Safety First: IP Infringement

 The first day of each month, I’ve begun writing about ways to improve safety awareness.  In the past, I’ve covered general safety topics related to modeling, such as handing Cutting Edges and Lighting / Eye Strain.  This month’s safety topic differs from the previous topics in that it doesn’t deal with physical safety, but rather legal liability in the realm of Intellectual Property (IP): specifically in regards to copyright (and to a lesser extent) trademark violation. 

 Again, let me start by saying that I’m not the foremost authority on safety (or, in this case, legal matters); I’m just a concerned hobbyist that wants to make sure that everyone takes time to think about what they’re doing.  This post is by no means a substitute for any safety practices available to you: be those from the manufacturer, your lawyer, or things you’ve already learned—it’s just an attempt to raise awareness to safety.  Ultimately, if you have questions about the legality of what you’re doing—please consult your lawyer. 

 Many people confuse the concepts of copyrights, patents, and trademarks.  Essentially, copyrights apply to works (art, music, writings), patents involve physical inventions, and trademarks are words, symbols or pictures, that describe a product.  There are various levels in these categories, such as Registered Trademarks & Servicemarks) as well as other related categories (like Trade Secrets), but those are really reserved for more advanced discussions.  If you’d like to know more on a basic level, about.com has a decent high-level overview here.  Alternately, you can find out everything you’d ever want to know about the subject at the US Patent Office’s website, here

 Normally, I’ve seen these examples compared to KFC, since they have a really great example of a trade secret, but since we don’t particularly care about that subject for the purpose of this blog entry, we’ll just use an example we can all understand: Games Workshop.  

  • Copyrights: Codexes; Rulebooks; writings on their websites; pictures on their website; their models, etc.
  • Patents: Their molding technology
  • Trademarks: The GW logo; the 40k logo; and the long list of names at the bottom of GW’s IP Page

 All of these areas are covered uner a generic blanket term called Intellectual Property (IP).  So, what can you do with their IP without getting slapped around?  Well, thankfully, GW has a great page stating explicity what you can and cannot do with their IP.  That’s really just a start though, as IP law is very complex.  Essentially, you should do your best to follow those rules they set forth when dealing with their material, and work with them should they place a claim that you’re violating any sort of their IP.  Essentially though, if you’re following the rules they lay out, you should be in the clear. 

 There is an unfair view from many that GW is seen as a heavy-handed corporate monster out to squash gamer’s fun by issuing countless cease-and-desist letters.  Granted, they do seem a little aggressive at times with this sort of practice, but they’re ultimately just protecting their property.  They work very hard to create content, models, and basically everything listed above, and are just trying to ensure that people aren’t making unfair profit off of their work.  

 But keep in mind, that us on the blogosphere aren’t subject to just GW’s IP rules.  We’re notorious for stealing images from other websites, and very seldom does anyone site their original source.  Do you remember back in school where you wrote a term paper and had to site your sources.  When you didn’t it was called plagiarism, and was the kind of thing you could get expelled for.   So what makes it right now?  If you’re using someone else’s work, you should rightfully give them credit.  This is the reason you see little italicized quips at the end of each of my posts giving credit to the website of anyone that I use images from.  Technically, I should get permission from each of them to do so, but since I write these blog entries up on a whim, and don’t want to take two weeks to get a response, I just go ahead and use them, but give them credit.  Any of them would be perfectly within their rights to ask me to remove the content or issue a cease-and-desist letter on using the content though, and I’d gladly comply.  When my blog first started, I wasn’t a stickler for this though, but thanks to Pony-Boy for opening my eyes to something I should’ve been doing all along. 

A good page to go to for more information on generic IP rules and misconceptions is Brad Templeton’s page (which is explicity tailored to copyright information, but is good generic information none-the-less).   Within that page, he explains that just because something doesn’t have a copyright symbol (©) doesn’t mean it isn’t copyrighted, and goes into detail about derivative works, and the concept of fair use.  It’s a real eye-opener. 

So, where does your blog stand on IP?

