"Copyright question" Topic

Some of you will know about my dilemma with my previous sculptor. I have two of the greens he produced for me, but I lack a signed contract from him turning the rights over to me. The tabs on the bases do say (c)NEStudios, the former name of my company.

The question is, how much risk do I undertake if I were to cast and market these two figs? Does he have a case to come back and sue for royalties? Does the fact that he is in England and I am in American cause any further trouble with international laws?

I am not a lawyer nor have I had to deal with this type of situation before. Anyone out there got any advice? I just hate to see these two models go to waste(even though they are slightly out of scale).

Did you pay him?

If you paid for the sculpts they are yours. Unless you talked about paying him royalties for the sculpts he should not get any and has no rights to claim any.

In the absence of a contract turning over the rights to you – he owns the rights.

If he sent them to you without your having paid for them, he is just too dumb to file a lawsuit.

If you did pay for them, then they are your property, and any royalties the sculptor could claim can only be justified by a contract, which is obviously not in existence. The lack of a contract screws the sculptor much more than it screws you.
Hold on to your canceled check, or whatever proof of payment you have.

I agree with OFM.

If he didn't reserve the copyright rights contractually, for royalties from production, and you paid for the figs, you can do with them what you will.

Since you paid for them, I believe your stance is a bit stronger than his, without anything in writing.

Of course, as we all know, the legal system is a crap shoot, and you have a 50:50 chance of the judge, or jury getting it wrong on many occasions.

If you did pay for them, then they are your property, and any royalties the sculptor could claim can only be justified by a contract, which is obviously not in existence. The lack of a contract screws the sculptor much more than it screws you.
Hold on to your canceled check, or whatever proof of payment you have.

The exact opposite is true.

Unless you have a contract which explicitly transfers reproduction rights of the miniature to you, you have no right at all to reproduce it. The creator always keeps the rights of the product produced unless you have a contract that explains it as a work for hire or purchase of reproduction rights.

I would contact a lawyer (should have before hand) and have them do up the necessary paperwork to sue for the rights. If you don't you leave yourself open to all kinds of legal issues once you go into production.

In terms of him being on the other side of the pond – yep…various issues. Your lawyer will be able to explain things a bit better, but if you initiate the paperwork over here – that is what court will decide things. If you wait till production happens, England will have the ball – which can cost you a significant amount of money.

Did he keep pix of his sculpts? How can a sculptor prove something is his work? Isn't ownership nine tenths of the law or something like that?

Just wondering…I have never had problems with my sculptors.

Doesn't it depend on which country you are in anyway? I can imagine US law is different to UK law which is different to German law…

"If you did pay for them, then they are your property, and any royalties the sculptor could claim can only be justified by a contract, which is obviously not in existence."

Sounds like the excuse we see posted by recasters….

It's night!

No, it's day!

Get your legal and medical advice on TMP!!! It's worth every penny you pay for it!!!

Allen

Hadn't thought of this before but mrln68 must be right.

Otherwise, as CPT Jake mentioned, it's legally no different than recasting.

You bought a sculpt from someone and are now reproducing it.

I just wonder if there wouldn't be some sort of loophole (for want of a better word) that it would be the industry standard that the purpose of getting a sculpt is to reproduce it. Yet I suppose an unethical sculptor could always claim they expected to sell you more.

But wait a minute… So does that mean if you buy an original work of art, you cannot reproduce it without the artist's permission ? That sets up a weird situation where assuming the artist retains copyright, it is there until X years after their death at which point the image becomes public domain. So someone else could reproduce the painting you own in prints without giving you a dime. So everything in the Louvre is Public Domain ?

I have heard something similar with photographs – that the copyright stays with the photographer unless otherwise stated.

Interesting question – best of luck !

Doesn't it depend on which country you are in anyway? I can imagine US law is different to UK law which is different to German law…

All copyright law is being pulled together so we can all trade in a world market. Minor differences in various places but everyone is trying to work together.

