"The right to copy figures?" Topic

Hi!
A little bit provocative subject but that is what I'm thinking about.

Why? In 2005 I payed USD 140 to a manufacturer to produce two figures for me. The deal was that I would get a refund of figures from his line (including the new ones) equal to 50 % of USD 140.

Just for clarifications, This was the second similar order I had placed with him and there was no problem with that one.

A few month later I was told that the figures had been sculped and the mould was on it's way… and then silence. After numerous of e-mails I gave up.

This summer (2008) his web-page came up again and people starting to report that they had been selling his stuff on shows. I sent him an e-mail and he appologized, etc, etc and he offered me to send the figures I wanted as refund at once… and then silence again….

Since this manufacturer is the only one that produce this very specific line of figures I can not just buy my lead from someone else.

To my question:
As I have payed him the USD 140 but I'm obviously not getting anything for it, is it ok to to copy the figures I have and to cast the figures I need?

(And I have emailed him this question as well)

Thanks/Lars

Name and Shame!

Seek legal advice from a qualified professional.

Since I am NOT a qualified professional on such matters I can only offer you my personal opinion.

It sounds to me like two separate transactions. 1. His failure to perform or produce goods and services for payment tendered. 2. Your potential copyright infringement by recasting his figures. (now that you put him on notice that you might recast.)

Just my 2 cents.

I second the UltraOrk

Sounds like an attorney would best be able to answer this question in detail (which I'm not), but I can take a basic stab at it.

In general, you seem to be describing a work for hire situation: you commissioned two sculptures, he did the work. That implies that you hold the copyright to the works. However, without a specific work-for-hire contract (and the molds in hand), it's a questionable point.

Assuming that instead he holds the copyright (which, after all, is exactly what the word says: "the right to copy"), the only legal way you can copy the works is to gain his permission (the e-mail was the correct course of action), or buy the rights (and the molds) from him.

It's possible to buy or be granted more specific rights (one-time, non-commercial, limited production, etc.). But that's really something for an attorney to explain, or at least a good book on copyright law.

I'm not following the deal.

So you contracted someone to make figures for you ($140) and you would get the molds? You could get a refund by giving the manufacturer $70 USD of the product back? Is that right?

The answer to your question is No. Still not OK to copy. It is also not OK for him to neg on your deal. He should put up or send you back your money.

Two wrongs do not make a right.

Just because said manufacturer fails to fulfill a specific contract, does not allow you to start violating his other rights at whim.

If you really want to get the original contract fulfilled, consider contacting a lawyer and starting a civil lawsuit.

Griefbringer

No idea about the legalities.

Seems to me your realistic options are name and shame, accept the loss, or recast.

Hopefully your email will spur him to honour his end of the deal and your question is moot.

BTW, is this guy in the same country as you? (USA I presume) If so, yeah. Threaten legal action. You paid to own the figures and he now has everything. You have nothing. Since he is profiting from your IP, you could sue for the $140 USD + all the revenue he has generated from sales of those figures so far + lost revenue over time that you think you could get.

Post on The Law Board, if you want free legal advice that is not worth anything.

The only free legal advice that IS worth anything is "see a lawyer".
Unfortunately, with the sums involved, it seems hardly worth the effort, as far as a lawyer is concerned.

Name and shame seems to be your best bet. Threaten him with exposure on TMP.

Laros – I don't follow the facts due to the grammatical mistakes in your initial post.

Correct me if I am wrong, but I do not see how "he is profiting from your IP". What IP?

According to your statements:
"In 2005 I payed USD 140 to a manufacturer to produce two figures for me."
"A few months later I was told that the figures had been sculpted and the mould was on it's way"

So you paid him to sculpt (or get someone else to sculpt) two figures and supply you with the mould. Is that correct?

In that case any IP belongs to him (or any 3rd party sculptor). He has reneged on his contract to supply you the mould

"As I have payed him the USD 140 but I'm obviously not getting anything for it, is it ok to to copy the figures I have and to cast the figures I need?"

How can you copy the figures if you don't have the mould? Or do you mean to buy the figures from him and then recast?

$140 USD for two original sculptures and you get a refund?
It sounds too good to be true!
In this life you get what you pay for.

Wow that was fast and thanks for all the comments. I will consider them.

Some clarifications
1. What I payed him for was to extend the range by two more figures. The moulds are his.

2. He is in the US and I'm in Europe so I think the lawyer stuff is out of reach.

3. "Name and shame" will have to wait for a while.

You paid him to extend your range or his range?
You get a refund from His line? Why would he offer you a refond for work done?

In that case any IP belongs to him (or any 3rd party sculptor).

Not by default. It depends on the terms of the contract. If Lars granted the sculptor any rights in the original agreement, that's great. Otherwise it's work for hire and belongs to the person paying for the work.

Is this how it went, Laros?

Laros to Vendor: Hey, I'd like you to make two special figures for me to extend your Jenkin's Ear line.

