Copyright-problems when selling props?

Discussion in 'Replica Props' started by MadMike, Dec 19, 2011.

  1. MadMike

    MadMike Well-Known Member

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    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
     
  2. Slukaj

    Slukaj Member

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    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!
     
  3. TylerHam

    TylerHam Well-Known Member

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    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
     
  4. Gordon Gekko

    Gordon Gekko Sr Member RPF PREMIUM MEMBER

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    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.
     
    Last edited: Dec 19, 2011
  5. elro

    elro Active Member

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    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?
     
  6. NormanF

    NormanF Master Member RPF PREMIUM MEMBER

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    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.
     
  7. MattMunson

    MattMunson Master Member RPF PREMIUM MEMBER

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    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.
     
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  8. MattMunson

    MattMunson Master Member RPF PREMIUM MEMBER

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    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.
     
  9. Kailon

    Kailon New Member

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    MattMunson always seems to hold the words of wisdom.
     
  10. brivette007

    brivette007 Active Member

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    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.
     
  11. Prop-Builder

    Prop-Builder Well-Known Member

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    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?
     
  12. Boogeyman13

    Boogeyman13 Sr Member

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    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.
     
  13. Prop-Builder

    Prop-Builder Well-Known Member

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    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?
     
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  14. Hfuy

    Hfuy Active Member

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    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.
     
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  15. CynderBloc

    CynderBloc Active Member

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    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
     
    Last edited: Apr 3, 2012
  16. Rylo

    Rylo Master Member RPF PREMIUM MEMBER

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    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."
     
  17. Mr Webber

    Mr Webber Sr Member

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    Prop-Builder, your a lock for the best avatar of the month award.:D
     
  18. hydin

    hydin Sr Member RPF PREMIUM MEMBER

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    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
     
  19. Aragorn

    Aragorn Member

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    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.
     
    Last edited: Apr 3, 2012
  20. Stormleader

    Stormleader Well-Known Member

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

    poormansjb Well-Known Member

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    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. * ... that's probably an infringement right there ...
     
  22. Aragorn

    Aragorn Member

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    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.
     
  23. Melwicker1

    Melwicker1 Member

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    In my opinion, copyright laws as they are now are fascist, evil, authoritarian, and draconian. Of course, this is only MY opinion on it.

    However, a lot of scholars and experts dislike how strict and murky copyright law is.
    Professor Lawrence Lessig of Harvard University is an example of those scholars who basically advocate for the reduction of the restrictive copyright laws and who dislike the harmful and negative impact of copyright law on culture and society.
    Many academic scholars basically say that copyright law does more harm than good when it is as restrictive as it is now.

    Look up Lawrence Lessig's books on copyright on the internet.


    Is it still okay to openly call copyright law evil and draconian? Is it still okay to speak out against copyright law?
     
  24. hydin

    hydin Sr Member RPF PREMIUM MEMBER

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    You can holler it from the rooftop if you like, but this really isn't the forum for that kind of thing. There are lots more places online to discuss reforming various laws and writing your reps to help this idea out.

    We mostly just build and paint stuff here :)

    Chris
     
  25. Gordon Gekko

    Gordon Gekko Sr Member RPF PREMIUM MEMBER

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    Nice second post. Are you part of the "Occupy Hollywood" movement?

    "Wah!! Why can't I freely rip off other peoples work?"

    (this coming from a bona-fire C&D recipient on multiple occasions)
     
  26. epilepticsquirl

    epilepticsquirl Sr Member

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    I'm picking something up...
    [​IMG]
     
  27. Moviefreak

    Moviefreak Master Member RPF PREMIUM MEMBER

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  28. Melwicker1

    Melwicker1 Member

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    Not actively, no. Passively, maybe.

    It's not that ALL copyright laws are evil. They aren't all evil.
    And the concept of copyright isn't an evil one either.
    It's that there should be room for a morally grey area.
    There is such a thing as being too excessively strict or harsh.
    Copyright shouldn't last forever, and it shouldn't be too strict.
    A person should be allowed to make a replica of a prop for themselves, as long as they keep it for themselves and not sell too many.

