not invoke trade mark law. And secondly trade mark law does not inhibit parody or insult. To deal with the latter, McDonalds would have to rely on the law of defamation (as they have done in the past). However since the Defamation Act 2013, it has been made much harder for large corporations to succesfully sue for defamation in the UK as they would first need to show that they had incurred serious financial loss (section 1 Defamation Act 2013) as a result of the publication of the spoof.
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Re: Using Copyrighted Toys/Comics in an Animated Film

Post by MrPunch » Fri Jun 07, 2019 10:35 am

Once again, thanks for your prompt reply, Andy!

I am genuinely surprised at your answers, I really thought it would swing the other way. Taking the Star Trek example further, would that mean a Mickey Mouse stuffed toy packed with drugs would equally be as safe to use? It's hard for my tiny brain to imagine the Disney powerhouse letting that by?

A further question has occurred to me after your JackDonalds answer: Say I use this fictitious company in my novel, then - after its published- discover there is actually a real JackDonalds burger chain operating somewhere in the world... where does that leave me?

I know typically I would include a disclaimer at the start along the lines of "This is a work of fiction. Names, characters, businesses, places, events, locales, and incidents are either the products of the author's imagination or used in a fictitious manner. Any resemblance to actual persons, living or dead, or actual events is purely coincidental."

But is that enough?

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Re: Using Copyrighted Toys/Comics in an Animated Film

Post by AndyJ » Fri Jun 07, 2019 12:31 pm

Hi Mr Punch,

As I indicated in my first reply there's really very little to do with copyright in these examples and I don't want to get sidetracked into talking about defamation law. But as you indicate, big companies like McDonalds or Disney, employ teams of lawyers to protect both their intellectual property (like copyright and trade marks) and their reputation more generally, and so anyone who satirizes or mocks a big brand can usually expect some sort of response from the company. But that doesn't mean that the company will have a cast iron claim which would withstand the scrutiny of the courts. Indeed, it was the fact that McDonalds 'won' the McLibel case which was directly responsible for the change in the UK's defamation law (the 2013 Defamation Act) making it much more difficult for a company today to bring a defamation claim. What is more, McDonalds' reputation took something of a bashing in the process, and my understanding is that, today, they would not follow the same course as back the 1990s. It's also worth remembering that American companies are used to working with the First Amendment which protects free speech, and so they are possibly more tolerant of parodies than might be the case with a UK company.

As for your real Jack Donalds company example, the same would apply. In order for a company to be defamed, they have to suffer serious financial detriment, and assuming that the company was virtually unknown in the UK and had no outlets here, the UK courts would be an unsuitable forum to consider any claim, and the company might be reduced to bringing a claim in a country where its reputation could be shown to have suffered. You as the notional author would not be subject to the jurisdiction of that court, and in any case you could reasonably argue that there was no intention to libel JackDonalds as you had at the time of writing never heard of the company. It certainly does no harm to put a disclaimer about your fictional characters in a book, but it does not entirely absolve you from all liability especially if it is, in fact, your intention to financially damage a company through your parody/satire (as it was in the McLibel case).
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Re: Using Copyrighted Toys/Comics in an Animated Film

Post by adventuremaster18 » Sat Jun 08, 2019 12:26 am

Thanks for the information. I am planning a 2d animated film btw, so every toy and comic cover would have to be drawn. So if I drew the toy in the film, and barely mention other than picking it up to discuss the characters and such, it's ok? Same with comic books and dvds. If I drew a simplified version of the cover and they show it and talk about it, it would be alright to use? And if the main character constantly carries an existing toy of an existing character, it'd be alright? I just want to make sure.

The characters themselves wouldn't actually appear as the real characters, just discussion about the toys and covers for comics and films. Mainly just discussing thier stories and such through the figures and covers. I know actually using them would be illegal.

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Re: Using Copyrighted Toys/Comics in an Animated Film

Post by AndyJ » Sat Jun 08, 2019 9:16 am

Hi again am,

Yes, what you outline sounds fine. Certainly discussing the items or referring to them shouldn't be an issue. The only aspect in which copyright might impinge on what you want to do is how you render things like the covers of comics or DVDs etc. Say for instance you wish to include the Beano. A cover of a real Beano comic would be subject to copyright, mainly based on the cartoon artwork. But as long as you just used the masthead graphic and created you own cartoon (which if it is in the background, probably wouldn't amount to much more than some blobs of colour) then that shouldn't amount to infringement. Technically speaking the artwork of the masthead is also protected, but I think a court would be unlikely to see it as being substantial, compared to all the other content of the comic, especially as the comic itself has assumed something of an iconic status. That said, if you were thinking of using the Beano, I suggest that you use one of the older versions of the masthead (ie the ones with squared-off lettering) as that is more likely to avoid any issues over trade marks, since it appears that the older versions are not currently registered as trade marks (I can't confirm this at the time of writing because the IPO website is down for maintenance at the moment).

Similarly, you can refer to Denis the Menace or Lord Snooty or any other character by name, but you should avoid using their likenesses even if you have completely redrawn them to suit a story of your own. It wouldn't be 'illegal' as such, but it could prompt the publisher (DC Thomson in the case of my example) to threaten to take action even though there was only a slim chance of them actually taking you to court.

You don't mention the underlying purpose or aim of your film, but if it could arguably be described as a parody, pastiche or caricature then this would give you much greater leeway to use certain characteristics of real toys, comics or other objects since these would be there just to anchor the theme of your film to the real world object or lifestyle or behaviour etc which you wished to have as the target of the parody.
Advice or comment provided here is not and does not purport to be legal advice as defined by s.12 of Legal Services Act 2007

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