Photographers often capture images that include items such as cars, clothing, toys and many other things.  If there is a character or design element that is copyrighted, and the photographer does not have permission, there may be a case for copyright infringement. Therefore, if you are taking photographs of items that may be copyrighted, you should consider whether your images infringe copyright or whether they may be fair use. The four factors that a court will use to determine whether your photograph is a fair use of a copyrighted work are:

1. the purpose and character of the use;
2. the nature of the copyrighted work;
3. the amount and substantiality of the portion used; and
4. the effect of the use upon the potential market.

The four factors are guidelines that courts use to decide fair use on a case-by-case basis, and the only way to know for sure if a particular use is fair is to have it decided in federal court. The best way to predict what a court would decide is to analyze the particular use in light of similar cases.

With regard to toys, the case of Mattel v. Walking Mountain ^[1] is instructive. Photographer Tom Forsythe took photographs of Barbie dolls in various absurd domestic situations as an artistic commentary on commercialism and the objectification of women. Mattel, the owner of the copyright to “the unadorned Superstar Barbie head and parts of the figure including revisions to the hands, feet, neck, shoulder and buttocks,” filed a copyright and trademark infringement lawsuit. The appeals court affirmed the lower court’s finding of fair use, because the photographs were clearly parody, highly transformative, and had no discernible impact on Mattel’s market for derivative uses. The court also denied Mattel’s trademark infringement claim, and a federal judge ordered Mattel to pay Forsythe’s legal fees of $1.8 million.

1. Mattel Inc. v. Walking Mountain Prods., 353 F.3d 792 (9th Cir. 2003).