Use of a manufactured toy as a character in film?

[jedmitchell]

I'm working on a music video that wants to include a toy hand puppet that was manufactured in the early 90s (and is now out of production). The appearance of the toy would be modified but in essence it would be used as originally intended: on a hand, acting as a puppet, but playing out a role as a "character" in the video. There would be no reference to the name of the toy or any other branding, but even with the modifications being done to it you could probably identify it for what it originally was.

I'm unclear about where this falls on the spectrum of potential infringement, and I've been looking over a couple related threads:

https://www.copyrightaid.co.uk/forum/vi ... php?t=1978
https://www.copyrightaid.co.uk/forum/vi ... =toy#p4853


It feels like the difference between my question and the above two threads is that in the context of this music video the toy would appear as a character unto itself, though the creative line is a little blurry there (think of a possessed doll like in Child's Play -- still obviously a toy, but come to life).

I'm not sure if this places the usage in different territory or not. For reference, the band is US based but the label releasing the video is UK based, so I'm also not sure exactly where this falls in terms of jurisdiction.

Thanks to anyone who has some thoughts on this!

[AndyJ]

Hi Jed,
As you have probably gathered from the two threads you mentioned, it is not likely there are any copyright issues here, especially as your doll does not appear to be based on a previous film character (as in the Disney example).

And there would be no design right or trade mark infringement as, a) you would be using the actual toy as sold, and not a copy of it, and b) you would not be using the toy in the course of trade, that is to say selling the toy itself or something associated in a consumer's mind with the toy.

Although the law in the US differs in several respects over copyright and design right, the trade mark aspects are pretty much the same. That said, such differences that do exist don't make any difference to the chances of infringement in the USA compared to the UK. You don't mention where the toy was made, but if it was outside the USA and not by a US based manufacturer, then I think you can completely rule out the American side of things altogether.

So to summarise, I don't think there is anything to stop you going ahead. And if in doubt the record company who finally release the video should run the thing past their lawyers before putting it out.