Photographing mannequins and commercial use of images

'Is it legal', 'can I do this' type questions and discussions.
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Sajah
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Photographing mannequins and commercial use of images

Post by Sajah »

Further to my recent enquiry about photographing dolls and using the photographs commercially, I have also recently had access to a couple of vintage mannequins, both made by well-known mannequin designers of their time and both of which carry copyright symbols (one on a label on the mannequin's body and one on the back of the mannequin's head.) I understood from my enquiry into the commercial use of photos of dolls that objects that are mass-produced are unlikely to be copyrightable, so wanted to ask whether the same rule of thumb would also be likely to apply to these mannequins if they have been 'mass-produced' i.e. made from a mould, even if they carry copyright symbols, or would the 'designer' brand names mean there is a possibility that they could be considered 'works of artistic craftsmanship' e.g. like a sculpture? I have actually tried to contact the designer of one of the mannequins directly through Facebook Messenger, but as yet have had no response. The brand of the other mannequin has since been taken over by another brand, which claims on their website to own the intellectual property rights/copyright to the mannequins, but I don't know whether this refers only to the mannequins they are currently producing, or all of the previously-produced/vintage ones as well. Any clarification would be gratefully received.

Many thanks.
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AndyJ
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Re: Photographing mannequins and commercial use of images

Post by AndyJ »

Hi Sajah,

Without knowing more about these particular mannequins, I would think they are in the same category as the dolls which you asked about. Probably even more than the dolls, mannequins can be expected to be photographed especially when they are 'wearing' items of fashion wear, and so it would be unrealistic on the part of the designers/manufacturers to expect that permission would be sought in every case.

You don't mention how you would like to photograph these mannequins, but if it is with clothing on, and the clothing is the main focus of the composition, then it would be arguable that the incidental inclusion defence would be available to you, if you were unfortunate enough ever to be sued, which I very much doubt will happen.
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
Sajah
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Re: Photographing mannequins and commercial use of images

Post by Sajah »

Dear Andy,

Many thanks for your reply to my query about copyright on mannequins last week and apologies for the delay in replying to your response - I must have forgotten to tick the box which notifies you by email when a reply is posted, then after reading your post I had some computer issues which resulted in my being without home computer access for several days.

Thanks for your reassurance that it would probably be okay to photograph the mannequins in question. A couple of further points though. Firstly, the photographs in consideration would be focused on the mannequins themselves, rather than the clothing they were wearing (like portraits), therefore the 'incidental use' exception probably wouldn't apply.

Secondly I was particularly concerned by the copyright law information page on the website of the company which has taken over the brand of one of the mannequins. On this page, it states: '...when (placing an order), you agree that the intellectual property rights in and to, including any executive drawings/designs/models/moulds/samples OR PHOTOS THEREOF...' (my capitals) '... and all moral and material rights and the intellectual title on products and the relevant designs, model and mould are, and shall remain, the sole and exclusive property of (the name of the company, which is based in Italy, and subject to Italian law,) even if (the mannequin company) had developed such design, models, moulds, etc. under special request or needs...' It also states to the effect that when ordering, the person or company placing the order cannot claim any intellectual property rights on the mannequins. So since this company now owns the rights to the mannequins produced by the designer brand, I assumed the above regulations would apply, even if the mannequin in question is a vintage one.

To sum up, I'm asking whether the above would make any difference to the advice you gave me, i.e. would these facts override your advice that the mannequins were probably not 'copyrightable' if they had been mass-produced rather than handmade, and even if they both carry copyright symbols on the bodies/labels, and therefore it would be safe to (a) photograph them and (b) use these photographs commercially?

Many thanks.
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AndyJ
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Re: Photographing mannequins and commercial use of images

Post by AndyJ »

Hi Sajah,

It is worth saying that Italian law tends to protect copyright more broadly than the UK. However I think that the terms and conditions you quote are referring to something called design right, which does indeed protect all the things on their list. But that right is intended to prevent physical copies of the mannequins from being made and sold. And yes, a photograph of the design drawing would be copyright infringement of that document which UK law would treat as an artistic work, but I think it is highly unlikely that a UK court would see the mannequins themselves as either sculptures or works of artistic craftsmanship. I base this conclusion on the 2011 decision of the UK Supreme Court in the case Lucasfilm Ltd v Ainsworth which concerned a claim of copyright* in a Star Wars stormtrooper helmet. The Supreme Court agreed with the lower courts that it didn't because a stormtrooper helmet was a practical item and was not made with the intention that it would be considered a work of art (ie the 'artistic' part of work of artistic craftsmanship was absent).

I can see very little practical difference between a film prop like a helmet and a mannequin.

However it is worth noting that since that decision the law has been changed in one significant respect. Previously section 52 of the Copyright Designs and Patents Act 1988 had said (I paraphrase) that where an artistic work has been exploited with the permission of the copyright owner by being made by an industrial process, provided that 25 years had elapsed from the end of the calendar year in which such articles were first marketed, the work may subsequently be copied by making articles of any description, or doing anything for the purpose of making articles of any description, and anything may be done in relation to articles so made, without infringing copyright in the work. This formed a key part of Mr Ainsworth's defence as the requisite amount of time had elapsed since the first Star Wars film in which the storm troopers appeared (1977). Section 52 was removed from the CDPA statute by the Enterprise and Regulatory Reform Act 2013. I don't think this change means that you can't now photograph the mannequins today whereas before 2013 you could. It just means that the absolute protection for making copies of works made by an industrial process has now gone, and in its place a claimant would have to show convincing evidence that the work was in a fact a work of artistic craftsmanship or alternatively a sculpture.

So to summarize, I don't think the terms and conditions on the Italian company's website significantly alter what I said previously. Yes, the Italian company may become upset if/when it finds out about your photographs, but since you don't come under the jurisdiction of the Italian courts and English law takes a different view of such things, I think that should you receive a strongly worded letter from their lawyers, you can probably ignore it.

*In contrast, George Lucas had already won a copyright case in the USA on the same issue largely because Mr Ainsworth did not defend the claim as he is a UK citizen. The UK courts held that that decision was unenforceable under UK copyright law.
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
Sajah
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Re: Photographing mannequins and commercial use of images

Post by Sajah »

Hi again Andy,

Many thanks for your very comprehensive reply to my further queries on this matter. I trust from your reply then, that it would be safe to photograph and publish/sell photos of these mannequins, notwithstanding the fact that copyright symbols that have been placed upon them/their labels, that their creators may have thought of them (or even marketed them, in the case of the now-Italian-owned mannequin brand) as 'works of artistic craftsmanship', that they were possibly produced in limited quantities/sold as limited editions, since they were clearly also made for the 'utilitarian' purpose of displaying clothing?
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