"law on modifying copyright figures " Topic

When does reworking a copyrighted figure turn it into one's own figure that can be legally casted and marketed?

Suppose I take a figure I bought and converted it in some way for example changing the pose, shaving off equipment or adding green stuff. I then use it to vulcanize a mold and begin casting and selling the new figure as my creation. What's the minimun alteration I can do and have it be legal. I'm not just talking about "getting away" with it because from the new casting others cannot tell or prove I used another person's work. What do the copyright laws say?

If you are capable of doing that much alteration to and existing figure, then why not start from an armature and create your own and then there is no problem.

Ken

The law on that gets murky. At one time a judge ruled that a 10% change was enough to be a new creation. Try that with a GW figure though and you'll be in court til the cows come home. And this ruling applied to "historical" miniatures since uniforms are, well, uniform. I wouldn't even think of doing it with a fantasy figure. Overall your better just doing it all on your own.

What's the minimun alteration I can do and have it be legal.

By and large, the magic number is a myth. Doesn't exist at all. From time to time you will here people say that you can copy XX% of a copyrighted work and be OK – but I have honestly never seen a law that calls out a percentage or a case which was ruled in that regards. Each situation is judged individually based on the merits of that case.

Now I am of the opinion that this is pretty crappy way of trying to work. Grab a bit of wire, make an armature, build up the mini, and be done with it. It isn't too difficult to get started. Even if you could do it legally – stealing (even if you are just stealing a little bit) someone else's work leaves a bad taste in my mouth.

If you want something that is fleshed out more, use an armature that is designed for casting (I think EBob sells some that carry reproduction rights).

My understanding (as flawed as it may be) is that's it's not the differences, but the similarities that count.

I understand further that the % alteration is another Urban Legend. Like most things in law, there are few "hard and fast" rules. It would be decided on a case-by-case basis.

True. There is no hard and fast rule. There are legal tests with which the works are copied. I suppose copying has been found with as little as 10%. Copying has also not been found on works with as much as 90% copied. A lot of it comes down to the portions of the work that fit under the legal definition of originality.

I would say completely covering an armature is probably transformative of the work and likely not to be infringing use.

I would say if you are worried that you might be infringing the work, get an opinion from an attorney on the risk and then decide. If it's not worth paying an hour or two of attorney time, I wouldn't think it's worth the risk.

"There are legal tests with which the works are copied."

There are legal tests with which the works are compared.

There are legal tests with which the works are compared.

True but if your defense is that "Yes, I copied it…but I only copied 10% so that is OK" you will likely be found in violation no matter the percentage copied because the law itself doesn't put a limit on the percentage copied.

My understanding of the cases that have gone forward is that in most situations they have a defense that is somewhat less pompous.

It's more or less how "original" the part you copied. For example, the turret from a Panther tank (used by the U.S. in WWII) would be considerably less "original" than copying the turret from a 40K tank.

Further, the head and face of a GW monster would likely be considered more original then copying a plain sword or rifle.

No matter what country you are in, obtaining a favorable opinion from counsel is good for your case, but it does not erase the possibility for a conflict.

Further still, the correct question you ask counsel is "In your legal opinion, do you think my work could be considered infringing upon this prior work." Do not ask counsel "How little can I get away with copying this work and be OK." That's along the lines of asking "How much illegal activity can I get away with before getting caught."

Yeah, the originality issue was something that I was hinting at (vague, I know) in the other thread concerning these issues from today, where I mention that a lot of people assume they have copyright protection for something that they likely don't. If I were to make to scale miniatures based on a historical painting of Napoleon – I wouldn't likely have much copyright protection. Since it is based on a public domain work, of a historical figure and is not stylized…there isn't a whole lot of what I do that could be considered original enough for copyright protection. The law doesn't prevent anyone else from using the same painting to create a miniature in the same scale of the same figure (though it would likely still give me protection against recasters…I think…).

My main concern though in this case is the initial question. How much can I copy, and not get caught effectively. The vary premise is in bad taste and quite likely illegal on those grounds as opposed to an actual determination of originality that would happen under normal copyright adjudication. Working from that premise, it isn't really much of a defense for avoiding litigation (or loss during that litigation).

don't practice copyright law but I do recall something about this in the depths of my memory from the experience at law school.

It's true there is no magic number. There is some point where a modification on a design will alter the original to such an extent that it becomes a new creation but that point will be determined by a judge on a case by case basis.

If I were to advise someone on this, I would advise against it, but if you must, any alterations should be rather major. If you are taken to court and win, you will still lose after court costs and attorney fees.

similar to the % change story I was told by a vehicle scratch builder many moons ago that if there are 20 changes to the kit then it doesnt breach copy write? not that I could make more than one or two and that would normally to leave off the hard bits…lol

There are also moral considerations too.