  1. Do you have on your page to comply with GW’s request, stating that you’re not official, and that you respect their IP?
  2. Do you credit your sources when you post images and/or text from other sites?
  3. Do you request permission before doing #2 above?
  4. Do you credit GW for sculpting the model in every picture you take? (Wow, that does seem a little absurd…)

Certainly, I’m not without fault on this sticky situation myself.  I just try to toe-the-line and respect people’s property to the best of my ability.  I’m certainly no lawyer, so I can only act in good faith and try to follow the rules to the best of my ability.  Again, this post is in no-way intended to be an all-encompassing explanation of the do’s and dont’s of IP law.  It’s only meant to raise the general level of awareness.  If you’re looking for more information on the topics I’ve touched on, here are some good links to get you started: 

Hopefully someone else out there has something to add to this discussion.  Anyone?

Copyright Definition image used without permission from http://www.lawyersandthelaw.com

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16 comments on “Safety First: IP Infringement

  1. That really depends upon what you mean. If you're asking if it's alrightfor you to copy Chapterhouse's stuff, no. They've the same rights as GWdoes in that regard. If you're asking if what they're doing itself islegal, I'd say they're operating in a gray area. You'll notice that theycall most things by innocuous names and avoid using GW's copyrightedterminology (instead of a thunder hammer, it's called “Generic Hammer” andinstead of a Space Wolf Storm Shield it's a “Storm Combat Space Shield forWolves.” There are a few examples where they violate though, such as the spacemarine shoulderpads<http://chapterhousestudios.com/webshop/component/virtuemart/?page=shop.browse&category_id=17&gt;.By and large, I think they operate a legal business that GW isn't botheredby, but in the instances where they're selling a competitive product that issimilar (if not identical to) GW's, they're playing with fire.Of course, don't take my word as gospel. I'm by no means a lawyer–I justtook a class on Contract Law back in my college days, and had to bone up onit again for my CISSP. I'm an IT guy at heart, and don't deal heavily withIP law on a day to day basis. It could turn out that everythingChapterhouse does is considered a derivative work, and GW tries to shut themdown one day. Who knows?

  2. @veghist: Sorta. If you're sculpting/casting for your own benefit, then you're covered under fair use. It's when you decide to sell them that things get iffy.Selling casts or copies of GW kits is illegal unless you got them from GW. But if the sculpt/cast is entirely your own work, you're fine.Also, you want to avoid trodding on IP when you're making any profit. So selling “Warhammer 40k Salamander Shoulder Pads” is out, but “Sci-Fi Lizard Theme Shoulder Armour” is fine.Things are much more lax if you're not making any profit. That and a desire to keep blogging a hobby and not a job are the main reasons I don't put ads on my site. There's a lot more I can do before they're going to send me a C&D letter.@Warhammer39,999: Heh. Thanks for another linkage, though I can't recall what it is that I did that prompted such on this topic. (Also, GOOD topic. It's something many people don't think enough about.)

  3. Just to clarify, this is not entirely correct. Making a profit off of an unauthorized copy increases the likelihood that you won't be protected under fair use, but simply not making money off of that copy does not automatically award you that protection. In the case of a GW model that you've molded and recast, you most likely are not in the realm of fair use, regardless of your lack of profit. Instead, a court would typically recognize that your copy constitutes a lost sale, and thus financial damage to GW.Even a sculpt entirely of your own, but based off of a piece of GW artwork, or copying an existing GW miniatures, is likely to be a copyright violation. Both would be examples of derivative works, which are squarely owned by the copyright holder absent a fair use exception.You are right that copyright holders are more lax about pursuing infringers when there's no profit involved, but that doesn't mean they're not within their rights to do so. Therefore any infringing activity, including those for which you think you fall within fair use, should only be done following a careful risk assessment.And I agree, good links in this post.

  4. Ultimately, all you did is give proper credit when you link to photos.You're the first person I noticed that did that, and it's really the rightthing to do. So, not only am I citing who I steal photos from, but also whoI steal ideas from (not that crediting owners in posts is your IP oranything…).

