What's the legality of making replicas?

Hey folks,

I am new here, so forgive me if this topic has already been introduced and discussed a million times before. I was just wondering what the legality of sculpting a replica prop is? This is not a question of recasting - which I do not agree with to any extent - but a question of an artist's origonal work to recreate an existing prop or character.

For example, if an artist were to sculpt a bust of a character from a film with the intention of making a latex mask from that sculpture, could the artist land in legal hot water for this? Would some of the details need to be changed in order for the design to be considered 'origonal?' Or is it all fair game?

Thanks for the info,

Birch

AAAAAAAAAAAAAAAAAAHHHHHHHHHHHHHHHHH!!!!!!!!!!!!!!! !!!!!!!!

Generally people in the community, even the professionals who make the props and masks for the actual films and shows, look the other way as long as you do all the sculpting yourself and haven't cast someone else's work (the only exception is if you recast a screen used or production made piece). If you are issued a C&D however, obviously you have to stop (like the recent Warehouse 13 C&D's). Otherwise it is generally considered alright to do.

99.9% of the stuff on these boards are sculpted recreations without permission from the studio, original prop makers, etc. So, if you weren't allowed to do it, this community wouldn't exist.

If you don't make waves they won't come after you. Making stuff for personal use or small runs is usually ignored. Setting up a website and spamming it with "STAR WARS REPLICA LIGHTSABERS" will get you slapped down by Lucasfilm so fast your head will spin.

Thank you. That is the general vibe I have been getting from some of what I have read here.

Long ago, I tried my hand at making some masks based upon the horror films I grew up watching, but I was always too nervous about the legality to ever offer anything up for sale - which is probably for the best, since my work wasn't all that great back then

Birch

You can make whatever you want as long as no profit is gained from it. Selling anything that is someone else's intellectual property without a license is illegal.

This has been discussed ad nauseum.

oh i really read it now...carry on

"Badges?!?!?!?!! We don't need no stinkin' badges!!!!!!!!!!!"

(I couldn't help it. It was the first thing that popped into my head after I read the topic title.)

Somebody needs to do the laundry. Wash the socks, if you will.

Larry Young said:

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Somebody needs to do the laundry. Wash the socks, if you will.

Huh? Totally lost, what does that mean?

ONEYE said:

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Huh? Totally lost, what does that mean?

My sock puppet-sense is tingling.

Some people think Aliens Pulse Rifles are Olive Drab Green.

Just sayin'...

alienscollection.com said:

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Some people think Aliens Pulse Rifles are Olive Drab Green.

Just sayin'...

Oh no. You just di-in't!!

My user name is indeed a reference to the often disputed pulse rifle color scheme. I will soon own both an OD and a brown bess PR, but I liked the ring of ODGreen better for a user name.

Birch

If you get recast, take it like a man, don't cry like a baby.

Nobody likes a rat.

Well, some people do like rats, but it's usually just other rats.

...and there is no photographic proof of seven grips on a Luke lightsaber.

Also, Deckard is not a replicant.

Larry Young said:

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Also, Deckard is not a replicant.

Of course he was. The unicorn told him so.

What's the legality of making replicas?

Without permission from the IP holder it's almost certainly illegal, end of conversation...

That is unless you want to depend on the Fair Use defense, but that's simply a defense that can be raised for the infringment not a given legal exemption...

Hecubus114 said:

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You can make whatever you want as long as no profit is gained from it. Selling anything that is someone else's intellectual property without a license is illegal.

Actually this is false and is a common misconception about IP rights...

The US intellectual property laws make have no such exemption based on profit from sales implied or stated... For Criminal acts there are stipulations "for purposes of commercial advantage or private financial gain;" but beware "commercial advantage" & "private financial gain" are broad terms and do not equate to sales or profit... The fact you made it without paying for a license is IMO a "private financial gain" that is if you want to follow the letter of the law...

For Civil infringment it's based on damages, and damages is an even broader term, the lack of securing and paying for a license for even a single personal item does result in damages to the owner... Toss in the possible $150,000 per items statutory bonus per infringment, lawyer and court fees and it could be a very bad day...

The good thing for us is that Criminal Copyright enforcement is hardly ever exercised except in huge volume or high profile infringement cases, leaving most enforcement to the Civil arena and the IP owners discretion to pursue or not... And in this hobby most of the IP holders have been and continue to be VERY gracious towards the community and allow it to survive... Thier good will doesn't make it legal though, just not pursued...

exoray said:

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"commercial advantage" & "private financial gain" are broad terms and do not equate to sales or profit... The fact you made it without paying for a license is IMO a "private financial gain" that is if you want to follow the letter of the law...

I suppose it could be considered that from a certain point of view, but how far does that go? Thats like saying your child cant draw a picture of Mickey Mouse without breaking the law. Like you said, its never pursued unless its a very large and obvious act, but there must be line "officially" on what is ok and what isnt.

Personally, I dont see how someone could say buying clay, sculpting materials, etc., sculpting something, buying casting materials, making a casting of the sculpture, then sticking it in the corner of your living room for you to personally enjoy is "financial gain". Maybe if it was to create something for yourself that was commercially available... but even then, maybe.

a similar precedence from the biggest asshats of em all...Disney

snopes.com: Daycare Center Murals

tommin said:

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of course he was. The unicorn told him so.

la la la la la la la I can't hear you!

Hecubus114 said:

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I suppose it could be considered that from a certain point of view, but how far does that go? Thats like saying your child cant draw a picture of Mickey Mouse without breaking the law. Like you said, its never pursued unless its a very large and obvious act, but there must be line "officially" on what is ok and what isnt.

Disney takes Lake County business to federal court - Orlando Sentinel
Disney has a history of vigorously protecting its copyrights, objecting to the unauthorized use of Mickey Mouse, Donald Duck and Goofy in murals at three South Florida preschools and challenging the Academy of Motion Picture Arts and Sciences for using the company's Snow White character without permission during the 1989 Oscars.

There is no "official" line, and it varies from studio to studio. Just don't cross it, and don't force them to define it.

Personally, I dont see how someone could say buying clay, sculpting materials, etc., sculpting something, buying casting materials, making a casting of the sculpture, then sticking it in the corner of your living room for you to personally enjoy is "financial gain". Maybe if it was to create something for yourself that was commercially available... but even then, maybe.

You didn't pay them for the license to enjoy their IP. Thus, you've gained where they've lost.

Larry Young said:

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My sock puppet-sense is tingling.

Indeed, Larry. Indeed!

Here's hoping the sock puppet insinuations aren't pointing in my direction. I am only looking for clarification on this subject - and thus far the information has been very enlightening.

Birch

rollerboi said:

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You didn't pay them for the license to enjoy their IP. Thus, you've gained where they've lost.

And that is the short of it... You have gains and they have loses since you didn't pay them for a license to use their property...

but how far does that go?

In regards to Civil liability, as far as the owner wants it push it, it's their property and they have exclusive rights to it, unless they grant a right to you... As has been posted some owners will go to extremes, Disney makes the news but you can bet for every Disney case there was 1000s of small guys cases that never made the news or were settled with NDAs...

In regards to Criminal prosecution, like I said you will likely need to turn some big heads before they pursue usually....

You have to remember it's two Courts and two sets of rules, the Criminal has a lot more stipulation then the Civil one...

And the short of it as I have said many times, it doesn't matter if your believe you are right or if you are found not liable in the end, at give or take $500-$800/hr for a lawyer to represent you in a Federal court you won't win anything except principle at best... Chances of getting back any legal fees if they had any legitimate belief to their claims is very unlikely...