IP licencing/piracy

[NeilW]

RE-POSTED FROM HERE AS IT DETRACTS FROM MALLY'S WORK AND DESERVES ITS OWN THREAD

Mally's posting noted that his Bothrag the Hunter had been officially licensed. I responded noting that this was good sculpt while adding that many other figures are not licensed (this has now arisen several times: see here, here and here.

I made several lengthy postings regarding this which rather hi-jacked discussion of the figs (for which I've apologised). However, that actual discussion is legitimate so I've posted two of my main thoughts below:

a) It's an interesting dilemma (unlicensed re-casting wrong; unlicensed fig manufacture OK) which most seem to rationalise along the lines of:

• in both cases the actions are illegal
• in both cases there is an opportunity cost/loss in terms of:
  • a lost sale to the fig manufacturer (which they may never had made anyway)
  • a loss of licence income to the IP holder (which it may be nobody would take up anyway)

So, as I see it, the logic runs as:

• re-castings take money away from (relatively poor) SmallCo fig manufacturers
• the resultant financial loss is relatively major (to them)
• therefore, as they suffer relatively more, it is not OK to 'hurt' fig manufacturers

• unlicensed figs take money away from (relatively rich) MegaCorp IP owners (eg Disney)
• the resultant financial loss is relatively minor (to them)
• and, therefore, as they suffer relatively little, it is OK to 'hurt' IP owners

Now, the interesting thing comes when the fig manufacturer is relatively larger and richer than the IP owner (and so the balance of loss is reversed). So, if BigCo fig manufacturer is making lots of $$$$$s whilst SmallCo IP owner only makes $$s, the question becomes:

Does the same logic/ethical judgement remain or is it flipped, so:

• Because BigCo's fig manufacturer's relative loss is small, so re-casting is OK
• Because SmallCo's IP owner's relative loss is large, so unlicensed figs are not OK

Or is the real rationale:

• fig manufacturers are perceived as 'our friends' without whom our hobby can't survive
• IP owners are perceived as remote MNE, faceless 'enemies' out to screw every buck from us

Discuss.

Hand your essay in by the end of term and make sure that you submit it to Turnitin (you'll know why)

AND I PROMISE THAT I'LL NOW SHUT UP ON THIS TOPIC (peer pressure an' all that )

Sorry... I didn't

 

[NeilW]

b) It's a perfectly valid discussion (and all who've commented agree that the piece itself is superb).

I do however wonder if there's some dual standards at play when you consider the header that's on every page of this site:

Copying kits is a crime that hurts original artists & producers. Help support your favorite artists by buying their original works. PlanetFigure will not tolerate any activities related to recasting, and will report recasters to authorities. Thank you for your support!​

It could just as easily read:

Copying others intellectual property is a crime that hurts original artists & producers. Help support your favorite artists by buying their licensed works. PlanetFigure will not tolerate any activities related to IP piracy, and will report unlicensed work to authorities. Thank you for your support!​

​

BTW: I wonder who 'the authorities' are: assuming most rip-offs probably come from China, you've fat chance of much being done about it

Consider my head duly raised over the parapet

 

[Forté]

IP theft is a tricky area for certain as you have certainly mentioned.

Many of the smaller companies that I speak with often (RobotRocket, BrokenToad, and Journeyman Miniatures for example) actually look to work with the concept artists for some kind of agreement to use their creations to create figures and busts. That is a great thing to be done as it not only gives work to the original artists but also helps them become known to others too. Nocturna Models is a larger more known company who does it too.

In comparison, Scale75 got caught out using a ladies artwork for a steampunk range which damaged their reputation and rightly so.

On the other side of things though I've often wondered how some of the more historical side of things as many seem to be based on drawings from books. Hopefully many are done with agreements of some kind in place.

 

[NeilW]

IP theft is a tricky area for certain

Yes, it is, except that unlicensed/unapproved use of another's IP is clearly a crime (even China signed up to that in the 80s... not that you'd believe it ) .

You do however raise the point that some smaller IP holders, notably conceptual artists, may welcome and partner fig manufacturers in order to gain from the extra exposure and publicity (and probably a % royalty?). This of course is a private matter and as consent is given it is not really IP piracy. Others may not give actual consent but turn a blind eye* as they feel either that they benefit from the exposure and/or the loss to their business is insignificant and not worth pursuing.

The other case, basing figures on a copyrighted illustration (such as in Osprey's MAA books), is also an infringement, but again, I suspect that the publishers see little real loss and perhaps some benefit (though licensing an 'Osprey' range of figs may well be commercially viable as it would carry the cachet and brand equity of the titles: unfortunately, such a deal with Lego did not bear fruit )


* This may be dangerous as not protecting IP can lead loosing it altogether: coming to an agreement, even if there's no fee would be safest. Not quite the same but once protected (trademarked) brand names such as Lino, Escalator, Cats-eye, Sellotape and Thermos lost their protection due to allowing the terms to be generically used. This is the reason why brands such a Google, Xerox and Hoover are keen to prevent their name being used as a verb (as in "try Googling 'brand genericide' " ).