  5. Well, if we want to get technical, “fair use” only applies to educational purposes too. I was trying to avoid legalese and just give a general response. :-DThe key to my response was that the original question wasn't about full models. Instead they were mainly concerned with bitz, in particular shoulderpads. An accessory item like that isn't likely to be quantified a market ready sum product without a miniature to hang it on. When you're talking about smaller items, it's also harder to establish a provenance of GW-specific derivation. Something like a shoulder pad is pretty generic given how many systems use a similar scale. As long as the item wasn't blatantly copying an existing line and was kept trademark free, I think GW would have a hard time pushing through a “lost sale” stance. Now add the costs of opening and pursuing jurisprudence, the difficulty of juries in private use litigation (especially since defense lawyers can play up “Mr.Hobbyist versus the Evil Corporation”), and then tack on the potential bad publicity? GW understands the idea of diminishing returns.Honestly, NOTHING ever fully protects you from getting a C&D letter. They are merely a warning of potential for legal action and no real due cause is required. The distinction is in if (or how likely) you are to be taken to proceedings, what would be upheld and what recompense would be rewarded. Thus I'd reassert that someone doing casts of bitz for personal use will probably be fine. Someone casting and selling bitz for monetary gain needs to cross more t's and dot more i's to avoid a C&D.All things considered, GW's actually pretty good about not putting the brakes on fans. Some of their C&Ds have been a little reactionary or overzealous, but usually there's a good reason or contractual obligation for them. They really could be much, much worse about it. Sites like Warseer, Port Maw and many others could probably be shut down, but are allowed to continue operations because they really do try to encourage the community where they can.There, that a better and more fully fleshed response? :-p

  6. Indeed it is. 😉 I also failed to recognize that you were responding specificallyto veghist's question, which was much narrower that I was commenting on. My apologies.The only reason I weighed in is that there is far too often the misconception that, as long as you don't make any money off of a copy, you're free to recast things to your heart's content. I have no interest in helping an IP holder enforce their rights or chill the creative activities of hobbyists, but I think people need to be aware of the reality, or at least the complexity, of the situation. That's one of the major problems with IP – it's a terribly complex system that nonetheless affects all of us, and it seems that people will often take advice on the issue only so far as it supports their desired activities.I completely agree with you (and Warhammer 39,999) that Chapterhouse is likely in the clear with their activities. As long as they don't start creating shoulder pads or other bitz with icons copied directly from GW models or artwork, they should experience smooth sailing.And, just to be technical, fair use applies beyond education to include reporting, commentary, criticism, parody, etc, generally, but can also be applied to just about an infringing use that passes muster on the four factor test outlined in Campbell v. Acuff-Rose. ;)You know, there really should be a comprehensive “Hobbyist's Guide to IP” out there.

  7. Ah, makes sense. I do that mainly for wanting to be fair about giving credit where due. :-p That also it covers IP was just a bonus in my mind.I also had a disclaimer on my first post about not being a corporate shill, but really should have it on every page. I'd been thinking about that for a while now and this post prompted me to finally get around to that.As to photos, I don't really bother requesting permission. I rehost rather than deeplink, credit the owner, give a source link and offer to remove if requested. I also don't bother crediting GW for every pic involving one of their models, as I think that's silly. Not only is my site obviously a fan-site for GW product, but there's many larger and worse offenders out there. But should I ever be served a C&D or otherwise have such requested? I'll comply in one way or another. I doubt it will happen though.So that's where I stand on IP…

  8. Chapterhouse recently did start to make shoulderpads that are astonishinglysimilar to those that GW produces, some simply have the variation that theyhave their squad number included on the pad, but some are virtuallyidentical to the GW equivalent (for more money, no less). GW certainlywould have a case there for litigation.Thanks a lot for chiming in on this discussion, Akanous. Both you andpony-boy have added quite a bit to the overall theme. I concur that itwould be great to have a comprehensive guide to Hobbyist's IP, but I'm justnot the guy to do it. But you seem pretty knowledgable! 🙂

  9. This is a great post, and just as important to a person's well-being as any tool-usage or safety-equipment post. I realized that my own website needed a disclaimer, and found your post most helpful in finding an easy way to add it.

  10. Fair points all and no apologies needed. I've seen the same misconception and should really have been better in my explanation.Oh, and great catch on the other transformative uses. I'd forgotten they were all classified under the same “fair use” heading. I've been working for a University too long and my focus has only been on that.Cheers and I second Warhammer39,999's nomination. :-p

  11. I was wondering about this issue, and have added a disclaimer using a few of the 'suggestions' on GW's IP page directly. Thanks for the help!

  12. “They work very hard to create content, models, and basically everything listed above, and are just trying to ensure that people aren’t making unfair profit off of their work.” yeah sure, like all that fan made content would bring unfair profit to someone.

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