need help understanding GWs Legal Holdings

[Mukrat]

I figured I would post this odd question of curiosity here because this is a rather large forum. But I want to make it clear that I do not agree or disagree with the topics of my following questions and discussion. I am mearly looking for the 'truth' of the matter and reprocusions of the evidence.

Ok, so I am looking for a Titan and Thunderhawk to finalize my Apocolypse sized Ultramarine army. I really don't want to pay $800 for a Thunderhawk or $1100 for a Warhound. So I am a member of many 40k boards and ofcourse have an eBay account etc etc... In my process of looking for a Titan I have made posts on all the forums I am a member of. And naturally I check eBay everyday for possible deals.

Now, I know GW is VERY strict about making copies of there stuff. If they 'cought' someone they would likely sue there pants off. But I have first hand approval that they would not go after someone for a 'small' infraction. Such as making a copy of some small item for there own purposes, like a conversion or something.

Today I came accross something interesting. An Armorcast Reaver Titan for sale on eBay. As the description reads it is a 'Second Casting' of the Titan. This would mean that the seller has created molds of the original with the intent to create copies. No harm in and of itself for 'your own uses'. But wouldn't it be illegal to sell those copies?

Technically only Forgeworld has the rights to make these Titan models. And Armorcast USED to have the rights to make these models. But now that Armorcast no longer has the rights, dose that make there old Titan models fair game to reproduce?

Again I want to state that I neither for or against this topic. I would not condone copying these models for the purpose of selling. I certainly wouldn't buy one for more then $50. Considering I know how they were made and the cost of the materials to make it. But then I also would not care if someone was using them for a game. For personal use, and games, I don't have a prolem with reproduced figures. Only for the purpose of selling them for profit to I have an issue.

So, is there a GW person or perhaps a lawyer or someone that knows and understands the law regarding this topic, out there? I just want to clear the air for my own knowledge, and maybe for others that might be wondering the same thing.

[JohnHwangBT]

If you are looking for a Titan or Thunderhawk, you have a few fairly simple options:
- buy new from GW Forgeworld
- buy a GW/Armorcast original item via eBay
- build your own from scratch

I haven't seen the GW "approval", but I would assume it only applies to trivial things, like the AdMech badge on a Land Raider or somesuch. The notion of casting stuff in any significant portion nearly always means copyright infringement, and will nearly always trigger GW's IP legal staff if it becomes visible in any significant way.

There are lots of companies selling recasts of copyrighted works. These are all illegal, and the auction can be shut down for copyright infringement / illegal goods.

Technically, while one might have the right to *create* a mold of a copyrighted design (as a derivative work), there is almost certainly *not* any legal right to actually *use* the mold to produce copies (infringement).

With respect to Armorcast, if you wanted to make legal copies of Armorcast designs, you'll need to speak with GW and Armorcast and obtain small volume licensing from *both* companies - GW for the design IP, and Armorcast for the actual model. Otherwise, you are engaged in unlicensed (i.e. illegal) copying.

Disclaimer: I am NOT a lawyer - nor would I ever want to be one...

[s_o_r_r_o_w]

I just looked at the auction in question, wondering if it meant second casting (ie not the original Biasi casting but a later Armorcast casting) or a recasting (copy of original casting).

It clearly indicates that it is a copy of an original (and a damn fine job I might add!).

As such, it is a "bootleg" and illegal in most countries. It's a little bold of the guy to be selling it online like that, especially on eBay, where they tend to be sensitive to these things.

Copying for personal use is a little more complicated. GW outright encourages "green stuff molding" of small converted bits, and sculpting a custom marine is still copying a marine, and could violate copyright if you were to sell it.

The Armorcast Titans are Games Workshop's intellectual property, licensed to Armorcast, and currently held by GW. No one else (that I know of) is authorized to use that IP commercially. Personal use laws can vary by country.

I would never forbid someone from playing with me using a recast (copied) GW item (as long as it didn't look like crap). Similarly, I allow other model lines in games as well.

