Copyright-problems when selling props?

MadMike

hey everyone,
dunno if such a thread exists, if so, i didnt find it.

this here is not concerned with ethic or unmoral issues or so like selling a copy of something that another one built or so (i've seen a few threads on that), but with selling props that you build yourself.

i've seen some great scratchbuild-lightsabers, -blasters and stuff like that (this is only an example, there are tons of great scratchbuild-stuff here), but could it happen that you sell it on ebay and receive a mail from Lucas Arts saying "hey, this design is copyrighted, you aren't allowed to sell it" or something like that?

or can you do anything you want to do, because you've built it?

I'm still pretty new to this scene, and there's nothing i could sell; i'm just curious about that topic

Slukaj

Depends on a few things.

My experience stems from the 405th and Halo, so I'll focus on that.

In the experience of the community, you can build and sell replicas on sites like eBay with a couple caveats.

1) You cannot sell the weapon/prop for profit. The cost of the weapon can only equate to roughly the cost of materials.

2) You cannot do an infinite run, meaning you can't say something like "If you order this, I will make it and ship it to you". You have to limit the total number of replicas you sell.

3) If you fail to attribute the design, you can get hurt. People who build Master Chief helmets, then turn around and claim that they designed it themselves and the idea came from them, not Microsoft/Bungie, get burnt by C&D letters and lawsuits.

As far as Star Wars props go, it's a bit different due to the nature of the 501st. I can't explain their rules, so I'll leave now in the hopes that a 501st or familiar figure can answer these questions for you.

The legality is tricky, but don't let this keep you from pursuing this hobby!

TylerHam

Take star wars for example:

If you recreate a light saber as a 1-off, its basically "art" and OK to have

Recreate and sell it, you are breaking copyright - period. (The small runs we do here though seem to slip through the big machines cracks )

Build your own design saber and call it a light saber, breaking trademark

Designing your own and selling it as a space-lazer-sword - You are OK

Taking something someone else on the forum made, and remaking it to resell - Sort of legal grey area, but TOTALLY frowned on by the community

Im sure you will get 100 different replies but thats the gist as far as I see it

Gordon Gekko

You haven't lived until you've gotten your first C&D.

Otherwise, I think Tylerham mostly hit the mark. Although, depending on who the rights holder is and how vigorously they defend their property, a one off for personal use may not get you off the hook.

Slukaj is incorrect on points 1 & 2.

elro

Do people normally get issued cease and desist initially before lawsuits? or do they get stung with both at the same time?

What does a C&D normally say anyway? (Obvously stop what you're doing) But, is there additional things like, pay back your profit etc?

NormanF

I've been wondering about some of this myself. I'm working on a game related prop and doing it in such a way that I can sell copies to recoup some of the expenses.

MattMunson

There's already a lot of misinformation in this thread, so please tread carefully when using this information to plan your activities.

There seems to be some confusion between "What we usually don't get busted for" and "what is legal".

If you're aiming for the "what we don't get busted for" category, then there is some decent advice in this thread. In general here's the idea: lay low, dont snub the studios, and if you get a C&D, STOP EVERYTHING.

If you're looking for an answer to "what is legal", then the answer is very clear. DON'T MAKE ANYTHING. Copyright, trademark and patent laws are complicated, deep, and sticky. In my opinion, they heavily favor the IP creators and holders, and rightfully so. This basically means that if push comes to shove, you will lose.

What it boils down to is the question of what is infringement. A common piece of hobby farce is that if you change something 20%, then you own it and can do with it as you like. False. There's also a line of thought that says "Well, it's not a light saber, it's a laser sword!!!". Nonsense. A great example I heard a while back is regarding star trek props. If you take a toilet paper roll, tape a broom handle piece onto it, draw on some knobs with a sharpie and try to sell it, you are infringing. If Paramount decided to pursue it legally, they would win. They own the star trek property and the LIKENESS of items surrounding it.

Odds are, a studio would not come after you for such a thing, but they would be within their legal rights to do so. And I guess that's where it gets sticky.

Do not confuse "johnny didn't get busted for offering that widget" with "it is legal to sell that widget". IP holders enforce infringement violations as they see fit. They might ignore one person, and crack down heavily on two others.

IMHO, you are more likely to get busted for infringement by posting on the RPF than on ebay. ALL the studios know about the RPF. And everything is right here, in concentrated form. On ebay, they have to search through millions of auctions to get to you. Here, it's like shooting fish in a barrel. Don't think you're safe just because you're staying off ebay.

