Copyright Aid

Hi, I'm a photographer/artist who uses dolls and toys in my photos. I posted in this forum 3 years ago with some questions around copyright issues regarding taking photos of dolls and mannequins, and received a lot of very useful advice. I am now seeking further advice on photographing a particular brand of (expensive) Japanese fashion doll, which are produced in quantities possibly a lot smaller than e.g. Barbie (I'm not sure what the actual production figures are.) The dolls all have the same basic body and features, though their individual face makeup, hairstyles and outfits vary between the different 'models'. According to Wikepedia and another source, these dolls are now 'mass-market' products produced by a Japanese company, but on the other hand I have seen them described by sellers on Ebay as 'each part made by hand'. So my question is, if these (or any other) dolls (or doll parts e.g. heads) have been produced, assembled, dressed/had hair added and their features painted on by hand, rather than by machinery, and/or are 'limited edition', then would they still be classed as 'mass-market' items and therefore would it be okay to photograph and sell/advertsise the photos, or not? I would be very grateful for any advice.

My 2nd question is more concerning 'design right'. I have found a couple of factory 'heads' for the above dolls being advertised for sale on Ebay, with slight defects. If I were to purchase one of these heads and then make my own doll using a different doll body (generic), and paint it's features on in the style of the above dolls, would this be an infringement of the design right of the makers of the above dolls, even if I had used a different doll body? And, if not, then would it be okay to photograph them/sell the photographs? And if I were to repaint a similar-looking doll head to look like the above doll heads, but added a different doll body, would that also count as infringement of (the Japanese doll company's) design right?

My 3rd question is regarding doll and other clothing. Would there be any issue with photographing dolls or mannequins in clothing with a recognisable design/pattern, and then selling/advertising the photos - or would it be okay if the clothes were made in a factory, i.e. mass-produced? Likewise, if the clothes have been made by hand by a seamsperson rather than in a factory, would they be classed as artistic creations that I would need permission from the owner to photograph/advertise/sell the photos?

Many thanks.

Hi Sajah,

Lots of ground to cover here.

Copyright. If these dolls can be described as hand-made, then that introduces the possibility that they may be works of artistic craftsmanship. It's by no means automatic, as to qualify, the production process would require some individual artisic input on the part of the people assembling the dolls, and I suspect from your description that is missing here. However being mass-produced per se doesn't exclude the possibility that the dolls are subject to copyright; such items were excluded from copyright protection under UK law but thanks to pressure from design right lobbyists such as ACID, an important provision known as section 52* of the Copyright Designs and Patents Act was repealled in 2014, and this leaves the situation less clearcut. The Intellectual Property Office put out some guidance which indicated that copyright protection would only extend to manufactured objects with significant artistic qualities, along with an intention on the part of the creator of being intended as artistic works. (guidance here but note that this guidance has been officially withdrawn). Unfortunately we have had no court cases since the change to indicate how the courts will actually interpret the law following the repeal of section 52.

Design right. Much depends on whether the Japanese makers of the dolls have registered their designs, either here in the UK or in the EU. If they haven't then all they are entitled to is something called unregistered design right (UDR), which is fairly weak and only lasts for 10 years from when the items were first put on sale anywhere in the world. Furthermore, UDR only protects the shape or configuration of the object and does not apply to any surface decoration. And of course the shape or configuration has to be 'original' in the sense that it must not have been common place in the particular design area at the time it was created. However if the design has been registered then the level of protection is raised. It lasts for up to 25 years provided the registration is periodically renewed, it includes surface decoration as a protected feature and the criteria for what constitutes infringement are slightly wider than with UDR. In both cases infringement can occur if an object is made which, to an informed user, does not produce a different impression overall compared to the protected item. That's a complicated way of saying that if someone who is relatively familiar with dolls, like a collector or buyer for a retailer, is mistaken into thinking that your doll is in fact one made by the manufacturer, then that may well be sufficient to prove infringement. However that protection only applies if you make such a doll (or part of it) with the intention of selling it. If you only make it for your own use, for instance in order to photograph it, no infringement of either type of design right occurs.