So, short answer: The eBayer is doing something illegal in selling a knock-off Titan. Buying it is probably illegal. Making it might not be. Using it in games is not.

[Mukrat]

s_o_r_r_o_w: You and I are of the same mind in the mater.

Thats why I had to ask the question. I was looking for opinions while I considered the weight of responsability in purchaseing the item through a forum such as eBay. The boldness of the auction is what threw me offguard. Thanks for your inputs. I hope more opinions will follow.

[JohnHwangBT]

The issue with the knockoff is that, if GW were to ever find out, they can confiscate it on the spot.

Especially, as you *know* that it is an unlicensed copy.

[peacemystic]

I don't know about all the legal BS,but you can avoid all that by scratch building your stuff,and here a great Yahoo group that has the templates and advice on how to build stuff
http://games.groups.yahoo.com/group/bwc-archive/

Hope that helps
Cheers
Steve

[Ironhide]

It's always been my understanding that you can make copies for personal use, but not for selling. Now when they are saying "second casting", does it mean a second casting from the original mold or a "recast" of a model from the original mold. Now having said that, you do realize that most Armorcast models were for the Epic 40k line of minis?

[JohnHwangBT]

It's always been my understanding that you can make copies for personal use, but not for selling.

That is entirely false.

Under US "fair use" guidelines, you are permitted to copy small portions of pretty much anything for personal / review / commentary purposes. In the case of software / media, you are allowed to make archival copies. In the case of CDs that you own, the RIAA has said you can make them into MP3s as long as you don't share them

But making complete copies of physical goods is still not permitted (i.e. illegal), and you can get in trouble for it. And quite frankly, copying only makes sense on a large scale. That is, the time and cost of acquiring proper casting apparatus and materials, and then making and using a set of RTV molds is not trivial. In general, if you place any value for your own time, you are usually better off buying rather than making small numbers of copies.

Actually, you are better off scratchbuilding, as often that will be cheaper than copying many FW items...

Anyhow, the main distinction is that most manufacturers will tend to turn a blind eye to personal copies, as the volumes tend to be small, and you don't affecting their external sales in a significant way. If you sell, then yes, they will slap you with a lawsuit and injunction. That doesn't make personal copying any less illegal.

[MagickalMemories]

Anyhow, the main distinction is that most manufacturers will tend to turn a blind eye to personal copies, as the volumes tend to be small, and you don't affecting their external sales in a significant way. If you sell, then yes, they will slap you with a lawsuit and injunction. That doesn't make personal copying any less illegal.

Not only will I agree with your post, but I'll raise you a:
"They'll only turn a blind eye until that eye sees that you're doing it."
(Obviously, I'm referring to larger stuff, not small bits, pieces, etc).


Eric

[Linrandir]

Disclaimer: I am NOT a lawyer. I have, however, worked in several federal law libraries including Department of Labor and Library of Congress. I have also attended several workshops on Copyright law, held by copyright lawyers specializing in Fair Use doctrine for the express purpose of informing people here of their rights under US Copyright Law and the "Fair Use" doctrine.

Eric, John, I respectfully disagree with your statements. The personal use clause of the Fair Use doctrine allows for the complete reproduction of a purchased work so long as it is, so stated, FOR PERSONAL USE ONLY. After all, by purchasing the item you have purchased the rights to that physical object. You can do whatever you want to it provided that there is no personal profit involved. The reproduction may NOT be bought, sold, traded, given away, or otherwise exchanged. The problem is that determining what qualifies as an infringement has been likened to pornography/obscenity: "I can't define it, but I know it when I see it." ONLY the judge in a case of copyright infringement can determine whether or not an infringement has actually occurred. HOWEVER, it is possible to get a better understanding of the factors involved by doing a little research and/or consulting a lawyer, both of which I have done.

