Physical Toy vs. Clipart

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  • Hello,

    I'd like to make a clipart collection that would be based on an old, still going strong kids toy.

    Take note, this will be electronic vector clipart. Nothing physical.

    The original toy is old and been around probably since the sixties. Recently I was playing around
    in my design program and this idea came about. Another co-worker said it's like such 'n such toy.
    Thats where my idea came up. I did a search for anything similar and came up nought.

    The difference is my product is going to be vector clipart and in no way will it look like the original physical toy.
    I've headed into a totally differnt direction but the concept is the same, only vector clipart.
    heck it may already be done just named something else.

    The next problem is the name of the vector clipart. I'd like to use the same name but I would have to change only four letters for it to work.

    Im not competing against this company because they're not in the direction im headed for.

    I dont expect to make millions because of a small customer base would either buy or redraw what I've done or possibly get pirated and put on the net for download.

    The problem seems to be that both do the same thing in different ways and the names would be relatively close and a likeness is sure to be noticed right off the bat.

    Where do I stand on an issue like this? Would I have Copyright/Trademark issues if I procede? What advice would be best for my adventure.

    Sock it to me, I hope I can take it.

    Thanks all!

  • The first question is - is this toy still protected under copyright and/or trademark? I'm guessing that - since you said it has been around since the 60's - that it is probably protected by copyright and perhaps even trademark, since it sounds like it is still commercially available. Note, however, if this toy was copyrighted in 1922 or earlier and is not currently protected under a live trademark (or patent), it could be in the public domain.

    Assuming this toy is still protected under copyright, the question is whether your rendition is a derivative work, which would be copyright infringement of the copyright owner's exclusive right of adaptation under section 106 of U.S. copyright law. Is your work sufficiently similar so that it could be recognized as an adaptation, or derivative, of the original toy? If so, you would need to get permission before making your derivative work available commercially. [The only exception I can think of is if your derivative work is an intentional parody of the original toy that would fall under section 107 fair use - but your description doesn't sound like you are parodying the original.]

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