Barbie photos not illegal

[stopbath]

A judge has ruled that a photographer Tom Forsythe did have legal rights to use Barbie as a model in his photographs. Mattel objected to his use and tryed to stop him. Mattel must pay 1.8 million... :)
http://www.wnbc.com/money/3474044/detail.html

Sadly, the 1.8 million is recovery of his legal fees.... That's a LOT of legal fees to rack up. :shock: :cry:

[PacAce]

A judge has ruled that a photographer Tom Forsythe did have legal rights to use Barbie as a model in his photographs. Mattel objected to his use and tryed to stop him. Mattel must pay 1.8 million... :)
http://www.wnbc.com/money/3474044/detail.html

Sadly, the 1.8 million is recovery of his legal fees.... That's a LOT of legal fees to rack up. :shock: :cry:

And you thought photography was an expensive hobby because of the L lenses. 8) :wink:

[IndyJeff]

This sets a bad precedent and just because the photographer claims it is art. Seems like Matel should be able to protect it's property from being used. Then again, the appeal was upheld by the 9th Circuit Court of Appeals which makes me wonder if it goes before the Supreme Court it won't be overturned. The 9th CC of A is about the wackiest bunch of men in black robes ever assembled.

[CyberDyneSystems]

Good..

this is good news... //sighs with relief...

Now I can re-open my massive 386 image Barbie photogallery for my adoring public!

[CoolToolGuy]

This sets a bad precedent and just because the photographer claims it is art. Seems like Matel should be able to protect it's property from being used. Then again, the appeal was upheld by the 9th Circuit Court of Appeals which makes me wonder if it goes before the Supreme Court it won't be overturned. The 9th CC of A is about the wackiest bunch of men in black robes ever assembled.

What is the property that they should be able to protect? If anything, it is the name. Otherwise, anyone who wanted to use a doll (as a prop) in a manner that might be embarrassing to Mattel (or other rights-holder) would have to manufacture their own. Take that out to other products and it gets to be real messy.

Have Fun,

[CyberDyneSystems]

Do movies need permeission for all the cars seen on the highways?

What about all the firearms?

I can't imagine how many images we have all taken that contain some form of "product" manufactured by somone... somewhere...

The line being drawn is what? It's bull... Can Canon sue you for all the pics you took of your lens collention.

It should not need to be art to be let alone.

[SoCal69]

Do movies need permeission for all the cars seen on the highways?

What about all the firearms?

I can't imagine how many images we have all taken that contain some form of "product" manufactured by somone... somewhere...

The line being drawn is what? It's bull... Can Canon sue you for all the pics you took of your lens collention.

It should not need to be art to be let alone.

Actually, if you notice, many times in the movies, a product doesn't have a brand name on it. Look closely at scenes where papparazzi and pro photographers are snapping away... no name on the camera!

Yes, if the product is identifiable, you must have permission. In fact, prominent placement of brand name products in movies and TV is big business.

I'm not familiar with the barbie case, maybe someone can enlighten me. How was the doll used? If the images parodied the product, which I am assuming might have been the case, then use of the doll would be permissible.

[IndyJeff]

This sets a bad precedent and just because the photographer claims it is art. Seems like Matel should be able to protect it's property from being used. Then again, the appeal was upheld by the 9th Circuit Court of Appeals which makes me wonder if it goes before the Supreme Court it won't be overturned. The 9th CC of A is about the wackiest bunch of men in black robes ever assembled.

What is the property that they should be able to protect? If anything, it is the name. Otherwise, anyone who wanted to use a doll (as a prop) in a manner that might be embarrassing to Mattel (or other rights-holder) would have to manufacture their own. Take that out to other products and it gets to be real messy.

Have Fun,

The property they wanted to protect was the doll. It is a PATENTED item and the name Barbie is trademarked. The "artist" used someone elses property without permission and for profit without compensating the rightful owner. The parody defense is weak, IMHO and I do believe it may be overturned.

And yes, product placement is a BIG business in Hollywood. I used to know a guy from another message board that did that. When you see an actor drinking a cup of coffee from Starbucks, it isn't because the director likes Starbucks and it is on his way in everyday. Corporations pay mucho dinaro to get there products prominately placed in movies and on TV.


p.s. CDS did you ever see the movie Michael with John Travolta? Remember at the end the Sears Tower and it's prominence in that scene? Permission was granted for that scene. I can't remember where I read that but I did and it was an article about property releases for movies.

[CoolToolGuy]

This sets a bad precedent and just because the photographer claims it is art. Seems like Matel should be able to protect it's property from being used. Then again, the appeal was upheld by the 9th Circuit Court of Appeals which makes me wonder if it goes before the Supreme Court it won't be overturned. The 9th CC of A is about the wackiest bunch of men in black robes ever assembled.

