Technically replicating any prop seen in a film or TV series is breaking some IP somewhere.
The only time selling anything is 100% OK is when it is 100% your design and not copied in any way from someone else.
This is pretty accurate, but copyright law is very complex, which is why we have courts.
(I am not a lawyer, so go get one if you need one.)
I am not an expert on this; but I did have classes on this at Business School (MBA), I own a small advertising agency, I work as a commercial photographer (I've run into this in my work), and I have spoken to an IP lawyer. On another related note, people copy my work all the time. They have even gone so far as to get the same model, rent the same location, and try to produce the same shot. Honey Badger don't care. They also steal my actual images, and for that, we pursue.
Here are the basics of what I learned in Business School.
The "bright line rule" on IP stuff is this: If you make something for yourself (for example, building a BR blaster for your personal cosplay), you are fine. When you start to sell them...we *could* have trouble, Houston. If Houston wants. If Houston want's to sue, that is. We'll get to that.
An example of this is when Adam Savage built as close as he could SA BR blaster from the original gun parts. Even though the source parts were the same, and the expression (see below) was the same,
it was for personal use. And, as such, this is considered "fair use", generally speaking, under the law (The De Minimis Defense) because of volume. There is only one copy.
Also, there is no impact on the potential salability of future prop replicas by the franchise. This is probably what people mean when they say, "buuuuut....it's not for profit!"
"The Effect of the Use Upon the Potential Market
Another important fair use factor is whether your use deprives the copyright owner of income or undermines a new or potential market for the copyrighted work. Depriving a copyright owner of income is very likely to trigger a lawsuit. This is true even if you are not competing directly with the original work.
For example, in one case an artist used a copyrighted photograph without permission as the basis for wood sculptures, copying all elements of the photo. The artist earned several hundred thousand dollars selling the sculptures. When the photographer sued, the artist claimed his sculptures were a fair use because the photographer would never have considered making sculptures. The court disagreed, stating that it did not matter whether the photographer had considered making sculptures; what mattered was that a potential market for sculptures of the photograph existed. (Rogers v. Koons, 960 F.2d 301 (2d Cir. 1992).)"
Source:
http://fairuse.stanford.edu/overview/fair-use/four-factors/
Kinda like the difference between recording an as-perfect version of "Smells like Teen Spirit" in your garage to listen to by yourself. If you decide to sell your version, you will need to pay royalties.
Another thing to consider is that you can not copyright an idea. Such as wearing flannel and singing about how bad your life is.
Here is an excerpt from an interview on IP worth reading:
"RP: What do you think are the top three possible claims of copyright infringement by an artist? Would one be: they've stolen my image?
PT: The main confusion that pops up is that one artist's work copies another artist's work because it is a similar subject matter. In copyright law, there is a distinction between ideas and expression. Are you familiar with this?
RP: Well, I know what you are generally saying in an art context, but not in a legal context. “Ideas” are the concept or where the artist is coming from, and “expression” is how the work is executed.
PT: Yes, that's the legal context too. We are still at an abstract level and it's quite a challenge to take this from the abstract to the concrete. An important thing to note is that this is a basic, common principle of copyright law. However, its application can get quite tricky.
Imagine there is a sculpture of a ballet dancer in an Arabesque pose, and let's say it is carved from wood. Then there's a second artist who also makes a sculpture of a ballet dancer in an Arabesque pose, but it's made of bronze, or it's rougher, or the depiction shows a flat foot instead of a pointed foot. No artist can copyright an Arabesque pose. This is still at the idea level.
But it's when you get down to the “expression” level, to the actual pose, the actual texture, that determines when one is copied. You can copy the idea, or concept, but you can't copy the expression. So many artists get personal about their work naturally. You can't copyright subject matter even if it's never been done before."
Source:
http://www.sculpture.org/documents/scmag09/may_09/copy/copy.shtml
The short version of all of it is this:
1) You cannot copyright an idea (blasters, for example).
