Modeling and Copyrighted Characters
E.J.
Hero Clix, that are game pieces. I, along with alot of other people,
modifiy some of our Clix into other characters that the compnay hasnt
made or our own creations. Now, some people Mod the peices for thier
personal collection while others sell them. Query; whats the leagality
of taking soemthing like that and remaking it the way youd rather have
it. Like taking a Spider-man piece and somehow turning it into a
Superman. Since Supes is copyrighted and you didnt have permission to
transform the Piece to resemble his image are you infringing on the
copyright? And what of the original piece? If you are changing it and
selling it based on the new look then people would be buying it
because it looked like Superman, but they could also be buying your
service. The time and effort to make it, and not what it turned out to
be. Would saying that youre selling a Clix that looks like Superman or
is inspired by Superman be enough to protect you from a lawsuit? Or
saying a guy dressed like Superman or in homage to him? Waht if youre
just making the mod for your own personal enjoyment. Is the act of
using the image or precieved image without the copyright holder's
consent infringement? If you dont distribute it or make money from it?
The way the game works is that each Clix has a point system on the
dial that represents what the character that is attached can do. Some
people Mod the current character into ones that in comics have similar
powers so they can use them in the game and others creat their own
dials with thier own point scale. Those arent allowed in regulation
games.
Now the way the Clix are sold is that you can buy the starter package
and get more of the Clix by getting boosters. Each booster have 4
pieces and sometimes on of them are a Unique Version. They are put in
in very limited quantities. In the after market they go for $10-80.
Isaac
> Okay, I have a few questions. I collect little super hero miniratures,
> Hero Clix, that are game pieces. I, along with alot of other people,
> modifiy some of our Clix into other characters that the compnay hasnt
> made or our own creations. Now, some people Mod the peices for thier
> personal collection while others sell them. Query; whats the leagality
> of taking soemthing like that and remaking it the way youd rather have
> it. Like taking a Spider-man piece and somehow turning it into a
> Superman. Since Supes is copyrighted and you didnt have permission to
> transform the Piece to resemble his image are you infringing on the
> copyright? And what of the original piece? If you are changing it and
Interesting.
My amateurish, uninformed guess would be that:
1. The likeness of Superman is protectable by copyright, and your final
figure would infringe.
2. The final figure is likely to infringe the trademark held on Supes.
3. Whether or not you've infringed the copyright in the original figure
depends on how you accomplish the transformation. If you completely
destroyed the original, then maybe your final creation is not a derivative
work. Your action of destruction would not be infringing.
But if there is a transformation of elements of the original into
characterisitics more evocative of Superman than the original character,
perhaps you could end up creating a derivative work based on the original
character such that the your final character was infringing of the
original work.
> selling it based on the new look then people would be buying it
> because it looked like Superman, but they could also be buying your
> service. The time and effort to make it, and not what it turned out to
> be. Would saying that youre selling a Clix that looks like Superman or
> is inspired by Superman be enough to protect you from a lawsuit? Or
I think it makes more likely that you've infringed the trademark rights
associated with Superman.
> saying a guy dressed like Superman or in homage to him? Waht if youre
> just making the mod for your own personal enjoyment. Is the act of
> using the image or precieved image without the copyright holder's
> consent infringement? If you dont distribute it or make money from it?
Yes you can infringe copyring simply by making a copy even if you
do not distribute it or make any money from it.
> The way the game works is that each Clix has a point system on the
> dial that represents what the character that is attached can do. Some
> people Mod the current character into ones that in comics have similar
> powers so they can use them in the game and others creat their own
> dials with thier own point scale. Those arent allowed in regulation
> games.
> Now the way the Clix are sold is that you can buy the starter package
> and get more of the Clix by getting boosters. Each booster have 4
> pieces and sometimes on of them are a Unique Version. They are put in
> in very limited quantities. In the after market they go for $10-80.
I think some of these facts would be useful to a plaintff arguing that
your actions were not fair use.
Isaac
James White
> personal collection while others sell them. Query; whats the leagality
> of taking soemthing like that and remaking it the way youd rather have
> it. Like taking a Spider-man piece and somehow turning it into a
> Superman.
Once you have bought something protected by Copyright you can smash it and
throw it away without violating COPYright. Likewise you can sell it (not
additional COPIES you make though) or blend it with toast and sell it and
you haven't violated COPYright in any way. You own the COPY you bought, the
COPYright holder got their just payment, you're entitled to do as you will
with your COPY.
Your real issues will be any violation of COPYright or trademark of your
final transformed figure--most likely only when/if you SELL it--since you
ARE COPYing Superman or whatever just the same as you would be if you
started from scratch rather than with someone else's
protected-before-your-purchase COPY of something.
IANAL but that's my $.02 worth. For more on the issues see
www.idearights.com to get the hang of the basics.
--
James E. White
Inventor, Marketer, and Author of "Will It Sell?
How to Determine If Your Invention Is Profitably Marketable
(Before Wasting Money on a Patent)" www.willitsell.com
Also: www.booksforinventors.com and www.idearights.com
[Follow sig link for email addr.Replies go to spam bit-bucket]
Mike Brown
> Once you have bought something protected by Copyright you can smash it and
> throw it away without violating COPYright.
Actually, that's not really true, although as a practical matter if you
blend a work and throw it in the trash you're unlikely to run into
trouble. There was a case where an artist was hired to paint a mural in
a building and sued when the building owner punched a doorway through
the mural - the artist won the suit. Seemed like a bit of an aberration
to me, but there you are.
> You own the COPY you bought, the
> COPYright holder got their just payment, you're entitled to do as you
will
> with your COPY.
It is called COPYright, but copying is only one of the "bundle of
rights" you get when you have a COPYright. There is also public display
or performance, distribution of copies and the right to make derivative
works. See section 106 of the copyright act:
http://www4.law.cornell.edu/uscode/17/106.html
Changing the copy in a transformative way is a bit different than
destroying the copy. Changing the copy would be "making a derivative
work", which is another of the rights reserved to the copyright owner.
Ownership of a copy does not imply the right to make derivative works.
That often arises in the context of collages and other similar things.
--
Michael F. Brown
Registered Patent Attorney No. 29,619
David M. Geshwind
Mike Brown <br...@bpmlegal.com> wrote in article
<3f68889c$1...@news2.lightlink.com>...
> James White wrote:
> > Once you have bought something protected by Copyright you can smash it
and
> > throw it away without violating COPYright.
>
> Actually, that's not really true, although as a practical matter if you
> blend a work and throw it in the trash you're unlikely to run into
> trouble. There was a case where an artist was hired to paint a mural in
> a building and sued when the building owner punched a doorway through
> the mural - the artist won the suit. Seemed like a bit of an aberration
> to me, but there you are.
>
Mike:
An aberration indeed!
I though such rights fall under the rubrick of "droit morale" and are
available to artists in Europe, but not in the US.
Was there some overreaching curcumstance such as the artist had not sold
his work but merely "loaned it with permission" by applying it to the wall?
Otherwise, if the work was bought, I though that the artist gave up rights
to damage or destruction (as opposed to unauthorized exploitation).
-- dmg
David M. Geshwind
Remove the FILTER to reply
Isaac
> wrote:
>
> Mike Brown <br...@bpmlegal.com> wrote in article
>> Actually, that's not really true, although as a practical matter if you
>> blend a work and throw it in the trash you're unlikely to run into
>> trouble. There was a case where an artist was hired to paint a mural in
>> a building and sued when the building owner punched a doorway through
>> the mural - the artist won the suit. Seemed like a bit of an aberration
>> to me, but there you are.
>>
>
> Mike:
>
> An aberration indeed!
>
> I though such rights fall under the rubrick of "droit morale" and are
> available to artists in Europe, but not in the US.
They apply in a very limited fashion in the US. Only to works of
visual arts (paintings, prints or sculptures in a single copy or limited
edition)
Might not apply to game pieces, but I suppose they could be issued in
a limited edition (200 or less, consecutively numbered, bearing signature
or mark of the owner)
Isaac
Arnoud Galactus Engelfriet
>available to artists in Europe, but not in the US.
You may want to read 17 USC 106a. This is where the USA implemented
moral rights after joining the Berne Convention. However, they
only apply to "the author of a work of visual art" (subsection b).
I am not sure whether the Berne Convention permits this kind of
limitation.
http://www.copyright.gov/title17/92chap1.html#106a
>Otherwise, if the work was bought, I though that the artist gave up rights
>to damage or destruction (as opposed to unauthorized exploitation).
17 USC 106a (a) under (3)(B) states that the author of a work of
visual art has the right to prevent any destruction of a work of
recognized stature, and any intentional or grossly negligent
destruction of that work is a violation of that right.
Arnoud
--
Arnoud Engelfriet, Dutch patent attorney - Speaking only for myself
Patents, copyright and IPR explained for techies: http://www.iusmentis.com/
Isaac
<gala...@stack.nl> wrote:
> In article <01c37d45$c2e1cfe0$ef421f43@default>,
> David M. Geshwind <acaesq...@mindspring.com> wrote:
>>I though such rights fall under the rubrick of "droit morale" and are
>>available to artists in Europe, but not in the US.
>
> You may want to read 17 USC 106a. This is where the USA implemented
> moral rights after joining the Berne Convention. However, they
> only apply to "the author of a work of visual art" (subsection b).
> I am not sure whether the Berne Convention permits this kind of
> limitation.
> http://www.copyright.gov/title17/92chap1.html#106a
I would argue that the Berne convention requires extending moral rights to
to both literary and artisitic works meaning just about everything
protectable by copyright in the US. The US could elect to provide a
protection scheme to some very limited art forms (i.e. industrial
arts) which do not include moral rights, but I haven't seen a good
explanation of why moral rights do not have to be extended to everything
else.
Isaac
Lee Hollaar
>I would argue that the Berne convention requires extending moral rights to
>to both literary and artisitic works meaning just about everything
>protectable by copyright in the US. The US could elect to provide a
>protection scheme to some very limited art forms (i.e. industrial
>arts) which do not include moral rights, but I haven't seen a good
>explanation of why moral rights do not have to be extended to everything
>else.
It was argued, I believe, that existing trademark law provided the
necessary protection of moral rights in most cases.
Arnoud Galactus Engelfriet
Isaac <is...@latveria.castledoom.org> wrote:
>I would argue that the Berne convention requires extending moral rights to
>to both literary and artisitic works meaning just about everything
>protectable by copyright in the US.
Indeed, article 6bis BC does not provide any limitation on particular
fields.
> The US could elect to provide a
>protection scheme to some very limited art forms (i.e. industrial
>arts) which do not include moral rights, but I haven't seen a good
>explanation of why moral rights do not have to be extended to everything
>else.
I found an article on http://www.rbs2.com/moral.htm that provides
some explanation:
During the passage of the Berne Convention Implementation Act, the
U.S. Congress specifically stated in 1988 (Senate Report 100-352)
that rights equivalent to moral rights of authors were already
recognized in the USA under:
1. the common law of misrepresentation and unfair competition,
2. section 43(a) of the Lanham Act, 15 USC 1125(a)(1)(A), which prohibits
"false designation of origin, false or misleading description of
fact" that is "likely to cause confusion, ... mistake," or deception
about "the affiliation, connection, or association" of a person with
any product or service.
3. defamation (libel) law.
Therefore, Congress asserted that law in the USA already complied
with 6bis in the Berne Convention, without any additions or changes
to Copyright law in the USA.
The article notes that this raises the question why moral rights
then were added to 17 USC for visual works of art.
It also cites several US cases dealing with moral rights. Apparently
in most cases US courts do not recognize the concept of moral rights.
James White
> Actually, that's not really true, although as a practical matter if you
> blend a work and throw it in the trash you're unlikely to run into
> trouble. There was a case where an artist was hired to paint a mural in
> a building and sued when the building owner punched a doorway through
> the mural - the artist won the suit. Seemed like a bit of an aberration
> to me, but there you are.
Correct but not relevant to the poster. The suit was over an ORIGINAL, among
other factors, which wouldn't be applicable to mass for-sale copies.
> It is called COPYright, but copying is only one of the "bundle of
> rights" you get when you have a COPYright. There is also public display
> or performance, distribution of copies and the right to make derivative
> works. See section 106 of the copyright act:
> http://www4.law.cornell.edu/uscode/17/106.html
Correct but again not relevant to the poster.
> Changing the copy in a transformative way is a bit different than
> destroying the copy. Changing the copy would be "making a derivative
> work", which is another of the rights reserved to the copyright owner.
That sounds like a fabricated misinterpretation to me. Please cite where
changing the purchased copy creates a "derivative violation." I'm gonna
create a coloring book and sue all the little bleeps that touch a crayon to
a copy. In fact right now I think I'll start suing all the bleeps that
highlight passages in my book or dog-ear a page corner---Not! In fact I'll
expect any cite you can come up with would tend toward the "since the
original package was sold with parts for creating thus the poster cannot
possibly be in violation of COPYright 'derivative works' law."