First, a basic primer: http://en.wikipedia.org/wiki/US_Copyright_Law
Second, a more specific primer on Fair Use: http://en.wikipedia.org/wiki/Fair_Use
Third, the actual law itself (for those who want to blow their brains out):
http://www.law.cornell.edu/uscode/17/106.html
http://www.law.cornell.edu/uscode/17/106A.html
http://www.law.cornell.edu/uscode/17/107.html


From Wiki page on Fair Use, and critical to understanding GW's draconian views of copyright law:

Because of the defendant's burden of proof, some copyright owners frequently make claims of infringement even in circumstances where the fair use defense would likely succeed in hopes that the user will refrain from the use rather than spending resources in his defense. This type of frivolous lawsuit is part of a much larger problem in First Amendment law; see Strategic lawsuit against public participation.

Emphasis mine.

There is a four factor test in determining Fair Use. From Section 17 USC Sub. 107:

Notwithstanding the provisions of sections 17 U.S.C. § 106 and 17 U.S.C. § 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.

All that blah blah blah said, the eBay auction of a reproduction? Clearly illegal under these guidelines. Any auction, sale, or trade? Also illegal under these guidelines. We've busted people off the site for that.

But I also think it's important to remember that none of us are lawyers, and this is at best informed speculation. Do what you will at your own risk with what you've learned here.

[Mukrat]

Linrandir YOU ROCK!!! That is some Grade A+++ work there my boy!! Me luv you LOOOOONG time for the most absolute and resounding information that could have ever been gathered on the subject and question.


/me Bows to Linrandir respectfully
/me WISHS he could be as smart and resourcefull

[MagickalMemories]

Sh##, Lin.

You don't have to disagree respectfully.
LOL

Laugh at me and point!

Heck, I'm GLAD I was wrong!

Can you STICKY this?

Eric

[JohnHwangBT]

Eric, John, I respectfully disagree with your statements.

Of course people are welcome to disagree. That's the point of questions and discussion, no?

The personal use clause of the Fair Use doctrine allows for the complete reproduction of a purchased work so long as it is, so stated, FOR PERSONAL USE ONLY.

That is *NOT* what the law says, or you would have quoted this. There are a very clear (and fairly limited) set of things that are allowed (stated below), and unfortunately, "personal use only" isn't one of those listed.

Because of the defendant's burden of proof, some copyright owners frequently make claims of infringement even in circumstances where the fair use defense would likely succeed

Correct. A good example would be suing over quotes in a derogatory book review, to stifle otherwise valid public criticsm.

I'm now going to go through the 4-factor test for personal copying (en masse).

..., the fair use of a copyrighted work, ..., for purposes such as criticism, comment, news reporting, teaching (including multiple copies for classroom use) , scholarship, or research , is not an infringement of copyright.

Emphasis added to note that the protected fair uses are typically educational or informative in nature, and generally related to First Amendment-type rights. Personal duplication has no educational or informative value whatsoever. FAIL

1. the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes;

The purpose is to avoid paying the copyright holder and deprive the copyright holder of their normal sales revenue. It is anti-commerical, with no educational purpose whatsoever. FAIL

2. the nature of the copyrighted work;

We are talking about commercial toys with a specific likeness / design that are sold in volume to consumers. debatable, but likely FAIL

3. the amount and substantiality of the portion used in relation to the copyrighted work as a whole;

In general, the less that one copies, the more likely it is protected. In this case, we are talking about copying in toto. The copier is expected to exercise some due level of judgment in determining how much of the original work is to be copied, but no discretion is being demonstrated. FAIL

4. the effect of the use upon the potential market for or value of the copyrighted work.

Limited market impact beyond the purchase of the copyrighted master, however, it is fair to note that the copyrighted toy is intended to be sold and purchased in quantity by the consumer, based on a rules system that requires large numbers of such items. If one permits the "slippery slope" argument (which is generally valid, as failure to enforce copyright allows it to lapse), then if everyone did it, the copyright owner would go out of business. likely FAIL

Based on the 4-factor test for Fair Use, personal copying of any significance seems to fail on the merits.

Lin, if I've missed something, please help clarify. Thanks.

[Mukrat]

JohnHwangBT shot the Sheriff!! And JFK I bet!