Taking Pictures of Toys Not Enough

In an opinion issued this year on my birthday, January 29, Shrock v. Learning Curve, Judge Milton Shadur ended a photographer's copyright claim for a copyright infringement for images he took for the company's Thomas & Friends toys. The toys were scaled-down train engines, railcars and segments of railway track, along with the occasional tram, lorry or assorted vehicle. The licensing was not clear; instead, the photographer put a "usage restriction" in the invoice, saying that the toy pictures could only be used for two years. When the company kept using them after the time period, the photographer sued.

But, the photographer had one problem: because the images he took were photographs of objects that were themselves copyrighted (i.e., the toys), the images were “derivative works, ” and were not copyrightable by the photographer. The copyright owner has the exclusive right to prepare (or to authorize) derivative works, and a third party seeking to copyright a derivative work must have the permission of the copyright holder of the underlying work.

Photographs have been recognized as copyrightable subject matter since the 1860’s. The copyrightability of a photograph depend on its level of originality, i.e., the “lighting, angle, perspective, and the other ingredients that traditionally apply to that art-form.” The lesson here is that the subject matter cannot be a copryighted work itself; but, the practical lesson is to work these issues out at the licensing stage, not after the work is delivered.