> Ownership of a copy does not imply the right to make derivative works.
> That often arises in the context of collages and other similar things.
Show me a cite where it applied only to a one-of collage made from the
legitimately acquired copy, not a reproduced collage or a collage with a
collage-maker copy (or derived work) of the other creator's work. Thanks.
(The latter two are not relevant to the poster's situation.)
Isaac
wrote:
In other words, with respect to the coloring book, the derivative work
was created with permission. There is also the defense of fair use.
Highlighting a text book is similarly likely to be considered fair use.
But selling transforming characters would be less likely to be
found fair use because of the commercial purpose. It's also less likely
that a court would accept the argument that the copyright holder had
authorized creating a derivative work.
>> Ownership of a copy does not imply the right to make derivative works.
>> That often arises in the context of collages and other similar things.
>
> Show me a cite where it applied only to a one-of collage made from the
> legitimately acquired copy, not a reproduced collage or a collage with a
> collage-maker copy (or derived work) of the other creator's work. Thanks.
> (The latter two are not relevant to the poster's situation.)
I'll look up the cite, but I recall one case where a court found that
cutting pictures out of a book and attaching them to a matting created
a derivative work. Even though the court agreed that the first sale
doctrine allowed selling the pictures, the court found infringement
because what was actually sold were derivative works and not the
originals.
Isaac
Mike Brown
>>destroying the copy. Changing the copy would be "making a derivative
>>work", which is another of the rights reserved to the copyright owner.
> That sounds like a fabricated misinterpretation to me.
Ah, James. Ever the diplomat.
> Please cite where
> changing the purchased copy creates a "derivative violation."
I said, "derivative work", not "derivative violation."
> create a coloring book and sue all the little bleeps that touch a crayon to
> a copy.
There would be an implied license to color a coloring book, of course.
> expect any cite you can come up with would tend toward the "since the
> original package was sold with parts for creating thus the poster cannot
> possibly be in violation of COPYright 'derivative works' law."
In the case of a coloring book, of course the original was sold with the
expectation that it would be colored. Now it is you who is coming up
with inapposite examples. The original poster asked about changing an
action figure (doll), which is not normally sold with the expectation
that derivative works will be made.
See: Christian v. Mattel Inc., 62 USPQ2d 1385 (CA 9 2002)
"Finally, the court found that Mattel, as owner of various Barbie head
sculpture copyrights, had โthe exclusive right to prepare derivative
works of its own copyrighted works. See 17 U.S.C. ยง106(2). Thus, Mattel
has the right to paint and repaint its own copyrighted sculptures.โ
Also Mattel Inc. v. Pitt, 64 USPQ2d 1950 (DC SNY 2002), involving an
erotic โDungeon Dollโ made from Barbie Dolls. "Plaintiff is the
registered owner of the copyright in the work โSuperStar Barbie,โU.S.
Copyright registration number GP 121682. The work is an unadorned dollโs
head sculpture. Defendant, a resident of the United Kingdom, prepared
and sold a โDungeon Dollโ to one of Plaintiffโs representatives in New
York. ... As of September 28, 2001, Defendant maintained an internet
website, which featured images of the recostumed and painted SuperStar
Barbie doll in a sexually explicit story and offered various sexual
paraphernalia for sale. ... The Court assumes for purposes of this
analysis that repainting and/or recostuming of an individual copyrighted
item can be characterized as copying or as otherwise violative of the
copyright holderโs protected rights in the work." This was a summary
judgment motion, which was refused on the grounds that there was a
factual question of whether the evil Barbie dolls were "parodies" and
thus fair use.
>>Ownership of a copy does not imply the right to make derivative works.
>>That often arises in the context of collages and other similar things.
> Show me a cite where it applied only to a one-of collage made from the
> legitimately acquired copy, not a reproduced collage or a collage with a
> collage-maker copy (or derived work) of the other creator's work. Thanks.
This is one of those things where the principle is so obvious that all
the cases you find turn on other issues - existence of the copyright at
the time of infringement, compliance with procedural requirements prior
to suit, permission from others...
The Ernst Haas Studio Inc. v. Palm Press Inc.(DC SNY) 44 USPQ2d 1475
(9/11/1997) aff'd (CA 2) 49 USPQ2d 1377 (1/5/1999) was a case about the
use of a photo of Albert Einstein from Vogue magazine in a collage by
Joan Hall. The case was dismissed for procedural reasons (Haas Studio
hadn't proved ownership of the copyright, and Vogue gave permission for
the use, allegedly after the copyright had reverted to Haas), but
neither the court nor the parties every disputed that Hall needed a
license to make the collage using Haas' image.
Mackie v. Rieser, 63 USPQ2d 1755 (CA 9 2002), involved inclusion of an
image of a copyrighted work by Mackie into a collage by Rieser.
Infringement was admitted, and the case turned only on the issue of
damages.
Hoepker v. Kruger, 63 USPQ2d 1168 (DC SNY 2002) "Plaintiff Thomas
Hoepker is a well-known German photographer. In 1960, during the early
days of his career, Hoepker created a photographic image of plaintiff
Charlotte Dabney. ... The image was published once in the German
photography magazine FOTO PRISMA in 1960. Defendant Barbara Kruger also
is a well-known artist, specializing in collage works combining
photographs and text. In 1990, Kruger created an untitled work
incorporating Hoepker's โCharlotte As Seen By Thomas.โ" Again, there was
no debate that the collage would have infringed Hoepker's copyright, but
he lost because it had fallen into the public domain in the interim.
Barris v. Hamilton (DC SNY) 51 USPQ2d 1191 (5/17/1999) Another case
which failed not because anyone thought copyright wasn't violated, but
because copyright had expired before the collage was made.
Ferrato v. Castro (DC SNY) 35 USPQ2d 1445 (6/6/1995) "The complaint
alleges that during 1992 defendant created a "mixed media" collage (to
which she gave no name) under the supervision of the Whitney Museum
Independent Studies Program of New York City. The collage incorporates
sixteen images, eight of which are either photographs cut out of
Living with the Enemy or photocopies of such photographs. Defendant,
however, neither sought nor obtained permission from plaintiff to use
those photographs in her work. Plaintiff alleges that based on
representations made by defendant that she had created or obtained
authorization to use all the images contained in her collage, the
Whitney Museum selected it for exhibition in a show entitled "The
Subject of Rape."" The case was dismissed because the Plaintiff decided
she lacked the resources to complete discovery. The defendant had
claimed "fair use", but the court did not rule on the issue.
Enough.
David M. Geshwind
<bkacpf$1itc$1...@toad.stack.nl>...
> In article <01c37d45$c2e1cfe0$ef421f43@default>,
> David M. Geshwind <acaesq...@mindspring.com> wrote:
> >I though such rights fall under the rubrick of "droit morale" and are
> >available to artists in Europe, but not in the US.
>
> You may want to read 17 USC 106a. This is where the USA implemented
> moral rights after joining the Berne Convention.
ETC.
Thanks for the reference, Arnoud.
Barry Margolin
Isaac <is...@latveria.castledoom.org> wrote:
> In other words, with respect to the coloring book, the derivative work
> was created with permission. There is also the defense of fair use.
> Highlighting a text book is similarly likely to be considered fair use.
If you then sell the textbook to a used book store or in a college's
textbook exchange program, would that likely go beyond fair use?
--
Barry Margolin, bar...@alum.mit.edu
Level(3) Communications, Woburn, MA
Isaac
> In article <slrnbmjjc...@latveria.castledoom.org>,
> Isaac <is...@latveria.castledoom.org> wrote:
>
>> In other words, with respect to the coloring book, the derivative work
>> was created with permission. There is also the defense of fair use.
>> Highlighting a text book is similarly likely to be considered fair use.
>
> If you then sell the textbook to a used book store or in a college's
> textbook exchange program, would that likely go beyond fair use?
I would doubt it.
Isaac
Isaac
<gala...@stack.nl> wrote:
> In article <slrnbmhi3...@latveria.castledoom.org>,
> Isaac <is...@latveria.castledoom.org> wrote:
>
>>arts) which do not include moral rights, but I haven't seen a good
>>explanation of why moral rights do not have to be extended to everything
>>else.
>
> I found an article on http://www.rbs2.com/moral.htm that provides
> some explanation:
Thanks for the reference. I think it does a good job of showing the
pros and cons of the US position.
Isaac
E.J.
> >
> >> In other words, with respect to the coloring book, the derivative work
> >> was created with permission. There is also the defense of fair use.
> >> Highlighting a text book is similarly likely to be considered fair use.
> >
> > If you then sell the textbook to a used book store or in a college's
> > textbook exchange program, would that likely go beyond fair use?
>
> I would doubt it.
>
> Isaac
Theres alot of good stuff here but it seems like there isnt any real
answer. It would just depend on how good your attorney is and what
precedents he could dig up. Makes me feel alittle better any ways.
When I saw the post about buying something and it becoming youres then
reselling it since you now own it, I began to wonder about some
things. What about Used CDs, DVD, and Viddy? You buy one for a price
and that money goes to the people who create it, then you resell your
copy for maybe half the price. You are selling something yopu had
bought and owned but thats money that is out of the originals owners
pocket. Whoever bought it from you would have bought it from them at
full price but you interferred that. What is the difference from
selling your used copy and a copy of the original that you record
yourself? Either way the producers of the item isnt getting money.And
about used CDs. How is that so much different from file sharing like
the lil chick who was just sued? If I buy a Tina Turner CD and save
the music on my computer to listen to with other favorite songs, then
sell the cd to a friend for one cent, and they do the same thing, and
it just goes around my neighborhood, if I copied the songs when I
owned them, where would the problems lay? Im still basically sharing
the music.
Mike Brown
> things. What about Used CDs, DVD, and Viddy? You buy one for a price
> and that money goes to the people who create it, then you resell your
> copy for maybe half the price. You are selling something yopu had
> bought and owned but thats money that is out of the originals owners
> pocket.
That is specifically allowed under the "first sale doctrine". That is,
the copyright owner is only permitted demand his profit from selling the
same copy once. You can own a copy of a work without owning the
copyright, and once you do, you can sell the copy along as you will.
That's one reason why computer software is "licensed not sold".
Microsoft (et al) would like to avoid this situation by NOT selling that
one copy.
> What is the difference from
> selling your used copy and a copy of the original that you record
> yourself? Either way the producers of the item isnt getting money.
In the legitimate resale case, they got their money once, and that's all
they can ask for. The end result is a bit odd, if you look at it in a
certain way, but that's the law for you.
James White
> I said, "derivative work", not "derivative violation."
Irrelevant semantics. Your claim is the making of new characters from bought
characters then selling the new ones made each from bought one(s) is a
"derivative work" and thus doing so VIOLATES the derivative work rights of
the original copyright owner.
> There would be an implied license to color a coloring book, of course.
> In the case of a coloring book, of course the original was sold with the
> expectation that it would be colored. Now it is you who is coming up
> with inapposite examples. The original poster asked about changing an
> action figure (doll), which is not normally sold with the expectation
> that derivative works will be made.
I don't believe your interpretation is in fact correct. The poster's
position, and that of his many cohorts, is that they ARE sold for "play" in
the way they are "playing" and others more conventional. The maker has not
discouraged this and may, if not actively, at least passively be fully in
favor of their "play" since it sells more of the figures.
> This is one of those things where the principle is so obvious that all
> the cases you find turn on other issues - existence of the copyright at
> the time of infringement, compliance with procedural requirements prior
> to suit, permission from others...
That looks like a weasel worded dodge to me. Your long list of cites is
impressive but as you say, none make the point that what these modifier's
are doing IS a violation as fits the present circumstances of the
"derivative work" making law.
Isaac
wrote:
>>Mike Brown
>> I said, "derivative work", not "derivative violation."
>
> Irrelevant semantics. Your claim is the making of new characters from bought
> characters then selling the new ones made each from bought one(s) is a
> "derivative work" and thus doing so VIOLATES the derivative work rights of
> the original copyright owner.
Are you arguing that the tranformation of one character into another
does not create a derivative work? I could imagine situations where
it wouldn't and others where it quite obviously would.
If someone modified a game piece by stretching Superman's head a little
in a couple of places and repainting the costume, I think the final product
would clearly be a derivative work.
On the other hand if the old character were completely melted down and
recast, I wouldn't see the final character as being a derivative work.
And since most likely moral rights do not apply, the original maker
would not be able to object to the toy being melted down.
The original poster didn't really describe his modifications, so I
think it's highly speculative to say that he and his friends are
definitely not creating a derivative work based on the original
character.
>> There would be an implied license to color a coloring book, of course.
>
>> In the case of a coloring book, of course the original was sold with the
>> expectation that it would be colored. Now it is you who is coming up
>> with inapposite examples. The original poster asked about changing an
>> action figure (doll), which is not normally sold with the expectation
>> that derivative works will be made.