The fact that the scupltor assigned the copyright on the bases is an interesting twist though. Hey, I don't know. Pass the popcorn…

So does that mean if you buy an original work of art, you cannot reproduce it without the artist's permission ?

Yep, unless you buy the rights at the same time.

The courts have elaborated on the right to the integrity of the work on a number of occasions. In Snow v. The Eaton Centre Ltd. et al. (1982), 70 C.P.R. (2d) 105 (Ont. H.C.J.), Michael Snow, the artist who created the "flight stop" sculpture in Toronto's Eaton Centre featuring 60 geese sued the shopping mall after ribbons had been placed around the neck of each goose in time for a Christmas display. The artist argued that the integrity of "flight stop" as a naturalistic composition was infringed by the "ridiculous" addition of the ribbons, and sought an injunction for the removal of the ribbons.

So does that mean if you buy an original work of art, you cannot reproduce it without the artist's permission?

Yep, you own the item, but not the right to reproduce it. I can buy anything and own that item, but not the right to copy it. I can, however, recreate it by my own work.

Biggest question, in the absence of a written contract, has to be did you commission and pay for the sculpts?

I am shocked SHOCKED to learn that I might, just might, be in Error. That's the second time I have been wrong since 1980, and it depresses me.

Free advice is worth what you pay for it. The only advice I would follow on this thread that makes any sense is "See a lawyer".

I've never made a mistake. I thought I had once, but upon investigation I discovered I'd been correct all along.

I keep making mistakes but cheer myself up with the thought that I have never invaded Russia (or Vietnam, Iraq, Afghanistan).

The sculpts were commissioned to be reproduced. The sculptor did the tabs with the Copyright information because I was to have the production rights. I HAD an agreement, but because of the situation at the time(deployed to Iraq) I was unable to print it and then suffered a HD crash which wiped everything out. Only after that did I have trouble with the sculptor bolting with the rest of my money and not providing sculpts. If he was still hanging around working for me, this wouldn't be a problem. But a thief is a thief and I'd hate for it to come back and haunt me.

I'll probably talk to the JAG office and see if they can offer any advice. If they recommend I sue for rights, that's just gunna make these two minis cost even more, I may just scrap them.

if you gave him money and he failed to deliver product thats (theft by taking) charge him then you have a paper trail

The sculpts were commissioned to be reproduced.

Intentions are not actions (sorry).

Talk to JAG. Best bet. Lack of a written contract is a bigger hurdle, but not insurmountable, particularly since he put your company name on the base. That could be construed by a court as a form of contract, but it it going to cost you bucks to get that ruling. If all you have are two sculpts of a complete line, it probably isn't worth your money to go after it. Trash them, trash his name to other companies that inquire about the work he didn't do for you. Sue to get your money back. You might find that there are certain laws that obtain when you are deployed to a war zone.

In the USA, a verbal contract is binding, but can be hard to prove, obviously.

Honestly, JAG is not the best place for copyright advice. You have an oral contract with this problem. Further, it sounds as if he breached the contract. This is a work for hire, and it is implied that all rights are to be sold to you (and this is the industry practice). I would imagine you're good to go, but I don't know all the facts.

That should read "You have an oral contract with the sculptor." That's what I get for typing and talking to my wife at the same time.

New Evolution Games, depending on how you set up your company, and a lawyer practicing business law and ties the state attorny office, set up my company, in order for anyone to sue me, including a sculptor, they have to come to my home state and file the law suit. This puts the expense upon them and not me.

Second, New Evolution Games, you still have parts of the contract in existance that prove you part of the story, the bases have your company logo, you most likely have a copy of amount paid to the scupltor, plus some unanswered emails.

But, lastly, welcome to the club of companies who have had sculptors bail in the middle of a project. This is not slam sculptors, but statement about what happens within the world of miniature manfacturing.