Clothing can be treated in exactly the same way as the dolls themselves. Individual items of clothing can be covered by copyright only if they are clearly works of artistic craftsmanship, that is, handmade and intended to be 'works of art'. They can also be subject to UDR and registered design right, although there are often problems in meeting the 'originality' criterion when it comes to UDR, since colours and patterns etc are excluded.

I haven't precisely answered all of your detailed questions because any such advice would not be something you should rely on when you make decisions about what you can safely photograph. But I hope I have provided enough details about the law for you to navigate through it. If in doubt, you should get your own legal advice from solicitor or barrister who specialises in intellectual property law.

* You can find the original text of section 52 before its repeal, here.

Hi Andy, many thanks for all the information and advice in reply to my queries earlier today - I can see from the information you have kindly provided that it is indeed a legally complex set of issues.

For info, this is the link to to Wikepedia page on the dolls in question: https://en.wikipedia.org/wiki/Momoko_Doll which has links to the sites they are sold on. though it does state on the T and C page of the website of the original doll-making company that buyers are welcome to photograph them 'for their own use': https://petworks.ocnk.net/page/4 but as they are now made by a different company (Sekiguchi), I don't know whether these terms are still applicable/enforceable. Just one further question - I totally understand how marketing/selling any handmade 'composite' dolls which resembled the above collectible dolls could potentially constitute an infringement of design rights, but do you know whether selling/advertising for sale photographs of such dolls would be allowed, or whether this would also constitute an infringment of either copyright or design right on the original dolls i.e. would any photographs taken have to be strictly for my own personal use?

Thanks again.

Thanks for the links.

I did think these were probably the sort of doll you were talking about. The only risk in selling photographs of the dolls and clothing for them is where copyright exists, and as I explained previously, this is less likely to be a problem since the dolls and clothing are unlikely the meet the criteria of being works of artistic craftsmanship under UK law.

Design right is not an issue. Merely portraying an object protected by design right does not infringe that right. The protection only applies where the phyiscal item is itself copied is a way which makes a 3-dimensional copy largely indistinguishable from the real product.

I think the old PetWORKS 'terms' are merely aspirational and would not be enforcible in law. I could not see anything in them which discouraged the selling of photographs of the dolls. I don't read Japanese so I don't know what, if any, conditions Sekiguchi seek to apply to the use etc of their products, but the European website of their distributor does not set out any equivalent terms.

It is worth noting that while the Japanese laws on copyright and design right largely conform to international standards (such as the Berne Convention, TRIPS and the TPP) the ethos behind the application of the law there differs somewhat to the UK. As might be expected of a society which values tradition, honour and craftsmanship, the Japanese approach is similar to the French concept of Author's Rights (droit d'auteur) with its greater emphasis on moral rights of the author or creator to protect his or her personal honour and works from disparagement etc. To that extent both copyright and design law in Japan tend to cover a wider spectrum of eligible 'works', especially in the category we refer to as works of artistic craftsmanship. Clearly this fact has no bearing on how a court in the UK would apply the English law.

Hi Andy, many thanks for the further clarifications, info and links and that's interesting to learn about the Japanese approach to copyright law being more concerned with the author's moral rights to protect their work and more similar to the French one - I did pick that up from the T and Cs about the use of the dolls on the Petworks website. I think it was the description that 'each part, coloring and hair is handmade' in some of the Ebay ads for the dolls which confused me, like this one:https://www.ebay.co.uk/itm/374782803976 plus you saying in your previous post that some mass-produced items could still be subject to copyright if they had been some artistic input into their creation, especially since the repeal of Section 52 of the Copyright Design and Patents Act.

I did look on the Sekiguchi Japanese website, but couldn't find anything about photographing the dolls either (I did use Google Translate), but there is further description here of the doll and it's qualities on the old Petworks website http://old-www.petworks.co.jp/doll/engl ... bout.shtml

So, everything considered, do you think I'm safe to assume it would be okay to buy and photograph one (or more) of these dolls (and their clothes) and then be able to advertise/sell the photos, albeit they might have been assembled and the features added/clothes made up by hand - or would you recommend I consult an IP lawyer to confirm?

Thanks again.