>
> I don't believe your interpretation is in fact correct. The poster's
> position, and that of his many cohorts, is that they ARE sold for "play" in
> the way they are "playing" and others more conventional. The maker has not
> discouraged this and may, if not actively, at least passively be fully in
> favor of their "play" since it sells more of the figures.
Maybe. I don't see any convincing evidence that the maker intends
the characters to be modified and sold. Selling modified characters
might affect the makers ability to sell the new character, so perhaps he
would object.
Isaac
Tracy Aquilla
news:L9Ebb.406357$cF.126432@rwcrnsc53...
> >Mike Brown
> > I said, "derivative work", not "derivative violation."
>
> Irrelevant semantics.
No, not all derivative works necessarily infringe the copyright.
> Your claim is the making of new characters from bought
> characters then selling the new ones made each from bought one(s) is a
> "derivative work" and thus doing so VIOLATES the derivative work rights of
> the original copyright owner.
See above. Clearly it is a derivative work. Whether the derivative work
constitutes an infringement is another matter. Of course, the analysis is
highly fact specific and we don't have many facts.
Tracy
Mike Brown
>>the cases you find turn on other issues - existence of the copyright at
>>the time of infringement, compliance with procedural requirements prior
>>to suit, permission from others...
> That looks like a weasel worded dodge to me.
Must every point on which you disagree be accompanied by an insult?
There's no "weasel wording" or "dodging" about it. There are simply some
principles that are clear to those who understand the law and work with
it on a daily basis. Courts don't bother to have a holding which
explicitly states these principles because they aren't asked to rule on
them. For the same reason, you probably won't find a case which says
"first of all, killing someone is wrong". All cases involving killing
someone will turn on affirmative defenses, procedural issues, or
adequacy of warnings or admissibility of confessions or other evidence,
or some other factor. That does not make the underlying assumption
(killing is wrong) any less true for being unstated.
> Your long list of cites is
> impressive but as you say, none make the point that what these modifier's
> are doing IS a violation as fits the present circumstances of the
> "derivative work" making law.
The cases I cited don't say that because they didn't need to. The courts
and parties in these cases agreed that the action would violate the
copyright owner's rights with some kind of "but for..." issue from one
of the parties. (In once case infringement was explicitly admitted, but
damages were disputed) The court was left with dealing with other issues
such as the formalities of registration or procedures in the suit, or
whether or not the copyright had expired or the work otherwise entered
the public domain before the "infringement".
In any event, I went back further, to the first series of USPQ, and here
is a cite which says what you are demanding it say:
"...[T]he painting upon the poster depicting plaintiff's photograph is
admitted by Max. Notwithstanding that accused was creating new and
possibly copyrightable work, where he was deriving it from copyrighted
work, he was required to obtain consent of publisher of underlying work
prior to distributing his own collage." Goldsmith v. Max, 213 USPQ 1008
(DC SNY 1981)
The holding in this case was about the validity of the copyright, not
the fact that Max's collage infringed the copyright in Goldsmith's
photograph - the photograph was published without notice which was, at
the time, fatal to copyright. However, the dictum in the case says what
you wanted. ("Max" is Peter Max - remember him? Psychedelic...)
Isaac
Isn't the law ambiguous on the point of whether lawfully made copies
of music cds can be sold? I think the logical position would be that
you shouldn't be able to sell the copy and keep the original, but the
first sale statute allows selling of "a copy or phonorecord lawfully
made under this title..." without any required permission from the
copyright holder.
Isaac
Mike Brown
>>>selling your used copy and a copy of the original that you record
>>>yourself? Either way the producers of the item isnt getting money.
>>In the legitimate resale case, they got their money once, and that's all
>>they can ask for. The end result is a bit odd, if you look at it in a
>>certain way, but that's the law for you.
> Isn't the law ambiguous on the point of whether lawfully made copies
> of music cds can be sold?
To be clear, that wasn't the question I was answering. He asked about
the difference between selling a legitimate used CD and selling a copy
you make yourself - either way the copyright owner loses a sale, but in
the first case he made his money and the sale is OK under the "first
sale" doctrine.
I'm not sure what you mean by "lawfully made copies of music cds". If
you don't own the copyright and don't have permission from the copyright
owner (and assuming the work and the sound recording aren't in the
public domain), I don't see how you can make a "lawful copy" of a CD in
the same sense that a legitimate copy purchased from the copyright owner
(publisher, etc.) is "lawful".
That doesn't mean that you're going to be sued for copying a CD in your
home for personal use, assuming you do it in accordance with the AHRA.
The AHRA does permit home copying in the sense that it says that
copyright owner cannot sue for the act of making the copies, so long as
you make them on specified equipment and media, but those copies aren't
"lawfully made" in the sense that you can then sell or distribute them.
That is to say, the law says that the copyright owner can't sue for
making the copy, but sale and distribution of the copy are two others of
the "bundle of rights" in section 106. You can be sued for those acts.
I suspect that is the reason the law says "you can't be sued for
copying" rather than "these copies are not infringing". If the copies
weren't infringing, then you would open the ambiguity to which you refer.
E.J.
> The original poster didn't really describe his modifications, so I
> think it's highly speculative to say that he and his friends are
> definitely not creating a derivative work based on the original
> character.
>
that resembles another I want to make, my own creations or established
characters, and I just repaint them to look like who I want them too.
The other thing I do is take a characterter and add peices from other
skulpts, or cut/sand parts away from the base figure, or add clay to
the base figure to give them the aspects of my intended characters
then paint them.
> >
> > I don't believe your interpretation is in fact correct. The poster's
> > position, and that of his many cohorts, is that they ARE sold for "play" in
> > the way they are "playing" and others more conventional. The maker has not
> > discouraged this and may, if not actively, at least passively be fully in
> > favor of their "play" since it sells more of the figures.
>
> Maybe. I don't see any convincing evidence that the maker intends
> the characters to be modified and sold. Selling modified characters
> might affect the makers ability to sell the new character, so perhaps he
> would object.
>
redone, but they never said that they coundt be redone. Some of the
peices are badly painted and some people just touch up the colours or
paint them in more realistic colours. Most games similar to Hero clix,
like Dungeions & Dragons, are sold unpainted and I guess are inteded
to be painted since they also sell their own brand of paint. The
makers of the game do allow Moddified skulps to be used during
sanctions games as long as the information bases are unmodified and
the new skulpt isnt put there to deliberately confuse the other
players.
As I said before, the pieces come 4 in a pack. There are commons
pieces and rare ones. they are all randomly inserted into the packs.
The Rare uniques are usually more powerful pieces and on the secondary
market are sold for big bucks. Common peices are priced usually at $3
each (or less) and Uniques usually start at $10 and can go as high as
youre willing to spend. Ive seen some pricrd at $75. Players are
encouraged to trade/sell their duplicate Clix with other players so
everyone can have complete sets.
James White
> Must every point on which you disagree be accompanied by an insult?
Huh. I gather you consider that your weasel wording was indeed unfair weasel
wording intended as a subterfuge to confuse the unwary rather than the art
form of being as precise as possible when you don't really know something.
But, yes, I must put such stings in many posts when I find the poster is NOT
turning on their brain before posting. I do it in an effort to get them to
turn on their brain first and it does work, with most people, a whole lot
better than just repeatedly letting them skate with non-facts and illogic.
> "...[T]he painting upon the poster depicting plaintiff's photograph is
> admitted by Max. Notwithstanding that accused was creating new and
> possibly copyrightable work, where he was deriving it from copyrighted
> work, he was required to obtain consent of publisher of underlying work
>******* prior to distributing********* his own collage." Goldsmith v. Max,
213 USPQ 1008
> (DC SNY 1981)
Then you give a cite that exactly states the OPPOSITE of your position. I
don't get it. *********Emphasis added above********
Mike, Tracy, Issac
Please distinguish between "first sale doctrine," "derivative work," "copy,"
"fair use," and "derivative rights violation."
I think the problem is you all are stretching "derivative work" to include
the "fair use" creation process that may be later used to make copies that
would result in a "derivative work" that the originator could stop. The law
admittedly has an ambiguous definition of "derivative work." It does not
clearly distinguish between the one-of instance and the reproductions----but
on balance when the law is read as a whole one cannot include the one-of in
the definition of "derivative work" because that one-of CANNOT BE STOPPED by
the original work's creator/owner, i.e., it is not an infringement of that
parties rights. Certainly the law should have made the one-of vs
reproductions of the one-of crystal clear and provided a term for speaking o
f that one-of---(but it was probably written by attorneys [who get bigger
fees from confusion than clarity?]:-).
Scenarios:
Creator creates "Click Work." Professor A, Citizen Kane, and Click Modifier
each purchase a copy legitimately produced with the consent of Creator.
Professor A transforms the work into an electronically readable COPY and
annotates it then sends it via e-mail to Professor B. A "fair use" copy has
been made AND a NEW work, possibly copyrightable in it's own right has been
created. Creator has NO ability to sue or stop Professor A's work or copy as
there is NO "making of a derivative work" violation of Creator's rights.
Professor B makes a new copy of Professor A's NEW work (with the embedded
copy of Click Work) and adds his own commentary. Professor B very likely now
has 2 "fair use" copies of Click Work and he makes a copy and sends it to
Professor A. Even if the exchange and keeping of separate copies continues
for 1000 iterations (typical professors:-) the rights of Creator have not
been violated.
Now Professors A and B submit their final NEW work to Innocent Publisher who
publishes it for the world and makes a fortune selling copies. Now is there
a "derivative work" violation? We don't know. It still could be "fair use"
if, for example, the original is only 5 lines long but if Click Work was
novel length and is now "Click Work Explained" then it is (probably) a
"derivative work" for sure.
Meanwhile Citizen Kane takes a highlighter and several colored pens to her
original copy of Click Work. Her changes are not, in the meaning of the law,
a violation of Creator's rights under "derivative work" or any other legal
shenanigan (though, with cash in advance, many an attorney would take the
case!). Citizen Kane is well within the "first sale doctrine" and she too
has now created a NEW work, possibly copyrightable on it's own merits.
Occasionally she copies a few pages of her work and gives them freely (or
even lets them make them at their own expense) to other struggling students
most of whom have their own copies of Click Work but a few of who use a
library copy. Still, I think, these are all "fair use" copies. She passes
the final exam and immediately sells her annotated Click Work copy to
Bookstore for 25% of what she paid. The next semester Bookstore sells that
new work/copy to another student for 50% of list price (matters not whether
new copies of Click Work have increased in price or not). Have Creator's
rights been violated? I think not. Have Citizen Kane's rights in her new
work been violated? Again, I think not.
Click Modifier takes his copy, tips in wonderful color illustrations, adds
gilt edging, adds a fantastic leather binding with inlays, raised features,
and a stunning jewel and precious materials cover image then signs this NEW
work, "Click Modifier, Master Craftsman." The modified copy is put up for
sale on e-Bay as "the exclusive Click Modifier transformed Click Work by
Creator" and various other superlatives. A buyer gets it for a song at $1.2
million. Have any rights of Creator been violated? I don't think so. Is the
transformed work a new work copyrightable in it's own right. I think so. Is
it a "derivative work" in the meaning of the law as controllable by Creator.
I don't think so but Mike Brown inexplicably does so he takes up Creator's
cause and cites his above citation.
The court guffaws, belches, and busts out laughing hyenaishly, "Mike," they
explain, "it's only a derivative work IF Click Modifier starts COPYING their
NEW work in it's entirety rather than by creating NEW works from 'first sale
doctrine' copies of Creator's Click Work originally purchased each with
Creator's full permission. Your cite is exactly the opposite, Max was NOT
purchasing Goldsmiths permitted COPIES, he was creating his own copies of
Goldsmiths' work with his own additions."
Okay, explain my errors---I don't think I have any unless it's perhaps some
misunderstanding of what Mike MEANT to say but didn't quite.
Isaac
>>
>> The original poster didn't really describe his modifications, so I
>> think it's highly speculative to say that he and his friends are
>> definitely not creating a derivative work based on the original
>> character.
>>
> Well personally I do 2 different things. Either I take a character
> that resembles another I want to make, my own creations or established
> characters, and I just repaint them to look like who I want them too.
> The other thing I do is take a characterter and add peices from other
> skulpts, or cut/sand parts away from the base figure, or add clay to
> the base figure to give them the aspects of my intended characters
> then paint them.
That sounds to me as though you are creating a derivative work.
>> >
>> > I don't believe your interpretation is in fact correct. The poster's
>> > position, and that of his many cohorts, is that they ARE sold for "play" in
>> > the way they are "playing" and others more conventional. The maker has not
>> > discouraged this and may, if not actively, at least passively be fully in
>> > favor of their "play" since it sells more of the figures.
