Use of Chinese figurative dolls in commercial artwork

[Sajah]

I'm a photographer, and have been looking at various Chinese-manufactured jointed and 'flexible' dolls on Ebay. I would like to know if it would be legally permissable to use the dolls in my photographs that I would be able to sell commercially if there is no evidence of any copyright symbol on them, or whether any kind of trademark or brand name means I would have to get permission from the manufacturer to do this. The dolls' heads and bodies can be purchased separately and 'mixed and matched'. Some of the heads/bodies have trademarks or brand names, some are sold as 'unbranded' but I have seen the same bodies and doll head sculpts being sold under brand names. Some of the head sculpts are of recognisable Hollywood actors or action movie characters, but I am not interested in these, only in the 'generic' ones. I've thought of purchasing a head sculpt with no or minimal makeup, features and/or hair and decorating it myself, but don't know if this would make it any less 'copyright-free' and safer to use. Would be very grateful for advice. Many thanks.

[AndyJ]

Hi Sajah,

As these dolls are manufactured products rather than hand-crafted one-off pieces, it is unlikely that copyright will apply to them. They may be protected by something called design right, but even so that does not prevent you from photographing them or modifying their appearance with make up. If you do select a branded item, be sure not to use the brand name in any sales material for your photographs, especially if you have changed the makeup etc. That way you cannot be accused of passing off your work as a genuine, for example, Barbie doll product.

[Sajah]

Hi Andy, many thanks for the info. So would it be legally permissable to use photos containing the dolls commercially, i.e. to sell to the public, publishers etc. if there is no copyright on them, including branded dolls/doll bodies/heads, if I conceal the brand name?

Also, you mention copyright on hand-crafted items. I have also been looking at handmade folk-art dolls. Would it be legal to purchase, photograph and use these in my work commercially if I were to modify them i.e. change their appearance, or would I have to seek permission from the creator/makers first? This might be very difficult to do as many of them are vintage artisan products, with no traceable creators.

Many thanks.

[AndyJ]

Hi Sajah,

Yes, if no copyright applies to a doll, you can freely use them in the way you describe.

As far as the handmade dolls are concerned, it would be best to assume, initially, that they are protected by copyright, especially as UK law provides additional protection to works having some folk or ethnic cultural significance (see section 169). This means that you should attempt to seek permission from the copyright owner to alter, photograph and distribute images of such items. If the supplier from whom you obtain the dolls cannot provide details of the makers or an organisation which represents them, you may need to assess the risk of going ahead anyway, given the low probability that anyone will object.

[Sajah]

Hi Andy, many thanks for clarifying this, very helpful. So if as you say most mass-produced toys are not subject to copyright, then if I purchase a
mass-produced doll, doll body part or figurine (such as an artificial bird or animal) made in China, if there is no copyright symbol to be found anywhere either on the box/packaging/instructions leaflet, or on the doll/doll body part/figurine itself, is it therefore safe to assume that the item concerned is copyright-free and I am entitled to use it in my photographs commercially?

[AndyJ]

Hi Sajah,

Under UK law, copyright is restricted in its application to certain specified categories of work: literature, music, film, sound recording ,drama and artistic works. Artistic works include the following:

4 Artistic works.

(1) In this Part “artistic work” means—

(a) a graphic work, photograph, sculpture or collage, irrespective of artistic quality,

(b) a work of architecture being a building or a model for a building, or

(c) a work of artistic craftsmanship.

(2) In this Part—

“building” includes any fixed structure, and a part of a building or fixed structure;

“graphic work” includes—

(a) any painting, drawing, diagram, map, chart or plan, and

(b) any engraving, etching, lithograph, woodcut or similar work;

“photograph” means a recording of light or other radiation on any medium on which an image is produced or from which an image may by any means be produced, and which is not part of a film;

“sculpture” includes a cast or model made for purposes of sculpture.

The only two sub-categories which might apply to a doll are sculpture and work of artistic craftsmanship. It isn't a sculpture (we know this due to a famous case known as Lucasfilm Ltd v Ainsworth), and to ba a work of artistic craftsmanship it would need to have been made by hand, with an artistic intention in mind. Hence a piece of pottery made by Grayson Perry would qualify but a piece od mass produced tableware would not.

Just going by what is on the packaging etc may be misleading as there could be a copyright claim concerning an illustration of the doll on the box or any written instructions (which would both qualify) and conversely, as there is no legal requirement to put a copyright symbol on a work, its absence doesn't automatically mean that no copyright exists.

Just to reassure you, think of other objects you might wish to photograph without giving a second thought to copyright: cars, clothes, furniture*. None of these are protected by copyright under normal circumstances.


* Very rarely some very high-end designer furniture has been found to be work of artistic craftsmanship, mainly based on the fame of the designer and the aesthetic quality of the workmanship.

[Sajah]

Hi again Andy,

Many thanks for explaining this - you really sound like an expert on the subject!!

So basically are you saying that mass-produced objects such as factory-reproduced dolls, even ones sold under brand names, are very unlikely to carry copyright, but that this is not impossible, and in order to ascertain their copyright status 100% I would have to contact the manufacturers directly, just in case they would fall under UK copyright law as 'works of artistic craftmanship' (because of having aesthetic, as well as utilitarian qualities)?

