Publishing photos of copyrighted item

[keri]

I am putting together a children's book with photographs I have taken, and am looking for additional photos to use.

One of the photos I took was of a miniature "sock monkey" toy and I would actually like to create some additional photos with this toy for use in my book. Unfortunately, the sock monkey toy I have is patented by the manufacturer.

I intend to ask them for permission to use the images in my book, but they could certainly decline my request.

What I am wondering is that, if they do decline my use of their monkey in my photographs, can I legally make my own mini sock monkey toy to photograph? I made sock monkeys that looked identical to this one (only bigger) as a kid, so this company clearly didn't create the sock monkey. I see many different companies selling patterns for sock monkeys, selling sock monkeys they've sewn, etc. It seems like the concept of the sock monkey (since they all look alike) is public domain. I don't know what they could possibly patent, other than their "brand" of sock monkey. Theirs is the only miniature sock monkey I've seen in stores, but it is still a smaller carbon copy of the large monkeys that have been around for years.

I know this is a goofy question, but I am curious what your thoughts are on the matter.

 

[Tracey]

Actually, a patent does not stop you from photographing an invention. A patent gives the patent owner the right to stop others from manufacturing, selling, or importing the patented invention. Photographing it and publishing the photo is just fine under patent law.

However, you need to check whether the puppet is copyrighted. Photographing the puppet would probably fall under the heading of 'fair use' in copyright law, especially if you photograph it an some 'artistic' fashion.



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This is not legal advice and you are not my client. Double check everything with your own attorney and your state's laws.

 

[I AM ALWAYS LIABLE]

Copyright in a Nutshell
What is it?
As a concept, copyright is very simple: it occurs when you put words on paper, transmit words via email, record your own music, write computer software, or create images. Once you do any of these, your work is protected by copyright. If someone else wants to use it, they must get permission from you. If they use the material without your permission - it's copyright infringement. It's that simple.
A more formal way of presenting this concept is to say that copyrighted material includes almost all forms of original expression fixed in a tangible medium. Once it is fixed in this tangible medium (you cannot copyright a thought or daydream) it enjoys legal protections even if no formal copyright notice is filed or attached.

Copyright infringement is any reproduction, display or distribution of copyrighted (protected) material without permission of the copyright owner.


Am I always required to seek permission?
Yes, UNLESS the intended use of the protected material meets the four criteria collectively known as Fair Use.
What is Fair Use?
Fair Use is a set of four guidelines used to determine if your use of the work will diminish its value and adversely affect the owner of the work's copyright. The four guidelines are:

What is the nature of the use?
What is the nature of the work to be used?
How much of the work will be used?
What effect would the intended use have on the market value of the work?
1. Are you going to sell the work and deprive the copyright owner of the revenue? Are you going to give the work away for free and undercut its market value? Are you going to use a portion of the work as an example or to support an argument in a scholarly paper, or in a review?
The first two examples are obviously not Fair Use and would constitute copyright infringement.

2. Is the work a book, an image, a musical recording?

The nature of the work has bearing on the third point, how much of the work will be used. If you are dealing with a book and you want to quote several paragraphs in a paper or review, that would probably be considered Fair Use. If the work was a one panel comic, it would be very difficult to use a portion of the work in any meaningful way. It would depend on the other three criteria.

3. Reproducing an entire image without the copyright owner's permission on your web page would be considered infringement. Reproducing the same image in its entirety as a slide for a presentation during class would be considered Fair Use. Reproducing a detail of an image might be considered Fair Use, depending on the other circumstances.

4. Putting that same image on a CD and distributing it to your class would be infringement. The other three criteria come into play. Whereas the example of using the image as a slide in class is Fair Use, reproducing the image and actually distributing it in a tangible form that allows for further reproduction (in digital form) would be infringement.

A Special Note Concerning MP3s
Creating a compilation of songs from CDs and converting them to MP3 files does not in and of itself constitute infringement. Infringement does occur when you facilitate the distribution of those files because of the negative impact you have on the market value of the work and the harm done to the copyright owners (who are often the authors of the work).


Strict Liability
Copyright is a strict liability offense. Under the federal copyright statutes, neither intent nor knowledge of infringement is necessary to hold a person liable. In practical terms that means that you cannot plead ignorance to escape liability. And the liability can be serious. Sound recording copyright infringements can be punishable by up to five years in prison and $250,000 in fines.



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