copyright

[Aidan K]

I don\'t believe commercial gain is required in order to be in breach of copyright. I think a copyright breach just becomes more apparent once the breacher starts advertising and selling the item than if they kept it quiet.

From GW\'s IP Guidelines:

\"Do not cast any materials that are based upon Games Workshop material. Games Workshop has to maintain a strict policy on this to fight counterfeiters. We would also remind you that reproduction for personal use is NOT an automatic exclusion in respect of copyright protection in many territories worldwide. \"

I believe that the use of a GW artwork to make a sculpt, even with some changes, would come under the exclusive right of the copyright holder \"to create derivative works (works that adapt the original work)\", as GW owns the copyright on the image.

One obvious example I can think of is the Allan C (i think?) \"daemonette\". It looked too similar to the GW version to be sold separately, though with some sculpt changes and a name change it became OK.

 

[Einion]

Originally posted by kman
Obviously the specifics of these matters will vary depending on the laws of the nation involved, but generally the points above are not correct. For starters, commercial gain has no bearing on whether something violates another\'s copyright.

Oh for goodness sakes, it\'s explicit in some of the legislation:

In determining whether the use made of a work in any particular case is a fair use the factors to be considered shall include... the purpose and character of the use, including whether such use is of a commercial nature...

So no bearing? I think not.

As well as that it\'s likely to be one of the key factors that would be used by a potential bringer of a suit to decide whether it\'s worth their while, although that\'s a moot point.

Originally posted by kman
In the situation suggested by Aidan, where somebody independently sculpted a power armored human (i.e. didn\'t actually cast anything from a GW model) that was so identical to a GW space marine that they couldn\'t be distinguished, or it was obvious that the sculpt was based off of GW artwork, it would matter little as to whether the infringing use was for commercial gain or not.

You don\'t appear to know that people sculpt exact copies of GW-style space marines all the time. And not only do they get away with it they enter them into GW competitions!

Originally posted by Aidan K
I don\'t believe commercial gain is required in order to be in breach of copyright.

Correct. But look at the specific context.

Einion

 

[kman]

Originally posted by Einion

Originally posted by kman
Obviously the specifics of these matters will vary depending on the laws of the nation involved, but generally the points above are not correct. For starters, commercial gain has no bearing on whether something violates another\'s copyright.

Oh for goodness sakes, it\'s explicit in some of the legislation:

In determining whether the use made of a work in any particular case is a fair use the factors to be considered shall include... the purpose and character of the use, including whether such use is of a commercial nature...

So no bearing? I think not.

You\'re conflating a copyright violation with fair use. Fair use is an affirmative defense to a copyright violation. So, my point is still correct - whether you are making a commercial use of your copy or not has no bearing on whether it is determined to be a copyright violation. If your work is determined to be an infringement however, engaging in commercial use will make arguing a fair use defense much more difficult. But, as you noted, commercial use is only one of four factors looked to in evaluating a fair use claim.

Originally posted by EinionAs well as that it\'s likely to be one of the key factors that would be used by a potential bringer of a suit to decide whether it\'s worth their while, although that\'s a moot point.

Not true. In the US at least, the holder of a registered copyright is entitled to statutory damages. The only reason the copyright holder would care much about the size of the infringing commercial use would be because of its effect on the copyright holder\'s market - and that negative effect can be achieved through a simple injunction.

Originally posted by kman
In the situation suggested by Aidan, where somebody independently sculpted a power armored human (i.e. didn\'t actually cast anything from a GW model) that was so identical to a GW space marine that they couldn\'t be distinguished, or it was obvious that the sculpt was based off of GW artwork, it would matter little as to whether the infringing use was for commercial gain or not.

You don\'t appear to know that people sculpt exact copies of GW-style space marines all the time. And not only do they get away with it they enter them into GW competitions! [/quote]

Having been to Games Days before, I am rather aware of this and don\'t see anything that I have said in this thread that would suggest I am not. But I don\'t see how this anecdote informs this discussion. Since this is GW\'s IP, they are free to enforce it however they want to. If they choose not to enforce their rights against somebody who sculpts a figure based off their artwork and enters into a Golden Demon competition, that\'s their prerogative. But it neither means that GW has effectively discarded their rights nor that the sculptor was within his rights because GW chose to do nothing about it.

I\'m not trying to make this thread contentious. I recognize that our copyright system is ill-suited for our current times and am all on board for seeing it revised. But we still have to deal with the reality of the current system and misconceptions about copyright run rampant on modeling boards. Whether it be commercial vs. private use, or the \"30% rule,\" it does nobody any good to be misinformed about the way the system functions.

Alex

 

[Einion]

Originally posted by kman
You\'re conflating a copyright violation with fair use.

Incorrect.

Originally posted by kman
Fair use is an affirmative defense to a copyright violation. So, my point is still correct - whether you are making a commercial use of your copy or not has no bearing on whether it is determined to be a copyright violation.

Fair use is an exception to copyright, i.e. if applicable there is no violation. And commercial gain is one of the major factors in determining whether something is or is not fair use; ergo, commercial gain has direct bearing on whether something is a copyright violation (not sole bearing, in case you\'re reading that in what I\'ve written).

It is of course not the only factor. You said yourself, \"alone it\'s insufficient\", I merely stated that it is a major factor, not the determinant.

But you also stated straight out, \"commercial gain has no bearing\", which is simply false I\'m sorry, otherwise it wouldn\'t be mentioned in clause 107.

Originally posted by kman
I\'m not trying to make this thread contentious.

Take it as a given that the same is true with me.

Originally posted by kman
...it does nobody any good to be misinformed about the way the system functions.

And you\'ve just done your bit to add to that confusion, sorry, because what you\'ve said directly contradicts certain real-world cases.

Some of what I stated above is based on actual applications of the law (in the US largely) so they\'re not a layman\'s interpretation* and it is for example the case that any commercial gain is one of the key determining factors to whether suit is brought. Not liking that or agreeing with it has no bearing on whether it\'s true.

I can give specific examples (in the figure hobby) to support this if you think to question it.

*Even a single lawyer\'s interpretation is sometimes irrelevant anyway!

Einion

 

[Einion]

I should mention that the US Government\'s copyright site also says:

The distinction between \"fair use\" and infringement may be unclear and not easily defined.

Einion

 

[kman]

Originally posted by EinionAnd you\'ve just done your bit to add to that confusion, sorry, because what you\'ve said directly contradicts certain real-world cases.

Some of what I stated above is based on actual applications of the law (in the US largely) so they\'re not a layman\'s interpretation* and it is for example the case that any commercial gain is one of the key determining factors to whether suit is brought. Not liking that or agreeing with it has no bearing on whether it\'s true.

I can give specific examples (in the figure hobby) to support this if you think to question it.

*Even a single lawyer\'s interpretation is sometimes irrelevant anyway!

Einion

Not coming from a layman\'s perspective either, I think this is something that we could debate ad nauseum. But I\'ll stand by my characterization of fair use as an affirmative defense, as opposed to an exception. While defined as a limitation on copyright in the code, procedurally it only comes into play when a copyright owner has made a prima facie case for infringement, shifting the evidentiary burden to the alleged infringer. So it has no bearing on whether a work infringes the original\'s copyright, just whether that infringement is excepted or not. Of course, legal academics of far greater stature than I disagree on this distinction as well, with both sides often citing the same case law for this position, so I don\'t presume to be able to answer any of these questions definitively. I think the take home for the original poster, or any other party interested, is that one should always consult with an attorney before moving into sticky territory.

Of course, this topic always makes for an interesting discussion, and I\'d be more than happy to continue it via PM, e-mail, etc.