    Official prop replicas are exceedingly expensive and hard to come by, thus creating demand for a fan based community like this. When any type of prop replica is unavailable officially...that means that a community like this is necessary to satisfy the demand that the fans have to acquire said replicas.
    The unavailability of officially licensed prop replicas actually creates the supply and demand for non-official replicas.
    By the way, I'm not really wanting to discuss this here and I don't want to start a big debate. I recognize that this isn't the place for a discussion like this. I just want to say my opinion.
     
    Last edited: Sep 21, 2012
  29. Melwicker1

    Melwicker1 Member

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    I understand.
     
  30. Wes R

    Wes R Legendary Member

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    Is it an incoming banhammer? *puts his helmet on*:lol
     
  31. madmanmoe64

    madmanmoe64 Well-Known Member

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    Back on topic, never under-estimate what will get you a C&D.
    I was 16 and selling a set of stickers to turn any zippo into a replica of Pyro's zippo from X2. Just some stickers!
    They were just scalpel cut from sheets of vinyl, not amazing, but okay considering I was only 16. I put up the auction on eBay, within a day someone had bid up to £15 for them (god knows why) and then the next day, the auction was down and I had a very scary e-mail from Zippo inc. (who I guess retained the copyright).

    Main point, they can and will come down on you for anything.

    On the other hand as long as you stop what you're doing you are unlikely to hear from them again.
    Easier to ask forgiveness than permission etc.
     
  32. Melwicker1

    Melwicker1 Member

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    I will stop talking about the subject now.
     
  33. Melwicker1

    Melwicker1 Member

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    Don't worry, I'm not going to say anything about the subject of copyright anymore.
     
  34. Apollo

    Apollo Legendary Member RPF PREMIUM MEMBER

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    Is that the air of dirty socks I smell?
     
  35. Melwicker1

    Melwicker1 Member

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    Maybe...I haven't cleaned out my socks yet:lol
     
  36. Davlin

    Davlin Well-Known Member

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    This topic is really interesting, and somewhat sad. Whish some prop-builders like Volpin could come here to add their two cents, it would be a nice feedback of experience.

    I had another interesting discussion about copyright on the Shapeway's forum. What I learned from this is that 3D printing is seen even more as a threat than prop-building by hand; The " Super 8 cube " case was a good example, where the studios killed the project right away, before the poor lad had the opportunity to sell any.

    And, on another side, making a prop that haven't been made before ( like Doom 3's Soul Cube, for instance ) is no excuse : You're using the brand, you're paying for this privilege, period. Also, making it better than the products that were sold in the shops ( Tron's lightcycles ), is an even worse scenario.

    All of this makes sense, of course. I will not criticize the studios to protect their IP, because otherwise it would just be chaos. BUT I can't help but feeling sad that, in the same time, it's just choking creativity up. No hope for you if you're not a big company, able to shelve out the big $$$ to get stuff made.

    Last point, designing props ourselves... Well, you can do great stuff, but a prop exist because it is a part of its own universe; Just making cool objects would not be enough to get them sold, I fear. And besides, I'm convinced that even if you design something completely new, there would always be some people to try to gold-digging you and sue you because they'd claim there would be a very distant similarity between their stuff and yours.

    What would be great would be some kind of " garage kits " licensing, easy to have access to without an army of lawyers, and making our hobby / small businesses legal. Sweet dream, I guess.

    My two cents.
     
  37. Weaselhammer

    Weaselhammer Sr Member

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    This can be re-hashed, re-explained, and personal opinions added for the rest of time, but Matt Munson and Hydin nailed it.
     
  38. Philly

    Philly Sr Member RPF PREMIUM MEMBER

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    Can anyone explain the copyright expiration for works published before 1978? Reading up on the US copyright site it seems the life of the author + 70 years is the norm if published after 1st Jan 1978 but I cant figure out pre '78.