>>
>> Maybe. I don't see any convincing evidence that the maker intends
>> the characters to be modified and sold. Selling modified characters
>> might affect the makers ability to sell the new character, so perhaps he
>> would object.
>>
> I dont think that the makers of Hero Clix intended to have the figures
> redone, but they never said that they coundt be redone. Some of the
> peices are badly painted and some people just touch up the colours or
> paint them in more realistic colours. Most games similar to Hero clix,
> like Dungeions & Dragons, are sold unpainted and I guess are inteded
> to be painted since they also sell their own brand of paint. The
> makers of the game do allow Moddified skulps to be used during
Now that's interesting. It suggest analogies with coloring books,
and that there might be an implied license to make at least some
modifications.
> youre willing to spend. Ive seen some pricrd at $75. Players are
> encouraged to trade/sell their duplicate Clix with other players so
> everyone can have complete sets.
As far as trading/selling goes. Certainly you wouldn't need permission
to do that with unmodified pieces at least.
Isaac
Isaac
wrote:
>>Mike Brown
>> Must every point on which you disagree be accompanied by an insult?
>
> Huh. I gather you consider that your weasel wording was indeed unfair weasel
> wording intended as a subterfuge to confuse the unwary rather than the art
> form of being as precise as possible when you don't really know something.
> But, yes, I must put such stings in many posts when I find the poster is NOT
> turning on their brain before posting. I do it in an effort to get them to
> turn on their brain first and it does work, with most people, a whole lot
> better than just repeatedly letting them skate with non-facts and illogic.
Quite frankly, whether you are right or wrong, IMO the insults don't reflect
favorably on you. I think Mike expressed a supportable opinion.
>
>> "...[T]he painting upon the poster depicting plaintiff's photograph is
>> admitted by Max. Notwithstanding that accused was creating new and
>> possibly copyrightable work, where he was deriving it from copyrighted
>> work, he was required to obtain consent of publisher of underlying work
>>******* prior to distributing********* his own collage." Goldsmith v. Max,
> 213 USPQ 1008
>> (DC SNY 1981)
>
> Then you give a cite that exactly states the OPPOSITE of your position. I
> don't get it. *********Emphasis added above********
>
> Mike, Tracy, Issac
>
> Please distinguish between "first sale doctrine," "derivative work," "copy,"
> "fair use," and "derivative rights violation."
>
> I think the problem is you all are stretching "derivative work" to include
> the "fair use" creation process that may be later used to make copies that
> would result in a "derivative work" that the originator could stop. The law
> admittedly has an ambiguous definition of "derivative work." It does not
I disagree. Certainly the use of raw materials to create a work doesn't
create a derivative work, but IMO coloring a page in a coloring work does
create a derivative work. If the copyright holder is unable to stop the
creation of the derivative, it is because there is an implied permission for
the deriver to do so, or because there is an exception to the copyright
holders exclusive rights (such as fair use)
> clearly distinguish between the one-of instance and the reproductions----but
> on balance when the law is read as a whole one cannot include the one-of in
> the definition of "derivative work" because that one-of CANNOT BE STOPPED by
> the original work's creator/owner, i.e., it is not an infringement of that
> parties rights. Certainly the law should have made the one-of vs
> reproductions of the one-of crystal clear and provided a term for speaking o
> f that one-of---(but it was probably written by attorneys [who get bigger
> fees from confusion than clarity?]:-).
And this is just bad. You simply assert and suggest that if the text doesn't
match your assertion then it's poorly written. The law isn't poorly written.
The difficulty is that fair use is not spelled out to exhaustively
detail when it does or doesn't apply for valid reasons that are explained
in the annotations to the statute.
Most likely fair use is what keeps the making of a derivative work from
being an actionable infringement in your examples. The examples IMO differ
substantially from the OP's original scenario. The most important difference
is that the value of the text work are the words, and any highlighting is
arguably not a significant alteration from the standpoint of copyright law.
That argument seems far weaker in the case of the modification of
character pieces that is the actual subject of this thread. In that
case the primary characterisitic is the likeness and that is the
characterisitc that is being altered. The OP's intent is to modify
that likeness so that it resembles another character. It's even possible
that the likeness of the final character is protected by copyright.
I'm not willing to say that the OP's actions are definitely covered
under fair use or that there is an implied license to create
derivative works. Subsequently the poster has added information that
appears to me to make a license to modify more likely, but I don't
see an open and shut case.
Isaac
Isaac
>
> I'm not sure what you mean by "lawfully made copies of music cds". If
> you don't own the copyright and don't have permission from the copyright
> owner (and assuming the work and the sound recording aren't in the
> public domain), I don't see how you can make a "lawful copy" of a CD in
> the same sense that a legitimate copy purchased from the copyright owner
> (publisher, etc.) is "lawful".
Fair use copies are lawfully made. I would argue that it's lawful to
make copies of a cd for the purpose of space shifting (downloading
into an mp3 player or maybe making a cdr copy to play in the car
so that the home copy isn't damaged. I'll agree that it's arguable
whether such copies are indeed fair use, but the Rio case seems to
suggest that downloading music into an mp3 player for personal use
would be non infringing.
I think we've had that discussion before.
I agree that AHRA copies don't fit the bill for the reasons you
give.
Isaac
Mike Brown
> Huh. I gather you consider that your weasel wording was indeed unfair weasel
> wording intended as a subterfuge to confuse the unwary rather than the art
> form of being as precise as possible when you don't really know something.
No. Would it be fair for me to say "I gather that you really meant that
you have no clue what you're talking about, so you have to insult those
who do in order to gratify your ego?" Probably not.
I have never attempted to confuse or use "weasel wording" to conceal
ignorance or for any other reason. We have a disagreement as to what the
law says, you arguing from the point of view of a layman and me from the
point of view of a professional, and you want to cast that as knowledge
on your part and ignorance on mine. I beg to differ. I have a license
hanging on the wall, twenty plus years experience as an IP attorney, and
many satisfied clients, to tell me that I do know something.
> But, yes, I must put such stings in many posts when I find the poster is NOT
> turning on their brain before posting. I do it in an effort to get them to
> turn on their brain first and it does work, with most people, a whole lot
> better than just repeatedly letting them skate with non-facts and illogic.
Save your "stings". They are unwanted and unappreciated. I have devoted
many hours over a period of years to responding to postings in this
forum for free - time I really should be spending working for clients. I
see no reason to put up with gratuitous abuse, or to agree to your
unfairly passing judgment on my motives in insulting terms. There are
standards of civil discourse which I have always attempted to follow, no
matter the provocation. I'll make another attempt to answer your points
in a civil manner, but if your reply is again deliberately insulting,
that will end the discussion.
>>"...[T]he painting upon the poster depicting plaintiff's photograph is
>>admitted by Max. Notwithstanding that accused was creating new and
>>possibly copyrightable work, where he was deriving it from copyrighted
>>work, he was required to obtain consent of publisher of underlying work
>>******* prior to distributing********* his own collage." Goldsmith v. Max,
> Then you give a cite that exactly states the OPPOSITE of your position. I
> don't get it. *********Emphasis added above********
It is not at all the OPPOSITE of my position, although now that I read
it again, that quote doesn't exactly say that the act of making the
derivative work was, itself, a violation of copyright (see the bottom of
this post for a better quote from the same case which does say that - I
should have used the other quote first). The quote says that he needed
permission to distribute the work, and that the work was derivative.
Making derivative works is a right reserved to the copyright owner,
under section 106 of the copyright act. Distributing them is another.
In looking back over my earlier research, I found once again the
"Dungeon Dolls" case (Mattel Inc. v. Pitt, 64 USPQ2d 1950 (DC SNY 2002))
which dealt with a derivative work which was an actual modified Barbie
doll, converted into a sexually explicit dominatrix. This fits clearly
under your "one-off" modification issue, and is very close to the
question posed by the original poster. The court in Mattel v Pitt said,
"The Court assumes for purposes of this analysis that repainting and/or
recostuming of an individual copyrighted item can be characterized as
copying or as otherwise violative of the copyright holderโs protected
rights in the work."
> Please distinguish between "first sale doctrine," "derivative work," "copy,"
> "fair use," and "derivative rights violation."
Three out of four are defined in the Copyright Act of 1976.
"First sale doctrine" is codified in Section 109(a) of the copyright act:
"(a) Notwithstanding the provisions of section 106(3), the owner of a
particular copy or phonorecord lawfully made under this title, or any
person authorized by such owner, is entitled, without the authority of
the copyright owner, to sell or otherwise dispose of the possession of
that copy or phonorecord." (NOTE: SELL or DISPOSE, not modify or
transform.)
"Derivative work" and "copies" are defined in section 101:
"A 'derivative work'is a work based upon one or more preexisting works,
such as a translation, musical arrangement, dramatization,
fictionalization, motion picture version, sound recording, art
reproduction, abridgment, condensation, or any other form in which a
work may be recast, transformed, or adapted. A work consisting of
editorial revisions, annotations, elaborations, or other modifications
which, as a whole, represent an original work of authorship, is a
'derivative work'.
"'Copies' are material objects, other than phonorecords, in which a work
is fixed by any method now known or later developed, and from which the
work can be perceived, reproduced, or otherwise communicated, either
directly or with the aid of a machine or device. The term 'copies'
includes the material object, other than a phonorecord, in which the
work is first fixed." (NOTE THAT LAST SENTENCE: THE ORIGINAL IS A "COPY"!)
"derivative rights violation." That is a term you invented, as far as I
can tell. It appears nowhere in any reported case or in the Act.
"Derivative rights" is a term which isn't used much - most of the cases
I found which used the term in connection with an old, superceded
Copyright Act, to mean where an author conveys the right to prepare
derivative works (like where some authors license other authors to write
novels set in their particular future using characters they created). I
did find one case which was interesting, though:
"The protection of derivative rights extends beyond mere protection
against unauthorized copying to include the right to make other versions
of, perform, or exhibit the work." Lone Ranger Television v. Program
Radio Corp ., 740 F.2d 718, 722 [ 223 USPQ 112, 115] (9th Cir. 1984)
> I think the problem is you all are stretching "derivative work" to include
> the "fair use" creation process that may be later used to make copies that
> would result in a "derivative work" that the originator could stop.
I don't think so - and I don't understand that convoluted sentence at
all. I think the problem is you don't understand either "derivative
works" or "fair use" or that you don't need to make a copy to violate
one of the bundle of rights granted by copyright. (And it doesn't make
your argument to capitalize COPYright. TRADEmark doesn't just cover
trading, either, and ASSault and BATtery has nothing to do with
baseball).
"Fair use" is defined in section 104 as being a use - that is, one of
the actions reserved to copyright owners as defined in section 106 (the
"bundle of rights") - which is "for purposes such as criticism, comment,
news reporting, teaching (including multiple copies for classroom use),
scholarship, or research."
A use which is "fair use" is one which would otherwise infringe one of
the rights in section 106, but is excused because it is for one of the
enumerated purposes, as evaluated by the four factors listed in section
104: "(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 court in the "Dungeon Dolls" case, in the end, found that the result
was a parody of Barbie, and thus fair use - but this presupposed that
the work infringed the "derivative work" arm of section 106, or fair use
would never come into play. Not all such derivative works would qualify
as "parody".
>The law
> admittedly has an ambiguous definition of "derivative work." It does not
> clearly distinguish between the one-of instance and the reproductions----
That is not ambiguous except if you misunderstand the way copyright works.
Making a derivative work is one of the rights in section 106, copying is
another. There are also public display, distribution and performance.
These rights are all separate - the unauthorized practice of any one of
them is an infringement, even if you don't infringe the others. You do
not need to make a copy to make an infringing derivative work, nor do
you need to publicly display the work to infringe the right to copy, or
to make derivative works. You can be licensed to do one, and not another.
The definition of "derivative work", listed in full above, says that
making a derivative work includes "any other form in which a work may be
recast, transformed, or adapted" - that says nothing about having to
copy it first. This is only "ambiguous" if you erroneously assume that
nothing can violate copyright except copying, which is not correct.
> on balance when the law is read as a whole one cannot include the one-of in
> the definition of "derivative work" because that one-of CANNOT BE STOPPED by
> the original work's creator/owner, i.e., it is not an infringement of that
> parties rights.
That is a circular argument - a one-off can't be a derivative work
because it you can't stop it because it doesn't infringe because it
isn't a derivative work.
It also doesn't make any sense. You are making the assumption that a
copyright owner can't stop someone from making what you call a "one-off"
derivative work, but, in fact, the assertion simply isn't true.
Modifying an original to create a new work IS making a derivative work
by transforming the original work, and thus violates the section 106
right of making derivative works. Again, see "dungeon dolls". You might
be able to avoid liability if the transformation is "parody", but that
is not a given in every case.
It might be true that one seldom cares enough to stop someone from
making a single derivative work from an original, and it's seldom
financially worthwhile to do so, but that doesn't make it any less a
violation.