2) You CAN copyright an expression of an idea (a steel and plastic blaster with orange grips made from a Steyr .222 and a CA bulldog .44, that looks spacey)
For example, let's say a Colt 1911 is used in a movie as a prop. In all probability, it would be fine to sculpt a pistol of this type, cast it and sell those. Even if you cast a real Colt 1911, you would probably be fine simply because the intended use of the cast differs greatly in use from the original object. The real pistol, it could be argued, is a tool intended to shoot, the cast is artwork.
Here is another illustration of the same point. If I build a house based on Van Gough's painting, no-one is going to care (it helps that he and his heirs are dead), because the point of that artwork is the painting itself, not to design a house.
If I build a physical copy FLW's Waterfall house, I'll have a problem because it matches the expression of the original piece of art.
If paint a copy of the house, because it has a different expression, I should be fine:
In the case of the Blade Runner blaster, the original piece has no function outside it's role as a prop, and because the configuration is such a unique expression of that category of prop, it would probably be considered art in itself by the court. As such, a copy that tries to replicate a near exact expression,
could possibly be considered an infringement, especially
if a lot of them are offered for sale.
To wit:
"The artwork’s creator is the only one who can:
Make copies of the work;
Make derivatives or revisions;
Distribute or publish the work;
Perform the work in public (if the work is a poem, song, play, or movie);
Display the work in public (if the work is a painting, graphic, photo, sculpture, or other still-image work); and
Perform the work in public by digital transmission (if the work is a sound recording). 2"
Source:
https://ucomm.wsu.edu/what-copyright-protects/
A perfect example of this could be the case of the lawsuit filed by Damien Hirst against teenage graffiti artist Cartrain who created a collage using a photo of Hirst's skull sculpture.
Since the collage is a different medium, expressed in a different way, teenage graffiti artist Cartrain will most certainly win if it goes to court.
However, another artist (John Le Kay), who has been making diamond-encrusted skulls might just be suing Hirst, because he did it first
(they even knew each other). I believe he would have a case. You can read more about it here.
http://www.dailymail.co.uk/news/article-1094139/Damien-Hirst-threatened-sue-teenager-alleged-copyright-theft.html
The skulls in question:
The whole thing, of course, made me LOL. An artist, who copied someone else, is suing a third artist who copied him.
Here is another case where a fabric maker copied a pattern from a costume, which copied a pattern from a rug. The rug company sued and won.
"In a recent case, Volpin Props, an independent prop maker, created a costume based on a carpet design found in the Atlanta Marriott, home of the DragonCon convention, featuring a fabric that copied the carpet design exactly (see the image above). They then sold the fabric on a retail website. Since the carpet’s design was so iconic, and so identifiable apart from the utilitarian nature of the rug, and Volpin was making some money selling fabric with the identifiable design, the cease and desist they received, while inconvenient, was legitimate."
The more iconic and unique something is, the harder it will be to win in court if you copy it.
Source:
http://www.rstreet.org/2016/01/28/cosplay-and-the-courts/
Buuuut.
There are exceptions. These are called "fair use."
"Notwithstanding the provisions of sections 106 and 106A, the fair use of a copyrighted work, including such use by reproduction in copies or phonorecords or by any other means specified by that section, for purposes such as criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research, is not an infringement of copyright. In determining whether the use made of a work in any particular case is a fair use the factors to be considered shall include—
(1) the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes;
(2) the nature of the copyrighted work;
(3) the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and
(4) the effect of the use upon the potential market for or value of the copyrighted work.
The fact that a work is unpublished shall not itself bar a finding of fair use if such finding is made upon consideration of all the above factors."
Source:
https://www.law.cornell.edu/uscode/text/17/107
(And, no. Building blaster props in your garage is not research. Unless you are working for DARPA, and it really does shoot lasers.)
Buuuuut (again), if a piece is changed in a significant way, it is considered a "derivative work" and therefore legal. Maybe not always moral (Richard Prince, looking at you), but legal.
Richard Prince has made himself famous by photographing other people's photographs and then selling those photographs of photographs. In some cases, the court has decided that showing a photograph
in situ (like the Marlboro Man photos he took), makes the second photo a Derivative Work. He now does it with screenshots.
