Fair Use in regards to Toy Photography

When you photograph someone else’s intellectual property, and by this I’m referring to licensed toys, the issue of fair use is not an abstract concept. As Paul pointed out yesterday,  we toy photographers work within an admittedly grey area. It’s hard to know where the line is drawn between the artist and Big Inc. when it comes to the idea of ‘fair use’.

If you’re one of the many toy photographers who would like to be able to pursue some monetary gain from you’re amazing photos, this issue will eventually become problematic for you. I think most of us are pretty realistic that selling toy photography is not some get rich quick scheme, so the idea that we have to fight over a few dollars, pounds, or euros with Big Inc. is discouraging. But even knowing that this is the case, the idea of making a little extra money on the side to help offset the inevitable toy purchases we’re always making is appealing.

I’ve seen many toy photographers list their work on Redbubble, Deviant Art and Society6 as an easy way to make their images available for sale. While this is admittedly a convenient way to sell your work because all you do is upload your photos, set your prices and sit back and watch the money flow in (OK maybe it’s only a trickle), yet it also makes you an easy target for the intellectual property lawyers and the bots who work for them. I only have to look to my friend Paul (aka Bricksailboat) and his multiple take down notices, to see how there is no rhyme or reason to who’s images are removed from these third party marketplaces and who’s aren’t.

Normally I would say, “Gee you asked for it. You’re knowingly playing  with someone else’s intellectual property. Of course you’re putting your self in the cross hairs of the corporate law team.” But what happens when the majority of your favorite toy line (I’m looking at you LEGO) is made up of sets based on the intellectual property from other corporations (i.e. Star Wars, Disney Princess, TMNT, Back to the Future, DC Super Heroes, Scooby Doo, The Simpsons, Ferrari, etc…) or they’ve licensed their own original property to another corporate entity; for example, Ninjago licensed to Warner Brothers. It doesn’t seem like there is much left that doesn’t come under some lawyers watchful eye.

Who can fight a ‘take down’ letter from a corporate entity delivered by another corporate entity? The layer of lawyers, who are ‘simply doing their job’, is so thick it’s impenetrable, overwhelming and far too costly to fight for the independent artist. In fact, I’m pretty sure that’s what they’re counting on.

As in independent artist, I’m nearly powerless because I’m working alone. And whats worse, I’m not even a part of the conversation for artistic rights.

But life gets even more twisted for toy photographers when the toy companies reach out to us and use us to sell their products. If you’ve been paying attention, I’m sure you’ve seen Hasbro utilize a few prominent toy photographers to promote their toys. ThreeA is another toy company that has often used great toy photography created by independent artists in their social media campaigns. Maybe these artists are well compensated, but my instincts tell me they probably aren’t; flattery and a few free toys will get a corporate marketing team father than you can imagine.

I certainly don’t begrudge any artist the opportunities afforded them working with a large corporation, we certainly jumped at the chance when it was offered to us to align ourselves with The LEGO Group. What I object to is that Big Inc holds all the cards in the current paradigm. How is each individual artist going to be able to afford a lawyer to tell Big Inc, that they can stuff it when he next take down notice arrives in your e-mail in-box?

Much of the Fair Play and ownership rights issue revolves around whether the artistic work is Transformative. I do believe that in many cases that as artist we do take those little bits of plastic made in China  and create transformative work; and by doing so we own it.

I’m pretty sure lego never intended their mini figures to be liberated from their plastic universe like they are in my world. Or that Ninjas would take over a sailboat and then travel by camel across the United States like they did in the world created by Bricksailboat.  Are Storm Troopers’ wearing Barbie style clothes and kayaking in Scotland what George Lucas envisioned when he created them in 1977?  If we have to create work that is artistically transformative to own it, where is that line? How much transformation is enough? Of course if you’re recreating each Star Wars movie frame by frame using LEGO, I think we can all agree that would not be considered transformative.

