Copyright question

[redferngrows]

My very creative friend designed a children's book on his computer which he wrote and illustrated with his own photos.
The photos are dreamy images of two stuffed animals having an adventure. One of the animals is a made-in-china duck with the tag cut off and the other is a handmade soctapus. The handmade item is trackable, and we could ask for permission to use images of that toy.
So here's the question: what to do about the generic made-in-china duck? We are very proud of his story and want to publish it without running into issues of copyright infringement.
Does anyone have any knowledge of the law and/or any ideas on how to do this properly?

[Burrowowl]

Intellectual property law is pretty sticky. Generally speaking you should seek explicit permission for the likeness of anything that features prominently. If you are unable to figure out who made the duck, you will probably want to make a reasonable attempt to locate the creator in a way that you can document (so you can later demonstrate that you acted in good faith). That way if they come after you, you can make a good argument that nothing but a reasonable royalty check needs to be cut (as opposed to a punitive award).

There's probably a reasonable case for "fair use," but a lot of lawyers out there make good money leaning on people that don't adequately cover their behinds in such matters.

--
John Fitzgerald.

[jborges3]

Yes, intellectual property law is pretty tricky, but I'm sure your friend is fine, however, it doesn't matter that you think the duck is "generic" or if it is "made in China". Here are a few examples that may make it more clear.

If a Playboy model plans to wear shoes in a photo shoot the photographer doesn't have to try to figure out who designed the shoes and then hunt them down to ask for permission.

The opposite would be this. If I wanted to sell copies of a famous Marilyn Monroe photo, then I would be infringing on the rights of the owner of the image.

What if I take a photo of my girlfriend and she happens to be wearing earrings that show in the photo? Would it be reasonable for anyone to argue that the creator of the earrings had some rights of my photo, or even worse, that it was somehow my responsibility to figure out who owned the rights to the earring and then hunt them down to ask permission?

What if the creator of the earrings saw my photo of my girlfriend and wanted to use it in his catalog? He would need to ask me since I hold the rights to the photo. It doesn't matter that his earrings happened to be in the photo.

When you take a photo that includes the duck then you own rights to your photo and who ever made the duck retains rights to the duck.

If you were to make copies of the duck and sell them then that would be infringing on the duck makers copyright, and if who ever made the duck took your photo that included the duck and tried to sell copies of the photo then the duck maker would be infringing on your friends copyright.

You could still get sued, just like the earring maker could sue me, some people sue over nothing, but in the case of a law suit "fair use" would be a valid defense. It would be very difficult for the duck maker to claim they had damages because of this image in the book.

[MsTerry]

Yes, your theory seems logic, except that in this case the duck IS the story, and the maker might object to being part of the story.
Unless you are a lawyer in this field, they need some sound advice.


Yes, intellectual property law is pretty tricky, but I'm sure your friend is fine, however, it doesn't matter that you think the duck is "generic" or if it is "made in China". Here are a few examples that may make it more clear.

If a Playboy model plans to wear shoes in a photo shoot the photographer doesn't have to try to figure out who designed the shoes and then hunt them down to ask for permission.

The opposite would be this. If I wanted to sell copies of a famous Marilyn Monroe photo, then I would be infringing on the rights of the owner of the image.

What if I take a photo of my girlfriend and she happens to be wearing earrings that show in the photo? Would it be reasonable for anyone to argue that the creator of the earrings had some rights of my photo, or even worse, that it was somehow my responsibility to figure out who owned the rights to the earring and then hunt them down to ask permission?

What if the creator of the earrings saw my photo of my girlfriend and wanted to use it in his catalog? He would need to ask me since I hold the rights to the photo. It doesn't matter that his earrings happened to be in the photo.

When you take a photo that includes the duck then you own rights to your photo and who ever made the duck retains rights to the duck.

If you were to make copies of the duck and sell them then that would be infringing on the duck makers copyright, and if who ever made the duck took your photo that included the duck and tried to sell copies of the photo then the duck maker would be infringing on your friends copyright.

You could still get sued, just like the earring maker could sue me, some people sue over nothing, but in the case of a law suit "fair use" would be a valid defense. It would be very difficult for the duck maker to claim they had damages because of this image in the book.

[Burrowowl]

Yes, your theory seems logic, except that in this case the duck IS the story, and the maker might object to being part of the story.
Unless you are a lawyer in this field, they need some sound advice.


That about sums up the primary concern. Having a G.I. Joe doll in the background of a scene is one thing. Making a book about Cobra Commander is another entirely.

--
John Fitzgerald

[gypsey]

Hey Guys...let's cut to the chase! The US gov has a Very Clear copyright law delineation on its website of that name. All of this discussion is silly, the law is clear!



Yes, intellectual property law is pretty tricky, but I'm sure your friend is fine, however, it doesn't matter that you think the duck is "generic" or if it is "made in China". Here are a few examples that may make it more clear.

If a Playboy model plans to wear shoes in a photo shoot the photographer doesn't have to try to figure out who designed the shoes and then hunt them down to ask for permission.

The opposite would be this. If I wanted to sell copies of a famous Marilyn Monroe photo, then I would be infringing on the rights of the owner of the image.

What if I take a photo of my girlfriend and she happens to be wearing earrings that show in the photo? Would it be reasonable for anyone to argue that the creator of the earrings had some rights of my photo, or even worse, that it was somehow my responsibility to figure out who owned the rights to the earring and then hunt them down to ask permission?

What if the creator of the earrings saw my photo of my girlfriend and wanted to use it in his catalog? He would need to ask me since I hold the rights to the photo. It doesn't matter that his earrings happened to be in the photo.

When you take a photo that includes the duck then you own rights to your photo and who ever made the duck retains rights to the duck.

If you were to make copies of the duck and sell them then that would be infringing on the duck makers copyright, and if who ever made the duck took your photo that included the duck and tried to sell copies of the photo then the duck maker would be infringing on your friends copyright.

You could still get sued, just like the earring maker could sue me, some people sue over nothing, but in the case of a law suit "fair use" would be a valid defense. It would be very difficult for the duck maker to claim they had damages because of this image in the book.

[Lenny]

Hey Guys...let's cut to the chase! The US gov has a Very Clear copyright law delineation on its website of that name. All of this discussion is silly, the law is clear!

I completely agree. Now we can get rid of all the lawyers, eh?

[jborges3]

Thanks Gypsey, but would you care to share a direct link to the "very clear" section of the website you are talking about?

I didn't see much on that website that I thought was very clear, please share a link to what it is that you saw there.


Hey Guys...let's cut to the chase! The US gov has a Very Clear copyright law delineation on its website of that name. All of this discussion is silly, the law is clear!