What to do if you get counterfeit models

[kathrynloch]

Again, not to beat a dead horse, but I want to make sure folks understand my point. Okay, an IDEA cannot be copyrighted, and I think that's where we're getting the confusion. The direct copies I've seen are of well known stills usually used by the movie maker for advertising. Now it may not be "the movie poster" that you would commonly see, but stills released to news organizations under the fair use act for reporting, editorials, etc. Sometimes they are not excerpts from the movie but still photos taken by a professional photographer for the purpose of advertising and promotion (depending on his contract the photographer or the movie company - would own copyright to these. Usually the movie company buys the rights from the photographer).

Anyway, here's a famous case (Full article here):

The derivative work must borrow from the prior work

To qualify as a derivative work, the derivative must use a substantial amount of the prior work’s expression. How much? Enough so that the average person would conclude that it had been based on or adapted from the prior work. It’s a common sense thing. (Which means it’s great fodder for argument ... you know, that thing lawyers love to do.)Merely borrowing the ideas expressed by the prior work (creating a work “inspired by” it) would not create a derivative work. Ideas are not copyrightable. A work is not derivative unless it has been substantially copied from a prior work’s expression.​

See

Litchfield v. Spielberg, 736 F.2d 1352, 1357 (9th Cir. 1984).​

So, Art Rogers took this photo:

View attachment 12721

Kinda small but two people are holding a whole kaboodle of puppies.

Artist Jeff Koons had a foundry make 4 sculptures:


View attachment 12722

You can see there are differences but here's what the court had to say:

Rogers sued, and the court decided that Koons’ sculpture was an infringing derivative work rather than a parodic fair use.

Why? Because the similarity was so close that the average person would recognize the copying. So ... the sculpture was found to infringe Rogers’ copyright. Because the court found the works to be so similar (they call it “substantial similarity”) the small changes Koons made didn’t save him from infringement.

Koons’ additions, such as flowers in the couple’s hair, and the puppies’ blue coats, did not change the fact that the sculptures were overwhelmingly similar to the protected expression of the original work. ​

See

Rogers v. Koons, 960 F.2d 301 (2d Cir 1992).​

I added the bold emphasis because that's directly what I'm referencing. According to this the changes have to be substantial enough that the average person would NOT recognize the copying.

So it's a gray area because not a lot of companies or people don't bother pursuing very expensive court cases when, even if they win, they're not going to see a dime or change anything.

I also fully agree with Mike in the fact that there is a good possibility a lot of these figures were made before International Treaty (which I completely forgot is a rather new event - bad Kath!!! ) but I know some of them are relatively new releases - some were as new as 2011.

If the sculptor used a photograph or stills from the movie and directly reproduced the pose and the actor's appearance enough that an average person would recognize the copying, that (in my opinion of the case precedent I just quoted above) is infringing on copyright. But if the sculptor took several photos from different sources, different movies, different angles and poses to come up with something unique, then they're probably okay. Even changing names gets a little dicey. Instead of calling it Conan the Barbarian, if they call it The Barbarian, or just Barbarian, is that enough of a change? Obviously sticking a flower in his hair wouldn't be.

I've just wanted to make sure y'all understood what I'm referencing. Perhaps this makes it a bit clearer on why I see this the way I do.

 

[Einion]

Again, not to beat a dead horse...

Not at all - important to make the case as clearly as possible :good:

With this kind of thing it's important to introduce as much factual info as possible so we're not going on supposition, or what we think we know about copyright law. Andrea, and to a lesser extent Pegaso, are two high-profile figure producers who constantly appear to skirt the edges of legality with their *cough* inspired by *cough* figures, but they are direct violations of copyright (based on exactly similar cases won by the plaintiff, either at trial or by settlement).

Also, that double standard that you mention I've brought up myself on pF more than once. People can be very inconsistent about where their 'outrage threshold' lies with this kind of thing, where a Chinese recaster is unquestionably bad but an unlicensed movie tie-in figure doesn't even register on their radar.

Einion

 

[Ghiest1]

I have bought some counterfit Wolfen as well, the metal was old Ral Partha (80s) soft which gave it away. I also see counterfit Armorcast Titans up all of the time. There is a individual who sells one every month sometimes two. He has the resin color simmilar but not quite there, and knowing that they quit making them in 1998 gives it away. Interestingly enough, he is from the US.

 

[mr_maxime]

I've just wanted to make sure y'all understood what I'm referencing. Perhaps this makes it a bit clearer on why I see this the way I do.

I see where you're coming from and I can see how it would bother some people, but to me it mostly doesn't. I draw a lot, so if anyone ever used one of my drawings to sculpt something I'd be honored. however if they took a photocopy and started making money off of it I would be pissed. It would also create a massive issue with fan art (depending if your issue is simply with how close it resembles the original or if they're making money off of it). So to be clear, I see no problem if the derivative work isn't used to make money, the gray area for me if it's being used to make money.

I've already mentioned the difference between derivative work and counterfeits. Derivative work can create issues with copyright owners, but counterfeits are inferior copies sold to customers under the pretense that they are the real thing. The intentional deception is what makes a big difference and unlike derivative work it is an "exact" copy although of lower quality.

 

[kathrynloch]

Not at all - important to make the case as clearly as possible :good:

Thank you, Einon! I had a feeling you might be on the same page.

I see where you're coming from and I can see how it would bother some people, but to me it mostly doesn't. I draw a lot, so if anyone ever used one of my drawings to sculpt something I'd be honored. however if they took a photocopy and started making money off of it I would be pissed.

Yeah, it becomes a whole different can of worms when someone else makes money off of your creation.

