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For example what if I take a picture of a Tonka truck, can I use that as an art asset? What if the toy is more generic?

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Do we have a lawyers stack exchange yet? –  Byte56 Feb 22 '13 at 4:05
    
The first rule of IP questions: 'When in doubt, don't'. Is there really no other way of finding art assets for your game (for instance via a free art site like opengameart.org )? –  Steven Stadnicki Feb 22 '13 at 4:36
    
Its not that there is no other way, it would just be handy :) Honestly I was mostly curious. –  Digital Powers Feb 22 '13 at 4:46
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up vote 6 down vote accepted

Usual caveat: I am not a lawyer, this is not legal advice, the relevant laws vary from country to country, city to city, etc.

The basic concepts are these: you own one instance of the truck. You can sell your instance of the truck to someone else (according to the first sale doctrine, which states that the Copyright owner's distribution rights only apply to the first sale of each particular instance of a protected work). You may not create new instances of the truck -- those reproduction rights are still possessed by the copyright owner.

What you're asking here is whether the copyright owner maintains his adaptation rights -- the ability to take one work (a model of a truck) and use it to make a different, related work (a photo of a model of a truck). The law here is a little less settled. We could point at different cases which have ruled in different ways, about whether or not the copyright owner surrenders his adaptation rights at the same time he surrenders his distribution rights, via the first sale doctrine.

WIPO's position on the topic is that one needs explicit approval from the copyright holder in order to adapt a copyrighted work into another form -- that the first sale doctrine only applies to distribution rights, not adaptation rights, but even they acknowledge that the issue is unclear at the current time.

Best advice is to ask a qualified lawyer who practices in your area, who knows the relevant up-to-the-minute case law, and how it's interpreted in your area. This really isn't the sort of thing that you want to get wrong. :)

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Note that copyright isn't the only form of IP protection that may come into play here - if the picture used maintains the distinct shapes of the original Tonka truck designs or includes the Tonka logo, for instance, then it's very possible that trademark and/or trade dress protections will apply. –  Steven Stadnicki Feb 22 '13 at 4:33
    
@StevenStadnicki Very good point. If it's at all possible that a consumer might think that the product was produced by or for Tonka on the basis of such a photo, then trademark laws absolutely come into play as well. And there are far fewer exceptions to trademark laws than to copyright ones. –  Trevor Powell Feb 22 '13 at 4:39
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