 

[Steve Brodie]

Taking it a step further, a re-caster may then produce a copy of a licensed model and its a double loss to the original artist and manufacturer . Still amazes me that ebay still has loads of recast products on their.

 

[theBaron]

I've wondered about a similar question, not about recasting, but about producing a piece that depicts a licensed or copyrighted subject, especially something from a movie or TV show.

Prost!
Brad

 

[theBaron]

...Still amazes me that ebay still has loads of recast products on their.

eBay doesn't police the auctions itself, that is, there aren't staff tasked with scanning auctions and verifying whether the products are legitimate. eBay relies on its users to report an auction as a copyright violation, and then someone may follow up. So if we consider how many auctions there are, and how few people are likely to take the time to report an auction, it's not amazing at all.

Prost!
Brad

 

[NeilW]

I that a lot of the sales go through shopfronts rather than auctions so the regular traders should be easily identified. The problem is whether any authority can or will enforce the laws. China certainly doesn't seem to and that seems to be where industrial scale IP theft (Inc re-casting and counterfeiting ) is happening.

 

[NeilW]

Brad: my initial posting is about just that... Character piracy.

 

[DEL]

I think the vast majority of us agree with the points made regarding piracy and IP theft.
It's a subject that has been discussed many many times.
The solution is spectacularly simple....just don't buy pirated figures. It's not exactly rocket science to identify a pirate re-caster regardless of how sophisticated their website is. I'm always surprised when someone says 'I thought it was a legitimate company'. Packaging is usually the most obvious way to identify a recast.
The matter of IP theft is perhaps a bit more complex. Many established companies regularly edition pieces that are clearly based on characters in films although I'm not entirely sure that anyone can own a face as such so let's consider Andreas Beau Geste figure of a good few years ago. Who would own the image, P C Wren, the author, Gary Cooper or more likely Paramount Pictures. All Andrea would say is it's a model of a French Foreign Legionaire. Again it's a matter of conscience but I can't see it upsetting Paramount too much. I bought it when it was released in the full knowledge of its IP reference ...... can't say I've lost much sleep over it.

 

[NeilW]

Individuals' faces are protected under EU and US privacy laws. Leonard Nimoy and Chuck Yaegers (I think) both won cases albeit not for figs.

Now found Hypertexts' excellent posting on this:

Then there is the matter of likeness rights, which fall under privacy, not copyright. They are the the rights of an individual to control the commercial use of his or her name, image, likeness, or other unequivocal aspects of one's identity. These rights would belong to an actor, not the studio. For example, a beer company started an add campaign that featured the character Spock from Start Trek. The beer company got permission from Paramount, but failed to get permission from Leonard Nimoy.

Another example was a model kit company releasing a Bell X-1, the plane in which Chuck Yeager broke the sound barrier. The package featured Chuck Yeager's image and name, but they did not get his permission to use it. He got them to stop. Now the company has released the aircraft kit without Chuck's name and image.​

 

[DEL]

Individuals' faces are protected under EU and US privacy laws. Leonard Nimoy and Chuck Yaegers (I think) both won cases albeit not for figs.

Bloody hell ...... does that mean a massive % of the avatars on here could see us in court Keith and Roger will be dreading a call from the RSPCA Lawyers....

 

[NeilW]

I think it's to do with commercial gain and publishing. A member's website is probably a grey area.

 

[NeilW]

The issue I posted about about isn't figure piracy and recasting, it's unlicensed figs based on, eg movie characters. This seems to be widely considered on this site as OK, whilst re-casting isn't.

As my opening posts state, there seems to be some dual standards at play.

Ref who owns what: I think you'll find that characters, their clothes makeup etc are copyright of the production company whilst the actors face belongs to them. I suspect that actors' contracts contain a clause allowing the co to use their image in the context of the character to promote the production and commercialise on their asset/investment (eg sell licenses for figs).

 

[Tony Dawe]

Hi Neil,

I'll confine my comments to my own personal situation to avoid upsetting anyone.​

I agree with you that there is a dual standard here and a healthy dose of hypocrisy.

I'm comfortable admitting that I happily and repeatedly turn a blind eye to these sorts of ethical and legal concerns, when it suits me and when my actions carry no personal consequences for myself.

For example, I am a huge Lord of the Rings fan. I love to buy figures and busts depicting my favourite characters from Tolkien's books and from the movies made by Peter Jackson and New Line Cinema.

