Architectus Militaria | 09 Apr 2013 4:28 a.m. PST |
I recently found myself in a publishing situation whereby I wanted to include some of my painted Games Workshop figures to add further interest to a building project on which I was working. On the basis of 'better to be safe than sorry', I contacted the Games Workshop Legal Department, who were very helpful, although understandably they could not offer me specific legal advice. They did however refer me to the legal link to Intellectual Property (IP), on the Games Workshop web page. Having read through it, and believe me, its not a particularly 'light' read, I came to the conclusion that taking photographs of any Games Workshop product whether its for a non-profit making blog, a submission to a magazine, or to do with any project that might be intended to make money, would be frowned upon and COULD incur the wrath of the GW legal department, even if it was correctly attributed as being a Games Workshop product. The enforcement of this issue does appear to be a little inconsistent, but having narrowly avoided a 'problem' myself, because I took the trouble to ask first, I'd hate for anyone else to inadvertently run foul of the GW rules. As they, (whoever 'they' may be), say, "ignorance of the law is no excuse". My suggestion therefore is 'if in doubt, don't risk it!' If you want to populate or enhance a photograph of your terrain or buildings, whatever the end use, then don't use GW figures to do it. "Its the only way to be sure" After all, there are plenty of other figure manufacturers who would be grateful for the free publicity, but check first just in case, and make sure that you give them a credit under the photograph! Its only fair after all! |
Yesthatphil | 09 Apr 2013 4:36 a.m. PST |
What is asserted and what is actually the case are, of course, two different things
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Marc the plastics fan | 09 Apr 2013 4:47 a.m. PST |
personally, I reckon using other figures is the way to go – the less publicity they receive the better. |
Architectus Militaria | 09 Apr 2013 4:47 a.m. PST |
Fair comment 'Yesthatphil'. But I've learned the hard way over the years, that there are more than enough opportunities to 'break the rules' in ignorance, so why go onto potentially dangerous ground looking for trouble when it can so easily be avoided
? And in this particular context, who amongst us has the financial clout to take on Games Workshop, particularly if the issue could become one of semantics?. Not me for sure! Life really IS too short:-) |
Royal Air Force | 09 Apr 2013 5:18 a.m. PST |
In a case like this, and given GW's track record, it becomes a case of who has the higher paid lawyers. Since that's probably GW, I would a manufacturer who's more user friendly. |
tberry7403 | 09 Apr 2013 5:24 a.m. PST |
I came to the conclusion that taking photographs of any Games Workshop product whether its for a non-profit making blog, a submission to a magazine, or to do with any project that might be intended to make money, would be frowned upon and COULD incur the wrath of the GW legal department
By that line of thinking all the pictures of GW products on this site are actionable. |
MajorB | 09 Apr 2013 6:05 a.m. PST |
By that line of thinking all the pictures of GW products on this site are actionable. There aren't any pictures of GW products on this site. There are only links to pictures stored on other sites. |
arthur1815 | 09 Apr 2013 6:27 a.m. PST |
Personally, if I was illustrating my rules, book or whatever, I wouldn't wish to be thought to be endorsing GW by including photos of their models – even if they would give me permission. I don't understand why the GW Legal department couldn't just tell you not to do it (if that is GW's wish), or they would take action? |
Greywing | 09 Apr 2013 7:21 a.m. PST |
"I don't understand why the GW Legal department couldn't just tell you not to do it (if that is GW's wish), or they would take action?" Because GW LOVES to pretend that they have intellectual property rights that don't actually exist. That practice is pervasive, and has had the exact chilling effect they intended. As this thread, and the OP's comments, prove. |
Caesar | 09 Apr 2013 7:55 a.m. PST |
GW certainly overreaches. It's not breaking any laws to post pictures of your models on your blog. Just like it's not breaking any laws to modify the models once you've paid for them, contrary to what GW tells people. They count on ignorace, fear and small pockets to intimidate people. |
fairoaks024 | 09 Apr 2013 8:04 a.m. PST |
@margard, Except for the currently prominent GW beastman in the showcase Section? Regards Jim |
Eclectic Wave | 09 Apr 2013 8:05 a.m. PST |