There is a big problem in expecting reported cases to have explicit
holdings to cover every situation - the only time a case will be
reported is if it involves sufficient money for the plaintiff to want to
go to the expense of bringing a suit (or, as in Dungeon Dolls, if the
plaintiff is worried about tarnishing the reputation of the original)
and if the defendant has enough hope of winning and enough money to
defend the suit. That kind of weeds out the "kid makes a monster out of
her Barbie doll and puts it on the shelf" case. But see another Barbie case:
"... Mattel, as owner of various Barbie head sculpture copyrights, had
โthe exclusive right to prepare derivative works of its own copyrighted
works. See 17 U.S.C. ยง106(2). Thus, Mattel has the right to paint and
repaint its own copyrighted sculptures.โ Christian v. Mattel Inc., 62
USPQ2d 1385 (CA 9 2002)
Then, there is Midway Mfg. Co. v. Artic International, Inc., 218 USPQ
791 (CA 7 1983) - in that case, Arctic sold boards which speeded up
Midway's games. At no time did Arctic copy Midway's games, they only
sold a board which made the games run faster. The Midway games were
legitimately obtained copies, and Arctic's board, when installed, only
changed one game - your "one off" situation. The court held this was
creation of a derivative work, and Arctic's boards violated Midway's
right to create derivative works.
> Certainly the law should have made the one-of vs
> reproductions of the one-of crystal clear and provided a term for speaking o
> f that one-of---(but it was probably written by attorneys [who get bigger
> fees from confusion than clarity?]:-).
The term is "derivative work" - it is a work based on a copyrighted
work. Making a derivative work does not require making a copy.
> Creator creates "Click Work." Professor A, Citizen Kane, and Click Modifier
> each purchase a copy legitimately produced with the consent of Creator.
OK, I'm with you so far.
> Professor A transforms the work into an electronically readable COPY and
> annotates it then sends it via e-mail to Professor B. A "fair use" copy has
> been made AND a NEW work, possibly copyrightable in it's own right has been
> created.
A work created by annotating a prior work is a "derivative work" by the
terms of the Act. Copying a work into another media is also creating a
"derivative work" as a translation (see, for example, the case of the
National Geographic photographers who sued NG because they'd used their
photographs in a CD when they'd only been licensed for print, or the
Random House case for e-books vs print books). Both of these actions are
reserved to the copyright owner, and would violate section 106 if not
performed with permission of the owner. "Fair use" would excuse this
violation, IF the actions satisfied the Four Tests, weighed in their
entireties.
If the entire work was copied and annotated without permission, I am not
so sure that the either the copying or the preparation of the derivative
work (these are separate actions) would be held to be fair use. In
general, under test 3, 100% copying mitigates against fair use. It is
the responsibility of the person claiming fair use to only take as much
of the original work as is necessary to accomplish the use.
> Creator has NO ability to sue or stop Professor A's work or copy as
> there is NO "making of a derivative work" violation of Creator's rights.
That is not true, by the clear wording of the statute. "A work
consisting of editorial revisions, annotations, elaborations, or other
modifications which, as a whole, represent an original work of
authorship, is a 'derivative work'." The copying of the entire work
into electronic form is also creation of a derivative work, as a
"translation". There is no ambiguity here - the words of the statute are
quite clear.
The creation of the derivative work MIGHT be excused as fair use, but
that does not mean there is no making of a derivative work in the first
place.
> Professor B makes a new copy of Professor A's NEW work (with the embedded
> copy of Click Work) and adds his own commentary.
Which arguably infringes on both Click Work's and A's copyright rights
to copy and prepare derivative works. Again, you need to apply the Four
Tests to see if this is "fair use".
> Professor B very likely now
> has 2 "fair use" copies of Click Work and he makes a copy and sends it to
> Professor A. Even if the exchange and keeping of separate copies continues
> for 1000 iterations (typical professors:-) the rights of Creator have not
> been violated.
You are making that statement as if it is gospel, but I do not agree.
The purpose of commenting on the work could be accomplished without 100%
copying of the work each time. At some point, it is no longer "fair use"
(if, indeed, it was in the first place). The same thing could be
accomplished by A only preparing a file of his annotations, which
involves no copying of the base work, and B and A can exchange only the
annotations without continually recopying the original.
"Fair use" applies to excusing a use which is otherwise a violation of
section 106, not to a copy as a physical thing. By talking about "fair
use copies" you're implying that once a copy is a "fair use copy" you
can do anything you want with it, which is not true. It is the use
(making the original copy) which might have been "fair" - further use
might not be. You can make one copy, and have the copying excused under
fair use, and then violate copyright by publicly displaying that copy,
or distributing it, or making derivative works or copies of it. Exercise
"the art form of being as precise as possible when you don't really know
something."
> Now Professors A and B submit their final NEW work to Innocent Publisher who
> publishes it for the world and makes a fortune selling copies. Now is there
> a "derivative work" violation? We don't know.
I assume that's the royal "we". I know. To whatever extent A and B might
have had a "fair use" excuse to copy the original work in the first
place, Innocent Publisher has no permission from Click Work to copy or
distribute his work, period. "Derivative work" doesn't enter into the
equation, as far as Publisher is concerned.
Again, copyright rights are separable. It is entirely clear there is a
violation of the right to make copies, and the right to distribute them.
The fact that A and B might have created a derivative work (even if the
creation of the work is "fair use", which I do not concede), that does
not give A or B any rights to the underlying work. While they might be
able to give permission to print their annotations, A and B cannot give
Publisher permission to reproduce the underlying work.
If the derivative work is now being used to make a fortune selling
copies, the whole assumption that A and B's creation of a derivative
work by annotating the original was "fair use" is now suspect. Again,
look at the Four Tests. We already have test 3 clearly in favor of
Creator - it's 100% copied - and presumably test 2 was always in favor
of Creator (the work is of the sort which copyright is designed to
protect). Now, the use is commercial (test 1), and the annotated version
may well serve as a substitute for the original (test 4). That's four
out of four against "fair use", and all of the actions of A&B might now
be infringing, back to the first copy.
"It appears to be well established that if one intends to create and
commercially exploit a work that is derivative of a copyrighted work, a
license to do so must be obtained from the owner." Russell, et al. v.
Price, et al., 198 USPQ 523 (DC CCalif 1977)
> It still could be "fair use"
> if, for example, the original is only 5 lines long but if Click Work was
> novel length and is now "Click Work Explained" then it is (probably) a
> "derivative work" for sure.
The length of the original work is only a factor in test 2, and the fact
that you can prepare a novel-length commentary on it would point toward
saying it's a work worth protecting. The other three tests are clearly
against fair use.
The result is a derivative work, and A&B have a copyright at most in the
parts they added. That does not change the fact that the act of creating
a derivative work violated Creator's right to make derivative works
under section 106.
> Meanwhile Citizen Kane takes a highlighter and several colored pens to her
> original copy of Click Work. Her changes are not, in the meaning of the law,
> a violation of Creator's rights under "derivative work" or any other legal
> shenanigan
Probably not, as the result is not really transformative, and there is
insufficient creativity to create a copyrightable new work independent
of the underlying text.
> (though, with cash in advance, many an attorney would take the
> case!).
Not this one.
> Citizen Kane is well within the "first sale doctrine" and she too
> has now created a NEW work, possibly copyrightable on it's own merits.
You're contradicting yourself. If she has created a new, copyrightable
work by transforming the original, then, by definition, it IS a
derivative work. If the derivative work is created without permission
(or 'fair use' excuse) then it infringes Creator's right to make
derivative works. In this case, I don't think the highlighting is either
a derivative work or copyrightable.
The first sale doctrine has nothing to do with it, as that only deals
with resale of legitimate copies.
> Occasionally she copies a few pages of her work and gives them freely (or
> even lets them make them at their own expense) to other struggling students
> most of whom have their own copies of Click Work but a few of who use a
> library copy. Still, I think, these are all "fair use" copies.
In this case, the copying of the underlying work is probably fair use,
as the copying is for educational purposes (test 1), the taking is a
small part of the work (test 3), and the copying does not affect the
market for the work (test 4). Kane has no right to grant or withhold
permission to copy the underlying work, although she can freely copy
what she's added if she can find a way to separate the two.
> She passes
> the final exam and immediately sells her annotated Click Work copy to
> Bookstore for 25% of what she paid. The next semester Bookstore sells that
> new work/copy to another student for 50% of list price (matters not whether
> new copies of Click Work have increased in price or not). Have Creator's
> rights been violated? I think not.
No, under the "first sale doctrine". The legitimate physical copy can be
sold or otherwise passed along as many times as the various owners of
the copy want.
> Have Citizen Kane's rights in her new
> work been violated? Again, I think not.
No, same reason. The bookstore bought the "derivative work", if such it
is, from the legitimate copyright owner (if copyright there was). They,
and everyone else along the chain, has a perfect right under the "first
sale doctrine" to sell the highlighted copy along.
> Click Modifier takes his copy, tips in wonderful color illustrations, adds
> gilt edging, adds a fantastic leather binding with inlays, raised features,
> and a stunning jewel and precious materials cover image then signs this NEW
> work, "Click Modifier, Master Craftsman." The modified copy is put up for
> sale on e-Bay as "the exclusive Click Modifier transformed Click Work by
> Creator" and various other superlatives. A buyer gets it for a song at $1.2
> million. Have any rights of Creator been violated?
Well, that's the whole issue we've been discussing, isn't it?
> I don't think so.
In this case, I agree. The facts here are very different from the ones
we were discussing earlier, and copyright issues are very fact-specific.
> Is the
> transformed work a new work copyrightable in it's own right. I think so. Is
> it a "derivative work" in the meaning of the law as controllable by Creator.
Therein lies the problem, but it's only a problem if you view the entire
result as a transformation of the original work, and separately
copyrightable. If it is, then you're saying it is a derivative work, by
the clear terms of the Act.
In this case, I would say that the artwork is separately copyrightable
and protectable as a work in its own right. There is no reason to
involve the copyright in the original text, as the artwork does not
transform the text at all. (I will pass on the question of whether a
given picture is a "derivative work" if it turns the scenes described in
the text into visual art - but it might be). Gilding and leather
bindings aren't copyrightable.
> I don't think so but Mike Brown inexplicably does so he takes up Creator's
> cause and cites his above citation.
Speak for yourself, John Alden. Actually, in this case Mike Brown does
not do so, and the citation I gave is not applicable to this fact
pattern. I do not think this is really a "derivative work" in the
meaning of the copyright law - but, as they say, "hard cases make bad
law."
You have suggested that Click Modifier has taken a legitimate copy of
the work and has added a great deal of original artwork to it. This is
not, however, "transformative" of the original work. The added material
is different in form and effect from the original work (pictures as
opposed to text), and serves to frame or complement the work, not to
transform it.
The Max case I cited used a photograph and transformed it by Peter Max's
painting on the photograph. In this case, Creator's words remain on
their original pages, as originally purchased, surrounded by the
beautiful new binding and with new pictures tucked inbetween. Look at
the list of things which are "derivative works" under the words of the law:
"translation, musical arrangement, dramatization, fictionalization,
motion picture version, sound recording, art reproduction, abridgment,
condensation, or any other form in which a work may be recast,
transformed, or adapted. "
None of these apply to tipping-in pictures, gilding or binding, as far
as I can see. You only run afoul of the definition if you consider the
result "A work consisting of ... elaborations, or other modifications
which, as a whole, represent an original work of authorship". Taken as a
whole, what is there? A copy of Click Work with tipped-in pictures.
A case could be made for copyright infringement, but not a very strong
one, I think (again, but for the separate issue of whether the pictures
are derivative of the text). I wouldn't take the case.
The original posting in this thread was about taking a work of the
visual arts (a doll - arguably a sculpture) and transforming it into a
different sculpture - similar to Max's taking a photograph and
transforming it into a painting (visual arts to visual arts). That is a
different situation entirely from pasting pictures into a book, and this
whole discussion was inapposite to the original point.
> The court guffaws, belches, and busts out laughing hyenaishly, "Mike," they
> explain, "it's only a derivative work IF Click Modifier starts COPYING their
> NEW work in it's entirety rather than by creating NEW works from 'first sale
> doctrine' copies of Creator's Click Work originally purchased each with
> Creator's full permission. Your cite is exactly the opposite, Max was NOT
> purchasing Goldsmiths permitted COPIES, he was creating his own copies of
> Goldsmiths' work with his own additions."
If the court says that, it is ignorant of the law. Since the conclusion
is probably correct, as I've said above, I wouldn't bother to ask an
appeals court to tell the trial court just how wrong it was, but
nonetheless the statement is absolutely wrong in almost every way.
- Making derivative works does not require copying.
- The "first sale doctrine" has to do with resale of lawfully made
copies, not with making derivative works.