    After LFL losing the case to Ainsworth, are Starwars props ok to build/sell? Or does that apply to the UK?

    Phil
     
  39. madmanmoe64

    madmanmoe64 Well-Known Member

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    I'm pretty sure that only applied to Ainsworth himself. And I know for a fact he is only allowed to sell them in the U.K
     
  40. Art Andrews

    Art Andrews Community Owner Community Staff

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    While it is the studio who is ultimately responsible for protecting its IP, my understanding is that the licensee prompted that fiasco... the same licensee who has prompted a number of C&Ds over the past few years.
     
  41. Jedifyfe

    Jedifyfe Master Member RPF PREMIUM MEMBER

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    So is it cool to recast things then?... :rolleyes
     
  42. tripoli

    tripoli Master Member RPF PREMIUM MEMBER

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    Few issues to note: Matt Munsons noting not to do anything is incorrect. if you want to produce something new an unique, ask the questions, find out what is the right and wrong things to do from an audience who has already taken the steps and mis steps. To do otherwise would stifle any new item to be produced. You DO need to be aware of what has been copyrighted /trademarked or patented. By knowing that Lucas does have a copyright on Light Sabers, you should know better than to market your sabers as such. But that does not stop you from giving it a different name for marketing such. There are legal saber makers out there.

    Aragorn's note that once it is written or produced is somewhat correct, Once it is publicly noted or privately documented, you technically have the copyright but another documented source MUST be made of it in order for you to make that claim in defense. Most companies will have a locked intellectual property documentation file room for such.

    Hydin's note that everything is a copyright infraction is also not quite correct, the studios do protect some items with trademarks and patents as well, especially when an item is manufactured for mass marketing and individual licensees usually control such more than the studios do due to cost of protection.

    As noted, intellectual property rights are not evil, it protects the creator so they can profit from their work. Without such most people would never go to the expense and work to create something someone else could immediately profit off of. It is the bedrock of capitalism.

    Copyrights after 1978 last the lifetime of the author PLUS 70 years after their death. Before 78, there are several legal factors as to how long it last, depending on the type of item and how it was filed with the government. Trademarks last as long as they are renewed. A basic trademark before 1989 last 20 years, after 1989 they have 10 years of a lifetime. Patents last now 20 years but it takes up to three years to get a government approval which shortens such to a usual 17 year lifespan of protected marketing. Before 1995, they had a 17 year lifetime. You can amend such during the lifespan or make the definition of the item a bit ambiguous to cover more areas of a patented item. It is a legal art to do such to protect a broader range of products produced.

    I gave an hour and a half legal dissertation last semester and was told it was one of the best in 20 years, got me an A. The subject was the intellectual property protection of the Lights Saber. :)
     
    Last edited: Sep 23, 2012
  43. tripoli

    tripoli Master Member RPF PREMIUM MEMBER

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    Just to note as well, Lucas copyrighted the Qui-Gon and Maul saber. These were general copyrights, meaning the concept of a one bladed light saber and two bladed light saber were the issue.

    Parks has copyrighted his own as well and even a board member, Squirk has his own copyrighted design based on the individual characteristics of the saber design.
    Qui-Gon Jinn Lightsaber / Lucas Studios
    Darth Maul Lightsaber / Lucas Studios
    Squirk lightsaber / Private design
    Shadow lightsaber / Parks Sabers
    Magnum lightsaber / Parks Sabers
    Rogue lightsaber / Parks Sabers