Two things – First, their assertion that photographing GW products for non-profit reason is against their legal rights and they can seek legal action is wrong in every sense of the word wrong. It's akin to saying that BMW can sue anytime anyone takes pictures of their vehicles no matter the circumstance. It's ridicules, there is a law called "Fair Use" that trumps assertions like this. You can use the items you have purchased or even others have purchased, even for some profitable endeavors, and doing so is within your legal rights. Photographing a BMW that has Madonna behind the wheel, and selling to newspapers is a good example, you do not have to have BMW permission is sell that picture. BMW would have no right to sue you. The same applies to GW products, no matter what they want you to think. The second, just because they have no legal right to assert what they are claiming, doesn't mean you are free and clear. They have the money and recourses to go to court over these matters, most gamers do not. Which is really the point. GW can threaten legal action with little loss on their part, most of their customers can't even afford the time off work to stand up for their rights, let alone with the legal fees they have to fork up (even if in the end GW would end up paying them). |
PatrickWR | 09 Apr 2013 8:05 a.m. PST |
"Because GW LOVES to pretend that they have intellectual property rights that don't actually exist. That practice is pervasive, and has had the exact chilling effect they intended. As this thread, and the OP's comments, prove." THIS. GW's noncommittal legal answer prompted the OP to post this thread and try to warn us away from ever posting images of our pics
which serves GW's intellectual property rights just fine, thank you. They didn't have to bill any lawyers or send any threatening letters. Architectus did the work for them. |
Architectus Militaria | 09 Apr 2013 8:13 a.m. PST |
Without wishing to lay myself open to 'problems', I have to stress that the ONLY reason that I was intending to use the GW figures was because: a) the terrain that I had built had originally been intended for use with a particular GW game (not to be mentioned in public 'just in case'). And 'yes', I know that I should have checked out the legal angle first, b) I already had the figures which I'd bought some time ago, and as I'm working to a relatively tight schedule I didn't particularly want to have to source, and paint up alternative figures. No choice now though:-( I suppose I was being a bit lazy really as over the years I have become less and less impressed with GW's approach to our hobby; (and their business), and, cutting to the chase, although most of their figures were, and continue to be, excellent, they're simply too expensive for me these days. On reflection, I'd much rather support and publicise the products of another manufacturer anyway. After all, clearly GW don't need my help to publicise their products. Mind you I've also got to check that the alternative manufacturers I have in mind don't take a similar view
As for giving specific legal advice over the telephone, I expect that the GW Legal Department has advised the GW Legal Department, that giving legal advice over the 'phone is unwise, (which it would be), and after all, if you can take the time, and can understand the legal details on the website, there's probably no need to get a ruling or any advice 'from the horse's mouth'. Its all pretty clear. As far as figures, rules, buildings etc., are concerned, it appears that GW own the IP rights to them however you wrap it up, which, as far as figures are concerned, I think means that GW are happy for you to buy them, paint them, and play with them, but anything beyond that and you really need to check the legal stuff just in case. Incidentally if I read correctly, I think that GW also retain the right to amend or change their legal 'stuff' without advising anybody, so in theory they can alter the scope of their legal conditions and not even change what is on their website which is rather like the Official Secrets Act. Everyone in the UK is bound by it, even though most people have neither seen it, read it or signed it!! And yes Tberry7403, there is a case to suggest that anybody who advertises painted or I suppose even, unpainted GW figures for sale, could potentially be infringing GW's interpretation of the 'intellectual property' rules, but I suppose its a question of 'scale'. One or two figures being sold probably wouldn't be worth them powering up their
well whatever weapons they use, but for which they haven't taken possession over the words so I can use them
screw guns maybe? But if someone was selling large numbers of figures clearly described as Games Workshop, then they might become a target for investigation and subsequent action, or have to become a distributor and therefore subject to GW's Terms of Business for Distributors
Oh goodie!! I can only stress, read the Legal section on the GW website, and as my father used to say when the time came for him to give me THAT talk
"If in doubt, don't do it". To be honest I think he was talking about something a little more carnal, but the rule still makes sense, along with all those other snippets of advice that he generously handed out
