A soft toy may be either hand made or mass-produced. In either case, taking photos of it to use in a children’s book is likely to raise copyright issues because the toy will usually be either a craft item in its own right (in the case of hand made toys) or a copy of a hand made original (in the case of mass-produced items). In each case, photographing the toy may mean not only that you you are making a reproduction of the craft item, but also an indirect reproduction of the design drawings and/or design sketches.

The safest approach, therefore, will usually be to get permission - or create your own soft toy starting from scratch so you know that you are on safer ground (provided you do not copy a “substantial part” of a toy in which someone else owns copyright).

Note also that, apart from copyright, this scenario may raise issues under areas of law other than copyright - for example, under trade mark law or “passing off” law. This would be the case if it could be argued that people reading the book are mislead into thinking that the book has a connection with the company that manufactures the toys.

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If you are commissioned, as an individual, to create a training manual, you will own copyright, unless your client is a Federal, State or Territory government or agency, or you reach an agreement to the contrary.

Outside these situations, the client won’t own copyright but will “get what it paid for”. This would generally include the right to be able to use the material for the purposes for which it was commissioned.

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Whether you can take any action depends on your contractual arrangement with the original publisher – in particular whether you have granted your publisher the right to license your work to third parties. If you have not done so, you may have a claim for copyright infringement against the current publisher and against the publisher which authorised the re-publication.

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You will need to get permission if a quote is a “substantial part” of something which is protected by copyright. It may be, however, that some quotes and extracts are not protected by copyright or do not constitute a “substantial part”.

Note that, even if a part is not a “substantial part” for copyright purposes, you may still need to attribute it to the person who wrote it.

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Attributing the author does not negate an obligation to get permission from the copyright owner.

As noted above, you won’t need a copyright clearance if what you are using is less than a “substantial part” of the original work. However, you should generally attribute the creator anyway.

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There is no special exception which allows you to use a work without permission just because it is being used for a non-profit purpose. You may be able to persuade the copyright owner to give permission for a low fee, or no fee, if the use is non-profit, but you’ll still need to get permission.

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