- There is no such thing as a "first sale doctrine copy" (if you're
going to "sting" me for imprecise language, use precise language yourself).
- Purchase and Sale of a lawful copy, which is OK under the first sale
doctrine, does not convey rights to prepare derivative works. If the
Creator did give full permission to create the works, that fact was not
in evidence.
- In fact, Creator did not give Click Modifier permission to do
anything. Modifier bought his copy from Kane. Kane had no permission to
prepare derivative works, and so could not convey that to Modifier, even
if the facts said she had (which they did not).
- Rebinding and gilding and, probably, inserting pictures between the
pages does not create a transformative new work.
- And, actually, Max DID purchase a lawful copy of Goldsmith's work and
then paint on it. "The gravamen of plaintiff's complaint is that Max
created a collage by painting over and using parts of a poster of rock
star Mick Jagger which was enlargement of a Goldsmith photograph. ... In
early 1973 defendant Max created a series of collages utilizing the
Personality Poster copy of the Goldsmith photo. The poster contained a
clear, albeit arguably invalid, copyright notice in the name of
Personality Poster and a photo credit to Lynn Goldsmith. Nonetheless,
without seeking approval from either party the defendant applied acrylic
paint and collage materials to the poster."
There it is - the defendant applied acrylic paint and collage materials
to the original poster without seeking approval. Yes, in the end it was
the sale of copies of the modified poster which prompted Goldsmith's
suit, because that's where the money was (although, as it turns out, Max
only sold one copy and gave away a few others), but there you have the
text saying the basis of the case is the original painting on the poster
with the issue of approval by the copyright owner (the quote I selected
earlier was not as clear as that, sorry).
If all Max had done was make one painting for his own amusement, who
would care? Then again, being Peter Max, if he'd made only one painting
Goldsmith might have cared because Max was a famous and successful
artist and probably had deep pockets. Who knows? The court can only find
on the facts before it.
Goldsmith lost the case, not because Max wasn't infringing but because
she had let the copyright fall into the public domain by authorizing
publication without proper notice. And, for the record, today Goldsmith
would probably have won the case, as lack of copyright notice is no
longer fatal to copyright.
Tracy Aquilla
> >
> > Please distinguish between "first sale doctrine," "derivative work,"
"copy,"
> > "fair use," and "derivative rights violation."
There are many books on the subject. Rather than wasting my time writing it
out for you, I suggest you get a book and educate yourself.
> > I think the problem is you all are stretching "derivative work" to
include
> > the "fair use" creation process that may be later used to make copies
that
> > would result in a "derivative work" that the originator could stop.
Whether a work is a derivative and whether the creation of the derivative is
fair use are two different issues. It appears that the example given
constitutes a derivative work. However, whether the creation of the
derivative constitutes fair use is an entirely separate analysis.
> >The law admittedly has an ambiguous definition of "derivative work."
Can you support that assertion? The definition is clear to me.
Tracy
James White
> I dont think that the makers of Hero Clix intended to have the figures
> redone, but they never said that they coundt be redone.
Keep the above in mind, your "I don't think" may be more apt than you think!
> Most games similar to Hero clix,
> like Dungeions & Dragons, are sold unpainted and I guess are inteded
> to be painted since they also sell their own brand of paint. The
> makers of the game do allow Moddified skulps to be used during
> sanctions games
If the industry "standard" is the latter then Hero Clix originators would
need to be very loudly proclaiming they ARE NOT allowing that standard
activity in order to have a snowballs chance of claiming harm of any kind
due to purchaser modifications in a (logical) court.
Isaac
While I'm not sure ambiguous is the correct term, determining when a
work is derivative is not always straightforward. The statutory definition
is a work based on one or more pre-existing works. Clarification of what
is meant by "based on" is given by a list of examples that is neither
exhaustive, nor readily analogized.
As an example, I've cited a 9th Circuit case, Mirage Editions,
one where an appellate court affrimed a decision holding that taking
artwork, and gluing it to a ceramic tile, and covering it with a protective
film created a derivative work. The 7th Circuit in reviewing a case
with very similar facts, Lee v. A.R.T. Co. (7th Cir. 1997) held that
mounting lithographs on ceramic tiles would not create a derivative
work.
As another example, I've seen any number of arguments about whether
a software program that calls routines from an external library is
a derivative work of the library. I don't find the statutory
definition particularly helpful in resolving that question.
Isaac
James White
> >> >The law admittedly has an ambiguous definition of "derivative work."
> >
> > Can you support that assertion? The definition is clear to me.
I haven't read many books on it but I read a lot of the discussion back in
the late 70's and early 80's when the copyright law rewrite was being
debated. The conclusion to the best of my recollection from the debate
boiled down to the fact that making the definition clearer so it was
possible to look at it and understand what the end result would be (rather
than working through the labyrinth of the whole copyright law including
"fair use" etc.) would not be worth the effort. No matter what you call a
"fair use" (or other allowed) work created from a work it is NOT, and cannot
be(?), a copyright-law-violation-based-on-the-"derivative-work"-definition.
Hence, since creators actually do have a right to stop "derivative works"
but they DON'T have the right to stop these "fair use" (or other allowed)
versions (except in some small visual arts under 200 copies realm) they
really SHOULDN'T be called "derivative works" but they often are called such
given the law lacks a suitable term for them.
(and don't get me started on some of the loony, mainframe-centric, copyright
law passages regarding computer programs---I think Congress just got so
tired of the debate they said "we know what we mean, let the courts figure
it out" and passed the law clumsy language and all)
> As an example, I've cited a 9th Circuit case, Mirage Editions,
> one where an appellate court affrimed a decision holding that taking
> artwork, and gluing it to a ceramic tile, and covering it with a
protective
> film created a derivative work. The 7th Circuit in reviewing a case
> with very similar facts, Lee v. A.R.T. Co. (7th Cir. 1997) held that
> mounting lithographs on ceramic tiles would not create a derivative
> work.
Thank you Issac for both examples. The first one is on-point for what Mike
is trying to assert but I suspect it was a spurious decision (judge not too
familiar with Copyright and lawyers, specially the loser, still feeling
their way through the new law) as the second case you cite shows.
But from a business perspective I can't see why or how the plaintiffs would
ever want to bring suit in the first place. It makes absolutely no sense. I,
and I suspect a thousand other authors and publishers, would say "Hey, why
pay retail to get our picture copies and tear up good books besides. We'll
be glad to sell you as many of just the images as you want at a great price,
maybe even sign 100 for you..." (or whatever and make a good win-win deal).
(And Mike, thanks for your long and thoughtful post, still with lots of
confusing extraneous stuff, that reaches the same conclusion as my initial
advice. Maybe, or maybe not, I'll get time to answer it this weekend and try
to sort out things like just how you got Click Modifier mixed up with
Citizen Kane's old 'first sale doctrine' copy (as 99.9999999999 to the
billionths place purchases are). Click would have been aghast at such a
thing!)
Mike Brown
> confusing extraneous stuff, that reaches the same conclusion as my initial
> advice.
It did? I'm not sure how that happened, but I'll take it.
The 9th circuit tile case that Isaac cited (Mirage Editions Inc. v.
Albuquerque A.R.T. Co. (CA 9) 8 USPQ2d 1171 (9/7/1988)) was a while
ago, but it wasn't all that soon after the effective date of the 1976
act (ten years). The same circuit six years later issued an identical
holding on a similar case involving the same defendant and a different
plaintiff (Munoz v. Albuquerque A.R.T. Co., 829 F.Supp. 309 (D. Alaska
1993), aff'd, 38 F.3d 1218 (9th Cir. 1994)), and that was only two or
three years before the contrary findings in the Northern Illinois
district and 7th circuit, quoted below. The principle of the right of
copyright owners to create derivative works was not created by the 1976
act. It existed under earlier acts as well (although it was expanded
from the more restrictive definition in the 1909 act). So, you really
can't dismiss the case as an aberration based on lawyers and judges
inexperienced with a new provision of a brand-new law. However, the
decision was issued by the 9th circuit, which has a history of strange
rulings, and in this case the court is simply wrong.
The 1996 Northern District of Illinois decision, also involving A.R.T.'s
tiles, disagreed with the 9th circuit, and their discussion of why they
disagreed is instructive and relevant to the discussion of putting new
covers and gilding the edges of Creator's Click Work: "[T]he only
relevant query for the court is whether ART's ceramic tile process
transforms, adapts or recasts Annie Lee's original work into a new and
different original work. ... The mundane act of placing notecards onto a
ceramic tile falls into the narrow category of works in which no
creative spark exists. Thus, the ceramic tiles are not a new and
different original work, but the same exact work placed onto a different
background. ART did not display any creativity in gluing Annie Lee's
work onto the separate surface. ART did not reproduce the images, did
not enlarge or diminish the size of the images, and did not make any
alteration to the drawings themselves. To the contrary, ART simply glued
onto a ceramic tile the exact same notecards DTW purchased from Annie
Lee, and placed a clear epoxy resin coating over the entire tile. Since
the notecard is in the same "form" as Annie Lee's original work, it
necessarily cannot be in a "form in which a work may be recast,
transformed, or adapted." 17 U.S.C. Section 101. No intellectual effort
or creativity was necessary to transfer the notecard to the tile. It
does not meet the definition of a "derivative work."" Lee v. Deck The
Walls Inc. (DC NIll) 40 USPQ2d 1112 (5/1/1996), affirmed Lee v.
A.R.T. Co. (CA 7) 44 USPQ2d 1153 (9/18/1997)
The basic treatise on copyright also says the Mirage and Munoz cases
were wrongly decided "the sole contribution added in this process is
the method of mounting; choosing ceramic rather than cardboard as the
backing material should scarcely be construed as a "meaningful"
variation in the eyes of the Copyright Act. It is therefore submitted
that the court's analysis was in error." (Nimmer on Copyrights, Section
3.03.)
Someday, perhaps the Supreme Court will reconcile the circuits. Until
then, glue your pictures to tiles in California or Alaska, and not
Illinois.
The 7th Circuit, in rejecting Munoz and Mirage, said something very
interesting which relates the "first sale" and "derivative works"
principles, and comes down exactly as I had said in my earlier post:
"Now one might suppose that this is an open and shut case under the
doctrine of first sale, codified at 17 U.S.C. Section 109(a). A.R.T.
bought the work legitimately, mounted it on a tile, and resold what it
had purchased. Because the artist could capture the value of her art's
contribution to the finished product as part of the price for the
original transaction, the economic rationale for protecting an
adaptation as "derivative" is absent. See William M. Landes & Richard
A. Posner, An Economic Analysis of Copyright Law , 17J. Legal
Studies 325, 353-57 (1989). An alteration that includes (or consumes) a
complete copy of the original lacks economic significance. One work
changes hands multiple times, exactly what Section 109(a) permits, so it
may lack legal significance too. But Section 106(2) creates a separate
exclusive right, to "prepare derivative works", and Lee believes that
affixing the art to the tile is "preparation," so that A.R.T. would
have violated Section 106(2) even if it had dumped the finished tiles
into the Marianas Trench." Lee v. A.R.T. Co.(CA 7) 44 USPQ2d 1153, 1154
(9/18/1997)
> Maybe, or maybe not, I'll get time to answer it this weekend and try
> to sort out things like just how you got Click Modifier mixed up with
> Citizen Kane's old 'first sale doctrine' copy (as 99.9999999999 to the
> billionths place purchases are). Click would have been aghast at such a
> thing!)
Sorry, your example was so involved and confusing, and it was so late at
night, that I got lost as to who bought which copy from whom. You're
right, you had said Click Modifier bought from Creator. It doesn't
matter to the conclusion whether Click Modifier bought his copy from
Kane or Creator, unless Creator gave a license to make derivative works
which you forgot to mention. They both sold lawful copies (Creator to
Modifier et al, Kane to the bookstore), identical for this purpose
except that Kane's is one owner downstream from Creator.
Roger Schlafly
> Someday, perhaps the Supreme Court will reconcile the circuits. Until
> then, glue your pictures to tiles in California or Alaska, and not
> Illinois.
You mean the other way around. It was the 9th Circuit that
said that gluing tiles could be copyright infringement.
Email may bounce because of Swen.A.
Mike Brown
> doctrine of first sale, codified at 17 U.S.C. Section 109(a). A.R.T.
