"Copying fictional characters." Topic

Why do people think it's permissible to copy fictional characters in model form without permission?

This is a serious question.

Because it's easier, cheaper and they think no one who cares will notice.

Regards, the Gorb

I have a complete set of figures I made for pulp gaming. Flash, Dale, Dr. Zarkov, Vultan and the Hawkmen, Ming, Ming's Daughter, and a passel of minions.

Made 'em myself, modded 'em from existing figures. Who's to say I can't?

So why do you think it's OK? I'm looking for reasons. For example, I copied the miniature for personal use only.

Because "I want it!"

I think a lot of it is "Who do they think they are, telling ME that I can't make or do what I want?"

Tolkien is respected in this case, because although long dead, the estate keeps licensing "official" figures.
As long as licensed figures are available, the copiers do not seem to get traction.

I would be curious to see if a certain manufacturer has permission to do Flashman figures. some of the figure vignettes are direct copies of book covers. In this case, if not, perhaps the copiers feel that Mister Fraser can't be bothered with the legal fees necessary to pursue his rights?

There are a few "NOT Barsoom" "NOT Mars" ranges out there, but let's be serious here. That is exactly the audience they are aimed at.
In this case, perhaps they can be "justified" on the grounds that ERB is long dead, and his estate has never done a lick to earn its stranglehold on the IP except file lawsuits at the drop of a hat. Certainly, they have done nothing creative. I have a bit of sympathy with this position, much more so than with the Flashman figures.

BTW, I would love to hear that the Flashman figures are official and licensed and all that, but every time I ask that, no one answers.

Eureka has a "Shaftesbury" figure who I have painted up in Cherrypicker Hussar rig. I have even called him "Flashman" on occasion. What is the difference? Well, Eureka is not trading on GMF's creation. GMF can hardly claim all Hussars as his creation, but he CAN claim Flashman as his creation. Errr, no he can't actually….

Miniature manufacturers in general cannot afford the very high prices for an official licence without risking there homes and livelihoods. No miniatures range is worth that. Yet the market (Thats you guys), want them. The only alterative to giving you what you want is to make similar figures and call them something else. Your happy as you get the figure you wanted from you favorite TV/film/book, and the manufacturer gets to eat that month.
The amount of money a manufacturer will claw back from say a NOT Indiana Jones figure wouldn't pay a months wages over 2 year period.

"Flashman" on occasion. What is the difference?"

To me no difference, but as one manufacturer told me in person, "science fiction gamers have no imagination". They all want the official product.

When you say 'copy', do you mean an exact copy, or something that's similar, but not exact?

For example, Copplestone's Terminator Robots? Would you consider those copies? How about VOID's Viridian Assault Marines – are those copies of GW Space Marines, in this context?

It seems to me that there's a difference between 'copies' and 'similar and obviously inspired by'.

Another point to bring up is that there is a tradition in the scifi modelling comunnity of 'garage kits'. With a few exceptions (SMT and Lucasfilm), there appears to be tacit approval of this by the various IP owners.

They are all derivitive works. Should the respective governments have the IP for Napoleonic Uniforms?

"It seems to me that there's a difference between 'copies' and 'similar and obviously inspired by'."

So copying to a degree, would be one reason. The question, of course, is how much can one copy without infringing.

"Another point to bring up is that there is a tradition in the scifi modelling comunnity of 'garage kits'. With a few exceptions (SMT and Lucasfilm), there appears to be tacit approval of this by the various IP owners."

This reason seems to be, the company doesn't complain or seems indifferent, therefore copying is OK. My issue with that is just because a company doesn't complain, or has a history of given some permission does not make the copying un-infringing. The company could complain the next day, or revoke a reserved license to copy.

"Should the respective governments have the IP for Napoleonic Uniforms?"

In the U.S., the government is not supposed to own copyrights. However, certain laws limit people's use of uniforms and other designs in the name of public safety. But this thread is discussing fictional characters.

I wonder f George Washington or Napoleon were alive today, if they would have a good case about licensing their images for wargame figures?
We want the Real Thing in our historical games. No generic "general in a tricorne" for me, I want a portrait figure of George.. Is there much of a difference in wanting the Real Thing in a sci-fi game?