[AndyJ]

So basically are you saying that mass-produced objects such as factory-reproduced dolls, even ones sold under brand names, are very unlikely to carry copyright, but that this is not impossible, and in order to ascertain their copyright status 100% I would have to contact the manufacturers directly, just in case they would fall under UK copyright law as 'works of artistic craftmanship' (because of having aesthetic, as well as utilitarian qualities)?

No, what I meant was that if the doll is mass-produced there will be no copyright to worry about. If, however, due to the advertising or the markings on the packaging, the doll has, apparently, been hand-made, then you should consider that copyright may well apply, and seek permission.

The point about copyright is that it is there to protect the skill and artistic choices of a human artist or craftsman; It does not protect the product of a soulless assembly line or injection-moulding machine which churns out hundreds of dolls per hour.

[Sajah]

Hi Andy,

Thanks for the explanation. I do now have a better understanding of intellectual property law around handmade dolls vs. mass-produced ones. My previous query about ascertaining copyright status of manufactured dolls was partly because of what you said about the absence of a copyright symbol on the doll or packaging being no guarantee that the doll in question didn't have copyright protection, and partly because I have recently purchased a Chinese manufactured/mass-produced jointed doll which DOES have a copyright symbol on the body. I don't know whether this is because of the fact that the doll has been given a 'name' (like Barbie) which is on both the packaging and the doll itself (next to the copyright symbol), but from what you have said, I take it that this doll must be an exception rather than the general rule?

[AndyJ]

I have recently purchased a Chinese manufactured/mass-produced jointed doll which DOES have a copyright symbol on the body.

There are several explanations for this. First, there is nothing illegal about claiming copyright exists in a work when it doesn't. Secondly, it may be that under Chinese law a doll such as this would be afforded copyright protection, but this would be unenforceable under UK law. And lastly, as I mentioned in my first response, it is probable that the design of the doll would be protected by something called design right. There is no internationally agreed symbol for design right (which isn't applicable in all countries* outside the European Union) and so the manufacturer of this particular doll may have used the copyright symbol to mean that design right applies. Design right only prevents someone else from making exact or very similar copies of the original item. It doesn't affect how the object may be used, for instance in photographs.

*The Hague system is operated by 74 member countries worldwide and provides a framework for design protection. However the actual law and thus the actual degree of protection which is in place, varies from country to country. Member states of the European Union (including the UK) benefit from the the strongest and most comprehensive design regime. China has not joined the Hague system.

[Sajah]

Hi Andy,

Thanks for clarifying this. So basically you're saying that it should be safe for me to go ahead with using Chinese-manufactured/mass-produced dolls in my photographic work, and that I can make the work commercially available/sell it even if the dolls have brand names or copyright symbols, as the copyright would not be valid under UK law, which is what counts?

One last question about using handmade vintage dolls. I had previously thought that once you have purchased a handmade doll (of any kind), then all rights would transfer to you and it would be yours to do what you wanted with, including modifying/upcycling and taking and selling images of it, but you have stated that this is not the case as it would be classed as a work of artistic craftmanship, even when it is a toy, and therefore copyright- protected. Would this restriction apply only to dolls originating from and purchased within the UK, or purchased in the UK from anywhere in the world (given that the copyright laws may be different from country to country)?

Many thanks.

[AndyJ]

Hi Sajah,

If you purchase anything which is subject to copyright, whether it is a painting, a music CD, a film on DVD or a book etc, you are entitled to enjoy the work, and if you so choose, sell it or give it away or even destroy it. These are the rights of ownership. However you do not gain the rights which belong to the copyright owner: these are the right to make and distribute copies of the work, to make it available to the public* or publicly perform the work, or to make adaptations (such as translations) of the work without permission. There are also a number of moral rights which remain with the author or creator of the work: the right for the author to be identified (if he or she chooses to assert this right), the right for their work not to be treated in a derogatory manner which damages the honour or reputation of the author, and the author has the right not to be falsely credited as the author of something they didn't create.

There are some exceptions to copyright, the most relevant to your question being the right to copy a work may be set aside in special circumstances, for the purpose of private study or research of a non-commercial nature. So for instance you would probably be OK with photographing the doll for the purpose of experimenting with different lighting effects, but you would not then be able to sell the photographs without voiding the terms of the exception (see section 29).

UK copyright law applies within the UK both to works produced in the UK and to those produced in other countries which are members of the various international treaties such as the Berne Convention. This means that there is reciprocal protection on the basic tenets of copyright between most states in the world as over 190 countries have signed up to Berne. However in most cases a country will usually not recognise restrictions of a foreign state's copyright laws which are more stringent than its own law. For example, in Mexico the term of protection is the lifetime of the author plus100 years after his/her death; a UK court would not enforce the full amount of this term as the UK only protects a work for the lifetime plus 70 years after death. On the other hand, in Canada the term is the lifetime of the author plus 50 years, and so the UK courts would only apply that lower term for a work produced in Canada, even though the alleged infringement had occurred in the UK. This is known as the rule of the shorter term.

* This is true in all cases, except that the owner of a painting or other work of art may exhibit his painting in a public gallery because no copying would thereby take place.

[Sajah]

Hi Andy,

Many thanks for the clarification. I think I now have a much better understanding of the whole issue of copyright law around manufactured vs handmade dolls and the like.