Worried about Infringing Copyright with Photo Illustrations

[Helenoran462]

Hello, and I'm very glad to have found this forum... I have become very confused about the laws covering this!

I am currently involved in writing a novel, and I want to include black and white photos, taken by myself.
These will be composite photos- a background, with other images layered on top using Photoshop. They are supposed to look like items scattered on a flat surface such as a table, bed or floor, and the items are meant to be things belonging to my characters.

I've only learned today that it's possible for fabric designs to be copyrighted, so now I'm concerned about any of those that I've used... some are things I've bought from Ebay sellers, and were sold as 'vintage' fabrics, (might be 1970s or 80s?) and were cut out of sheets and sold as fat quarters of the sort commonly used by quilters. One of the scraps is I think newer, but I don't have any way of knowing- all are quite distinctive designs.

The other things I've used are vintage items- old toys, (a model cowboy has 1971 on the underside of his base) and a few other old plastic toys from the 1970s- I deliberately sought out things from this date since it's relevant.

I'm also worried about using an old commemorative tobacco tin (from the Royal Silver Jubilee, saying 1952-1977 on it) and an old Benson and Hedges tin also roughly from around the same date.

I've read the page of the Copyright, Designs and Patents Act 1988 where it mentions "Incidental inclusion of copyright material" but am not sure if the bit where it says "Copyright in a work is not infringed by its incidental inclusion in an artistic work, sound recording, film" covers what I'm doing or not.

I don't think what I'm doing is incidental, since they are being deliberately included in my photos?

Any help or advice is gratefully received! I can always remove certain items if you think I should, since they are all still Photoshop documents and have been kept in separate layers. I don't want to get into trouble, especially with a big company like B&H!

Thanks,
Helenoran

[AndyJ]

hi Helenoran

Let's clear up one of the simpler issues straight way. If you have composed and taken these photographs in a deliberate way then it is right to conclude that the incidental inclusion exception will not apply in your case.

However I suspect that some of the other issues you mention will not cause the sort of problems you perhaps fear.

While it is true that fabric designs can be protected by copyright, the protection is largely to prevent others manufacturing fabric with substantially the same pattern. Clearly where a piece of fabric is made up into, say, an article of clothing, it would both impractical and undesirable to then prevent that garment being photographed except with the permission of the fabric designer. Much the same sort of reasoning applies to practical items in general. It used to be the case that anything which was produced industrially would not be eligible for copyright protection (because there is a separate intellectual property right which protects designs of that sort). This relatively clear distinction was demonstrated by the wording of the old section 52 of the Copyright Designs and Patents Act 1988, the main part of which I quote here for the sake of convenience:

52 Effect of exploitation of design derived from artistic work

(1) This section applies where an artistic work has been exploited, by or with the licence of the copyright owner, by—

• (a) making by an industrial process articles falling to be treated for the purposes of this Part as copies of the work, and
  
  (b) marketing such articles, in the United Kingdom or elsewhere.

(2) After the end of the period of 25 years from the end of the calendar year in which such articles are first marketed, the work may 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.
[...]

However this provision was removed in July 2016 as a result of the Enterprise and Regulatory Reform Act 2013. The ostensible reason for this change was to allow items of specific artistic merit (some designer furniture is often quoted by way of example) to be protected by copyright in the same way as, say, a painting, even though they might have been produced by an industrial process. However it was not Parliament's intention that all practical or utilitarian mass-produced items should now become subject to copyright, even though the law as it now stands leaves open that interpretation.

That theoretical argument aside, I don't think there is any likelihood of infringement if you have included toys, tobacco tins or fabrics, in your pictures, because the sort of reproduction which has occurred in no way commercially impacts these products. Nor are any of the other IP rights such trade mark or design right relevant here.

I hope this helps to set your mind at rest.

[Helenoran462]

Thanks so much for all that information, Andy- it's very reassuring.

Copyright law seems to be a bit of a minefield, (at least it is for me) and I've spent hours researching, but was still unsure if I was in the wrong or not.

It's good to have clarification about the fabrics, especially- your help is much appreciated!