Close to that, how much could you get away with by naming characters in a figure line, without a license:
"Carter Johnson of Mars"
"Theejah Doris, Princess of Mars"
"Zartan, King of the Jungle"

"Copying to a degree"?

"Copying to a degree"

Copying a Predator head and putting it on the body of a normal human is copying to a degree. In other words, one copies the head. Does copying the head of Predator constitute infringement? What about the outfit only? Where is the originality of the Predator character placed? In the head, body or the whole object? The originality is what is copyrightable.

What if I were to use the head of a Predator and put it on a body of a Space Marine? What is copied? Two copyrights in part.

Those are obvious, easy ones. Let's try a few harder ones.

Are these 'copies'?:

'The Terminator' vs. Copplestone's 'Terminator Robots'

GW Space Marines vs. VOID Viridian Assault Marines

I'm going to refrain from determining in my view whether those are copies, but there is a degree in which the amount of copying becomes infringement. That degree seems to be quite liberal according to some manufacturers.

Like these manufacturers?

picture

picture

If those aren't 'copies', why are we worried about Thejah Doris?

Sorry if I came off like a sarcastic there, that wasn't my intent.

What I'm trying to say is that you seem to be extending the definition of 'copy' to 'anything vaguely similar'.

I in no way am making any opinion on any set of facts. I'm just stating what the law is. Infringement is a measure of how much is copied, the originality of what is copied, whether the copying is Fair Use, whether the copying is done for commercial purposes, etc.

Similarity is absolutely a factor in copying. Whether I would call something "inspired by" or "vaguely similar" would depend on who my client is.

But at the end of the day, if it looks like a duck and quacks like a duck…

Where does the Zed figure fit in, then?

I don't know that they think it is "permissible." I believe they think they can get away with it and make money. And if the IP holder issues a "cease and desist" order, then they'll stop, having made whatever money they could.

This is exactly what happened with Cheap Ass Games' "Before I Kill You Mr. Bond" game. They sold the game for several years under that name. Eventually, the IP holder noticed and issued a "cease and desist" order. CAG pulled the game and renamed it "James Ernest's Totally Renamed Spy Game." In any case, they were able to trade off the Bond name for a period of time without paying any royalties. I don't know for sure, but I understand that was always the plan. Hence, they knew it was not "permissible" but they could do it and make money until forced to stop.

Rob

Regarding "The Princess of Mars";

I'm not a lawyer and I've done no real research on whether the ERB Estate as a leg to stand on regarding the public domain "The Princess of Mars" published in 1917 (or the earlier serials in 1912) but…

I was under the impression that works in the "public domain" may be copied or used in the creation of derivative works? So any miniatures, if designed as a derivative work based on the descriptions in the 1912 serials, 1917 book edition (or I would guess one of the many online editions which are based on the 1912 serials or 1917 edition) would not be in breach of copyright.

If I were the creator of a work (Let's say I sculpt a Princess of Mars miniature) I would try to be very careful to maintain records that I created the work in the image from the public domain source. Considering the popularity of some of the ERB "John Carter of Mars" art work, that might be hard to assert: link

Naming them exactly as in the book might be an issue what with other editions and publications being copyrighted. Renaming them (asserting the names are derived from the PD source) seems OK to me.

I would guess that if ERB, Inc. asserts copyright against art, say a painting of Deja Thoris, they could claim it's a derivative work from one of their more recent (and copyrighted) book covers. But ERB, Inc would have to prove that, correct? It seems hard for ERB, Inc to prove if so.

If anyone wants to read the early books about John Carter and Deja Thoris for free, do a books.google.com search. Or go and do a Google search for "The Princess of Mars" and you'll get links like: link and there are many other sites where the early publications are freely available.

If it is a character in a book does copyright apply to a description of a character?

The sculpture is an original work – only if the artist uses the characters name is there any breach, and if the likeness is good the artist can call it what he os she likes – everyone will know how it is meant to be!

