If I purchased a toy that has no copyright notice on the toy or package and take photographs of this toy and sell the photos for profit am I infringing on copyright, trademark or patent?

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If I purchased a toy that has no copyright notice on the toy or package and take photographs of this toy and sell the photos for profit am I infringing on copyright, trademark or patent?

Does the copyright notice need to be prominently displayed on a toy in order for it to be enforced? It is manufactured in China and imported by a distribution company in the U.S. and sold at the 99 cents store.

Asked on September 21, 2015 under Business Law, California

Answers:

SJZ, Member, New York Bar / FreeAdvice Contributing Attorney

Answered 6 years ago | Contributor

Copyright is enforceable even without a notice if someone has copyright, they have it, and it is a violation to use, adapt, create a new work, etc. from something copyrighted. Trademark you generally need to assert that is, provide notice of, so if there is no "TM" or R-in-a-circle, they might not be able to assert or enforce copyright...though that does not mean that they cannot try, and force you to respond to a cease-and-desist letter or lawsuit.
Obviously, as a practical matter, much depends on whethet they notice what you are doing and care enough to take action. Legally, though, what you propose is risky, since it may well be a violation of copyright and could expose you to litigation.


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