Here is one (the one on the left is original, the right is his screen shot with his comment,
which he sells for $90,000.00):
You can read more here:
https://news.artnet.com/art-world/richard-prince-copyright-lawsuit-754139
And here:
http://garson-law.com/artist-richard-prince-and-the-derivative-work/
Here is an explaination of a deravative work:
https://www.lumendatabase.org/topics/16
And...
"According to the Copyright Office’s Circular 14, “A derivative work is a work based on or derived from one or more already existing works. … Only the owner of copyright in a work has the right to prepare, or to authorize someone else to create, an adaptation of that work. … The unauthorized adaption of a work may constitute copyright infringement.” Because nobody has yet brought a law suit against Prince over these Instagram pictures, we may never know whether his actions actually constitute copyright infringement. Past cases, like that the “Doc” wrote about in 2013 over the Cariou photos, lead us to believe that as long as people who are famous continue to pay $90,000 each for them, judges will keep looking the other way."
From here:
http://garson-law.com/artist-richard-prince-and-the-derivative-work/
A snubby PKD Blaster is clearly a derivative work (
a significant amount of the original work was changed).
Which brings us all the way back to props. I personally believe that the BR blasters are actually derivative work except, maybe the Tomenosuke version which ended up being soooo close the movie prop house for the sequel bought it and used it on screen. I mean really, if that isn't certification of "exact expression", I don't know what is.
There is one more little complication...or two...or three... LOL
First, let's be clear. Contrary to what I keep seeing on various prop boards, (in the USA)
when an artist makes a piece of art, that piece is protected from the moment of creation by applicable copyright laws. You do not need to register it for it to be protected by copyright statutes, however, if you do register it, you may receive additional protections and you can receive larger minimum awarded damages in court.
You can read more about that here:
https://www.copyright.gov/help/faq/faq-general.html#mywork
And here:
http://www.artbusiness.com/register_and_copyright_art_for_artists.html
An exception to this is art made while under the employ of another. In that case, the art generally belongs to the employer. This is called
"work for hire." That is why Lucas films is the one going after you when you try to sell 1,000,000 exact copies of Luke's light saber, not the original propmaster or artist who made it. Or the original gunsmith who made the first Hero blaster, that was a "Work For Hire", the Tomenosuke blasters were not (instead being bought from a business who manufactures them
en masse).
Buuuuuut (again).
This is where things get gray (or grey for my friends over the pond).
The movie industry has a long tradition of allowing fans to make derivative works based on their copyrighted, original art. It tends to create free buzz for the franchise, and generally does no harm. In some cases, they even publish guidelines for fan films and the like. This is where I believe Tomenosuke is covered.
Star Trek fan film guidelines:
http://www.startrek.com/fan-films
This website seems to agree with me:
"In fact, some feel these fan communities actually serve a valuable service to copyright holders by providing a thriving site for fans to visit, keeping them entertained and engage between official releases. In short, since fan creations don’t take away sales of the original work, they are often seen as free promotion and a way to grow the brand without cost or effort."
Source:
https://www.plagiarismtoday.com/2010/05/13/the-messy-world-of-fan-art-and-copyright/
Remember,
if you change enough features of the original prop, you are fine. Case-in-point: The "
50 shades of Grey" book was actually
Twilight fan fiction at one time. Sigh.
Also, copyright law tends to share a lot of legal points with Trademark law. Both are under the umbrella of Intellectual Property law, after all.
And, in trademark law, you MUST defend your trademark in order to keep it. There are a lot of cases where corporations have lost a trademark because they did not protect them. You can read about some of them here:
https://consumerist.com/2014/07/19/15-product-trademarks-that-have-become-victims-of-genericization/
More info here:
https://secureyourtrademark.com/blog/trademark-101-can-lose-trademark/
But, really, that is Trademark law, and not really copyright. However, I do believe that the industry (as a whole), and specific movie production houses (in particular), have actually lost some of their rights by not pursuing those that infringe on their rights. This is where the voice of a lawyer would be nice. Maybe I'm wrong.