It would also create a massive issue with fan art (depending if your issue is simply with how close it resembles the original or if they're making money off of it). So to be clear, I see no problem if the derivative work isn't used to make money, the gray area for me if it's being used to make money.

Actually, I've done a lot of fanfic and fan art myself and making money or not, there's a HUGE issue with copyright. I remember Star Trek used to be DEATH on fanfic and fan art. The same with George Lucas and Star Wars. No one was trying to make money from this in any shape or form, it was just fans writing stories and drawing pictures. Finally Star Trek and Lucas realized it was basically the best and cheapest form of advertising to allow fans to enjoy themselves and create the stories and pictures. Throwing a fit and threatening lawsuits only alienated them and that's not a good way to get them to spend money on your product. So they started encouraging the processes with contests and prizes, etc.

The biggest company that I know of that guards their copyright like a jealous lover is Disney, the saying "Don't mess with the Mouse," is not a joke. I remember awhile back that some kid put up a bunch of pics - both from Disney movies and ones they drew themselves on their website and the poor kid (actually his parents) got a letter from Disney's lawyers to "cease and desist".

I have a friend who sculpts resin model horses (in fact she sculpted the one I painted black and white that's in my gallery, the Gypsy Vanner Mare). She decided to name her studio Tabasco Studios. She got a cease and desist letter from the Tabasco Company's lawyers saying she was interfering on their trademark. That's technically a different kettle of fish, but the premise is similar. She changed her studio name to Tabaskeau Studios. Now in this particular case, I'm pretty sure if she would have stood up to them, they would have backed down. Because with Trademark, the key is if the consumer would be confused by the name as to which company is which. I really don't think folks would get Tabasco sauce confused with resin horses. But she didn't want to tangle with it (can't say that I really blame her) and changed the spelling of her studio.

But another key issue with both copyright and trademark is the law states you MUST actively defend it or you lose it. That's what happened to Aspirin. It was a trademarked name but they didn't defend it and it is now in the public domain. It almost happened to Xerox but they defended their trademark. I remember years ago working in office settings, a common saying was, "I'm going to xerox this." You don't hear that so much anymore because Xerox actively defended their trademark. "It's not a verb!" I remember reading in one of their publications. lol!

Does that mean if you don't defend one instance of infringement you lose copyright? Not necessarily but that is the reason why you'll see many companies being proactive - sometimes ridiculously so - about defending their copyrights and trademarks.

The overseas problem, especially China, I think a lot of companies have thrown up their hands. Although I remember hearing about a shoe company...was it Nike? Addidas? I can't remember exactly which one, took on the Chinese and won - and got them to stop counterfeiting.

I've already mentioned the difference between derivative work and counterfeits. Derivative work can create issues with copyright owners, but counterfeits are inferior copies sold to customers under the pretense that they are the real thing. The intentional deception is what makes a big difference and unlike derivative work it is an "exact" copy although of lower quality.

And I understand this completely! The only reason why these folks keep doing this is because they can make money at it. Take away their profit, they're not going to stick with it. The solution is simple but difficult to achieve.

Why?

This whole thread actually turned into an excellent example. Just as folks may not think my issues with copyright a big deal, or they think it a gray area, or they just don't truly understand copyright law...it's the same thing for the others who KNOWINGLY buying counterfeit products. (You got snookered once, Mr. Maxime, but these counterfeiters have repeat business otherwise they wouldn't be able to survive - so people knowingly buy this stuff and go back for more and if you look at that one seller you mentioned on ebay, the Neg feedback says the stuff is fake.) The repeat folks either don't see it as a big issue, or saving some $$$ is more important, or they want to get something that they can't find anywhere else.

And there, my friends, lies the double-standard.

So I think the thread has come full circle now. I'm pretty sure it has because I'm dizzy! lol! :silly!:

 

[Einion]

So to be clear, I see no problem if the derivative work isn't used to make money, the gray area for me if it's being used to make money.

That is one of the key points made in some copyright legislation so can factor into whether something is actually a violation at all.

US code, title 17 states:

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... ​

Einion

 

[ellis_esquire]

Sorry to resurrect this thread but I think I've been had. Its hard to say but reading about fine-cast shenanigans I saw something about Chinese sellers. Did a quick search on my seller caomao1122

and found this thread. Initiate paranoia.

I just bought Canis Wolfborn and Astorath the grim from him. I got the models but now am starting to wonder if they are fake. They feel as lead should, weight and texturewise, and the detail appears GW lead level, but I dont have any other version of same models to compare to. The only thing that looks suspicious to me is that on Canis' tabs there is no "Games Workshop" print.

Here they are:
​

View attachment 13841View attachment 13842View attachment 13843View attachment 13844View attachment 13845View attachment 13846

If anyone has the models or knows what to look for then I'd appreciate your input...​

 

[me_in_japan]

I've never bought from that seller, but based off user comments he looks dodgy as all heck. He sells tons of OOP rackham stuff, and unless he has a small warehouse filled with Molochs and Masters of Carnage, he pretty much has to be recasting them. Basically, if those minis of yours didnt come in a GW box, then they're probably copies.
*edit* these are the negative comments on ebay:

http://feedback.ebay.co.uk/ws/eBayI...=negative&interval=365&_trkparms=negative_365

 

[mr_maxime]

It's a recast, open a case quickly and email GW. Look at Part 4: http://www.games-workshop.com/gws/content/article.jsp?categoryId=&pIndex=2&aId=3900002&start=3

You only have a certain amount of time, 30 days I think, to open a case with eBay and Paypal. Unfortunately I found out mine were recasts too late.

 

[alextheartist]

Contact GW, they will back you and possibly take their own action (legal) if stuff is counterfeit.