Taking someone's work, making a quick modifications for the intent of selling it seems somewhat unethical to me.

If, as Laptot says, nobody can tell what it was originally he would be OK. If even the sculptor didn't go 'Hey! Thats MINE' I doubt a judge would.

But to get a figure to that state you would need to carve away ohhh about 90% of it. Why bother? Start with some wire.

Pat

@ Nycjadie

I thought your posts where interesting but just wanted to let you know the Germans used Panthers in WWII not the Americans.

That's funny, I was going to put a disclaimer claiming ignorance of everything 40K, but I guess you can add WWII tanks as well!

"I thought your posts where interesting but just wanted to let you know the Germans used Panthers in WWII not the Americans."

American Panther – picture

British Panther – picture

:-P

mrln68 – doesn't the painting of Napoleaon you refer to above have IP protection in its own right? You cannot simply make a miniature copy of it?

I think he's referring to very old paintings that would be within the public domain, as opposed to newer works.

You are creating a derivative object which would not be legal at any point because you are using an original, copyrighted work in the process and only the holder of the original item's copyright can authorize a new version of that item.

It's a bit different when you are using, say a drawing of an item and base your work off of that.

My source is: link

Derivative is what he would be if he doesn't manage to become transformative:

the enquiry focuses on whether the new work merely supersedes the objects of the original creation, or whether and to what extent it is "transformative," altering the original with new expression, meaning, or message. The more transformative the new work, the less will be the significance of other factors, like commercialism, that may weigh against a finding of fair use.

That is from the Supreme Court ruling in Campbell v. Acuff-Rose Music. You can in fact take someone elses work and change it enough so that it is no longer the original work and not a derivative. In the situation above, which basically defined transformative works for modern copyright law – the song's meaning was changed substantially so that it no longer was the same as the original.

I don't know if it would be possible to change a mini in a way that would actually make it transformative though. In the end, they all have the same basic purpose and are the same basic item. The big problem though is that the final decision is always up to the judge – and for all we know they are just flipping coins in chambers. There have been cases that seem to have been obviously Fair Use that went the other way – and their have been cases with nearly identical circumstances that end up going in favor of Fair Use. Best bet – stay safe and avoid anything in the grey area.

mrln68 – doesn't the painting of Napoleaon you refer to above have IP protection in its own right? You cannot simply make a miniature copy of it?

What nycjadie said. Eventually everything will move to public domain (except Disney…). It varies somewhat on when it will happen – but the copyrights will expire.

Let me begin by saying that my purpose is not to figure out how rip-off other people's work and not get caught. I'm trying to understand how the law and the gaming world views the legal and semantical interpretations when an original figure owned through copyright by the process of transformation becomes someone else's property.

An extreme case would be if I took an Old Glory figure of a colonial Brit melted it down and recast that lead to make another figure from a mold of my own making. I've taken Old Glory's product (their artist vision) altered it to the point of destruction but still used its elements to make my own figure. We all would agree this is no copyright infringement–right? And who would do this?

But if I took the same OG figure and just bent the arms and pulled a new mold from this model, most I think would say this was an infringement. Why? Because although I have transformed the figure, I have not changed its essential commercial value or relationship vis a vis the original OG figure. As such, my figure is still a colonial Brit that now would be competing in the market place with OGs figure.

Now comes the unclear part to me and where I suspect debate to arise. Suppose I take that OG British colonial soldier and cut off some of the equipment, add some green stuff to make the pants more baggy, change the putties to gaiters and modify the tunic. Now I pull a new mold and market my figure as a 1878 French Marine. Is this infringement? I'm wondering that possibly this would be ruled as not being an infringement because I have significantly transformed the figure. And here I do not suggest the transformation involves a certain percentage of the surface area of the original. What I have transformed is the figure's commercial value and relationship to the market. Since OG does not currently market a 1978 French Marine, my figure does not commercially compete with OGS British colonial figure.

Laptop

Bearing in mind the above comments from others, and looking purely at how a judge could say you have infringed copyright, I would look at the following points.

Commercially, no they don't put out a 1878 figure, on the other hand there is a clear precedent (you!) that people wanting a unit of 1878 figures may buy OG figures and convert them themselves. Therefore there is a clear possibility of this happening, therefore you are commercially competing. People do do this, see the Garrison website – I used to convert batches of figures before I bought Garrison.

Re the changes, the figure produced could, in all ways, be looked on as an OG figure as it follows the style/character of the original – it is often possible to identify a figure from things such as the pose, and of course faces are pretty much of an identifying feature.