    Trademarks file date June 15, 2000, Published for opposition June 5, 2001,Registration date October 7, 2003, 76072226 and 73149409.
    Copyrights: Type of Work: Visual Material Registration Number / Date: VA0000971210 / 1999-09-14 Application Title: Star Wars: episode I, the Phantom Menace--Qui-Gon Jinn Lightsaber. Title: Qui-Gon Jinn Lightsaber. Description: Sculpture + product packaging. Series: Star Wars episode I Copyright Claimant: Lucasfilm, Ltd. Date of Creation: 1999 Date of Publication: 1999-05-03 Copyright Note: C.O. correspondence. Names: Lucasfilm, Ltd.
    Copyright: Type of Work: Visual Material Registration Number / Date: VA0000971209 / 1999-09-14 Application Title: Star Wars: episode I, the Phantom Menace--Darth Maul Lightsaber. Title: Darth Maul Lightsaber. Description: Sculpture + product packaging. Series: Star Wars episode I Copyright Claimant: Lucasfilm, Ltd. Date of Creation: 1999 Date of Publication: 1999-05-03 Copyright Note: C.O. correspondence. Names: Lucasfilm, Ltd.

    The Current Trademark: Reg. Number 1126220
    Transfer of Ownership (Registrant) Twentieth Century-Fox Corporation
    (Last Listed Owner before Fox) LUCASFILM Entertainment Company Ltd. Corporation
     
    Last edited: Sep 22, 2012
  44. Melwicker1

    Melwicker1 Member

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    Okay, I need to do more research on this topic.
     
    Last edited: Sep 22, 2012
  45. Davlin

    Davlin Well-Known Member

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    Tripoli, thank you for this long explanation. While on the Sabers subject it's pretty clear, could you please go into deeper details about the fact that studios do not own the IP to everything, which sounds weird to me ?

    In a movie or a game, everything that happen on screen is the IP of the studio, right ? Or do they need to file the IP for each and every stuff that are showing onscreen, for them to protect those ?
     
  46. tripoli

    tripoli Master Member RPF PREMIUM MEMBER

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    Anything created and produced by the studio can be considered the intellectual property, unless by contract another person/company has controlling rights from the creation or production of that item. This is a common practice as a large film contracts many of the production aspects out to other companies to put the entire process together into a final product. A prop maker may have exclusive rights to the prop they make for a movie, yet it is publicly identified with the movie and studio. Another example can be a company may own the rights to the programming and process that created a special effect used in the film. The art and conceptual design may still be considered owned by the studio.
    A studio may retain the rights yet license another company to produce a replica. That company may then then put resources into R&D and the design for production. They then may patent a design based on the work that it takes to produce the item. This is done to protect the elements of design, such as an led saber versus a indeglo blade design which could make it unique on the market.

    Anything produced on the movie screen or computer game screen is created and marketed and is intellectual property of that creator. They can transfer that property just like any other tangible item to another if they want to. They can also choose to legally protect it or to let the public have access, that is their choice to do so. But generally, when you do not protect the property, it can be hard to do so later on legally.

    Any written work, art work or computer program is considered copyrighted material even if a formal copyright has not been filed. However, if you are making money on an item, you MUST document the creation and marketing of the item to protect yourself legally. Having a documentation on the public release is fine. A filed copyright shows the documented date of creation and the process granting you solid rights to the item in question. But it is not always needed to do given the cost involved. If I was an author of a book, I would forgo the cost. Same possibly for artwork although I have seen case studies of smaller know artist work taken by larger firms and the legal cost to defend being almost impossible to take on by the artist. Registering a piece can eliminate an expensive process of proving who is in the right. Programs can be different due to the process of coding and it may pay to protect such.

    Some times a company will create a process or item and will not want to go through the cost to protect the property. As long as they document the process and internally protect it through non disclosure agreements with employees, they can protect their intellectual property. At this point, the company has what is called a trade secret. Generally, larger companies will have an IP storage file room with such documentation. Patent are especially expensive to file for and you have to produce so much to make that item pay off the cost involved. A special process in producing a product is considered a trade secret, whether it be a manufacturing process or the ingredients to baking a certain food. As long as it is not publicly released, you are within your rights not not make it public and to try to protect that property from public disclosure and use.

