Are certain items copyrighted?

  • Is it legal to draw and sell prints of trademarked objects, specifically food and drink items such as marshmallow peeps and branded soft drinks without the permission of the company? Adding onto this, if the brand or logo of the item isn't included in the illustration, but the shape is distinct enough to know what confectionery it is will it be allowed?

  • SVS Team SVS OG

    @gary-wilkinson I know nothing on copyright, but I would assume that as long as there is not branding on it you should be ok. But then again I could be wrong on that.

  • @gary-wilkinson
    Hi! There's a lot of gray areas on copyright. Recently there's have been a commotion in the photography world die to artist Richard Prince selling Instagram photos that he literally copies from other accounts, frame it and sells it for 90k. And the judges say in this case that is legal.
    So it can depend on different things like if it has some artistic value, etc. Mostly "fair use"

    Copy and paste from an article, and I'll put the link below:

    "Prince has managed to come out on top of his legal battles because of the complexity of fair use (and also because he's very rich). Fair use in the art world can be a relatively amorphous thing, because much of contemporary art is built on historical or popular imagery. Fair use requires consideration of the difficult-to-define "purpose" and "nature" of the work, the amount of copyrighted material used, and the effect the appropriation might have on the market value of the original work. Courts evaluate fair use on a case-by-case basis, and the boundaries aren't firmly planted."

  • @zombie-rhythm Interesting case, thanks for linking to it. To add a bit more information about the reason I ask, is that one of the projects I am working on has the use of marshmallow peeps in a few scenes (not as a major part of the story, just an object that the character likes among other things, however I haven't noticed real life objects in many children's illustrations and wondered if that was due to trademark issues

  • @gary-wilkinson
    Well, perhaps and most probably, they don't want to give free adds in his work. I create my own brands and sometimes can be related to some specific brand because of that brand become popular culture, you can use that if is a healthy product or avoid that doing yours completely different.
    There are the "educational purposes" reasons too. For example, I like to make my characters with different peculiarities, and one of that is a craving for something. At first my hero I thought to be crazy about candies, but in second thought, sugar is epidemic now. Ten years ago, food companies didn't add sugar in every product. Today yes, and they are only like ten big companies that compete for clients worldwide, so we are all overdose. Is not that sugar is bad, is the dosage, venom is in the dosage always. Since I left sugar, my joints stop hurting, and I have a lot of energy over the full day. Plus now I can taste every food since consuming sugar in every meal dulls our taste too. So I have I personal opinion about sugar and I didn't want to create a hero who eats candy at the first opportunity. So I change it to avocados.

    I hope it helps

    By the way, great work! The father and son Octopus taking a shelfie is crazy!!!

  • Perhaps @davidhohn knows something about this?

  • It is not legal at all to use other brands images without their written permission or a license.
    I remember years ago when I used to be a member of the association of Illustrators and was trying to get commissions, and I got a query from someone who wanted a mascot holding a Starbucks cup. The AOI told me it would be illegal to use the Starbucks logo- the client would get sued. Brands need to be able to control how their images are being used and deserve to be compensated for them as they can generate financial revenue for anyone using them if it attracts customers, and also they don't want their brands to be used for purposes that do not align with their values.

  • SVS Instructor Pro

    @TessaW I do have some experience with this and it lines up with @Christine-Garner info in the post above.

    Years ago I had a theater company that wanted a specific prop from the play (a pair of converse shoes) to be featured on the poster. I knew enough about trademark to know that I should check on it. Using the Volunteer Lawyers for the Arts, I got in touch with an IP attorney here in Portland Oregon. The advice I got from him (for free I should add) is that technically using a logo is illegal BUT that most companies won't pursue litigation if the use does not damage their brand.

    I explained this to the theater company and we all decided that it wasn't strictly necessary to include the logo on the shoes. That said we did decide to still make the shoes look like the classic canvas converse high tops, essentially gambling that Converse wouldn't mind.

    For my part I made sure to get a clause in my contract that clearly stated the choice was made by my client and that I (as the illustrator of the poster) wouldn't be held liable.

    There was never any action taken by Converse.

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