What is the property that they should be able to protect? If anything, it is the name. Otherwise, anyone who wanted to use a doll (as a prop) in a manner that might be embarrassing to Mattel (or other rights-holder) would have to manufacture their own. Take that out to other products and it gets to be real messy.

Have Fun,

The property they wanted to protect was the doll. It is a PATENTED item and the name Barbie is trademarked. The "artist" used someone elses property without permission and for profit without compensating the rightful owner. The parody defense is weak, IMHO and I do believe it may be overturned.

And yes, product placement is a BIG business in Hollywood. I used to know a guy from another message board that did that. When you see an actor drinking a cup of coffee from Starbucks, it isn't because the director likes Starbucks and it is on his way in everyday. Corporations pay mucho dinaro to get there products prominately placed in movies and on TV.


p.s. CDS did you ever see the movie Michael with John Travolta? Remember at the end the Sears Tower and it's prominence in that scene? Permission was granted for that scene. I can't remember where I read that but I did and it was an article about property releases for movies.

If the artist was manufacturing dolls, the patent would come into play. I may be wrong, but I think he was using dolls made by Mattel.

Have Fun,

[IndyJeff]

If the artist was manufacturing dolls, the patent would come into play. I may be wrong, but I think he was using dolls made by Mattel.

No, your not wrong. He was USING dolls made by Mattel. That is someone elses property by law and the product is sold for private use. That is why Mattel patented the doll and trademarked the name, to protect their property from being expoilted without their permission. When he began making pictures featuring the Barbie doll it became a public performance, so to speak, using the doll.
The real hang up here is the parody part. By law you can use someone elses property for parody. This will be interesting if Mattel decides to appeal.

[Andy_T]

He was USING dolls made by Mattel. That is someone elses property by law and the product is sold for private use. That is why Mattel patented the doll and trademarked the name, to protect their property from being expoilted without their permission.

You are losing me here ... I would assume that the dolls are the property of the guy who bought them in a toy shop. I've never seen the writing on a toy box that the manufacturer grants you the non-exclusive use to privately play with the doll. I've not seen the remark in a car sales contract that the manufacturer forbids you to rent the car to other people. I've seen lots of similar writings on software packages and DVD's that I suppose are explicitely covered by corresponding laws.

But then, I am not a lawyer and do not know what a 'copyright' covers, as far as a finished product is concerned.

He was not using the Mattel trademark, he was not using the design of Barbie to manufacture dolls of his own.

I don't think that anybody who uses a car in a movie has to ask the manufacturer for his consent. He might ask them for money and use a different car (or coffee mug), if they refuse.

I have heard, however, of companies sueing if you used their products in a way that created the impression that the products were unsafe (e.g. the Greenpeace advertisement against nuclear energy that depicted an exploding pressure cooking pot) ... but this - to me - looks more like something like a libel suit.

Anybody has real experience in this matter?

Best regards,
Andy

[CyberDyneSystems]

This is the whole "intellectual property" farce... now being used for Barbie Dolls...


The "concept" of intellectual property is that you never get to buy it or own it.. you just keep paying for it. Software is our obvious example. We can "rent" it from Adobe.. but we can not own it.

So when I buy a wrench at Sears.. I can use it for mecahnical work on my car.. but I do not have permission to do with it as I wish if sears has trademarked the wrench. I can not use it's likeness in a model shoot of bikini clad women working on cars .. etc... I can only use it in the manner with which Sears has agreed to allow me to use it via the terms of use or license agreement....

But wait.. there was no liense agreement for the wrench!

... funny.. there wasn't one for that case of Barbie dolls I bought last month either?

I've agreed to no such limitations on the PROPERTY that I purchased and WAS SOLD to me.

... hmmmm...

[SoCal69]

Well, I'm not sure I agree with the idea that it is a farce. The intellectual property that we are dealing with here is not a patent, but copyright laws. Product manufacturers and others take the time and effort to create something, whether a doll, a music composition or even software. Their effort should be protected. No one should be able to use a product which is readily identifiable to a particular person or company and use it for profit without their consent.

The same thing applies with photographs... something we are all too familiar with here. You would be the first one to scream foul if someone took your image without your consent and incorporated it into another product in order to turn a profit.

Yes, you bought the doll, and you can use it in any way you like for personal use... you can mutilate it, destroy it, photograph it (for personal use), etc. However, if the product is a substantial part of the image and readily identifiable and you are using it for commercial purposes, you will be liable.

