Legal Question in Intellectual Property in New York

Re: Use of personel photos for commerical gain

Yes and yes.

However, you would need to take a very simple step before you can sue for copyright infringement; that step is to register each photo with the US Copyright Office. $45/photo plus two copies of each photo sent with a form for each photo that you can find on their website, www.copyright.gov. Use separate envelopes for each photo's package (yes, separate checks), though you can put them all in a box and ship them together. Make sure you get some sort of return-mail acknowledgement of receipt.

Once the photos are registered, statutory damages become available to you -- $750 - $30,000 PER PHOTO plus, under certain circumstances, you can treble that amount per photo AND collect reasonable attorneys' fees AND the defendant would have to pay all of the court costs.

Without registration, while copyright attaches at the moment the work is affixed in a tangible medium (which means that copyright already exists on your pictures), the court will likely dismiss the case.

THE INFORMATION PRESENTED HERE IS GENERAL IN NATURE AND IS NOT INTENDED, NOR SHOULD IT BE CONSTRUED, AS LEGAL ADVICE. THIS POSTING DOES NOT CREATE ANY ATTORNEY-CLIENT RELATIONSHIP BETWEEN US. FOR SPECIFIC ADVICE ABOUT YOUR PARTICULAR SITUATION, CONSULT YOUR ATTORNEY.

Re: Use of personel photos for commerical gain

While I basically agree with the answer from Ms. Delain your question is intriguing by its incompleteness. For example, you don't indicate whether you consented to the original marketing campaign's use of the photos (which you own) or your child's likeness (which in NY is protectible). If you did, one would have to inspect the actual use of the photos and the terms of any license you may have agreed upon. If you didn't, then you could, once the copyrights were registered bring a claim against the toy co. but would likely waste your time and money since the toy co. would likely assert it was an innocent infringer if at all. Even if you prevailed, your damages would not be statutory but subject to proof and you'd not necessarily get your attorney fees paid. However, in the future you would be able to sue for statutory infringement. Use of your child's photo for commercial use without consent would continue to be a statutory violation.