"Never do something in the evening or at night, that you might regret the following morning" And, "Never ask someone out after you've been drinking heavily in a dark night club", which I suppose, leads back to the previous piece of advice. In the end, its a free country, although this current government seems determined to make it progressively less free. I stopped buying GW figures years ago, and when they started changing the names and availability of some of my favourite paints that I'd used for years and years, I stopped buying them too. As for terrain and buildings, I make my own, so that was never an issue. I seriously doubt that it made a dent in GW's financial statement, but I know that more and more of my friends and contacts have taken a similar view
Shame though, I really liked their paints! |
MajorB | 09 Apr 2013 8:14 a.m. PST |
Shame though, I really liked their paints! Coat d'Arms paints are actually the original Citadel paints. |
MajorB | 09 Apr 2013 8:23 a.m. PST |
@margard,Except for the currently prominent GW beastman in the showcase Section? Hmm
perhaps the dear Editor needs to read this thread
|
Architectus Militaria | 09 Apr 2013 8:59 a.m. PST |
"Architectus did the work for them" Thanks for that PatrickWR. What I was trying to do in my original post was avoid anyone inadvertently making their lives unnecessarily difficult and stressful, but you appear to interpreted that as 'my doing GW's work for them'. But sure, if as some people believe, GW have no legal basis upon which to state and pursue their IP, then by all means buy your GW figure, paint it, photograph it and put it on your website, in a book, in a magazine submission, put the image on a T-shirt wherever
and then be prepared to reach for your cheque book, or more likely remortgage your house to be able to afford to get your legal team to tell GW that they're wrong. Good luck with that. I'd rather buy some more figures
:-) Actually I could probably buy rather a lot of figures for the likely legal costs. Frankly I'd be a lot happier with the suggestion that GW were overstepping the mark if someone had actually taken them to court to prove the matter as a test case. Any volunteers? No, well I'll err on the side of caution then thank you. As I pointed out in my original posting, it looks as if GW have been inconsistent in implementing legal action over the IP issue. I have heard of cases where companies have featured GW products in the background of a photograph advertising another company's competitive products and yet after discussions with GW, that has been deemed acceptable, so who knows, perhaps GW are indeed, standing on shaky legal ground, but then on the other side, there was a case of someone who had written a book which I believe had 'space marine' in the title and she received extremely rough handling by GW, just for using the words, not even copying a figure or using one as the basis of an illustration. I understand that many of the GW Legal Team come from Boots, and the pharmaceutical industry has a highly developed and aggressive history for pursuing breaches in IP, so I can't get away from the feeling that they might just be on sounder ground than we give them credit, and they certainly would have more legal grounding than myself who I'm afraid could not even claim to be 'an armchair lawyer'. My first solution therefore for an easy life is simply not to feature GW products in my book. My second, which I adopted years ago, is not to buy their products. Frankly if everyone who felt strongly took that sort of action, or at least, the second one, then who knows, maybe the GW shareholders might suggest to the company that a better attitude might have a positive affect on sales? In the meantime I'll just keep my eyes open for the first test cases to 'put GW and their approach to IP in their place'. |
Architectus Militaria | 09 Apr 2013 9:04 a.m. PST |
Hi Margard. I wasn't going to mention it, But it was indeed Coat d'Arms to whom I transferred most of my painting loyalty. Excellent paints. Consistent coverage and particularly highly pigmented reds and yellows. Great paints indeed. I do use a few Vallejo paints too though. In the grand scheme of things, in fact GW did me a favour otherwise I'd probably never have tried them. |
Dan Wideman II | 09 Apr 2013 10:47 a.m. PST |
Architechtus: If you are watching for a "test case" look up the case GW vs Chapterhouse studios. It's a great example of GW trying to use things as TM that they can't. They have also been caught claiming rights on things they never got assignment for from the artists. NEVER take GW legal's word as anything close to law. |
Der Alte Fritz | 09 Apr 2013 11:42 a.m. PST |
I say "go for it"! |
Brian Smaller | 09 Apr 2013 12:10 p.m. PST |
I love the all Caps thread title. Sure GW haven't got you on retainer Architectus? Nah – just kidding. How about if you use GW models you have brought to illustrate your scifi rule book? I would have thought that there is no ip infringement there – any more than using Front Rank, Foundry and Perry figures to illustrate a set of rules for the 100YW. As long as they are called something different like Heavy Powered Armour Trooper, and not Space Marine. Thoughts?