Andrea released a 54mm figure of Aragorn several years ago called "The Untamed". It was a brilliant sculpt and captured the character of Aragorn

as played by the actor Viggo Mortensen perfectly​

. It was clearly done without the permission and approval of the Tolkien Estate or New Line Cinema, and because of that it was relatively inexpensive. I bought the figure anyway because I wanted it. There were no adverse consequences for me, or as far as I know for Andrea, so I bought it, painted it and have it proudly on display in my cabinet at home.

Then Knight Models brought out its fully licenced range of LOTR figures, including an Aragorn figure. Knight Models paid a substantial royalty fee to the Tolkien Estate and New Line Cinema for the rights to reproduce those characters and this clearly impacted on its retail price and its profits.

It was relatively expensive to buy, but I wanted it, and I bought it. Its currently sitting on my workbench being prepped for painting.​

I purchased both Aragorn figures, knowing full well that one of them was clearly unlicensed and reproduced without permission, while the other was clearly licenced and reproduced with permission.

Does this make me a hypocrite? Yes, it absolutely does.

Would I do the same thing again? My bloody oath I would!

I'm willing to admit my own hypocrisy and to say that I'm OK with it, when it suits me.
My observation is that this same moral and legal hypocrisy is being exercised by others in our hobby, when it suits them.
They condone recasting as theft, but don't have a problem with IP theft when it suits their interests.

Perhaps there is a moral or legal equivalency between IP theft and recasting, and perhaps there isn't.
That's a very convenient argument for sculptors and figure producers who make money from producing unlicenced figures of movie characters.

I'm sure a lawyer representing Knight Models in a hypothetical legal case against Andrea Miniatures would argue that theft is theft, and Andrea's actions in producing an unlicenced Aragorn figure arguably deprived Knight Models of income and devalued the cost of acquiring the reproduction rights from New Line Cinema.

The question is whether one form of theft is acceptable because its victims are major companies and another form of theft is unacceptable because it hurts artisans and small businesses. In my view, we are being hypocritical to support one kind of theft and condone another, because it suits us.

This debate has been going on for years and is destined to continue ad infinitum. Doesn't mean we shouldn't have the debate. I think debate is healthy, especially as the scourge of recasting is a minefield of ethical hypocrisy, and I strongly support pF's efforts to educate modellers against the evils of recasting.

However let's not fool ourselves. Recasters make money from people who clearly understand that what they're doing is wrong, but they do it anyway because it suits them. Figure manufacturers and sculptors who sell figures of unlicenced characters make money from customers who clearly understand that what they're doing is wrong, but they do it anyway because it suits them.

I will never again buy another recast figure or bust, but if someone brings out an unlicenced figure or bust of one of my favourite LOTR characters, I'll have my credit card out faster than you can say "intellectual property theft".

Just my two cents worth!

 

[NeilW]

Great Post Tony.

Very honest and I suspect reflects the majority view*.

Interesting point about the licence fee inflating the price (as they say 'that's the price you pay...').

How about the argument**:

'I'm not willing/can't afford to pay £35 for a figure but will/can pay £10 for a rip off'?​

As there is no actual financial loss# to the original sculptors (as the fig wouldn't be bought anyway), is this still wrong?​

(# there may be reputational loss, especially if it's a bad casting)​

**Speaking academically of course.


* you sum it up well:

However let's not fool ourselves. Recasters make money from people who clearly understand that what they're doing is wrong, but they do it anyway because it suits them. Figure manufacturers and sculptors who sell figures of unlicenced characters make money from customers who clearly understand that what they're doing is wrong, but they do it anyway because it suits them.

 

[NeilW]

I wondered about this Legion bust of HRH as an ATS driver (LM are Russia based and as such come under the Paris Convention IP laws).


I know the royals are strict about the use of their titles, coats of arms etc and wondered about images.

This site explains it all, the relevant bit being:

So, LM are off the hook: there are however restrictions on images* use on medals, coins, packaging, clothing and so on, but figs/busts seem OK.

*for a surprisingly long list of members of 'the royal family'

 

[peedee]

This is soooooooooo boring.

Theft is theft.
You know it is.
I know it is
We all know it is.

If you condone it, in any way, you may as well be a thief yourself, there are truly no exceptions.

The only difference it makes is wether you care.

Stop recasting.

And if you don't have an answer to IP theft that is sustainable and enforcable by all levels of market place.

Just make more non recast, non ip theft models.
and stop going on about it, and produce a thread that is interesting entertaining or of some real modellers merit.

 

[NeilW]

Well you don't have to read them.

 

[peedee]

That's true.
I'm out.
you promise not to believe your importance and I promise not to waste my time reading about you stroking your own EGO.

"This subject deserves it's own thread"
Naaaaah it doesn't.
and neither do the grown ups here.