> bought the work legitimately, mounted it on a tile, and resold what it
> had purchased. Because the artist could capture the value of her art's
> contribution to the finished product as part of the price for the
> original transaction, the economic rationale for protecting an
> adaptation as "derivative" is absent. See William M. Landes & Richard
> A. Posner, An Economic Analysis of Copyright Law , 17J. Legal
> Studies 325, 353-57 (1989). An alteration that includes (or consumes) a
> complete copy of the original lacks economic significance. One work
> changes hands multiple times, exactly what Section 109(a) permits, so it
> may lack legal significance too. But Section 106(2) creates a separate
> exclusive right, to "prepare derivative works", and Lee believes that
> affixing the art to the tile is "preparation," so that A.R.T. would
> have violated Section 106(2) even if it had dumped the finished tiles
> into the Marianas Trench." Lee v. A.R.T. Co.(CA 7) 44 USPQ2d 1153, 1154
> (9/18/1997)
Oops - I cut that quote off a bit too short. The next sentence
concludes, "For the sake of argument we assume that this is so and ask
whether card-on-a-tile is a "derivative work" in the first place." In
other words, while the court did not need to issue an explicit holding
that making the derivative work violated 106 even if the result was
destroyed, it was willing to proceed on that basis. Of course, Lee lost
because the court held that merely gluing the art to a tile and coating
it with resin did not create a derivative work, not because buying the
pictures allowed them to create derivative works with them under "first
sale". Since no new derivative work was created, ART was just reselling
the unmodified (but stuck to tiles) pictures, which it was entitled to
do under "first sale".
See also:
"under the "first sale" doctrine as enunciated at 17 U.S.C. ยง109(a) ...
the right to transfer applies only to the particular copy of the book
which appellant has purchased and nothing else. The mere sale of the
book to the appellant without a specific transfer by the copyright
holder of its exclusive right to prepare derivative works, does not
transfer that right to appellant. The derivative works right, remains
unimpaired and with the copyright proprietor..." Mirage Editions Inc. v.
Albuquerque A.R.T. Co. (CA 9) 8 USPQ2d 1171 (9/7/1988)
Another interesting case is Peker v. Masters Collection No. 98 CV 0672
(DC ENY) 54 USPQ2d 1905(5/16/2000). In this case, Masters is a retail
business that, among other things, purchased poster prints of paintings
and resold them as framed oil painting replicas, after adding paint to
the original poster. That is, they'd buy a poster, then paint on the
legally bought poster to create a "painting." The court characterized
the result as a "replica" rather than a "derivative work", because it
differed so little from the original poster. The Court said,
"The use of one poster per replica is relevant only to the extent that
this case also implicates defendant's right to distribute lawfully
acquired posters under the "first sale doctrine," codified in 17 U.S.C.
Section 109(a). ... As explained by the Supreme Court in Quality King
Distributors, Inc. v. L'Anza Research Int'l, Inc., 532 U.S. 135, 152,
118 S.Ct. 1125, 1134 (1998), the "whole point of the first sale doctrine
is that once the copyright owner places a copyrighted item in the stream
of commerce by selling it, he has exhausted his exclusive statutory
right to control its distribution." But though the first sale may
extinguish the copyright owner's exclusive right to control
distribution of that item, the "sale does not generally release other
exclusive rights, such as the right to copy." United Artists
Television, Inc. v. Fortnightly Corp. 153 USPQ 696(2d Cir. 1967); It is
no defense that Masters used a lawfully acquired object to achieve its
unlawful goal of copying."
Notice that the court says it is the act of "copying" which infringes,
not just the act of selling the copies. As "making derivative works" is
just another one of the bundle of rights, if the act of painting over
the poster was characterized instead as "making a derivative work"
instead of "copying" (I think the argument could be made equally well
either way), the result would be the same.
That's pretty much exactly on point to the original question long ago in
this thread - can you buy a mass-produced copy of a work and modify it
into something new without infringement, because you legitimately bought
the copy? Whether you call the modified work a "derivative work" (Lee,
Mirage) or a "copy" (Masters) the answer is "no", and the "first sale
doctrine" does not save you even though the "new work" incorporates the
mass-produced copy in its entirety.
James White
> "The use of one poster per replica is relevant only to the extent that
> this case also implicates defendant's right to distribute lawfully
> acquired posters under the "first sale doctrine," codified in 17 U.S.C.
> Section 109(a). ... As explained by the Supreme Court in Quality King
> Distributors, Inc. v. L'Anza Research Int'l, Inc., 532 U.S. 135, 152,
> 118 S.Ct. 1125, 1134 (1998), the "whole point of the first sale doctrine
> is that once the copyright owner places a copyrighted item in the stream
> of commerce by selling it, he has exhausted his exclusive statutory
> right to control its distribution." But though the first sale may
> extinguish the copyright owner's exclusive right to control
> distribution of that item, the "sale does not generally release other
> exclusive rights, such as the right to copy." United Artists
> Television, Inc. v. Fortnightly Corp. 153 USPQ 696(2d Cir. 1967); It is
> no defense that Masters used a lawfully acquired object to achieve its
> unlawful goal of copying."
>
> Notice that the court says it is the act of "copying" which infringes,
> not just the act of selling the copies. As "making derivative works" is
> just another one of the bundle of rights, if the act of painting over
> the poster was characterized instead as "making a derivative work"
> instead of "copying" (I think the argument could be made equally well
> either way), the result would be the same.
>
> That's pretty much exactly on point to the original question long ago in
Wrong. Mike, I don't know if I can make this simple enough. These kinds of
cases are VERY fact specific! This was COPYING. They could have started with
plain CANVAS, the purchased copy of the poster was irrelevant. If they'd
painted over the poster a copy of the Mona Lisa they would not have had any
infringement problem. If they painted jailbars over the poster they'd
probably have been "parody" OK. If they had radically altered the colors and
lines of the original they would have been in derivative work territory AND
copying (the derivative work--assuming all theirs were essentially the same)
territory.
There is no way a reasonable judge would have characterized this situation
as "making derivative works." The infringer's subterfuge was pretty
transparent but I'm sure their legal team enjoyed their pay!!!
Sorry I don't have more time to discuss your other points.
You might want to post your own direct answer to the original post and we'll
see if we're all in agreement.
Mike Brown
>>then, glue your pictures to tiles in California or Alaska, and not
>>Illinois.
> You mean the other way around. It was the 9th Circuit that
> said that gluing tiles could be copyright infringement.
Ack! You are correct. Reverse it. Glue tiles to ceramic in Illinois, not
California.
Mike Brown
> cases are VERY fact specific!
They are, and I said that very thing in an earlier posting, but there
are legal principles which can be derived from them. If you want me to
find a case where the plaintiff buys something called "Click Work", tips
in pictures, gilds the edges and binds in leather, and sells on eBay,
and nothing less than all five will work, forget it. Never happen, and
seldom, if ever, does a lawyer get a client who walks in with a fact
pattern entirely identical with a reported case. You can't say, "there
are no cases which exactly duplicate the fact pattern I've come up with,
therefore there is no law." You can only read the various statements in
the many cases, all of which are slightly different on the facts, and
try to predict what a court might say the law is on the fact pattern in
front of you.
> This was COPYING. They could have started with
> plain CANVAS, the purchased copy of the poster was irrelevant.
Masters used the original poster as a paint-by-number template, and
applied paint to it to turn the poster into a painting. I think that's
transformative, in the same sense that turning a photo into a sculpture
is transformative and creation of a derivative work (Rogers v. Koons (DC
SNY) 20 USPQ2d 1054), or making a painting from a movie still is a
derivative work ("...that it is a painting of Judy Garland as she
appears in photographs from the movie ... and is therefore a derivative
work, is beyond question." Gracen v. The Bradford Exchange et al., 217
USPQ 1294 (CA 7 1983)). The question becomes a fact specific one of, "is
there enough transformation for this to be a "derivative work" - if the
result is too close, it's a copy, if it's just that much less close,
it's a derivative work. Where you draw the line is not crystal clear.
But, as I said, in the end I don't think it matters - whether it's a
copy (section 106(1)) or a derivative work (section 106(2)), it violates
the copyright owner's copyright rights. And, therefore, buying a
mass-produced item and painting on it can, under some circumstances, be
an infringement of copyright rights - no matter whether you call the
result a copy or a derivative work.
In the Masters case the court had already found for the plaintiff on the
grounds of copying before they took up the question of "derivative
work". Sometimes, where a court has already found for a party on one
grounds, they will dismiss another where the argument is not quite so
strong, where if the other argument was the only one presented they
might have upheld it. We can't know how Masters would have come down if
they had only sued on "derivative work". As you have said, these cases
are fact specific.
> If they'd
> painted over the poster a copy of the Mona Lisa they would not have had any
> infringement problem.
If they completely obliterated the underlying poster, that is almost
certainly correct. If they only painted over part of it, and the result
was a "collage", then you're in the Peter Max situation, and it would be
a "derivative work". Again, it's fact specific.
> If they painted jailbars over the poster they'd
> probably have been "parody" OK.
Possibly - it depends on whether or not they were commenting on the
poster, or if they painted the jail bars to highlight the plight of
political prisoners in Switzerland. The former might be "fair use" as a
"parody", the latter would not (to qualify as "parody" a work must
comment upon the work being parodied, not some other issue). Even if it
were parody, a court would analyze all of the four tests to see if the
parody was "fair use". ("It is the blatantly commercial purpose of the
derivative work that prevents this parody from being a fair use."
Acuff-Rose Music Inc. v. Campbell (CA 6) 23 USPQ2d 1817)
In order to get into the whole realm of "fair use", though, you have to
first determine that the action would infringe one of the rights in
section 106. If it does not, then "fair use" does not come into play, by
definition.
By suggesting that painting jailbars would qualify as a parody, you are
admitting that it would create a derivative work, since no other part of
section 106 could apply to that action (it isn't copying, distribution
or display). Therefore, we agree that painting on a mass-produced copy
of a poster can, under certain circumstances, create a derivative work.
That's all I've ever said - all copyright cases are fact dependent, and
the most you can do is say that under some fact patterns a given action
could infringe under a given section. If the facts were slightly
different, and you can never know in the context of a usenet post, then
the case could swing the other way.
> If they had radically altered the colors and
> lines of the original they would have been in derivative work territory AND
> copying (the derivative work--assuming all theirs were essentially the same)
> territory.
That is possible.
> There is no way a reasonable judge would have characterized this situation
> as "making derivative works." The infringer's subterfuge was pretty
> transparent but I'm sure their legal team enjoyed their pay!!!
The constant digs at money-grubbing lawyers are getting old, and do not
add to your argument. The pay of lawyers is entirely irrelevant to the
copyright issues, which are not as clear as you'd like to paint them
(whether your painting is "fair use" as a "parody" is something we will
differ on, I think).
In any event, the Masters case dealt with "derivative works" not because
the money-grubbing lawyers of the infringer argued as a subterfuge that
the defendant was making a derivative work (which would be a loser of an
argument, since it would admit liability), but because the lawyers of
the copyright owner alleged that they were derivative works as a second
claim for infringement. So, it was the same money-grubbing lawyers who
argued that the paintings were copies, which you agree with, and also
that they were derivative works, which you do not. In this particular
fact pattern, the money-grubbing lawyers for the infringers agreed with
you, and in the end so did the court. I can't say that they are plainly
wrong, but I think an argument can be made either way, and in this case
it didn't matter because the plaintiff argued both ways, and whether the
paintings were copies or derivative works, they win.
> You might want to post your own direct answer to the original post and we'll
> see if we're all in agreement.
OK. That's fair. Let's look at the original post piece by piece, since
it asked a large number of questions. And bear in mind that as an
attorney I cannot give definitive legal advice in this forum. I can only
comment on the law as I understand it as applied to the facts as
presented. Obviously, any copyright case is fact specific, and there
might be many things which would change the answers, which I don't know
from what has been given.
The statement of facts in the original post said, "I, along with alot of
other people, modifiy some of our Clix into other characters that the
compnay hasnt made or our own creations."
To limit the range of variables and clarify the issues, let me
explicitly state a few assumptions here, which will form the basis of my
comments. If the true facts are otherwise, obviously that might change
my answers. I will assume the following:
1. The "clix" were created by their copyright owner and are under a
valid and existing copyright as sculptures. There is no issue of the
"clix" being derivative works or copies of some other work which belongs
to some third party or is in the public domain.
2. The "clix" were lawfully made by the copyright owner (or a licensee)
and were lawfully purchased by the poster. The copyright owner of the
original work, whoever that is - call it "clix, inc." - has not granted
permission to modify the characters.
3. The changes made to the clix are a significant transformation of the
original work. The poster specifically said that his changes were of the
order of changing "Spiderman" to "Superman". I take this to mean the
modifications are transformative enough that we do not need do deal with
side issues of a "first sale doctrine" resale of an unmodified work (as
in the pictures-glued-to-tiles of the seventh circuit "ARTS" case), and
that we need not discuss how much change is necessary before the case is
dismissed as 'de minimis'.
4. The transformation from clix to new work is not so complete that the
copyright in the clix becomes irrelevant. That is, if he melted down the
original character and used the metal or plastic to mold something new,
no copyright issue is involved.
5. The poster says the result "looks like Superman." I will assume that
this means the result is sufficiently similar to the image in a Superman
comic to be a "copy" as the term is understood in the copyright law.