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arthur1815 | 09 Apr 2013 12:35 p.m. PST |
IMHO, any reasonably sane manufacturer, receiving the original query, would simply respond in one of three ways: 1. You do not have our permission to use photographs of our models in this way – don't do it. [which might have no legal basis, but at least makes their stance clear] 2. You may use such photographs, but we expect full acknowledgement of the source of the models in the captions, and require a nominal fee of £x for their publication, if you are producing the book/rules for sale. 3. Go ahead, but please identify our models in your captions. Thanks for the free publicity. Perhaps we can supply some additional material. Good luck with your enterprise! The fact GW chooses to act in the way it does speaks volumes
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Mako11 | 09 Apr 2013 12:45 p.m. PST |
Yep, they are clearly over-reaching. Still, another reason not to purchase, or use their outrageously overpriced figures, as far as I'm concerned. |
Architectus Militaria | 09 Apr 2013 1:20 p.m. PST |
Fair enough. I'll just let everyone make up their own minds. As I said initially, just trying to help
That worked out well didn't it!? |
Rogzombie | 09 Apr 2013 1:30 p.m. PST |
How does ebay not fit into this. GW even allows them to keep sections for each monster and people sell them furiously. The only thing that gets you in trouble(so far) is using their personally taken company images. Try looking at some professional painters websites. They often having sections featuring gw miniatures they have painted. |
Brian Smaller | 09 Apr 2013 1:39 p.m. PST |
Fair enough. I'll just let everyone make up their own minds. As I said initially, just trying to help
That worked out well didn't it!?
Actually it did. The fact that most people take a contrary view to the GW one you presented from your experiences doesn't mean it wasn't worth posting. |
Architectus Militaria | 09 Apr 2013 3:25 p.m. PST |
Thanks Brian, I thought Ï'd become a target. I think everybody takes a contrary view to that of GW, myself included, but I just can't see the point of looking for trouble. If anyone wants to object, just don't buy their products. Its a lot cheaper than taking them to court to prove a point. But hey, what do I know? |
Patient Zero | 09 Apr 2013 3:36 p.m. PST |
The sole copyright holder of a photograph is the photographer and they can use it in any way they like. The subject matter of the photo is completely and utterly irrelevant from a copyright point of view. GW doesn't have a toe, let alone a leg, to stand on legally and their threats are pure bluster. |
Gwydion | 09 Apr 2013 4:13 p.m. PST |
Patient Zero- are you a lawyer by any chance? Because the opinion of WIPO has a slightly different take. If the item you are taking a photograph of is a copyrighted item (including 'sculptures') and includes a 'substantial part' of the item in the photograph they reckon you probably do need permission. link There are lots of exemptions and exceptions but it might be a lot more complicated position than you believe to be the case. |
battleeditor | 10 Apr 2013 3:26 a.m. PST |
As an editor (like Patient Zero) I have a pretty good grasp of this. Copyright in this context is tied up with the concept of "passing off" someone else's property as your own. As long as you make it absolutely clear that you are not claiming ownership of the items or their design (in this case, usually miniatures) as your own, then you're fine. It's a courtesy – and best practice – to acknowledge this in the accompanying caption. In MWBG, I make it fully clear in at least one caption per article who took the photos, who owns the stuff shown and, where possible, who the manufacturer is and who painted the figures, made the terrain and so on. Where GW has a genuine claim, it often relates to forums or sites that might be mistaken for 'official' GW content. But legally, as long as the site owner uses a disclaimer, they're on solid ground. But of course, that doesn't mean GW's legal beagles might not have a go anyway and scare the site owner into taking it down. As far as photographs of GW product, as others have said, this is pure hokum. I bought the products, they're mine (just like the car in the excellent example above), I can do what I like with them. As an even more extreme example, what about the clothes you're wearing? Are they saying you have to strip naked to have your picture taken? (Wargame conventions would take a turn I wouldn't want to witness
) Fair use, folks. And as has been said, the photos constitute free publicity. Where things are slightly different is when you enter private property, or public property governed by certain by laws, such as a museum. So you _would_ need permission to reproduce any pictures taken on GW property. Repeated flash photography can literally damage certain items like paintings or ancient fabrics, so it's legitimate to ban it. On the other hand, they're also trying to flog you their own, usually expensive, postcards
Henry Miniature Wargames with Battlegames |
Gwydion | 10 Apr 2013 4:37 a.m. PST |
