"How Are They Getting Away With This?" Topic

Their are several companies, mostly in Poland (Unreleased Miniatures, Ridgeback Minitures), that are releasing new LOTR figures without license. The sculpts are amazing, as are the prices, with single figures going for 30 bucks or more. Somehow they are avoiding the wrath of GW. I can't imagine that GW will allow this to continue. Aren't they the evil empire?
Anyone know how they are getting away with this?

Only had a quick look through Unreleased, but I'd say "absolutely random dwarf Lord" (etc) is not a specific LOTR reference.

Same with Ridgeback. Good luck challenging "Marshall" or "Ghost". Where they may come slightly unstuck is if it is an identical copy of figures from the [licensed] film.

However they are not using the Lord of The Rings branding, or mentioning by name any of the characters. The racial terms used are generic (eg dwarf, elf, halfling) and pre-date Tolkein, who borrowed them himself.

I think you answered your own question in the first line of your post. They are in Poland….

Lookalikes are a lot harder to put a stop to than recasts or trademark infringement, and when it's an overseas firm too, that's not an easy "send 'em a C & D and they'll stop" case. As Geoff says, the fact that they're not using any trademarked names is enough to mean that even if they're on GW's radar, they might not be worth a missile….

Poland isn't some backwoods country that openly flouts international law on a daily basis Cerdic. As EU members they have a greater vulnerability to copyright law than places like Russia and China.

The probability is, as Geoff states, they are not breaking any laws.

You make a Gandalf I make a 'Grey Wizard' they are similar in shape and size with a big floppy hat, how can I be breaking any laws?

Depends on the degree of similarity.

I don't know about Europe, but US copyright laws are pretty straightforward. For the written word, you would have to use the exact words of the original to be in violation. For a sculpt it would have to be a near-perfect copy. And even then there are some exceptions. I could write a book about short people trying to destroy some ancient talisman and even call it "The Lord of the Rings" (can't copyright titles) and as long as I wrote all the words myself and didn't copy any of Tolkien's text it would be perfectly legal. Bottom line: you can't copyright an idea.

GildasFacit is right – this idea of Poland being some lawless Wild West is, frankly, – Great country, great people

You and Terry Brooks both Scott….

Yep, it being Poland isn't an issue per se, although it being a country where GW doesn't have a meaningful corporate presence (ie. lawyers on retainer) is probably a contributory factor. Much easier to make a case on "home turf" where you have a legal team that knows the country's copyright legislation backwards….

That said, the big issue is that "lookalikes" are not a straightforward copyright infringement – you'll almost certainly end up needing to go to trial and convince a judge and/or jury that they're producing "derivative works", for which there's no cut and dried set of criteria. So, an expensive court case, in a foreign jurisdiction, which you can't be entirely confident of winning. Oh, and if they're basing them on film imagery, it wouldn't be GW's copyright that is potentially being infringed anyway, but the filmmakers….

Some may ask who has infringed on whom. Such look alike castings have been around before GW, so has GW infringed on them regardless of receiving permission?

I have been in the business a long time and have seen many look alike lots castings by several different companies. Some have been crude and others quite good.

GW aren't the only firm with an LotR licence, of course: there's Mithril.

Don't think their lawyers are in the same league as GW, mind you

John T

As John Treadaway said above, GW doesn't have the only exclusive license for LOTR and The Hobbit.

GW and New Line Cinema made a deal back in 2000 that GW would produce LOTR rules and a miniature range for the rules while the three movies were in production and were on the big screen. They made the same deal for The Hobbit movies. GW released new miniatures as each new LOTR movie came out. The Hobbit movies, as far as the scope of the rules and mini range were kind of like "LOTR lite" for GW.

But GW doesn't own any LOTR or Tolkien IP. GW didn't invent Middle Earth, and GW most certainly didn't invent any of the races in Tolkien's world(given that Tolkien wrote the books years before GW even existed!), they are merely producing miniatures based on Tolkein's world as told through the movie vision of Peter Jackson. That's pretty much it.

As was also said above, companies like Mithril and others have been making miniatures for Middle Earth LOOONG before GW ever made their deal with Newline Cinema.

There's no copyright infringement against GW if another miniatures company makes LOTR minis. Now, that polish company WOULD BE committing a copyright infringement against the owners of the TOLKIEN estate, if they are in fact producing miniatures with the actual Tolkien names and likenesses without any permission or deal with the owners of Tolkien's IP.