Right now we’re independent artists, individually going up against Big Inc, or more likely being steam rolled by an army of anonymous corporate lawyers. But what if we banded together? What if we created or own sales platform that featured the best of the best in toy photography? Would a group of like minded photographers selling their work on their own independent platform be small enough to fly under the radar, but big enough to be noticed?

My personal  dream is to make this happen so that when the lawyers come calling (and I have no doubt that they will come calling ) I can say, “Hello, so nice to hear from you, let me introduce you to my own lawyer.”

Up to now I’ve made a conscious decision to only sell my work through the Bryan Ohno Gallery. I may be missing out on some amazing pay out by not going the mass produced route, but this way I control the conversation and more importantly I control the money. I also know that if the lawyers come calling, Bryan has my back: you can’t pay for that type of security in a world owned by Big Inc. This security is important to me and I think as artists we need to stand up for ourselves and demand this on all platforms. We also need to stop giving away our creativity for the occasional cash payout and a few shiny pieces of plastic.

I have no idea how to force this conversation and ultimately its clarification. Since our relationship with our own corporate overlord is in its infancy, by pushing this issue I certainly run the risk of a prematurely ending of our partnership. But if we do push a few buttons, at  least we would have an answer to the million dollar question of what constitutes fair use in the world of toy photography. Personally, I think we need to be asking this questions as loud as we can, because I’m afraid that if we don’t stand up for ourselves Big Inc is going to own everything, including us.

~ Shelly

Comments, opinions, shared experiences, criticisms welcome.

Even Boba can't outrun the corporate intellectual property lawyers.
Even Boba can’t outrun the corporate intellectual property lawyers.

19 Replies to “Fair Use in regards to Toy Photography”

  1. What great timing for this.Just today I received an email telling me my image of a Lego stormtrooper was removed. Sigh …there are still thousands of images tagged with Lego and hundreds tagged stormtrooper. I totally agree that artists need to unite.

    1. I’m sorry that you received a removal notice today. That is rather ironic. :/

      Yes, we need to unite and stop letting big business make money off of us when we are more than capable of doing it for ourselves.

      Personally, I’m tired of being afraid of big business. If we created our own site and we got a notice, at least we could start a conversation. Right now, we’re powerless, which is frustrating.

  2. I’ve struggled with this topic quite a bit. “Transformative” is a term that needs detailed definition in the area of creative license before I feel like exposing myself to take down notifications and even potential litigation.
    I was developing a book of my writing and dinosaur photographs for a while, but ran into roadblocks when a brand I was talking with lost interest and backed out. Thinking that my work wasn’t “transformative” enough from a legal perspective, I closed the project down for the time being until I can partner with a brand or alter the toys enough to feel more legally protected.
    I’d be very interested in further discussion about a community approach to this topic. (A must discussion for our upcoming meet-up!) We’d all benefit from at least knowing more about it, if not eventually profiting from it too. I wonder if any of us toy photographers are secretly lawyers by day?

    1. Jon why do you feel you need to partner with a brand? You can always partner with us here at SiP. I’ve always felt we should band together and support each others projects. We don’t need a corporate brand to make what we want to create happen.

      Personally I think you book is transformative enough when you add your own stories and an educational component. Im not saying a large publisher would pick it up, but you might be able to get one of the smaller imprints to run with it. Especially with the educational element, it would be likely candidate for libraries and school.

      I don’t think we are thinking very punk or DIY if we are waiting to get permission from some brand. We’re better than that and we need to have faith hat we can make this happen.

      You underestimate me, I have two lawyers, possibly three, already lined up.

  3. Having sold the odd print or two at local galleries I too am scared you what might happen next. Most of the money I’ve made is spent on buying Lego and other toys or to just fund my hobby. Some sort of clarification would surely help to put many a mind at rest.

  4. Never been thinking about selling but this sounds scary, and where will it end? Just hoping we won’t be stoped from posting images. This is just me overthinking. But i would be great to hear the outcome of this.