Sorry to sound nitpicking here Henry, but 'passing off' is about trademark infringement not copyright law. When you buy the figure of course you buy the right to do what you want with it
except copy it of course. Now you can photograph it for your own amusement. But did the copyright owner sell you the bit of intellectual property right to photograph it and sell the image to make a profit? I don't know. I know lots of people do photograph and sell the images for profit – figure painters for example, but is that just because the copyright owner doesn't normally bother enforcing it? I do know it sounds like great work for lawyers. |
Yesthatphil | 10 Apr 2013 5:07 a.m. PST |
The test for whether the resulting work (the photograph) is new or derivative is generally whether there is substantial change to its nature. That is why photographs of sculptures are considered new works until proved otherwise (the change from 3D to 2D being generally taken as substantial). The test is ultimately subjective but follows some relatively clear guidlines. However it is interesting that photographing the artwork on a motorcycle has been ruled derivative as although the bike is 3D, it is effectively the canvas for the painting (so the actual artwork was 2D and remains 2D so the photograph is a derivative copy) This is why, last time we discussed this, I raised the issue of shield transfers. Unquestionably, a the photo of several hand painted Greek hoplites at a public event would be the original work of the photographer, a close up of the shield of one of them would probably be a derivative copy of the painting on the shield (original work of the painter)
If that shield blazon was actually a transfer, the IP would, of course, rest with the originator. And the example could rapidly become more complex. Phil |
GypsyComet | 10 Apr 2013 9:19 a.m. PST |
They claim broad rights so that they can go after the small percentage of images that are "defamatory" or otherwise not in their interest. Pictures of all the bubbles in an expensive Finecast miniature, for example. They are also following this broad approach to keep the online resellers down. At this point, though, following their "guidelines" should eventually lead to being able to find pictures of their products in only one place, and that would be Karma in action. |
Patient Zero | 10 Apr 2013 3:37 p.m. PST |
I think everyone who cares strongly about this should use social media to organise a 'Wargamers Freedom Day' on which they would simultaneously post photos of GW product online and defy the empire to do its worst. |
Yesthatphil | 10 Apr 2013 5:40 p.m. PST |
Lol
they managed to get Rage Against the Machine to number one for Christmas, Patient Zero, so who knows
OTOH it would involve having to post photos of GW product on our pages (which might not suit everyone ) Phil |
Royal Marine | 10 Apr 2013 9:49 p.m. PST |
So many words on this thread! Just take the picture and publish, simples: TMP link |
Elenderil | 11 Apr 2013 5:43 a.m. PST |
It's been a very long time since I did my business law qualification and there has been a lot of case law since. So here goes
.In the UK law is made in two ways by statute or regulations deriving from statute. That is a law or amendment to a law created by Parliament this is best thought of as the root of the law which will apply to a situation. That statute law can then be amended by the courts as they seek to interprete what the actual intention of the statute law was (the drafting is often capable of being taken in several ways) this is case law. Case law will be the most up to date word on how law is to be applied in practice. Because of this any companies terms and conditions are only 100% safe to be relied upon on the day they were created (assuming that the author had full and up to date knowledge of the law as it stood at that time). New case law can come along the day after the T&Cs are published and invalidate some, all or part of the T&Cs. What GW asserts is the legal position may (or may not) be correct. The only way to be 100% sure is have a case that is 100% the same as yours go to court, through all the various appeal processes and end up before the highest level of UK court (or sometimes EU)so that it can't be reviewed any further. So the answer is unless an identical case to yours has been before the courts at the highest levels and there is no further recourse to law to get the decision over turned no one knows for certain how the law would be applied. probably 99% sure but not certain, and it's that 1% that causes all the trouble! Legal guys are always going to give the answer that most protects the client's rights. To the extent of being downright unhelpful rather than risk being wrong. So for you the question is do you think GW would take the time and effort of going to law. If you do then photograph someone elses figures. Even if you do use their figures make certain to give credit to GW in text that can be easily read by the most myopic of lawyers. Bottom line GW are not doing themselves a huge amount of favours in the PR department but they probably don't care. Footnote – to any pedantic readers out there yes I do know about common law/tort creating law but it isn't directly relevant