The greater the understanding of the Judge about the product in question, the greater chance that the person will be able to defend their property.

I know of two cases where miniature manufacturers took other individuals to court over copyright, and both lost. Their loss was due to the judges view of what was being talked about, and to be honest, the judge considered the lawsuit over toy soldiers to rather silly.

But on a personal note, I sometimes find these discussions some what silly, for the simple reason that there are so many miniature companies making what gamers want, and this figures that represent characters from TV and Movies. With growth of miniature manufacturers and the question, "what do we make next that hasn't already been made?", most do not have a problem with doing representations of characters from TV and Movies, until another manufacturer has the same idea as them, then the copyright issue flag is raise.

I was just looking at some of Unreleased Miniatures LOTR stuff. There is absolutely nothing in this range that GW could ever go after for copyright. You can't copyright a generic dwarf lord, you can't copyright a company of generic forest orcs, etc. etc.

GW can't copyright the general and broad idea of any fantasy race. "Dwarves" are merely a broad fantasy concept that include everything from Snow White to Warhammer, and everything in childrens' books as well. Way too broad to copyright.

This is simply a new interpretation of the armies from Middle Earth.

As I said above, if anything, they might get in trouble with the owners of the Tolkien IP, but that's got nothing whatsoever to do with GW.

I didn't intend to label Poland as some sort of lawless wilderness.

My point was largely that made by Doms Decals. It is a lot more effort to start legal action in a country with an unfamiliar legal system.

Also, having worked with several Poles, and knowing a couple of English blokes who have been to Poland several times, the impression I have been given is that they are a bit more…relaxed over there!

hahaha, "Less Loved Son of Castle White"

Come on, that's funny.

Actually if you think about it. GW has created this opening by giving up on this figure line. If they didn't give up, it would be much harder for a small operation like this to start. If there is an official figure, SBG fans are not showing up with a knock off.

Xin

I thought that was half the reason GW went with AOS a lot of stuff in WFB was pretty generic and could be copied by others with impunity. With AOS they are slowly going to create unique stuff that others will struggle to copy without a law suit..

@Xintao,

Well, it wasn't so much an issue of GW giving up on the LOTR figure line. It's more of an issue of it running its course.

GW is legally obligated to carry the LOTR and The Hobbit ranges for as long as was agreed to with New Line Cinema. The fact that the range went stale was because GW was producing armies and characters based on Jackson's movies. Once those armies and characters were covered, well, there was nothing new for GW to produce. Everything they made for that range had to be based on Jackson's version of Middle Earth, and that was it.

If you think about it, most of the LOTR range consists of miniatures that are 13+ years old! The movies came out in 2001, 2002, and 2003. There hasn't been any new LOTR figures produced for the range since, my gosh, has to be at least 2007 or 2008. There may have been a new specialist figure or character boxed set here or there, but once the movie trilogy ended in 2004, the LOTR mini range was pretty much done along with it. The Hobbit range is newer of course, but even that range is going on over three years old now.

But with LOTR you're talking about a range that is over a decade old, and once the LOTR movie hype died down, the range became just a stale anchor to GW in a lot of ways.

That's why you haven't seen a single official terrain piece for The Hobbit movies at all, outside of that one piece they made, which came with the limited edition Escape from Goblintown kit they released in 2012.

I believe that last big mini that was made for The Hobbit movies was Smaug, that was kind of like the last hurrah. And, at nearly $500 USD retail, it's only selling to a small collector niche community.

As I said, it wasn't a matter of GW giving up on the line, but rather that because the range ties into the movie licensing, GW can't do anything new for the range outside of what was authorized by New Line.

OT Games Workshop had an officially licensed Lord of the Rings range back in the mid 80s too. Mithril's dates from 1987. Obviously neither are based on the film designs or actor likenesses. Many of the Citadel sculpts ended up in the Warhammer range, I have some of the Sylvan Elves in my Wood Elf force.