Vendor to Laros: Okay, I can do that, but it will cost me money. How about you kick in $140 USD towards the costs. Once the figures are made and I can sell them, I'll give you part of your share of the costs back in the form of figures – that way you get something more for your money, but I'm not out the full amount myself.

Laros: Groovy!

I'm not sure about the whole conversation, but I'm pretty certain about the "Groovy" part.

I believe he means that he paid the company $140 USD so that they would create two new figures in one of their ranges. As incentive for his investment, the company agreed to provide him with $70 USD worth of product once the figures were sculpted and the molds were made.

He has since discovered that the figures were indeed created and are already being sold. But the company has not provided him with his $70 USD worth of product.

Its a small claims case.
You don't actually need a lawyer.
You can file it yourself.

Ambush:
You have captured it
… exept for the "groovy" part :-)

In that case he's failed to deliver (at fault – as Tin Dictator says it's a small claims case) but it's certainly his IP, so casting your own would be a violation on your part.

I hope you got all this in writing. No contract, no recourse.

Actually, any emails are writings and any receipts or acknowledgement of the receipt of money are also admissions as far as evidence is concerned. I'd continue the discourse with him and if at the end he fails to give you what you bargained for, name and shame or seek legal recourse through the courts. Recasting is another wrong and as stated above – two wrongs do not make it right.

Wasn't there a discussion about reproducing figures for one's own use last year on this forum? Can't remember but it would seem to me that if Laros doesn't sell the figures he casts and uses them for his own gaming purposes, no harm, no foul was the consensus, I believe.

I think asking him was the right thing to do but assuming you do not get what you've paid for I don't think you should bother with small claims court if there's another way around it.

If you plan on keeping the figures for yourself (as can be assumed since you commissioned them) I'd go with the common sense approach and cast up $70 USD worth of the figures and be done with it. If what you say is true, he owes that to you. Instead of considering it a "wrong" think of it as doing him a favor by saving him the trouble of casting them.

Two wrongs may not make a right, but they can make people even and that sounds like all you are asking for.

"Can't remember but it would seem to me that if Laros doesn't sell the figures he casts and uses them for his own gaming purposes, no harm, no foul was the consensus, I believe."

I doubt that. People have had their accounts locked here on TMP for suggesting that ANY form of recasting was okay. The only way it would be even remotely acceptable to most folks here would be if he did it and then NEVER told anybody. It wouldn't make it any more morally okay (and possibly it would still be illegal) but nobody can look askance at you if they don't know you did it!

But they would be OK with Laros having money taken from him and getting nothing in return?

No, but it is pretty much a separate issue from recasting.

Exactly – the fact that you've been wronged doesn't make it OK to commit your own offence – pretty basic stuff….

I guess that's where we differ. I don't see this as a separate issue. I'm not suggesting it's ok to recast any of the other figures or even to sell the ones he's entitled to. He's just getting the exact product he was promised in the agreement. The other party is not harmed and could be said to be getting the best end of the deal as they are putting out nothing in return. I only suggest this as a last resort if he gets no suitable response from the other party.

If the alternative is getting nothing in return while the other party enjoys all the benefits, I think it's a fair trade off. Sometimes you don't need to be Solomon to see what's fair although sometimes you need to open your mind a bit.

I guess if people are so against a second offense being committed, why don't one of you send Laros his $70 USD and live with the joy of knowing you prevented a wrong from being committed. That's a win-win for everyone.

Wasn't there a discussion about reproducing figures for one's own use last year on this forum? Can't remember but it would seem to me that if Laros doesn't sell the figures he casts and uses them for his own gaming purposes, no harm, no foul was the consensus, I believe.

"Consenus" of gamers who want stuff they are not entitled to does not make things legal.

Beware of free legal advice. It is worth what you pay for it.

If you recast you will get an 2nd genreation copy and end up paying higher costs for the metal and buying silicone rubber and if you drop cast even less crisp results

In the end it will be a Pyrrhic victory

A certain O.J. Simpson found out the hard way that just because someone stole from him didn't mean he could steal it back.

Also there is an ocean between Laros and the other guy. Hard to file in small claims court. Perhaps a chat with our national department of commerce will shake something loose, though I doubt it.

I suspect that the court of public opinion is the only real recourse. Post up the name of the guy and let him know about it. He might come around.

Yeah, I think Name and Shame(tm) is just the ticket. At least the other guy would be forced to present his side of the story…

These posts are always entertaining.

Would any of you seriously entertain paying to speak with a lawyer over a situation like this? Spare me!!

You've paid a very small amount of money to a small scale business operation and you've been done. Unfortunately, a reality of life when dealing with these sorts of business's regardless of their product.

As mentioned, name them on this forum but after three years it's unlikely they'll coff up!! At least it allows others to make an informed choice as to whether to deal with them or not.

Casting: Is this really such a moral dilema for you? You've let this bloke know you intend casting the figures you require. You don't appear to have been met with howls of protest or threats of legal action by the business only protests by some of the higher moral authorities here.

As per the advice of the OFM, if the figures you need are for your own use and you do not intend selling them – what's the issue? I'm sure in order for a breach of copyright to be complete, there has to be some evidence of profit made.