Or, to put another way, are you a different person every time you change your jacket?

In no position to comment on the legal side of things so I wont bother but I would ask a couple of simple questions.

What if OG wanted to release a range of 1878 French Marines at some point in the future?

Would you consider it 'right' to do what you mention above?

From my experience THE LAW shouldnt be the final deciding factor about how or whether you do things. Have some self respect – do the work yourself! You might even find that its fun to create something of your own – just changing a few bits on other peoples' figures just seems a bit crap to me.

Artists get away with transforming modifications all the time. Where would Andy Warhol have been without that ability?

In the soup?

I think with the Acuff Rose case, it was decided on fair use, but the transformative aspects were based on parody. That might be applicable to a game setting. For example, Archive Miniatures produced Star Wars miniatures with bunny ears, etc. on them in an attempt to parody them. This might be construed as a parody under fair use, but I doubt any game company could/would afford litigating such a case.

Thanks for your input.

Once again I'm not proposing to rip-off Old Glory. I'm using the example to try and tease out how the law and industry works. It appears that things are very gray here.

Some responses to the above:

Garrison Miniatures,

I don't follow your logic that just because there is a demand for a product my converted Marine competes with Old Glory. Using this rational anybody creating any figure of a like size, type, and period would be in competition and infringement of existing lines. My figure does not prevent Old Glory from coming out with its own Marine. Companies create the same type of figures as others all the time (i.e. Perry'S Sudan line competes with Old Glory's Sudan line). The key is that at the time of transformation, my product is original and not replicating or creating a facsimaly of an existing Old Glory product. Now if later Old Glory wanted to come out with a Marine --fine.

Ironically the way Old Glory tends to make new lines is to do precisely the thing I propose doing (hypothetically) with their col. Brit. In other words, OG would likely take the Brit figure, add a bit of green stuff and presto. If so, the figure they produce might actually infringe my copyrighted Marine if it looked just the same because it would be a facsimally competative product to my already existing Marine.

As for the new jacket analogy, I don't think that captures the point about transforming commercial value --I'm not for sale.

However, as we are on semantical issues the analogy of clothes, this brings up the metaphysical example of "Grampa's suit". Grampa wore the same three-piece suit everyday of his life. After ten years he had to replace the pants, after twenty years the jacket, and after thirty the vest. How many suits did Grandpa own in his life? One or two? If Grandpa owned two suits, at what point did Grampa purchase a second suit? This points out the same absence of defined boundaries I've been referring to regarding transformation of artist ownership in converting figures.

Others have brought up the cases of artist works being modified some of you suggesting that it is never legally possible. Take Woody Jackson's mass marketed images of Vermont cows (made famous by Ben and Jerry's Ice-cream packaging) Jackson has copyrighted his "cow without eyes" image which vary in shape, posture, and medium from silk screens, to painted sculpture. Eventually upscale department stores started to carry Chinese knock-offs of Jackson's work. Most notably, large free-standing plywood flats painted to look like his cows. Jackson sueded arguing that the eyeless cows were copyright infringement even though these were unsigned facsimiles. The court agreed. What did the Chinese do? Painted an eye on the cows and back they went on the shelves. Now this strikes me as a much more subtle transformation than my Old Glory example?

Malcolm

Yes – copyright law is very grey.

The same case can be brought before two different judges, and the outcome can be entirely different. But you keep looking at the same example of taking someone else's work and using it to your own benefit. While you try to justify the action by saying it wouldn't compete – that is irrelevent. Competition plays only a small part. You are copying there work. You might modify it in some way – but it is in fact still their work that started it all.

The issue of transformation is generally used to change the meaning of a work (songs, writings and the like have more meaning than a miniature). By modifying a miniature, it is still a miniature – so whether or not transformation can actually happen (without using actual parody) is questionable IMO.

The issue of the Vermont cows is likely a different issue (can't find a brief relating to it – so I can't see what the actual complaint was…). The cows though are non specific, and I am surprised that there was any award with or without eyes. It is also quite likely that it fell under Trademark law and not copyright law – though again, without the brief…I don't know. If however the Chinese company took a product made by Woody and copied it – changing minor details…that would end up being in violation most likely (happens all the time with fake watches, handbags and shoes). However simply using a cow in a certain pose – not really something that is unique enough to have copyright protection. I can not for example copyright the color red or a picture of the sun. I can copyright a picture I took of the sun – though it would not prevent other people from taking other pictures of the sun from the same location I took mine at.