Point of order: "THE LORD OF THE RINGS" might qualify as original enough to be protected by copyright, as much as "THE HOBBIT." So good luck with using that for something else. But on top of that, both terms are likely protected by trademarks, if only because of the films (trust me, Hollywood trademarks *everything*).
Also "exact wording" is incorrect; it need only be substantially the same to come under the copyright protections. Derivative works can violate copyright as well. For sculptures, this means you can't just make minor changes; the artwork has to be substantially different, and indeed uniquely and distinctively different, or it will violate copyright. Changing a hat, a cloak, or a pose won't work.

Actually I stand corrected on a couple points. Was just reading up on the history of GW's middle earth ranges. GW's license to produce LOTR was expanded to produce miniatures for Harad and Khand. They also had license to make some of the characters from the books that did not appear in LOTR films, such as Tom Bombadil, Goldberry, and the elf Glorfindel.

GW's rights to produce miniatures for Harad and Khand allowed them to take artistic license and create several fictitious lands and also several fictitious Harad and Khand characters.

GW however is does NOT have any licensing to produce miniatures from any of Middle Earth's back story, i.e. The Silmarillion. They are limited to the LOTR trilogy and The Hobbit.

But even so, there is no doubt that for GW, Middle Earth has certainly run its course, I am sure they still have a lot of stock of everything from the entire time period of both runs of both movies. I am 100% sure that they are not planning on making anything new for LOTR or The Hobbit ranges, I just don't see it.

> Their loss was due to the judges view of what was being talked about, and to be honest, the judge considered the lawsuit over toy soldiers to rather silly.

That is hard to believe – more likely is that the plaintiffs in these cases did not prove their case.

You have to understand how legal matters work. A person may see this miniature and see the likeness. Now defining this in a court of law isn't as self-evident. You have to bring up a case, convince the judge that it is indeed a copy and not merely something that happens to look similar …

Usually what happens is that you get a C&D letter and should you persist and the other party warrants its worth going to court, you'll get a summons.

I believe TTIP might make it easier to take somebody to court over such matters and etc, but I'm not a lawyer so do check with someone who knows more about it.

I know for a fact that GW has come down hammer and tongs on several garage type companies who made various parts for GW models. Like EBOB, who was forced by GW to discontinue some of his quasi-LOTR pieces. Small companies cannot afford the legal fees that GW can force them to run up. Bullying is their usual tactic.
I just surprised that they let this go on.

Is the name a clue? Are these figures from GWs old line that they have bought the rights to?

Dynaman8789 – The gentleman had his molds, masters, an examples of his castings. He had the recites of the person doing the pirating, as well as he was able to obtain some of those casting and the dates of their release, which was after the date of being purchased from him. The man was a military recruiter and was in court in uniform.

The judges response before dismissing the case to the recruiter who owned the business, "Why don't you get a real job instead of playing with toy soldiers!"

I have a related question maybe someone here can answer.

There were a few Kickstarters recently that had "GW-ish" models like a version of a Zoat and Ambull, how were they able to do that successfully?

I'm curious since I was asked to make some new, more modern versions of some old GW Chaos Champions and it was suggested that I put them into production.

I know there have been a few places that made, or are still making, models based off GW artwork like the ones from Pantheon of Chaos.

I'm curious as to the legal issues surrounding this, since I think it would be a good idea to make some more modern versions of older models.

Martian metals did a range of 15mm in 1978 timeframe. Ral Partha had 25mm in the early 1980s and before. Heritage made some crude 25mm ones in 1977.
Citadel who became GW had some in the early 1980s as well. Others?

> The judges response before dismissing the case to the recruiter who owned the business, "Why don't you get a real job instead of playing with toy soldiers!"

Is so that right there is enough to get the case thrown out.

That notwithstanding: why on earth did he wear uniform to court?

To impress and gain support

However the fact that he did so surely also indicates that he had a very real job.

GW can't copyright the general and broad idea of any fantasy race.

Well they did try and copyright "Space Marine" and got their asses handed to them.

This is GW and if they could get away with Copyrighting the word "Elf" they would do it.

While judges in the United States have the trappings of a profession, they are in reality elected or appointed with very little in the way of oversight. Certain appointments (such as the Supreme Court) don't technically require that they have passed the bar or even studied law. It doesn't generally work as poorly as that would indicate, but when it goes wrong it can go very wrong indeed, such as judges in Pennsylvania taking kickbacks from prison companies to incarcerate minors:

link

Unfortunately, incompetence is very hard to prove in an essentially non-empirical profession, and appeals are very expensive, even when they don't have to be approved by the judge you're appealing or one of their close associates.