In the UK there was a legal case based on artists making Elvis items – the artist won as in the UK a face cannot be copyrighted (though make up can be)

john steed: "in the UK a face cannot be copyrighted"

This is quite natural, since the face itself is not created by anyone, but it is sort of "naturally occurring". The act of fertilisation by the parents cannot really be considered to be creative work, since they really do not have control over the appearance of the resulting human being.

I guess arguments could be made for a very extensive plastic surgery forming an original work that could be protected by copyright, but that might be a bit iffy.

Griefbringer

Fictional characters in books are copyrightable but they are treated a bit differently than graphic or 3-dimensional characters.

I've been waiting for this thread to show up. Copying and IP infringement has been brought up a number of times, but they usually don't mention Copplestone…mainly because many people really like his figs and are glad to have them.

Copplestone is the sculptor that produced 80%+ of my collection. I love them. He also produces the most blatant miniature versions of fictional characters, from TinTin to Predators to Lara Croft. I'm somewhat torn about that. He's obviously filling a market demand with a product the IP holder wouldn't bother with, so does that make it okay?

It's a thorny topic I've thought a lot about. I sulpted my own ED-209 and cast it in resin. I emailed and called the IP holder and its attorneys at least 10 times to get permission, with no response before I did. I gotta say, my conscience feels clean.

Fictional characters can also be 'Trademarked' which avoids all copyright limitations.

IIRC, ERB was the first to form a corporation and transfer his copyrights to the corporation so that they would not expire upon his death.

Regards, the Gorb

Thanks the Gorb,

That explains the "Edgar Rice Burroughs, Inc." instead of "estate" in the filings. I haven't thought about trademarks and copyrights for quite awhile. I'm beginning to realize why I'm working in Information Technology now.

Fictional characters can also be 'Trademarked' which avoids all copyright limitations.

One doesn't quite "avoid" the other but a trademark is a great way to keep a title or a name.

John Carter of Mars:
link

Princess of Mars:
link

Something doesn't seem right as these were filed in this decade, the PoM filed this year. I don't see any prior records but that could be the way the USPTO maintains their data.

So John the OFMs "Carter Johnson of Mars" or "Theejah Doris, Princess of Mars" may be "confusing".

IIRC, ERB was the first to form a corporation and transfer his copyrights to the corporation so that they would not expire upon his death.

If the work was published before 1923, it's in the Public Domain.

@Bill White – Yes, ERB did not found his corporation until 1924. However the corporation DID trademark all the characters in the books very early.

ERB Inc polices them with great fervor:
link

Why? Because Disney paid ERB Inc $15M for the rights to make an animated Tarzan movie.

Regards, the Gorb

"Fictional characters can also be 'Trademarked' which avoids all copyright limitations."

That's true, but only graphical depictions of characters and even then it's still quite controversial and they receive different protection than what copyright offers. The benefit of trademark is that so long as it's in use, it's protection is possibly infinite in duration.

This thread has interest for me, as I'm about to do my independent research essay on copyrights :-)

"In any case, they were able to trade off the Bond name for a period of time without paying any royalties. I don't know for sure, but I understand that was always the plan. Hence, they knew it was not "permissible" but they could do it and make money until forced to stop."

Now, to prove I haven't started yet, I thought there was something about being able to claim a proportion of profit made from the unauthorised use of the copyright (presumably only if the IP holder chose to do so). If that is so, wasn't that a large risk as the IP holder could, potentially, claim against the profit they had made thus negating the plan?

Geoff

What about a slightly different situation, where historical or pseudo-historical figures appear in books. The illustration in the book then becomes synonemous (?) with that character. A miniatures company comes along and makes a figure based on that illustration, as that is the way people think of that character. Im thinking, say Robin Hood, William Tell, Achilles.

Union Jack Jackson: if the illustration is truely original (ie. not just based on historical sources) then a miniature sculpted based on it would be a derivative work, and the sculptor would be violating the copyright of the illustrator.

Whether the character itself is historical or fictional is not really of importance – it would be the originality of the illustration itself.

However, if the illustration is just based on historical sources, then the sculptors can freely sculpt models whose designs are derived from the same historical sources.

Griefbringer