    1. Stefan, I don’t thin they will stop us from posting images. It is only when you start making ‘big’ money does it become a problem. For most of us the amount of money at stake is so small, we aren’t worth anyones attention. Their approach right now feels more like random harassment to keep everyone a little scared. But really, what can they do except ask you to take the work down?

      1. The contradictions of what is considered ‘fair use’ are fascinating.

        Permissible:
        • Taking a photo and selling it to a magazine for publication.
        • Taking a photo and using it on your own ad-supported website.

        Prohibited:
        • Taking a photo and selling it to a consumer.

        It’s even more vexing when you consider that the photo may be paired with an unflattering review or exposé, and that’s perfectly fine.

        That said, a company unleashes its lawyers not because it is threatened by a handful of photographers (or fan artists) selling flattering imagery of its copyrighted characters. Rather, it does it to draw a line in the sand and reassert its ownership of the property.

        Things have a way of escalating. The company gives an inch, and people take a mile. Shelly selling transformative toy photography inspires Jerry to merchandise his own toy photography, but Jerry dreams big. Jerry decides to produce calendars and sell them in card shops across the state. Jerry is a real threat to the company, Shelly is not, but how do you penalize one and not the other? It’s a difficult issue.

        That’s why RedBubble and Society6 are big targets – not because of a specific fan artist/photographer, but because collectively, those thousands of artists and photographers pose a threat to the company’s IP.

        1. Chris,

          You bring up so many valid issues in your comment. Yes, it is a very twisted issue and I can see why LEGO doesn’t want to wade into this quagmire and why they take random pot shots to keep everyone on their toes instead.

          This is the question any artist needs to ask themselves when playing in a legally grey area: would the company, who’s IP you’re probably infringing on, make the same product? Would Cambell’s Soup have made a litho of their soup can and sold it? Could the imagery you’re creating be confused by the public with a marketing campaign by that company? I think if you’re creating work that is significantly transformative, and it wouldn’t be confused with a LEGO marketing campaign, you’re probably in the clear legally. But only a test in a courtroom would we really able to put that question to rest. I for one am not willing to risk my entire fiscal future on such an endeavor.

          But I also have to wonder if LEGO really wants to piss off a small, but growing segment of their fan base by taking any of us to court to protect their IP regarding the mini figure? It seems like the last time they denied an artist some lego, it didn’t really work out that well for them. Sure I’m no Ai Wei Wei, but I still think that the negative PR created by LEGO seriously cracking down on a small group of artists would not generate favorable publicity.

          When it comes to protecting a corporations IP it usually comes down to money. I always say, follow the money and really how much money is being made by individuals infringing on the IP of the mini figure? The only people I know who are selling lego photography on sites like RedBubble are making pocket change at best. I’ve said repeatedly that photography is dead as a money making enterprise; that industry was usurped by the digital revolution. If LEGO is interested in protecting its mini figure patent and surrounding IP, I would suggest they take a closer look at third party marketers – there seems to be a lot more money there.

          Personally, I think the frustration felt by the lego photography community comes down to fairness. While this is an outmoded concepts, one more suited to kindergarten, photographers see how the lawyers enforce the IP in a seemingly randomly fashion and it’s frustrating, confusing and ultimately annoying.

          Like I said in my earlier reply to your comment, I’m not sure I care which side of the issue LEGO comes down on. For me, my photography, has always been about something else other than money. I know that as soon as you start combining your passion with money, it changes it. I’m not sure if I’m ready for that. But as the blog master of this site, which acts as a liaison to the Mother Ship that is LEGO, I think it’s an issue that we need to bring up from time to time.

          Thanks for joining in the conversation, you know how much I value your input. You are, as always, the voice of reason and experience. :)

          Shelly

          1. Hi Shelly, Chris,

            Just wanted to say that I thoroughly enjoyed your pondering, pensiveness and related experience about this tender topic. It’s rather incredible to see the vast swath of artistic photography that abounds and the ways that one may have never thought to see characters portrayed.