MattMunson

On a side note, if you're in this hobby to make money, or plan on getting a "return on your investment" when you buy a prop, I can tell you with utter certainty that this is not a hobby in which to get rich. Your time would be better spent working hard at your job, or just working to get a better one. The road to riches lies not from selling trinkets on the RPF, I'm sad to say.

Don't buy a prop because you think it might make you money, either from selling it in the future or selling reproductions of it. Buy it because you enjoy the piece, or want to own it.

Kailon

MattMunson always seems to hold the words of wisdom.

brivette007

I'm still new here, but here's my opinion. This is based from my own experiences, reading through the forum, and learning about copyrights in college for the animaton and graphic design portion of my major.

Pretty much everything made by people here is under some sort of trademark or copyright, but yet are made and sold without license. I think the posts above me me explain it pretty good. This forum is a relatively closed group of hobbyists, the replicas never end up for sale in a store like amazon or walmart. I think of it as making a prop and selling it to your friend.

Plus as said before, as long as you sell for about what it took to make (make little to no profit), and also limit the runs. If you plan on making profit, sometimes ebay auctions do take off (I've seen rylo's cryocans go for $600 before (not rylo selling it, but people selling their collection)). But you are exposing your prop to the public, and risk legal action. Though there are thousands upon thousands of listings for feds to look through. Plus you do risk the same chance of getting hammered here, too. I'd rather see people make replicas just for the love of making replicas. Which I think most on this forum do anyway.

I might not be right on what I'm saying, just my two cents.

Prop-Builder

I thought the Jurassic Park dinosaurs might make an interesting conversation here regarding copyright. I can understand a light-sabre or Batman sculpt being legally protected, but what about dinosaurs?!! I realise there's some artistic licence in the design of the JP creations, but mostly they're based on real animals and scientific research on how they 'propbably' looked once upon a time.

Could a JP 'style' dinosaur model be sculpted by an artist here and sold on a webstore - even if it's not stated as a Jurassic Park model or official product?

Boogeyman13

I would say, given that how dinosaurs are perceived as looking now, making a "JP-ish" dinosaur and saying that you're just making one based on how people thought they looked like 19 years ago would probably be an uphill legal battle. Particularly since there are certain characteristics on some of them that aren't actually found in nature.

That being said, however, Papo has been making dinosaur toys that have more than a striking resemblance to the JP dinos for years now, and haven't had a problem. So really, it's ultimately anyone's guess on if they'll send the law after you.

Prop-Builder

I can see how adding a frill to the Spitter would be a problem, but I have seen many close representations of the JP T-rex in stores and theme parks worldwide. Maybe if I just changed the colours on the illustration photos of the model kits?

Hfuy

I'm constantly dismayed by this sort of thread on internet forums.

There is exactly one correct answer that anyone likely to post on this forum can give you, and that answer is get professional legal help.

What are you going to do, present a link to this forum in court and say "someone whose real name I don't know, who has no legal training, and doesn't work for the company, in short someone who has absolutely nothing to do with anything told me it was OK?"

It's a pointless question to ask. The only good information that's been given here is that whatever these organisations might tend usually to do in most cases, they are free, in any case, to do something completely different to what they might tend to usually do, and assumptions based on other peoples' experience are meaningless.

CynderBloc

As far as I'm aware, if you make an extremely accurate replica which people would want then cast a few copies of it to cover your expenses, the big bad companies are not going to chase you down over that.

Take Leigh's Alien for example:

If he were to offer a few copies to cover all the man hours & cost of materials he has put into it, Fox are not not going to chase him down over copyright infringement even though he would be technically breaking it.

If however, he were to offer an infinite amount of casts, his build is so accurate and desirable that Fox would be all over him like a rash

Perfect explanation.

In short, building replicas and distributing multiple copies of them is copyright infringement, even if there is no money transfer involved. Legally they will be able to say that you making an unlicensed prop and giving it to someone else is taking a sale away from them with licensed props.

Whether the companies overlook the infringement is down to them however, if like I said, you keep it to a very small run to recoup your investment they should leave you alone.

If you get a C&D letter though, it's time to shut up shop

Rylo

Quoting Munson to save myself the trouble:

"There's already a lot of misinformation in this thread, so please tread carefully when using this information to plan your activities."

Mr Webber

Prop-Builder, your a lock for the best avatar of the month award.

hydin

If you are building a replica of something you saw on tv, or in a movie... Congrats. It's copyright infringement.