    If you have a patentable property and sell it in the market without patenting the item, after one year of sales, it becomes un-patentable. This happened with Dipping Dots which decided after a few years to patent the process after another competitor came out with a similar product. Dipping Dot lost the lawsuit because they had not protected the process within a year of selling their product to the public.

    Filing for a patent makes an item available to the public eye, another reason why companies may not want to file a patent. A competitor cannot duplicate the item or process once it is patented and once it does go through the process of certification, you do retain rights from the time of the filing. But that filing grey area can be an issue for a competitor. They may try to file in another country, hope that the patent is rejected, or that the process is dropped (business cannot afford to continue, may have found a better way, etc), so there are certain risk with filing a patent. For a large company it usually is not a problem, but for smaller start ups in which IP is key, it can be a huge issue. The filing goes through a 6 month public search and vetting to make sure no other patent is violated by the new filing. Right before the six month mark, you can file a special request to have the filing not published/processed further in the public eye, which allows for some protection from the public.

    International filings are on whole, another huge issue of complications. The complexities just expand on a completely new level. With the issue of copying from country to country and globalized marketing (China being infamous for doing so), intellectual property and the protection of such is becoming a very serious issue for companies to have to consider.
     
    Last edited: Sep 23, 2012
  47. tripoli

    tripoli Master Member RPF PREMIUM MEMBER

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    An article I reference in my talk about Lucas Studios:
    Legal News
    Jedi lawyer watches over Star Wars empire
    15th Dec 2009
    David Anderman insists that he has never been bored during his 11 years with his current employer - Lucasfilm, the production company founded in 1971 by Star Wars creator George Lucas.

    In 1973, Lucasfilm released its second feature film, American Graffiti. Made on a $750,000 (£460,000) budget, the movie grossed more than $100m (£61m), and Lucasfilm has since grown to become one of the world's leading entertainment companies.

    Anderman's role as general counsel means he is the point person for any and all legal issues faced by the company. His team handles transactions with licensees and forges agreements with talent and their agents. Legal details connected with distribution deals are on the menu, as are issues regarding production work that Lucas performs for other studios and the company's game division.

    Anderman considers himself an intellectual property (IP) specialist who became a generalist at Lucasfilm. "Every day is a masterclass on the edges of IP law," he says, noting that, workwise, almost everything he does touches upon IP and IP-related licensing deals. On one occasion, he helped match the licensing of two brands; thus was born the 'Darth Tater' - a combination of the Darth Vader and Mr Potato Head characters.

    As enforcer of Lucasfilm's worldwide IP, Anderman sometimes assumes the role of litigator. Advertising, normally the responsibility of the marketing and public relations departments, occasionally spills over into the legal department. Anderman has union-related duties with subsidiary company Skywalker Sound, which works in conjunction with the International Alliance of Theatrical Stage Employees.

    Every year or two, legal work related to location filming comes his way. There are insurance issues for the group to resolve. The day-to-day operation of Skywalker Ranch, Lucas's California production facility, brings legal activity as well. From time to time, he meets with Lucas himself, primarily during board of directors meetings.

    Lucasfilm's 25-member legal department includes eight lawyers. Eight paralegals, called contract administrators, and a versatile support staff round out the operation. This relatively small in-house group is augmented by outside lawyers with a wide range of expertise.

    Morrison & Foerster is the company's go-to firm, both in the US and globally, and it helps manage Lucasfilm's trademark portfolio, anti-piracy efforts and real estate transactions. Anderman maintains relationships with external lawyers in San Francisco, Los Angeles and around the globe. He says he hires them based on their ability and history with Lucasfilm.

    The company has registered trademarks in more than 100 countries and maintains a production facility in Singapore. Immigration-related duties come into play involving its Singapore-based employees. "Our local counsel know the ins and outs of our business," Anderman says. Lucasfilm has many licensees in China that manufacture Star Wars merchandise.

    Managing the Star Wars brand is an essential element of Anderman's job. He tries to encourage devotees' enthusiasm while protecting the Lucas brands.