In the case of the Blade Runner blasters, not only did they not pursue all potential infringers, but they are actually using a Tomenoske blaster in the sequel. LOL. And, while that might be damning for Tomenosuke with regard to expression, I think it actually demonstrates the specific culture of Hollywood with regard to props, cosplay, fan films, and the like. They know about it, willfully allow it, and (in my opinion,
but I am not a lawyer) in so doing lose some rights to the copyrighted piece. In exchange, they grow their fanbase and foster good will with the Sci-Fi, prop, and cosplay community. They have obviously deemed this worth the sacrifice.
Sooo.
One last thing.
In the real world, I don't think we are really talking about morals or even ethics (as discussed above).
(I asked you guys about ethics as a way of seeing where the prop-making community stood, as a group, and I received answers all over the map.) The culture within the prop community tends to police their own specifically adhering to their own "code."
Some good ideas here:
https://99designs.com/blog/tips/5-famous-copyright-infringement-cases/
I think we really need to be talking about risk assessment from a legal standpoint. Here is why. In the US, anyone can sue anyone for anything. And, even though let's say 20th Century Fox took this Etsy knitter to court, and lost, they could still bankrupt her.
Read more here:
http://www.pcworld.com/article/2044685/i-almost-got-sued-for-knitting-a-firefly-hat-the-legal-risks-of-pop-culture-fan-art.html
Speaking of which, I might have one of those hats. I went to ASU, wife asked her co-worker who knits to make me a Jayne Cobb hat, she started selling them on Etsy. LOL.
So, while you *may* be legally fine with how you make your version of a prop, and you may be able to win in court,
the real question is this, "Can you really take on a goliath like 20th Century Fox?"
It turns out, Fox actually offered one for sale right after they sent the C&D...
So, we have a clue there.
It's about the $$$$.
Grand summary: If you touch their money, they will spank you. If you don't, they probably won't.
I'll bet the Tomenosuke 2049 blaster in some way gets licensed or they get a C&D, sometime after the movie comes out. I'll just bet the film studio will want a piece of that pie.
Remember, the studios are not squeaky clean either. They actually do some "gray area" stuff too. Like hang copyrighted art in rooms shown in movies.
http://corporate.findlaw.com/intellectual-property/hanging-copyrighted-paintings-as-props-in-movie-was-fair-use.html
They also use "found items" as props all the time. Items which could, in fact, result in a lawsuit from the original artist. I'm not saying they would win (the expression is different, remember?), but they could be brought to court. Especially if that found item was built as a prop.
So.
Don't get sued.
You get sued by:
1) Copying the expression of a piece of art exactly (and we all seem to be trying for that perfect prop, right?)
2) Make a lot of them
3) Cut into someone else's profit
You should be fine if:
1) You make something for yourself
2) You only make a couple
3) You don't make a profit
PS: One interesting legal question could be, "what if someone made physical prop copies of the original, rejected, never-made blaster prop that was rejected by Ridley Scott? And offered them for sale?"
PPS: Many movie production houses have their policies right on their website.
Here is Marvels:
https://marvel.com/help/category/11
PPPS: "What to do if you receive a cease and desist letter… Be courteous and respectful to the copyright owner. Before taking action or signing any contracts, talk to an attorney to see if you are actually doing anything wrong. It may be wise for you to comply with reasonable requests to cease and desist. If you are friendly, you may be able to use this as an opportunity to negotiate an official license. A license would most likely allow you to keep producing your work, while sending a portion of the profits to the copyright holder. Being kind an understanding of copyright holders’ desire to protect their original works will help create a friendly environment between fan artists and copyright owners. These “good feelings” will likely lead to future collaborations and favorable licensing terms."
Source:
http://www.kennedyartlaw.com/blog/2016/6/21/5-copyright-rules-for-comic-con-what-every-fan-artist-needs-to-know
PPPPS: Abandoned work. Occasionally, there may be something you find that you may wish to reproduce for sale, that was abandoned. That is, you can no longer find the original artist, the company who paid for it's creation (work for hire), and/or the copyright may have expired (in many countries about 75 years and/or the life of the artist). In any case, you must many every reasonable effort to find the copyright holder. If you cannot, you may be entitled to reproduce this work.