Obviously, at some point the result is just a guy in a cape and not
really "Superman", and then we have to argue about copyright protection
for "characters" - but I will assume we are past that point. That is, I
will not speculate as to how close a copy it must be before it is,
really, a "copy" of Superman. The post clearly used this example to mean
that the copying is close enough to qualify as an infringing copy.
6. The changes to the "clix" are, as the poster stated, "other
characters that the compnay hasnt made or our own creations" - that is:
a. they are not intended as comment or parody of the original
characters, and
b. some, at least, are creative new works and not slavish copies of
preexisting creations of others (i.e. Superman).
"Query; whats the leagality
of taking soemthing like that and remaking it the way youd rather have
it."
My answer: Taking a copyrighted work and transforming it into a new work
is "preparation of a derivative work", and thus would violate clix,
inc's copyright under section 106(2). The "dungeon dolls" case supports
this opinion (while making "dungeon dolls" was held to be "fair use" as
a parody, my stated assumption here is that the modified "clix" are not
intended as parody). I have cited other cases which also found that you
can create a derivative work from a purchased copy of the original, and
have quoted decisions which explicitly state that the "first sale
doctrine" only grants the right to sell the unmodified copy, not to make
derivative works from it.
There might be facts which would excuse this violation which are not
present in this hypothetical. Some transformation into "the way you'd
rather have it" might be implied by the way the "clix" are sold - for
example, one can imply a license to dress up your "Barbie" or "GI Joe"
doll, because clothing is "sold separately". If the "clix" were sold
with a bag of parts and a hot glue gun, a license to modify accordingly
might be implied. You have a license to paint on your "paint-by-numbers"
template because they sell it with the numbered paints, and so on. None
of these facts are present here (the poster said that "the Clix are sold
is that you can buy the starter package and get more of the Clix by
getting boosters"), and I have explicitly stated that no license to
modify was given.
At some point the clix become nothing more than unrecognizable raw
materials (like the melting and recasting example) or are so completely
transformed that they become entirely something else and have no "clix"
left in them. Such facts, if present, would work against finding the
transformation to be a "creation of a derivative work" situation. This
situation is not to be viewed in black and white, but as a continuum of
greys.
Q:"Since Supes is copyrighted and you didnt have permission to
transform the Piece to resemble his image are you infringing on the
copyright?"
Preliminary Note: this question does not ask about the copyright rights
of clix, inc, the owner of copyright in the original work, but rather
those of the owners of copyright in Superman (DC Comics, I think,
although one reported case involving the Man of Steel also had Warner
Brothers as a plaintiff). That is, this is asking if the result of the
transformation violates the rights of a third party who was not part of
the transaction between clix and the poster.
My answer: Yes, creating a copy of Superman is "copying" and thus
violates section 106(1), whether you started with a "clix" or a lump of
clay.
Q:"And what of the original piece? If you are changing it and
selling it based on the new look then people would be buying it
because it looked like Superman, but they could also be buying your
service."
Preliminary note: he is asking about selling the transformed work, not
just playing with it or putting it on his bedroom shelf to admire.
My answer: The transformed work is arguably a "derivative work" (the
making of which violates the section 106(2) rights of "clix, inc"), and
the result, which "looked like Superman", is arguably either a copy of
Superman (and thus the making of which violates the section 106(1)
rights of DC Comics, as in Peker v Masters) or a "derivative work" in
that the sculpture looks like the comic drawings (and thus the making of
which violates the section 106(2) rights of DC Comics, as in Rogers v
Koons), and now you're selling the result. The sale of copies or
derivative works (whichever this might be) would violate the section
106(3) rights of at least one of the copyright owners, and probably
both, depending on the specific facts of the case.
"Q: The time and effort to make it, and not what it turned out to
be."
My answer: If this is a question, the answer is that if something you
make infringes someone's copyright rights, it doesn't matter how much
effort you put into an infringing article. It still infringes.
"Q: Would saying that youre selling a Clix that looks like Superman or
is inspired by Superman be enough to protect you from a lawsuit?"
My answer: No, this would not protect you from suit, either by Clix inc,
or DC Comics, if your actions qualified for suit as a violation of
section 106 rights (see above).
I would qualify this by saying that the practical likelihood of such a
suit would be very fact dependent, especially as regards clix.
Saying that you're selling something which looks like Superman would
probably guarantee a suit by DC Comics, probably on trademark grounds in
addition to copyright. If the work is not so close as to be a "copy",
but you say it's "inspired by" Superman, you get into the realm of
protection for characters which was the subject of Warner Bros., Inc. v.
American Broadcasting Cos., Inc ., 720 F.2d 231, 240-45 [ 222 USPQ 101,
108-12] (2d Cir. 1983) (finding that copyright protection was available
for the character of Superman although defendants' parody did not
infringe copyright). For similar reasons, copyright protection may be
afforded to characters visually depicted in a television series or in a
movie. See Silverman v. CBS, Inc ., 632 F.Supp. 1344, 1355 [ 229 USPQ
587, 594-95] (S.D.N.Y. 1986) (finding that the personifications of the
characters from "Amos 'n' Andy" on television were distinctive enough to
be afforded copyright protection); Ideal Toy Corp. v. Kenner Prods.
Div. of General Mills Fun Group, Inc ., 443 F.Supp. 291, 301 [ 197 USPQ
738, 746-47] (S.D.N.Y. 1977) (finding that the characters in the movie
"Star Wars" were protected from infringement).
Q: "Waht if youre
just making the mod for your own personal enjoyment. Is the act of
using the image or precieved image without the copyright holder's
consent infringement? If you dont distribute it or make money from it?"
My Answer: Yes, or rather it's not the act of using the image but the
act of creating it, whether as derivative work or copy. If you are
asking about clix's copyright, creation of a derivative work infringes
copyright under section 106(2). If you are asking about DC Comics'
copyright in Superman, then creation of a copy infringes copyright under
section 106(1).
Will you be sued for this? Almost certainly not, if you keep the result
on your bookshelf. If you exhibit it in a museum, then you might very
well also be sued for violation of the right of "public display" from
section 106(5).
E.J.
> making the copy, but sale and distribution of the copy are two others of
> the "bundle of rights" in section 106. You can be sued for those acts.
>
the copy I made for my personal use, I wouldnt be breaking any laws?
And then if the person I sold the original COpy too did the same thing
and so on and so on... The producers of the CD would not be getting
any money and everyone would be getting the CD, or rather copies of
it, and not need to buy it in the store. how is that different from
the file sharing problems going on right now.
And about that lil girl who just got sued, who actually sued her? If
she had thousands of songs to trade, then they must be from different
producers. Did they all go into a class action suit against her or
what? And why did she get sued?Unless she originally loaded the songs
I would think that she was just passing the songs along. How did she
know what other people would do with them.
Isaac
> comment upon the work being parodied, not some other issue). Even if it
> were parody, a court would analyze all of the four tests to see if the
> parody was "fair use". ("It is the blatantly commercial purpose of the
> derivative work that prevents this parody from being a fair use."
> Acuff-Rose Music Inc. v. Campbell (CA 6) 23 USPQ2d 1817)
That particular part of the holding in Acuff-Rose was reversed by the Supreme
Court. (Two Live Crew parodying "Pretty Woman" right?).
Isaac
James White
> it didn't matter because the plaintiff argued both ways, and whether the
> paintings were copies or derivative works, they win.
True. But the plaintiff argued both ways because OUR LEGAL SYSTEM DEMANDS an
ALL ARGUMENTS ONSLAUGHT or you lose if your best argument (to you) had a
hole you didn't see (or one the judge made up). Now why do you suppose that
is? It AIN'T "efficiency."
> 1. The "clix" were created by their copyright owner and are under a
> valid and existing copyright as sculptures. There is no issue of the
> "clix" being derivative works or copies of some other work which belongs
> to some third party or is in the public domain.
That's an acceptable guess (makes one itch for bright line "registered" with
a conforming notice).
> 2. The "clix" were lawfully made by the copyright owner (or a licensee)
> and were lawfully purchased by the poster. The copyright owner of the
> original work, whoever that is - call it "clix, inc." - has not granted
> permission to modify the characters.
I would expect not EXPLICITLY granted permission. And they do mouth the
standard trademark and copyright notices on their heroclix.com web site. But
the market they are selling into has for years assumed the right and
expectation of modification from many years of history with similar type
games. So my assumption would be the opposite. However, given that the
manufacturer is a licensee of DC and Marvel and others these may differ from
the similar game systems where imagination and creativity in differentiation
are expected. If there have been any efforts to either stop the modifying
(or encourage it) I don't see them on their web site. They MUST know of it
though.
> "Query; whats the leagality
> of taking soemthing like that and remaking it the way youd rather have
> it."
<snip>
> There might be facts which would excuse this violation which are not
> present in this hypothetical. Some transformation into "the way you'd
> rather have it" might be implied by the way the "clix" are sold - for
Or if store owners are doing it too and strongly encourage it (to boost
sales and traffic). Or if they are sold in hobby stores also selling all the
paint, glue, glitter, whatever for modifications...
A Google search turned up a number of these type contests:
"Painting Contest:
Entries are due Friday September 13th, and will be announced Sunday
September 15th at the Mega Battle. Register your mini at time of purchase.
More rules at the GW News section of the website, or in the store."
(GW=Games Workshop---but no rules are there)
It's not clear which "mini"s are acceptable? May or may not include the Clix
sold at the store?
> Q: "Waht if youre
> just making the mod for your own personal enjoyment. Is the act of
> using the image or precieved image without the copyright holder's
> consent infringement? If you dont distribute it or make money from it?"
>
> My Answer: Yes, or rather it's not the act of using the image but the
> act of creating it, whether as derivative work or copy. If you are
> asking about clix's copyright, creation of a derivative work infringes
> copyright under section 106(2). If you are asking about DC Comics'
> copyright in Superman, then creation of a copy infringes copyright under
> section 106(1).
>
> Will you be sued for this? Almost certainly not, if you keep the result
> on your bookshelf. If you exhibit it in a museum, then you might very
> well also be sued for violation of the right of "public display" from
> section 106(5).
How long do you suppose till it's too late for suits over modification to be
winnable by the company given the company start date of July 2000 with the
licensed figures coming sometime after that? And what would you expect the
licensor's too late date might be? If I were either I think it would be in
my best interests to encourage, and so state, that the modification practice
was encouraged except for reproduction not from originals and conversion to
other licensed characters.
Good, informative post. Uh, <Grin,> What would you change reversing your
assumption 2?
Mike Brown
>>and were lawfully purchased by the poster. The copyright owner of the
>>original work, whoever that is - call it "clix, inc." - has not granted
>>permission to modify the characters.
> I would expect not EXPLICITLY granted permission. And they do mouth the
> standard trademark and copyright notices on their heroclix.com web site.
I have no idea - as I said, I was stating the assumptions I was using in
my opinions, based on the hypothetical facts presented by the poster. I
didn't realize there really is such a thing as a "clix", and I was
treating the whole discussion as a hypothetical discussion of legal issues
> Good, informative post. Uh, <Grin,> What would you change reversing your
> assumption 2?
I assume it's the part about granting permission you want reversed - if
the clix were unlawfully made or purchased, there's no issue of legally
using them at all.
If the copyright owner explicitly granted permission to modify the
characters, then, of course, there is no violation of rights in doing so
in accordance with the license. As to the rest, creation of derivative
works and distribution are two separate issues, so you'd need to look at
what the copyright owner said to see if it also authorized sale of the
modified characters.
If you're going to argue that they implied permission through various
peripheral actions, there might well be an argument to be made, but I've
neither time nor inclination to analyze the lives of the "real" heroclix
as opposed to the hypothetical posted to see what has been going on in
the real world.
James White
> If you're going to argue that they implied permission through various
> peripheral actions, there might well be an argument to be made, but I've
> neither time nor inclination to analyze the lives of the "real" heroclix
> as opposed to the hypothetical posted to see what has been going on in
> the real world.
Thank you.
To the original poster (...if you're still checking this thread): Go ahead
and play, modify, etc., to your hearts content just being aware that
modifying what you get into other of THEIR or OTHERS' characters (instead of
your own) is probably a bad idea. If either the Clix or the comics people
decide to change their apparent acceptance of the practice of your
creativity starting from their products they will be telegraphing that to
you (i.e., the community) months if not years before they start suing anyone
for infringement so play but stay awake.
This is NOT "legal" advice. It is real world advice. I expect that playing,
modifying, and buying more of their product are in the companies best
interests and they will be happy to leave it alone unless some idiot comes
along and starts abusing the "laxity" to their personal gain and to the
detriment of the companies. (Hint: if you do come across such an idiot you
might consider shunning them and rabble rousing for others to shun them also
as well as notifying the company so they can send an appropriate cease and
desist letter. Playing the game that way will be the most likely way to keep
things win-win for the companies and their customers.)