Ironically the way Old Glory tends to make new lines is to do precisely the thing I propose doing (hypothetically) with their col. Brit. In other words, OG would likely take the Brit figure, add a bit of green stuff and presto. If so, the figure they produce might actually infringe my copyrighted Marine if it looked just the same because it would be a facsimally competative product to my already existing Marine.

Which is exactly why I do not think what you want to do is legal and what you propose to do would be a derivative work (illegal) and not a transformative work (legal). They alone have the right to copy, modify and distribute sculptures that they have had created for them. If they want to make marines – they can. It is there right. If you want to make marines based off from their miniatures…you can not.

Modifying miniatures could easily be considered violation of a miniature companies copyrights, however it is something that is generally allowed and accepted. If however people were to start trying to recast modified or converted figures en masse – that would likely go away, as miniature companies would need to become aggressive in protecting their copyrighted properties in order to stay in business.

I think with the Acuff Rose case, it was decided on fair use, but the transformative aspects were based on parody.

Yep, the final determination was that it was transformative due to parody – but the ruling set out a lot more details than previous cases in determining what was transformative. It is also important to note that the same case was heard by 3 different courts and came up with different answers and reasons for those answers (District Court and Supreme Court found in favor of 2Live Crew while the Appeals Court found in favor of Acuff-Rose).

supreme.justia.com/us/510/569

American Panther – picture
Just a quick correction, that's actually a German Panther modified to look like an US M10 tank destroyer. They were used in the Ardennes offensive in an attempt to fool the Allies.

I don't have much to add to the discussion itself as I think everything has been said. I think the basic question is "is there anything visible that you didn't make yourself". Like in the clothing example, the faces and hands.

'I don't follow your logic that just because there is a demand for a product my converted Marine competes with Old Glory. Using this rational anybody creating any figure of a like size, type, and period would be in competition and infringement of existing lines.'

No, you can create anything you like as long as it is your original. In the OG one you are quoting, it is identifiably based on their original. It is their potential sales of figures to people such as yourself who choose to then convert the figures. An 1878 figure is not something you can copyright. The style that you choose to make that figure in can be subject to copyright as it is the style that is considered to be the intellectual property as much as anything.

Likewise, I don't understand your point about the suit. The jacket may change, the trousers may change, it's still Grandpa. For the figure, you change the hat or the webbing, it's still an OG figure. Even that cows one, you cannot copyright the cow, but the lack of eyes was obviously considered to be the 'artistic' input that was protected and was (possibly?) a violation of a Trademark rather than copyright – I don't know the case, so that is a guess.

Incidentally, look at Garrison figures – whole ranges and series of ranges are based on a limited number of styles and the masters were originally made from the same basic figure. Why invent the wheel if you are a manufacturer? If you are the copyright holder, you are allowed to do this and it makes sense.

Interesting and informative, thank you all for your opinions.

Mrin68, The Woody Jackson case may well have been a trademarket issue. I am not at all knowledgeble on these legal distinctions. I will say, that the cow in question was an exact knock-off of one of Woody's most famous pictures. I am assuming that by putting on the eye, the Chinese manufacturer was able to come into compliance because a nationally prominant department store continued to sell them with eyes.

Again, I just wish to be clear (given some comments made above) I am not planning to use Old Glory figures to make my own line. I have no intention to cast any figures for resale. My example was intended for illustrative purposes and I could just as easily have written, "Suppose a sculpter takes…" in place of, "Suppose I take that OG British colonial soldier and cut off some of the equipment…"

I think that the quotes by you below make that quite clear. As one of the people putting in answers to your queries, I hope my replies are equally clear that I am following the examples you quote!

'Suppose I take a figure I bought and converted it in some way for example changing the pose, shaving off equipment or adding green stuff. I then use it to vulcanize a mold and begin casting and selling the new figure as my creation. What's the minimun alteration I can do and have it be legal. I'm not just talking about "getting away" with it because from the new casting others cannot tell or prove I used another person's work. What do the copyright laws say?'

'Let me begin by saying that my purpose is not to figure out how rip-off other people's work and not get caught. I'm trying to understand how the law and the gaming world views the legal and semantical interpretations when an original figure owned through copyright by the process of transformation becomes someone else's property.'

Garrison Miniatures

It's all good! My last entry was just to CMOA. I don't want the reputation that I'm a recaster.

If anything of the original is recognized the resulting conversion is refered to as a derivative work. And it is just as illegal to sell derivative copies as it is to sell recasts copies of an original work. I agree with one of the first responders to your thread; if you have the talent to make extensive and good parts and equipment, then start from scratch with a dolly or armature and avoid the issue totally.

I would think that probably the cost of paying a talented sculptor to sculpt you a green, with casting rights included, would be far less than defending a lawsuit from another manufacturer.