Making a costume for yourself? Yep, copyright infringement.

Sculpt out a life sized bust of your favorite character? Yep... you guessed it, copyright infringement.

Making an x wing model out of a cardboard tube and some plastic for the wings? Calling it an x wing? BOOYA... copyright infringement.

Unless you come up with an idea that is literally 100% yours, that NO ONE HAS COME UP WITH, it's copyright infringement.

There is no "right" to sell things to make back money. There is no "right" to build anything you want to make that you saw in a movie.

UNLESS... you get the license from the company who owns the copyright, and THEY TELL YOU WHAT YOU CAN MAKE. Simple as that.

They don't go after every single fan out there, because that would be horrible press and also eat up legal fees like crazy. It's just bad business. However, if they decide TO go after everyone, they legally can and all you can say about it is "Well, crap."

There's no "percentage of change" that makes it legal, there's no "gotta alter it a bit", there's no "call it something different". If you make it, and it's a replica of something in a movie, congrats you have violated copyright.

Nothing says you have to get a C&D first, nothing says "They won't go after the fans" or "they won't go after me! I only did this one little thing!". We have had c&d's sent out the same day a project is announced on the board. The companies know we are here, and we are here literally at their leisure. They could shut us down in a heartbeat if they wanted to. I, personally, am glad they don't want to.

Best advice, be careful. If you do get a C&D, follow it exactly. They have teams of lawyers and tons of money, and you have "Uhm, see, it wasn't REALLY a violation". Guess which one is gonna work better in court?

Chris

Aragorn

Two simple rules.

Rule 1) Copyright subsists automatically. I.e. you don't need to register it or do anything. It is automatic. If I write a book and publish it online, I automatically own the copyright to it.

Rule 2) if you make anything from a movie or computer game that has a visual likeness and you go on to sell it, you are infringing on the owner's right to make a profit - I.e. copyright breach.

Essentially, everytime someone makes something from A movie and sells it on the rpf or on eBay, regardless of whether a profit is made, he is doing something illegal and is liable.

Now, if you were to give it away for free, if we were to apply what has been occurring with regards to music piracy, it stands to reason that giving props free should also be considered illegal. That being said, everything is arguable in court; it seems quite ridiculous to compare file sharing with someone who spent hours making a prop by hand as a gift to someone for their birthday. So the short answer is no one really knows if it is illegal until someone gets sued and the court says something about it.

But it is what it is. If you want to be 100% safe then dont transfer your self made props to anyone else. Simple as that. But frankly, where's the fun in that? At the end of the day, you just need to be aware of what the rules appear to be and make your own risk assessments. Frankly, the rules of intellectual property can be ambiguous and a bunch of bullcrap sometimes. It is really more about political and commercial pressure rather than fairness and equitability.

As an aside, there is also a third rule where things become grey and hazy. Basically it involves this concept of substantial replication. There is no breach if the item was not substantially copied. But what this means exactly depends on the item in question. The rationale behind this is copyright seeks to protect the expression of an idea and NOT the idea itself. This means you can copy the idea but not the expression of an idea. So you're completely fine with making laser swords, but just steer clear of calling them lighsabers or having substantially similar looking hilts.

I hope this sheds some light on the matter despite some of the scaremongering or misinformation in this thread.

Stormleader

"Hey! I build props on the internet. I'm an expert on copyright and fair use."

poormansjb

And yet, even that isn't necessarily going to help you.

For decades I have been trying to publish a book about 007 memorabilia. Every publisher I've talked with is interested but, in the same breath, they'll say they can't due it because EON would sue them. I finally hired a lawyer (to the tune of nearly $7.5K for roughly an hour long meeting) who said I had every right to publish such book. On that point, the publishers actually wholeheartedly agree. The problem is, EON has more -- and more expensive -- lawyers and while we're certain we're in the right, no one is interested in spending their profit margin -- and then some -- in court just to prove same.

In short, even if an attorney gives you the okay, that and $1 might still only get you coffee at MacDonald's. Damn ... that's probably an infringement right there ...

Aragorn

Exactly. Once a person starts attracting the attention of the big boys, he will always be at a disadvantage unless he is a big time heavy hitter himself.

The big companies don't need to win the court case; they only need to ensure they outlast you by smacking you with procedural barriers like interim injunctions which require you to pay more and more money to your own lawyer every step of the way.

There are only two ways around this; you either fly under the radar or in the alternative, try to create some sort of threat of negative publicity that may arise out of you being sued.