I want to create a series of photos of each of the Candyland characters, transformed via special effects makeup. Fair use?

Asked 12 months ago - Staten Island, NY

The project's working title is Dark Twisted Candy Land, as all of the characters are portrayed as scary or disturbing versions. The word "Candyland" is a registered trademark so I don't intend to use the actual word and I am not sure whether I will specifically label each character with the corresponding Candyland character, or just leave the viewer to infer which is which. Would this use of the character's likenesses be considered fair use? The works will also be for demonstration of abilities and NOT for reproduction. Photos will be made into photobooks for me and the photographer to keep as samples of our work and used on our websites. They will not be sold. I just want to know whether this is considered fair use, or whether it crosses the line of copyright infringement. Thanks

Attorney answers (4)

  1. Paul Karl Siepmann

    Pro

    Contributor Level 18

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    Answered . This question or variations on it, get asked a lot. I won't go into great detail now, but perhaps someone else will. Suffice it to say that "fair use" is an affirmative defense to infringement and must be proved by the party asserting it. There are multiple factors that go into a fair use analyses. Even a successful fair use defense can likely mean you've spent at least tens of thousands of dollars in defending yourself. Your idea, simply put, is very risky. Try doing something completely original and you won't have to be worried about expensive copyright or trademark infringement claims.

    I am not your attorney and any posts/messages or responses to posts/messages can not establish an attorney-client... more
  2. Andrew Endicott Schrafel

    Contributor Level 14

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    Answered . Hasbro aggressively enforces its IP. If hasbro finds out about this expect a C&D letter at a minimum. If you are making these as promotional pictures to display your talent you will have the competing interest of wanting people to admire your work while fearing litigation.

    Fair use is an affirmative defense that comes at the end of litigation. It does not prevent a suit from being filed against you. That suit could cost you several $100,000.

    Or you can try to get a license to make your work...

    Better you display your talent in a way that you can actively promote without the fear of litigation. Get a license or choose different subject matter.

  3. Maurice N Ross

    Pro

    Contributor Level 20

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    Answered . I think you would have a reasonable possibility of convincing a Court that your use of the characters constitutes a parody, which is protected by the fair use doctrine. The problem, however, is that fair use is only a defense to a law suit. There is nothing to prevent you from being sued even if you have a solid fair use defense, and law suits are expensive.

    There is substantial recent case law supporting the right of artists to create "transformative" original works based on famous celebrities or characters, It sounds like you would get the benefit of this case law if you had to fight this in court. I sympathize with artists who wish to engage in projects like this involving truly transformative, creative, uses of existing characters. Trademark law is designed to prevent consumer confusion as to the source of goods and services, and I seriously doubt if your use of the trademarks as described in your question will cause consumer confusion.

    Nonetheless, this remains a rather risky business---not because the law is against you. It is simply a fact of life that a big company such as Hasbro has the resources to make your life miserable in a law suit, and probably don't have the ability to fight back. Note that despite these risks, many artists engage in projects like this every day without getting in trouble. Ultimately, only you can decide whether to take the risk.

  4. Tudor F Capusan

    Contributor Level 8

    Answered . Just like with any other business, you need to consider the value of the project to you versus the risk of litigation. If Hasbro is litigious, then you might reconsider relying on fair use because fair use is an affirmative defense. Because it's an affirmative defense, there's the possibility of having to go through litigation and spend a lot of money just to show that your defense is good. It's a business decision.

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