Toy Copyright

[hermytm]

Hi, how long are toys in copyright? I am looking at filming some 'contemporary toys' owned by a museum to be broadcast on TV. It would not be to sell the toys but examining the history of gift giving at Christmas/the rise of the 'must have' toy. For example I want to look at the first Barbie, early Meccano, early bear manufacturers, toy trains, 007 cars etc.

Do I need permission from every individual toy manufacturer? Or can I film them under 'fair use'?

Thanks for any advice

[AndyJ]

Hi hermytm,
Unless they are hand-crafted one-off articles, manufactured toys are not ordinarily subject to copyright. They may be subject to various other forms of intellectual property rights, such as design right, or trade mark, but neither of these (or for that matter, patent, which could apply to toys like Lego or Meccano etc) would be infringed merely by photographing the toys.
The fact that these items are in a museum may indicate that some of them (for instance early prototypes or design models) could be subject to the hand-crafted exception, if they qualify as works of artistic craftsmanship. It might be best to check with the museum. You will also need to check with the museum over its policy on filming of the exhibits, although of course that has nothing to do with copyright.
If you think copyright might apply to some or all of the exhibits, it will last for 70 years from the end of the year in which the person who created it died. You mention fair use. If you are based in the USA (where the fair use doctrine applies) then it is more than possible that this would cover your filming, if the toys concerned did appear to be protected by copyright, as this use would clearly be transformative and would not economically threaten the market for the toys themselves. But there is no corresponding exception under the UK's fair dealing exceptions. The nearest we have here would be section 30, for the purpose of criticism or review. You would need to examine the purpose of your film and if, as it appears from your description, it could be argued that that was its purpose, then this exception might well allow you to go ahead, but you would need to acknowledge all the copyright owners (ie the manufacturers), probably in the credits of the film, so it would be almost as onerous as contacting them for permission in the first place. There is a second exception, where something is included in, say, a film, in an incidental or passing manner, but I don't think this will be much use to you as it would appear that the intention is that the film will feature the toys, and thus their inclusion would not be incidental.

[hermytm]

Hi AndyJ,

Thanks for that. I have already cleared everything with the museum so that is not a problem. When I asked them about the copyright issue they suggested just researching the topic and contacting the toy companies directly but the larger companies take a long time to process any requests. That is why I decided to ask for advice here instead. I am based in the UK but have worked in the USA before which I suppose is where my fair use confusion comes from.

Thanks again for your help.

[littlewhispers]

Im curious about design rights myself. Sites often say such rights prevent from copying, but what does this mean exactly? Copying as in using the same design to make a product? Or copying in any form such as a photo, painting or any graphic representation? There not very clear

I ask because I use alot of props and resources for various artwork, both photos and paintings, so. And short of just using empty space or naked bodies...

Furthermore would just doing so not count as a design right infringement unless you tried to sell said image or used it commercially? Seems to be an exception for personal use in any case from what I understand.

Since this is a copyright forum forgive me if you cannot answer, its just very difficult to find information on the subject.

[AndyJ]

Hi littlewhispers,
There are two kinds of UK design right: registered and unregistered. These are supplemented by two more EU-wide rights known as Community Design Rights (CDR) which again come in the registered and unregistered varieties. The legislation for each of these differs slightly in the way it describes what amounts to infringement (for instance here, here and here), but in essence a design is only infringed if something is made to that design or made so that the reasonably observant person can see no difference between the two finished products. In other words, photographing or drawing or painting a likeness of a design does not infringe. And as you note, registered design right and CDR are not infringed by, amongst other exceptions, the making of an article to the design if it is purely for private use. (For some unknown reason this exception is not explicitly available for UK unregistered design right).

[littlewhispers]

Ah. So making a graphic representation(photo, drawing) on its own shoud be fine

I remember you telling me once drawing a piece of clothing out of a catolouge could amount to copyright infringement. Which looking back makes sense as a photo in a magazine or anything is still copyright(someone had to have taken it). If I drew something I saw on a person, saw in a shop, or bought out of a shop then modeled for me though, I doubt this would be copyright infringement(Unless Of course I included any images or patterns that may be included, Ive learnt alot since then that images on clothing can be under another protection so would omit those). Would it be design infringement though?

From what I understand it would definelty amount to design infringement if you make another product exactly the same, but Im not sure art and photography fall under "products"

By likeness do you mean it doesn't matter if its exactly the same or by likeness, not an exact copy?