JAG is just my catch all for legal advice. They will generally do the research for me and get an answer. Somehow I befriended one of the JAG officers that works down the hall from where I work and I imagine he'd be willing to do the legwork for me to find out where I stand. I just figured I come here first to see if anyone had had a similar situation.

I don't hold anything against the sculpting community for one bad seed. I had similar problems when I tried to get my Comic Book studio started ten years ago. Artists are a fickle bunch(Yes I know and agree that there are deadbeat companies out there as well, however I paid in a timely fashion and ultimately paid $500 USD per sculpt when I was due 6 sculpts for that price).

I feel that I should be able to cast them as the rights were given over to me in the process of our dealings. I'm just afraid the shady git will try and pull something. I have posted on numerous websites about his cutting and running with my funds and he seems to have completely disappeared even going as far as to cancel his Ebay account after I found him there.

I'll continue to do the research and maybe one day you will see these available.

They were commissioned by you. Is the $500 USD per sculpt the price you actually paid (and presumably have some proof of payment) for those sculpts? Did you pay him for all 6, but only got 2 (If so, surely he owes you) or just for those 2?

Not necessarily questions you need to answer here, but probably ones you need to think about.

This is always useful (UK):
link

Geoff

The impression I get is that New Evolution Games paid $1,000 USD 'up front' for 6 sculpts and only got 2.

Nuff, said really.

You supplied the design, you commissioned the work, you paid for it, you received the completed pieces, right? (You do have all your paperwork saved?) Sounds like "work made for hire" to me for copyright purposes. Plus, your company name is on the tab. If he sues you, he has the burden of proof to prove otherwise (in which case to only thing you need to worry about is if he somehow brings forth the other 4 'missing' minis to claim a breach of contract.) I'd try and get the case heard in "The People's Court" if it ever went that far…. ;)

""You supplied the design, you commissioned the work, you paid for it, you received the completed pieces, right? (You do have all your paperwork saved?) Sounds like "work made for hire" to me for copyright purposes.""
I just went through this for a game I'm publishing. My artist is in The Netherlands. We emailed quite a bit, and in the emails is the agreement that it is 'work for hire' and also that I have full rights to the artwork. When you copyright your 'items' there is a place for 'work for hire'.
If you have all of this in writting then its yours. IF you don't have it in writting, with his permission stated, then you are out of luck and you cannot claim the rights. ""Copyright protection subsists from the time the work is created in fixed form. The copyright in the work of authorship immediately becomes the property of the author who created the work. Only the author or those deriving their rights through the author can rightfully claim copyright. that is a direct quote from link copyright office. So you have to 'derive the rights through the author' if you did not establish ownership prior to that, then …. C'es la vie, mon ami!

Hope that helps in some way

Headless

Sorry screwed up on the quote box…sigh! Hopefully it made sense.

Headless

Will the sculptor be ready to risk thousands in legal advice and costs to get a ruling favourable for him and screwing you a bit more or in the worst case getting his theft exposed? Are sculptors a rich and confident in legal matters bunch these days? Just wondering with popcorn standing by.

Free advice is worth what you pay for it. The only advice I would follow on this thread that makes any sense is "See a lawyer".

And decent legal advice will probably cost more than what the sculpts are worth.

For the money you would spend on a lawyer and a protracted struggle, you might be better off writing off the cost of the two sculpts as a business loss and start over with a reputable artist.

You need to get the contract to do the casting and sale of the figures. It is akin to a piece of artwork. An artist may paint a picture and then sell the original to a collector. The collector has no right to then take the picture down, have it converted for mass marketing prints of the picture, and then selling the picture. Can you imagine someone commissioning Mal to paint a picture for them and then producing prints of the original for sale to anyone without having to pay Mal for his copyright to the original work? No, you can't. Enough debate here – contact your attorney or the bloke who did the sculpting and get him to sign over the rights to reproduce the figures for marketing. In the future, insist on a signed contract first before paying for the sculpts and pay in progress installments to insure you get what you pay for. A tough lesson learned here.