Is it legal to sell photographs of dolls and/or ponies?

[InkyMilk]

I wasn't sure if this belonged in the Dollhouse or somewhere else, but hopefully someone here can help me out. I've been looking into the laws and whatnot for selling fanart and I know that it's pretty strict, but recently I've reached a new question I can't seem to find an answer to. I collect BJDs and am looking to open an online boutique sometime in the next year (well, that's the dream), and my fiance suggested perhaps selling jewelry or postcards with photos of my dolls on them. I'm unsure if this is legal?

On the one hand, they're my dolls, I own them and have customized them to suit my tastes, as are the point of BJDs. On the other hand, I didn't actually sculpt the dolls myself. I feel like this extends to ponies as well. If someone makes a unique custom pony, is that alright to photograph for sale and whatnot? Or is the fact that the pony base still belongs to Hasbro make it a no-no?

[hathorcat]

It can be a bit of a grey area because it depends on the company whose trademarked item you are photographing, it depends on how its represented, it depends on how its sold (advertised as the branded/trademarked item). However in general things like this tend to be beneath the notice or concern of a company the scale of Hasbro, hence why similar unlicensed products already exist.

The customisation of the original item may protect you a little; but in general taking pictures (even though they are your own items and your own photograph) of a trademarked item that is the intellectual property of another company and then charging for those photographs is something, in theory, you could have issues over.

In general trademark infringement is when you are selling something commercially and it is potentially confusing consumers to think they are buying the original item or buying something supported/sponsored by the original company. Photographs should in theory be safe from this because you are not actually selling the item, just a photograph of said item. However, all that being said, there have been cases of companies who have pursued photographers for trademark infringement just because their product has appeared in a photograph which has gone on to be commercially sold. So while its not likely something you will get in trouble for, if you get the wrong company who are will aggressively defend their product yes it is something they could demand be stopped or demand royalties for.

[Griffin]

I agree with everything hathorcat said. It's a tricky question because you need to consider both copyright and trademark laws, and usually each infringement is considered case by case so it's hard to say what exactly counts as an infringement.

I did some Google searches on the subject and bumped into this: http://www.wipo.int/export/sites/www/sme/en/documents/pdf/ip_photography.pdf (accessed 5 Dec 2014). To sum up the maint point of the PDF article, whenever you intend to publish or sell a photo of a work of art or something else that is copyrighted (including goods whose design is copyrighted), you need to obtain permission from the copyright holder. It seems to be slightly easier with trademarks; as far as I know, selling photos and other artworks that include trademarked items (e.g. logos) is legal as long as your work is not confused with official/licenced items. The more artistic and unique your representation is, the less likely it is that it'll be considered trademark infringement. For example, a photo where the item is only a minor part and not the main focus of the image should be safe. However, depending on the item you're photographing, you may still need a permission from the copyright holder, who holds the exclusive right to reproduce the copyrighted item.

As for BJDs, correct me if I'm wrong but I assume the companies are mostly located in Japan and other Asian countries? Their laws may be different, and as far as I know, most Japanese companies are much more lenient when it comes to questions like (commercial) fan art. It may be a good idea to contact the company you bought your doll from and ask if they have an issue with selling photos of the dolls, although I think it's highly unlikely they would come after you -- especially if the doll is customised and photographed in an "artistic" setting. From what I gather, photos like that should be legal in terms of trademark but they may be considered copyright infringements unless you obtain permission from the company.

I hope we did not cause any further confusion!

[ZennaBug]

Hathorcat and Griffin are totally right.  I doubt Hasbro will respond to you at all, but BJD companies are small enough that they might.  A huge part of BJDs is the photography element and I have seen plenty of companies sharing fan photos, so I suspect that they would be ok with you selling the prints as long as you give credit to the company and name the sculpt.  Especially if it generates business for them!  But it's definitely worth emailing them to ask first.  They'll probably appreciate that.