The maker of Superstar: The Karen Carpenter Story got into some copyright trouble for his film, which portrayed the singer’s story with Barbie dolls. IIRC, the reason he got in trouble was because he used The Carpenters songs without permission. But what about using the dolls?
I have an idea for a film that deals with fictional characters. The story itself is in the public domain, so there would be no problem using it. But although I want to play it “straight”, I want the cast to be made up of G.I. Joes, Universal Soldiers, Barbie, Ken, and various nameless other dolls.
Question: What are the copyright issues? Can I use dolls from various makers without getting the manufacturers’ permission to use them?
On the one hand it seems that since these are products created by people who want to protect their investments, I would need permission. On the other hand, a doll is a doll is a doll. It’s not that “Ken” or “Joe” is the point; rather, it’s that a dramatic production is being made with a doll – with no regard to “who” the doll is.
The companies would benefit because I would be buying their products. I would benefit because I don’t have to make my own. I know that I can buy a doll and do anything I like with it. But what if I want to sell a video of a production that happens to use well-known products?
You may run into trademark problems, it’s not a copyright issue.
Trademark issues can be a pain in the butt!
E.g. a lot of sitcoms invent totally bogus brands of products for use on their show (unless they have some kind of agreement to promote a product). If you Google a bit, you might be able to find a site that does into detail about all the fake “brands” of stuff used on the TV show Roseanne some of the fake cereals and stuff are actually pretty funny.
I’d recommend trying to get permission first. The worst they can do is say “no.” If your story isn’t offensive or if you don’t think they’d take issues with it, you might even try to propose some kind of “sponsorship” agreement from them (helps when writing press releases later).
Off the top of my head, I forsee trademark problems. But after the holidays, I could ask our IP lawyer. She be smart! She know lots!
Disclaimer: I am a lawyer but probably not one qualified in your jurustiction. Pay for legal counsel, since the ultimate
answer to your question will depend on an appraisal of
ALL the facts.
Basically, it won’t become a trademark issue unless
you actually use any of the trademarks owned by the
doll manufacturing companies (such as the name
“Barbie” which is a registered trademark of Mattel
Inc.) or names which are confusingly similar. If you
want to avoid a costly and painful trademark
infringement suit I would suggest not using the names
“Barbie” or “Ken” etc but using names you have made up yourself.
Your first impression was correct - it will be a
copyright issue (at the very least) and if you use the
image of a Barbie doll in your movie without the
consent of the copyright holder then you will expose
yourself to a copyright infringement suit. However,
the good news is that, depending on the nature of your
movie, you may have a ‘fair use’ defense. I assume
that the Barbie doll, for example, will not ‘play’
Barbie in the movie but will have a personality/dress
sense of an individual character. For a recent ruling on a similar issue see: http://www.law.com/jsp/article.jsp?id=1036542840163
Phew! Thak Cankerist! I was coming back to thoroughly retract my answer!
In my holiday sleepness, I was thinking of a well known copyright suit (involving the prominent display of a sculpture in Batman Forever) and was mentally mixing it up with a trademark issue a student ran into around the same time period (involving Leggo).
If you are not using the Mattel logo or calling Barbie “Barbie” it’s not a tradmeark violation, but is subject to copyright concerns – as noted above by Cankerist.
You may find some interesting related reading, such as the aforementioned Batman issue, at the Copyright Website. It’s interesting anecdotal reading – I think they also link to related to specific law journal and case law where appliable, but I haven’t visited the site in the past 5 years or so (I did check to make sure it’s still there, so the link is good.)
Ultimately, it depends on whether Mattel wanted to pursue the issue. If they want to consider the film a “deriviative work,” then they can go after you. But that would be pushing things pretty far and would be a hard case to prove, especially since the work was a parody and thus is given more leeway.
I don’t want to get very specific, as this is a public forum and I’d rather someone else didn’t make the film before I did. In any case:
[ul]
[li]Actual doll names will not be used.[/li][li]Character names (which do not include “Barbie”, “Ken”, “Joe”, etc.) will be taken from the public-domain play.[/li][li]All costumes will have to be custom-made, as it’s a period piece.[/li][li]In my mind, filming a well-known story using action figures as “actors” is a literal interpretation of children’s play; but the nature of the story will also add an element of parody of the toy industry because of the juxtaposition of the action and the “actors”.[/li][/ul]
From cankerist’s link:
So given that I have no intention of using the Barbie, et al, name, that there is no intention of causing confusion between the characters and the dolls, and that the purpose of making such a film is artistic expression (with undertones of parody), does it sound like I’m “safe”?
One thing to keep in mind is that there’s a big difference between Mattel being able to win the suit and their being able to make your life miserable by filing unwinable claims. Mattel is extremely litigious in defense of their property whether there’s been actual infringement or not.
Or maybe I’m just bitter that they made one of my favorite bands, The Naked Barbies, change their name to something goofy