Using toy "accessories" in commercial imagery - Is it infringement?

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  • Hello -

    I am a photographer and am starting a greeting card company.

    Is it considered cr infringement to use the "accessory parts" of a toy to create an original image ... for example, using Barbie accessories on a flower or Mr. Potato Head images on a cabbage... this is the closest example I
    can think of ... All images are done in good taste and would not hurt the brand of the originating company. I understand that a "like image" cannot be created and sold for commercial purposes ... I cannot find any
    information on using accessories to create an original image of my own though ... As an artist, maintaining integrity is critical to me.

    Thank you very much!
  • Hello,

    It sounds like the kind of use you describe would be creative and transformative enough to get around issues of copyright infringement. However, that doesn't mean an overzealous lawyer at Mattel won't object to your use and sue you anyway. Mattel has a reputation for being very litigious when it comes to protecting Barbie's virtue/brand.

    I should also point out that if you are planning to associate your images in some way with Mr. Potato Head or Barbie, trademark could be an issue.

    And on the "Entirely Unscientific but perhaps helpful" front, we have this brief history of art featuring Mr. Potato Head:

    Which, since it's two years old and still online, suggests Hasbro might have a sense of humor when it comes to artistic interpretations of their beloved spud.

    I'd be interested to hear a lawyer's take on this. Carrie?
  • Hi Molly -

    Thank you very much for your reply. I appreciate it. I actually spoke with a couple of lawyers ... If I profit off of a creation that is trademarked by someone else, that is basically infringing. I actually called the attorney for Hasbro (Mr. Potato Head) and spoke directly with him about this. "Artistic impressions" can be posted b/c there is no commercial profit off of what someone else has created. The other comment made, which I thought was good, is that I don't necessarily want my artwork/products associated with their product for my sake as an artist (going for originality here!) and, they would see me as treading on their heels if I am profiting off of my work that is associated with their product.

    Sooooo.... I cold probably "get away" with it and fly under the radar, but that just doesn't feel ethical to me. I had owned a company in which I created original designs for children's furniture ... hand painted .... all my work .... Someone took my designs, changed hues a wee bit within the same design, and sold it as her original work to Neiman Marcus. After that experience, I always want to be careful... mega-company or solo-artist.

    Again, thank you for your thoughtful reply. It is very appreciated. :)
  • It sounds like you have made the right decision for you, and, like Molly, I think that trademark might prove more of an issue than copyright here. I would, however, like to make a couple of other comments related to the copyright issues.

    First, in general, I would be leery of taking advice on allowable use from the copyright holders. It may be perfectly valid, and it's certainly a good piece of information to have, but my experience is that copyright holders often take extremely conservative views on what's allowable and what's not, sometimes far beyond what seems warranted by the law. In this case, the type of use and the affect of the market are, indeed, two factors of a fair use analysis, but while they may end up being the deciding factors in a given case, they are not the only consideration. There is a guide to Fair Use analysis on the front page of this site.

    Second, another factor to consider when determining the nature of use is how important the copyrighted piece is to the whole. In your case, it sounds as if the Barbie and Mr. Potato Head pieces would be integral to your artistic vision. This might argue against fair use. However, if they were just laying around as part of the scene, they might be acceptable. For example, there is a local mattress salesman who does his own tv ads. He often wears a Sponge Bob Square Pants tie. However, he doesn't call any attention to it (it's big and bright yellow, so it calls attention to itself, but that's different), and it's not really part of the ad, other than being a tie that he likes. I think that this would be fine. However, if he were using the tie as a prop, as a focus of the ad, then the analysis might change.
  • Hi -

    Thank you for your replies, and apologies for not responding sooner! Getting my company launched has been insanely frenetic at best ...

    I decided to create this card with original graphic art that I designed instead of using pre-made "body parts" created by another company. This way, there is no question whatsoever about copyright of image - With the length of time it has taken to get this company off of the ground, and the fact that ever other image used is original art to this company, the last thing I would want to have to deal with is a cease and desist or a possible infringement case based on one card (especially if this particular card is hugely popular). The body parts are integral in the creation of these little characters .... so, better safe than sorry. That, and the respect for someone else's work, even if it is a mega-corporation. :)

    Again - thank you for all of your thoughtful replies. I am very grateful and appreciative -

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