Here is a quote regarding "found footage" or old stock used in a new film:
"In some circumstances, use may be “lawful” even if unlicensed. The footage may have
entered the “public domain” either because its copyright term expired or the material was
“published” (that is, offered to the public for sale or lease) without copyright notice or with
defective notice. The copyright owner may have abandoned copyright in the found footage if the
copyright holder intended to abandon the copyright and affirmatively acted to abandon the
copyright"
Source:
http://www.hllaw.com/images/78867FoundFootage.pdf
It seems that this would apply to props as well, but in all cases this is tricky, especially because the courts tend to hold that living artists must
overtly abandon the copyright.
"Abandonment of copyright or dedication to the public domain occurs when a copyright owner intentionally gives up copyright protection for a work. When the copyright in a work is abandoned by the owner it enters the public domain. Thus, s/he no longer owns any exclusive rights in the work and cannot bring a claim of copyright infringement against anyone who makes use of the work.
The courts are of the view that rights gained under the Copyright Law may be abandoned. Abandonment of such rights, however, must be manifested by some overt act indicative of a purpose to surrender the rights and allow the public to copy. [Hampton v. Paramount Pictures Corp., 279 F.2d 100 (9th Cir. Cal. 1960)]"
Source:
https://definitions.uslegal.com/a/abandonment-of-copyright/
For me, I believe the copyright for original chess sets (Great Birds) us in Blade Runner is abandoned. I have been digging into this since 2009,
to include a trip to England to talk to Hoyle's in Oxford, and no-one (
and I do mean no-one) seems to honestly know who the original copyright holder is.
This, allegedly, is why the sculpt changed from the original set to the set we have now (missing tufts on the owl ears, chain on the Eagle, etc.)... because the original sculptor could not be found/or would not renew the copyright.
You may notice, that some of what I wrote under "Derivative Work" and "Fair Use" seems to contradict itself (in one place only the artist can make a derivative work, in another a derivative work is protected). Yep, you read that right.
That's why we keep having court cases. That's why you need a lawyer.
*************Updated to answer a question (below) in the same place...**********************
This is a great thread thank you guys. I have another point - fans often ID parts in a prop that would be considered IP. A lot of those are found real world items.
So I always wondered
1) Whats the legality of found real world products being used as parts of props? Wouldn't the manufacturer have a right to some profit?
2) Whats the legality of identifying them and making that information available to the public? Surely that is exposing parts of a prop considered IP?
I believe both are absolutely legal, but it boggles the mind.
This goes back, in my opinion, to two things:
1) Expression. The original manufacturer (say KitchenAid) is making kitchen appliances. When you purchase those appliances, you are purchasing the right to
use them in any way you deem fit. They get paid through the purchase. When you make a prop, it's the same as the skull collage example above, the expression changes.
2) it's a derivative work. Enough of the item is changed so as to qualify as a derivative work.
and
3) It does not affect revenue for the original manufacturer, and as such, falls under fair use.
But remember, I am not a lawyer. LOL. Even lawyers can only tell you what they would litigate or defend. In court, it all boils down to what the judge will allow and how the jury feels about your defense.
I can't find the case, but in Business School one of the cases we studied was where an American surgical tools company (scalpels, etc.) was buying cheap tools from Pakistan, grinding off the logo, polishing them, re-branding them and selling them as their own. The court found for the American company.
When I was a consultant, one client asked me to research the legalities of them buying one product (by the truckload) then using that product to make a related but functionally and visually different product. the original piece was internal. We found this was legal because the original manufacturer was compensated for their product.
So how does it work for something like wax museums? They're using likenesses but not selling the props
The use of likeness varies greatly from country to country. In the case of my photography, it has been crazy.
In the USA, you can take a picture of someone in a public place, because that person has no "reasonable expectation of privacy" according to the courts.
In France, however, the person has a right to control the use of their image...I've had to remove images before.
I would assume the same applies to all expressions of a likeness, wax included.
Hope that helps.