            I have had some of my photos of MARVEL LEGO properties receive take down notices on some sites (RedBubble for example) but yet other photos there—similar enough in portrayal—go untouched.

            It would be grand if there can exist a happy medium in which an artist can capture a favorite licensed character in a way that is pays homage to the originator/owner while still being very much an original piece of artwork by said artist. It seems that unless there is as sponsored/branded contest, the purveyors of these characters can contest whatever they want to when it comes to selling a print.

          2. Andrew, Thank you for joining in the conversation and relating your own experience. I think that as long as other people act as gate keepers to the buying public (i.e., redouble, deviant art etc.) we will be at the mercy of their lawyers. We need to control the conversation if we want to get anywhere on this one. Lets hope that now that LEGO sees SiP as a “influencer” they will be willing to meet us half way on this issue. Keep the faith and keep doing what you’re doing! :)

  5. A most interesting topic brought up here. Even though I´m not intending on selling any prints at all I´m really interested in these questions and where it´s all going. A tighter group could indeed be very interesting when it comes down to possible obscurities.
    Am absolutely following this conversation…

    1. Hello Stefan! Yes, in a world where the corporate reach keeps getting longer, this becomes the million dollar question. Im pretty sure we will continue to push the boundaries and see where we stand. Hang on!

  6. Because both photography and toys can be expensive hobbies, I’ve recently been thinking myself how I could try to make a little bit of money out of it. While I have doubt whether there is anyone who would want to buy my photos, and while I think selling pictures isn’t really the way to make photography a living anymore, I think it could be worth the try. Still these fair use issues are one of the reasons for holding me back.

    While I doubt that the problem can be solved at the level of toy photography, I think that being able to defend ourselves together would be great. So I can only be supportive with such issues!

    1. I know Im a wet blanket when it comes to selling photography, but I’m a realist. With the sheer volume of photography being created by all levels of experience – the value of a single photograph has fallen to nearly zero. Why do I say that, because I see it around me everyday. I see how hard my friends, who are all professional or semi-professional photographers, struggle to make ends meet. It’s not enough to simply call yourself a photographer anymore and be able to bring in money. What else you have to be or do…that is a matter of personal tastes, but I can assure you it’s a lot of work.

      Since there is no money on selling prints, these take down notices are all the more infuriating. I want to force the likes of LEGO, Marvel, Disney, Warner Bros, et all, to tell us exactly how we negatively impact their bottom line. At this point it is a matter of honor, not money.

      Thank you for your support in all aspects of the blog my friend. We will be revisiting this issue.

  7. This is one reason I stay away from well known, iconic figures. They have too high a profile. Disney characters? Of course, their legal hell hounds are watching!

    The main problem for me, however, is that these figures come with their own stories. And it’s very hard to separate the character from their story. Indeed, that’s one reason we buy them in the first place, to remind us of their story.

    But their inherent story makes them very hard to decontextualize. It’s very difficult to make a new transformative story of your own when the character’s story dominates the image. It’s hard to tell your own story when these iconic characters are so identified with their own their own. I can’t use a Star Wars storm trooper figure, for example, in any other context without dragging in the whole Star Wars universe as a background, whether I intend to or not. That Star Wars figure will always be a Star Wars figure, no matter what I do with it. (Unless you’re telling a Star Wars-like tale, and then how transformative is that?)

    I want a figure that someone couldn’t immediately tell me its name and story. I want, “Oh, it’s an, uh, alien guy,” not “That’s Squid Head from Return of the Jedi.”

    I prefer to use more generic, commonplace figures. Railroad engineers, not superheroes. Farmers, not princes. Even Dollar Store knockoffs, not brand name characters. For one thing, their lawyers are way less likely to sue me, and two, they’re more likely to fit into the story that I want to tell.

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