except if contract law comes into it and supercedes the IP argument. Which it might! Finally- this is not binding legal advice given in any legal capacity but simply the ramblings of a half senile hamster who has access to Elenderil's keyboard. Any similarities to hamsters living or dead is purely co-incidental. |
Supercilius Maximus | 11 Apr 2013 9:01 a.m. PST |
You forgot the disclaimer that no hamsters were harmed in the making of this post. |
Architectus Militaria | 11 Apr 2013 9:02 a.m. PST |
Thanks for that Elenderil. As you imply, its very unlikely that, subject to me giving due credit to any GW figure(s) being photographed and then featured in the book, that the mighty GW would be bothered to try to 'hang, draw and quarter me' or whatever would be the appropriate punishment in their eyes for such an apparently heinous crime. The problem though is that pesky 1%. Given that I've been commissioned to write what I hope will be a successful book, the spectre of the GW colossus waiting until said book has been printed and then, to put it mildly, causing publication and release problems or delays is a possibility that I cannot risk, if nothing else, out of respect to my publishers
and my bank account! Yes, before anyone comments, I know that means that GW 'wins' again, but I'll simply smile in smug satisfaction that at least they won't be getting any free publicity from ME now. Who knows, if everyone else took a similar view, it might make a difference
As many posters have suggested, I'm just going to use the figures of other manufacturers as its the only way to be certain. Incidentally without exception, every figure manufacturer with whom I've spoken so far, apart from GW obviously, has been a) very helpful, and b)
dare I say it, but actually grateful for the free publicity, so even if I hadn't already made the decision, guess on whose figures I WON'T be spending my disposable income? So that is it for me on this post, other than to say, "thanks for all the advice" and finally, "the bigger they are, the harder they fall"!! |
GNREP8 | 17 Apr 2013 2:46 p.m. PST |
Lol
they managed to get Rage Against the Machine to number one for Christmas, Patient Zero, so who knows
grin --------------- not that all such protest actions are a good idea as certain rather shameful behaviour in so0me parts of the UK has shown. |
6milPhil | 18 Apr 2013 10:03 a.m. PST |
@ Major Bumsore "There aren't any pictures of GW products on this site. There are only links to pictures stored on other sites." The UK courts have ruled that publishing a link to something is the equivalent of publishing it. |
Last Hussar | 20 Apr 2013 5:05 a.m. PST |
Photos of Painted ModelsWe encourage fellow hobbyists to show off their painting skills by taking photos of their miniatures and putting the on the site. Please remember to correctly credit the IP – "miniature © Games Workshop 2003. All rights reserved. Used without permission – model painted by xxxxxxx"
link Looking at it, it seems to be 'Do not use our IP to identify your work' – ie don't register SpaceHulk.com You could have Purge and Burn, subtitled a 'a page about Space Hulk'. The only query I would have is Please do not combine our intellectual properties with IP owned by any third parties And I wonder, the use of IP owned by 3rd parties- whether that is them trying to protect themselves |
GypsyComet | 21 Apr 2013 8:24 a.m. PST |
They'll claim that, but really it is part of "There is no company but Games Workshop, and Warhammer is its product." |
HumorousConclusion | 23 Apr 2013 10:07 a.m. PST |
@6milPhil That ruling is out of date. See here: link |
David Brown | 17 May 2013 3:04 a.m. PST |
All, Perhaps the debate is less to do with copyright and more to do with publishing photos. In the UK you can take a picture of anyone and anything (as long as it does not contravene privacy laws, official secrets, etc.) and publish it. If you take a photo of me in the street and publish I have no comeback whatsoever. (As long as you did not add defamatory words or other such things!) The same applies to taking a photo of property that you own. GW do not own their space marines once they are your property. (Obviously you cannot claim that you designed them or own the other rights to the original product.) All this stuff about publishing GW products is nonsensical – after all if I published a photo on line or in a book/magazine of me and my gleaming new Aston-Martin – by the same logic I'd be sued by Aston-Martin! DB |
1815Guy | 17 May 2013 3:09 a.m. PST |
This is a load of rubbish. Surely you are photographing and presenting your artwork? Do canvas producers moan when artists show their paintings off? The canvas – or figure – is just something underneath what you are photographing. No court in the land would hestitate to throw this out. |
David Brown | 17 May 2013 6:58 a.m. PST |
1815Guy, Exactly! By the same token GW or other manufacturers who produce paint could also claim some acknowledgement as you had used their paints
.. DB |