The costs of the equipment etc make it hardly a viable option really. I don't think the mob are ever going to branch out into knocking off toy soldiers!!

I see this as trivial and the way to address it as very straight forward.

"People have had their accounts locked here on TMP for suggesting that ANY form of recasting was okay."

That doesn't seem to be bothering some of this lot much. But yes, that reads as an absolute TMP prohibition:

"Piracy

- What is recasting?

- Recasting is the process of making copies of an existing miniature. Depending on your local laws, this may be illegal unless you have permission of the copyright holder. And even if it's legal, that doesn't make it right.

- Can I discuss recasting here?

- No."

Looks like it's time to crank up the ol' TMP Machinery O' Justice, Bill!

As for talking to a lawyer about this type of stuff – I don't usually need to – as I am an attorney and I have had little trouble with anyone trying to take me for anything. I guess I have been lucky or it is the fact that I will gladly pay the filing fees and take someone to task for attempting to cheat me. The age of technology makes it all the more easy to take some people to task.

As for re-casting figures – it isn't the way to go regardless of how you feel. Name and shame on here usually gets results – usually fairly quickly as there are lots of gamers on here from around the world – and we talk amongst our friends and gaming groups. So if someone defrauds someone on TMP and they report it – and the perpetrator doesn't make it right, they lose business and respect.

As for dawghousing the original poster or any others – I will leave that to Bill in his discretion!

I'm sure in order for a breach of copyright to be complete, there has to be some evidence of profit made.

Actually, no. It's the act of infringement, not whether you make a buck with your infringing. Ask anyone who got sued by the RIAA for downloading songs.

I'm sure in order for a breach of copyright to be complete, there has to be some evidence of profit made.

Wrong. See above.
But, that never bothers the self-righteous "It's all about MEEEEE!" crowd, does it?

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Would you actually get that much of your money back by casting them? I mean aside from it being wrong would it really give you any satisfaction to have to buy the miniatures, then the molding material, then the casting material? Plus the time you have to put into it. Just doesn't seem worth it to me.

Your better off just letting everyone one know who it is and what miniatures you had them make up.

I think some of you are missing Laros' point that the figures he's after are not available elsewhere (hence the reason he stumped up $140 USD to get them sculpted) so I guess he's not wanting to recast to spite the sculptor but simply to fill the gap in his collection. I am not suggesting that I am advocating this recasting by the way (I can see the glow of torches and the glint of pitchforks coming up the valley already).

But how are you going to copy figures you didn't get?

If he sent you some figures then you have a part complete order or are you just going to buy one or two from the second order that was not completed just to copy?

If you copy figures from the first order that he did complete then you are in the wrong

"Runs with…" are right, he is the only manufacturer of figures for this particular period so I can't go anywhere else to complete my project. Beside this, there are many other reasons that prevent me from copying (moral, legal etc).

I will give him the time to the week-end to respond to my e-mail. Then I will consider the "name and shame" method.

Thanks for all comments made so far.

….As per the advice of the OFM, if the figures you need are for your own use and you do not intend selling them – what's the issue? I'm sure in order for a breach of copyright to be complete, there has to be some evidence of profit made……

Have you never read the FBI Warning at the start of a DVD? Do so.

I'm still confused by this issue. I can certainly understand the concept that "recasting" is wrong if you deprive the original creator of the item of future profits.

However, the issue is not as clear when you eliminate the "future profit" argument.

As an example, let's change the venue a bit…

let's say I enjoy eating at Flo's cafe near my home, who has the reputation of having the "best apple pie in town".

I really love their pie, but it's expensive, and I'm moving out of state soon.

So I buy a slice of pie and take it home and work in my kitchen to recreate the pie as closely as possible.

Eventually I get something that tastes just like the cafe pie.

So now if I bake a pie at home, am I depriving the cafe of profits?

What about when I move out of state and can no longer even visit the cafe for my pie fix?

This is a purely hypothetical situation. I am not promoting recasting in any way. I'm just trying to understand how it can "always be wrong". It seems that there are situations where it would not be.

jfleisher you still don't understand the problem of recasting as your example demonstrates.

You have spent hours trying to replicate someones pie.
That is more like spending time creating a green which looks like the original.
This is your own work

As for copying for someones own use it is all about depriving the seller of sale which he could have expected from the recast figures.

When you move onto another army will the recasts be destroyed- or sold?

What if it only takes me 5 minutes to duplicate their pie?

And if I later decided to sell all of my pies because I decided I liked cake better… isn't that the definition of a free enterprise system?

I made them myself with ingredients purchased with my money, how does that hurt Flo's cafe in any way, other than by competition, which is normal in our system.

The you could make a lot of money sculpting greens!

You have created a green – you own the copyright
Any number of people can sculpt a figure of Napoleon in 28mm, even if all of them have the same pose, with his hand in his waistcoat. that is not recasting.

The example you give is not copyright violation – that would occur if you repackaged their pies and pretended their pies were your own creation