I personally, do not find this troubling at all.

[IndyJeff]

Yeah what ^ he said.

Andy when you buy something like the barbie doll, it is for private use.

Here is an example:

Lets say you buy a CD of Music by the group ABC Band. You also own a bar so, for the enjoyment and listening pleasure of your patrons you play the CD in the bar sound system. Since you own the CD you can do with it as you please, right? Not hardly, what you have now done is create a public performance of a copyrighted property.
Same with the doll. When the photographer bought the doll he didn't buy it with the intentions of playing with it (private use). He bought it with the intentions of exploiting the dolls image, someone elses property.

[CoolToolGuy]

Jeff,

Well, you guys are starting (but only STARTING, mind you) to sway me. But I have a problem with suing over the the least little thing. Mattel has marketed Barbie in almost every role that THEY want (graduate, beach bimbo, nurse, teacher, yadda, yadda, yadda) for the last 45 years, and they expect that people are only supposed to see 'her' in that light? Good Luck.

Now, I have two daughters who grew up on Barbie, and if I had saved what I spent on Barbie I probably could afford a 1Ds or two and a 600mm prime. They loved it, and I'm happy for them. But even they realize that Barbie is not a realistic role model. At some point Barbie becomes merged into the culture just like Kleenex, Aspirin, and Coke, all of which are or were trademarked names.

So how does a photographer survive without taking images of patented/trademarked/copyrighted subjects? If I take a picture of my daughter that shows her Beetle in an unflattering way will I have to worry about being sued by Volkswagen? If I take an image of one of my golf clubs wrapped around a tree will I be sued by Callaway? Since Mattel sells Barbie with outfits for ALMOST all walks of life, why can't someone fill in the gaps?

Have Fun,

[IndyJeff]

Ok Rick look at it this way. Let's say that Barbie is a real person. Can the photographer still take her picture and use it in anyway he sees fit, without her permission? No of course not.
Now Barbie of course isn't alive and is unable to speak so Mattel speaks for her. Mattel acting on her behalf says, don't wrap me in a taco shell and take my picture. It is unflattering and damaging to my image. Altho I don't think the unflattering issue is what Mattel objects to, it is using the doll without permission for commercial purposes and hiding under the parody umbrella for protection from the law.

Can you do the same as this photographer did using photoshop with let's say Jennifer Anniston's image? You could cut off her head and place it on the doll body inside the taco. Of course not, now what is different about Jennifer Anniston and Barbie? Well besides being alive, not much. Jennifer Anniston is Incorporated and Barbie is part of a corporation property, therefore is Jennifer Anniston part of a corporation's party?


Note: I am not sure Anniston is Inc., I just picked her name of out thin air. A lot of Hollywood stars are tho. They own nothing, everything is the Corp. property and a tax deduction. That's why they have no problem with people who make millions being taxed at higher rates, their corps make millions and they just write paychecks for what they need to get by. The corp pays for everything else.

[Andy_T]

However,

from what I remember (I might be wrong) is that you can use photographs of Jennifer Aniston or George Bush for commercial purposes even without getting a model release from them ... because they are 'public persons'.

Best regards,
Andy

[CoolToolGuy]

Jeff,

Just before I install software, I have to agree to abide by the license. I have never read all of that goop, and I don't think many people do. I click 'yes' and go on. I don't see any such disclosure or agreement on a Barbie box, and I am purchasing the article. I can use it as I see fit. If I buy a Craftsman screwdriver and want to use it as a pry bar, will Sears sue me? I can understand not allowing me to sue Sears if I hurt myself while using it as a prybar, but I am still having trouble getting my arms around this. If I take an image of a messy house, will Mattel sue me if there are Barbies included that are not dressed properly? Where is the line?

Have Fun,

[IndyJeff]

However,

from what I remember (I might be wrong) is that you can use photographs of Jennifer Aniston or George Bush for commercial purposes even without getting a model release from them ... because they are 'public persons'.

Best regards,
Andy

Now I may be wrong on this but, I don't think you can. There was a case not long ago where a photographer used the images of several pro golfers, Tiger Woods among them, in a collage to depict pro golf. The judge ruled that the photographer was conveying an idea in his art work not using anyone of their images specifically in a commercial venture for monetary gain.
Andy you think you could take a celebrities picture, add it to an ad and have it placed in the Yellow Pages or on a billboard announcing "George Bush knows good photograhy and when he wants his picture taken he calls Andy's Photos". How long before you get a lawsuit filed against you?

I think what you may be thinking of is the fact that because they are public figures you don't have to have permission to photograph them. Use them commercially and it is a whole new ballgame. Everyone, public figure or not, has the right to his/her own image and it's use commercially.