    Anderman cites an example of how the general counsel of "a company at the intersection of entertainment and technology" explores the boundaries of trademark and copyright law. Last year, US comedian Stephen Colbert presented the 'Star Wars Green Screen Challenge' on his TV show The Colbert Report. The contest centred around homemade digital movies featuring the comedian using a Jedi light saber. The situation arose after footage of Colbert jumping around with a light saber found its way onto the internet. Rather than having the legal department intervene and shut down the Colbert video, Lucasfilm and Colbert Report broadcaster Comedy Central agreed to launch the contest. The winner was "a random guy from Ohio," whose entry defeated the effort of "George L from Marin County" - actually George Lucas, Anderman said.

    In determining "what is fair use and what is fan use," Anderman and his team turned what could have been treated as a case of infringement into a positive public-relations event, he says.

    Anderman launched his career as an IP litigator in Silicon Valley. He practised at legacy firm Brown & Bain, now part of Seattle-based Perkins Coie, doing some work for the Lucas companies. In 1996, he moved to Orrick Herrington & Sutcliffe. A partner who he had worked at Brown & Bain asked if he would like to submit his resume to Lucas for an opportunity that had just opened. Anderman interviewed at Skywalker Ranch and, in 1998, became Lucasfilm's associate director of business affairs.

    Lucasfilm's many subsidiaries keep evolving, and the company is "always on the cutting edge," Anderman said. Lucas consummated the first deal for digital cinema in 1998. Digital technology has been applied to all of its recent activities, including the second Star Wars trilogy, animated television shows, the movie and TV series Star Wars: The Clone Wars and live-action TV. The company's special effects are state-of-the-art, and it pioneered interactive role-playing video games. Anderman is thrilled to be along for the ride.
     
    Last edited: Sep 23, 2012
  48. Tan Djarka

    Tan Djarka Sr Member

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    Tripoli, you seem to be in the know on this subject, so I'll ask you about something that's been a point of contention:

    If you build one and only one copy of something for your personal collection, never to be sold or transferred in any way shape or form, does that constitute "fair use", and is therefore legal?
     
  49. tripoli

    tripoli Master Member RPF PREMIUM MEMBER

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    Sorry, did not see this until the subject was brought up in another thread.

    Any copying of intellectual property, even for your own use can constitute a breach in IP law. If you are using it to make money or to manufacture an item for profit, the originating IP owner has the right to come after you for damages.
    If you are using something for your own personal use, there is still the ability by the intellectual property owner to pursue you for that use. To make this absolutely clear, if you are gaining benefit of their work and property, they have that right to pursue you in court.

    Most companies are not going to pursue the hobbyist prop maker for making a personal collection. The cost of doing so is high and the recovery of damages is unlikely. Paramount learned that lesson in the late 70's with the Star Trek fans as well it was a public relations disaster. But they did do so actually legally confiscating costumes, props, models, artworks and even stripping off shirts of fans at conventions.

    The studios learned from this and did not come down so heavy handed, but they still legally enforce such as now there is good money to be made from licensing.

    Lucas allowed fans to create costumes and basically promote his franchise. He still enforces issues when he sees someone making a profit, but otherwise wants fans to enjoy and expand on his works for the enjoyment of the Star Wars universe. But that is a fine line and again I refer to the article above on those issues.

    Bottom line, yes it is infringment even when making or copying a unique aspect of someone's work. Whether or not it is worth enforcing becomes the next legal issue.
     
    Last edited: Oct 10, 2012
  50. red4

    red4 Sr Member

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    Hasn't Lucasfilm broken a bunch of copyrights by using real firearms and just adding metal junk on top of them to make the barrels look slightly different? Aren't the copyrights broken even further when those designs are licensed to Hasbro to make toy replicas? And it's not just firearms, there's also that Gillette ladies' razor they turned into a comlink, and the Covertec belt clip that has been made in 1/6 scale and 1/18 scale for Jedi characters.
     

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