I find it sort of funny how people get up in arms about GW's Right to casts. They have been stealing IP for years themselves to make armies for 40K.

Tyrnids…aliens
Tau…Aname
Orc, Squats, Eldar…generic Fantasy races
Imperial guard. …Early artwork was Napoleonic Prussian almost
Necron…Terminator

They have been raiding IP for years for army/Race ideas and are trying to protect their piracy now with big lawsuits. Even their Grey wizard from the early Warhammer games was a obvious theft of the Gandalf IP.

This makes it sort of hard to take their whining serious when they get the same treatment.

Having gone through this last year with another minis producer, here are a couple interesting points I found (this is applicable only to US law, though; I can't speak for our Eurofriends):

Physical products cannot be protected by copyright. In Kemp & Beatley v. Hirsch, 34 F. 2d 291 (1929), the 2nd Federal District Court stated:

Moreover, the classification which the Librarian of Congress has promulgated, in accordance with the Copyright Act, reasonably defines the scope of section 5, subdivision (g). The "Rules and Regulations for the Registration of Claims to Copyright" sets forth:

"Rule 12. (g) Works of art and models or designs for works of art. – This term includes all works belonging fairly to the so-called fine arts. (Paintings, drawings and sculpture.)

"The protection of productions of the industrial arts utilitarian in purpose and character, even if artistically made or ornamented depends upon action under the patent law; but registration in the Copyright Office has been made to protect artistic drawings notwithstanding they may afterwards be utilized for articles of manufacture.

"Toys, games, dolls, advertising novelties, instruments or tools of any kind, glassware, embroideries, garments, laces, woven fabrics, or similar articles are examples. The exclusive right to make and sell such articles should not be sought by copyright registration."

Even if GW held a patent (including a design patent) on their miniatures, those products, while similar, are substantially and significantly distinguishable. The US Supreme Court established the key test for patent infringement in the case of Gorham Co. v. White, 81 U.S. 511 (1871). According to Gorham, there is infringement:

"…if, in the eye of an ordinary observer, giving such attention as a purchaser usually gives, two designs are substantially the same, the resemblance is such as to deceive such an observer, inducing him to purchase one supposing it to be the other."

There is no patent or copyright protection for specific arrangements of geometric shapes. Unless the Polish miniatures were exact reproductions in size, weight, material, and detail, such that a purchaser could be fooled into buying one when thinking they were buying the other, they would not represent patent infringements.

Sounds like I could make more modern versions then, since they would also have newer, more dynamic poses. You would definitely be able to tell them apart from the old ones.

I think so, so long as they are different enough (like, no Imperial eagles, state fair seals, etc.). But I'm not a lawyer, so don't take my word as gospel!

javelin98 – I know. I sculpted one about a year ago and some friends said I should sculpt the rest and do a KS for them.

There was another Kickstarter that had remakes of old GW models like a Zoat and Ambull, and many others. Apparently they didn't have any issues.

I can't find the link to it right now.

Still, something to think about.

Keep in mind a lot of old GW figs were made by maruder Miniatures (not a pretty story in itself)

> I'm curious as to the legal issues surrounding this

Legal issues aren't important. It's the *enforcement* of them that is. It's not like running a red light -- some policemen doesn't come running after you. It has to be (or typically is) the owner of the IP who starts the legal action. If, for whatever reason, they don't want to do it, it doesn't get done. GW *is* under "new management" and maybe they've realized that pursuing all these small companies isn't worth it for whatever reason.

MH, UK law is a little different to US law. You might want to read up on passing off, for instance.

Wouldn't say it's impossible to do what you're proposing but you'd have to be careful about how closely they are designed and how they are marketed etc.

Ced's point is close to what I have to tell my more litigious colleagues at least once a week in my day job. It doesn't matter what the law/contract says, what matters is whether you have the time, inclination and money to enforce it.

OP……..what ever are you going on about? What a load of rubbish. Noise for the sake of controversy? Or do you just like to pointlessly rattle cages to see who barks?

OP……..what ever are you going on about? What a load of rubbish. Noise for the sake of controversy? Or do you just like to pointlessly rattle cages to see who barks?
"Oh my word ! Someone somewhere has made and sold generic fantasy miniature yet again…… How could they!?! ". LOL :D