And if drawing such things is okay, great. But would an infringement occur if you attempted to sell any art that featured any designed products you may have included?(Painted photo'ed or otherwise). Furniture, clothing, ornaments etc. And I mean ANYTHING, as even tho most basic things have a "designer". Like you said, personal use fine, but I guess selling is commercial. In this sense would that be an infringement? Thats what concerns me the most

Looking at this, I THINK, what I wanna do, would fall under this and be an exception.

(a)the act of reproduction is compatible with fair trade practice and does not unduly prejudice the normal exploitation of the design;

Assuming that means what I think it means.

I mean Im just doing 2d artwork to sell, not actually reproducing a 3d product to sell.

Still I wont pretend to understand legalise.

Just to clarify, whole thing is rather confusing. Thank you for your time.

[AndyJ]

To infringe the design right in an article you need to make that same article or something so similar that most people can't tell the difference. A photograph (drawing, painting etc) of the article does not infringe because it is not the article but merely a representation of it. I would hesitate to say the distinction is just between 2D and 3D because some design articles could be theoretically be 2D (say something like the pattern created in a woven fabric) but generally speaking that approach would provide a reasonably good test. The point about design articles is that, broadly speaking, they have an underlying practical purpose*, whereas a pictorial representation of the article has an aesthetic purpose.

Clearly there remains the possibility that some aspect of the designed article, such as any surface decoration, is also protected by copyright (as an artistic work) but I had assumed that you already knew all about that so didn't mention it in my previous reply.

So if you haven't infringed a design by making a visual representation of it, then there is no reason why your representation can't be sold or otherwise dealt with commercially. If you make an article to the same design as a protected article, but it is only for you private use that doesn't infringe, but it would if then you tried to sell the article you had made.

*It's actually a great deal more complicated than that. The Registered Designs Act defines design as "the appearance of the whole or a part of a product resulting from the features of, in particular, the lines, colours, shape, texture or materials of the product or its ornamentation". However the use of the word 'product' in definition serves to emphasise the utiltarian aspect, even though it is effectively dealing aesthetic qualities. So for instance registered design right can apply to things like graphic symbols and typefaces, which have aesthetic as well as practical purposes. Incidentally, where unregistered design right is claimed, there is no protection for any surface decoration, just the form or shape created by the design.

[littlewhispers]

Yeah. For example, Ive heard a case where a ornament on a beltbuckle could be considered copyright, cuz its unique designed. And of course patterns and such(like a pattern on a dress or ornament on something. If you can put a image on fabric and such you can put it as easily on a canvas). And, most obvious of all, copyrighted characters(like I guess a picture of hello kitty on a t shirt, or a doll of a cartoon character). And of course one of a kind garments can be considered artistic rendering(like a one of a kind beautiful dress) and such things. Anything really unique can be covered by copyright that way

Obviously omit anything copyright

Registered design seems kinda like registered copyright, in that its easier to take action. That much I understand

A visual representation does not infringe the design. Meaning both? Does this include registered ones? Or just unregistered? I would guess both but wanna be sure

Okay, I think I have a better understanding of it now. Most everyday things you see in shops and the like I imagine are more fine, but I would stay away from more intricate stuff(especially as it may indeed by considered art, which is fair enough)

Okay then, thats great, I think I can use most things I find then as props easy enough for my work.

Thanks for clearing this up for me, it was very confusing and I THINK, I had the wrong idea, but now the right one. At the very least a better idea of what Im doing.

[littlewhispers]

One last question, since you bring it up. It says on some sites that surface decorations(Patterns Im guessing, 2d patterns, decoration and images I spose) fall under design right(though only protected if registered).

Do such things, patterns and the like automatically fall under copyright, or can the be either design and or copyright? A possibility as you said? Like I said, an image with a copyrighted charatcre would deifnelty fall under that catergory. And of course more one of a kind items I spose

[AndyJ]

Hi littlewhispers,

The UK unregistered design right is the only one which doesn't apply to surface decoration. However any surface decoration may qualify for copyright protection if it can be classed as an artistic work or work of artistic craftsmanship. While the quality of the art is not at issue, it needs to meet the normal conditions for copyright in that it must be original. It would be hard to claim copyright existed in a single plain colour when applied to a design, for instance.

Copyright and design right can exist in the same article. The main differences are that design right can be infringed by accident or coincidence, whereas copyright infringement would not occur if a similar work had been created independently. Design right lasts for a much shorter time (a maximum of 15 years for UDR, a maximum of 25 years for RDR and registered community design right subject to re-registration, and 3 years for unregistered community designs). Copyright, of course, lasts for the lifetime of the author plus 70 years.

There is more on both design right and copyright on the IPO website.

[littlewhispers]

Ah, so not definite but, can go either way easy enough , and surface dec is only decorated IF registered design

Okay, cheers mate. Think I got the just of it.