[Penguin_101_1]

Do movies need permeission for all the cars seen on the highways?

What about all the firearms?

I can't imagine how many images we have all taken that contain some form of "product" manufactured by somone... somewhere...

The line being drawn is what? It's bull... Can Canon sue you for all the pics you took of your lens collention.

It should not need to be art to be let alone.

Actually, if you notice, many times in the movies, a product doesn't have a brand name on it. Look closely at scenes where papparazzi and pro photographers are snapping away... no name on the camera!

Yes, if the product is identifiable, you must have permission. In fact, prominent placement of brand name products in movies and TV is big business.

I'm not familiar with the barbie case, maybe someone can enlighten me. How was the doll used? If the images parodied the product, which I am assuming might have been the case, then use of the doll would be permissible.

If you look on tv the computers have no names and they usually change the apple to a banana or another fruit.

[Andy_T]

Andy you think you could take a celebrities picture, add it to an ad and have it placed in the Yellow Pages or on a billboard announcing "George Bush knows good photograhy and when he wants his picture taken he calls Andy's Photos". How long before you get a lawsuit filed against you?



Hehe, what about 'If George Bush knew how good my photos are, he'd call me' :lol:

I guess the term 'commercial use' has a wide range.

You certainly 'commercially use' a photo if you photograph a celebrity and sell it to a magazine for money. However, I haven't yet seen paparrazi asking for model releases.

Best regards,
Andy

[IndyJeff]

Ahhhh but how wrong you are Andrew, my good man. A magazine is an editorial use and no release is required with editorial use.

[SoCal69]

At some point Barbie becomes merged into the culture just like Kleenex, Aspirin, and Coke, all of which are or were trademarked names.

You are getting trademarks and copyrights confused. Trademarks are simply words or names. You accurately provide trademarked names, except for "Aspirin" which lost its trademark status by becoming a generically used term by the public referring to similar products. I don't know if you remember Xerox's big ad campaign some time ago trying to remind the public not to use the term "Xerox" to refer to photocopying in general... this was their attempt to protect their trademarked name. Similarly, the name "Barbie" is also trademarked, but trademark protection extends to the use of the word, not the character/doll. However, we are not dealing with a trademark here but a copyright. The protection extends to the Barbie character itself.

With respect to commercial use of images relating to celebrities, it is not permissible except for editorial or informational use (i.e. the tabloids). You cannot take an image of any person and use it for commercial purposes without their consent. The law does provide some more leniency when images of celebrities and elected officials are involved because they are in the public eye, but this usually relates to things like invasion of privacy and libel/slander. In the end, every person has the right to control how and in what light their images are used.

Back to photographing copyrighted products. Yes, you can use copyrighted material in a photo without permission, to a degree, and still use it in commerce. However, You need to look at the facts of the particular circumstance. First, is the product the significant subject matter of the photo? By way of example, a portrait of a child holding a Barbie could easily be saleable without Mattel's consent (model release issues for the child aside) because Barbie is not really the subject; any other doll would have sufficed without any significant change in the impact of the image. I don't know about the photos involved in this case, but from what I gather, the fact that it is a Barbie doll, and not some other doll, which makes the images as significant as they are. In the case of a photo of you wrapping your golf clubs around a tree, would the image have the same impact if it was another brand of club?

Now all of this should be tempered with the understanding that there are many gray areas which depend on the facts and on how a judge or jury subjectively decides the case based on existing law (which are usually drafted in vague and flexible terms). There are also exceptions, including parody of a copyrighted material, which are permitted (a good example would be all the Weird Al Yankovic songs, which are parodies of copyrighted material).

Keep in mind what we are talking about here is using someone else's copyrighted material for commerce. There is nothing stopping you from dressing Barbie as a hooker or Ken as a transvestite and photographing them (whatever floats your boat) for personal use. However, once you try to put it into the stream of commerce, check your mailbox for the cease and desist letter.

Please don't confuce Copyright, Trademark and Patent... they are three entirely different things. In this case, Mattel has a trademark on the name "Barbie," so you won't be able to use that name when you market your own doll with the same name. Copyright protection is extended to the image and character which Mattel created and named Barbie. A patent usually refers to a process of production or manufacture, which really does not come into play here.

I hope this clears up some of the confusion!

[Andy_T]

Ahhhh but how wrong you are Andrew, my good man. A magazine is an editorial use and no release is required with editorial use.

Then I stand corrected ... but still confuced, nevertheless :lol:

I think this reminds me why I didn't want to study law :roll:

Best regards,
Andy