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Janthkin wrote:..- it's not a binary "are you selling it?" test..

My post was summarized to get at the essentials, thats why I left out 2 and 3, not to obfuscate anything, if you think they have more relevancve, explain it for us please.

...and for the context in question; limited to derivative works for personal use, is it an are you selling it test? Yes it is.

Howard A Treesong wrote:

Mad Doc Grotsnik wrote:Bolter no, not if it is based on GW's design, or a derivative thereof.

How far does that extend? Just bolters or whole Space Marines? Can you scratch build reproductions of GW stuff and recast that?

It extends to any facscimile of copyrighted work, wether you completely create a small component yourself in the image of the original up to exact replication of entire pieces.

Howard A Treesong wrote:You could make a whole army without buying a single product, and while this is a grey area I think that would be well over the line.

Yes you can, and it wouldn't be over the line at all. Until you proffited, or damaged the owners market value by distributing copies, it would be totally fine. You can make anything you want.

While I’m not an IP lawyer as Janthkin is, my understanding of Fair Use has always been that it’s primarily to protect criticism, analysis, and discussion. Not so much duplication entire.

Augustus wrote:

Janthkin wrote:..- it's not a binary "are you selling it?" test..

My post was summarized to get at the essentials, thats why I left out 2 and 3, not to obfuscate anything, if you think they have more relevancve, explain it for us please.

...and for the context in question; limited to derivative works for personal use, is it an are you selling it test? Yes it is.

No, it isn't. Can you find ONE case where "Fair Use" is an applicable defense for duplication of a tangible sculpture? I can't, and I have looked.

As I noted above, none of the "four factors" in a fair use analysis are individually dispositive.

Judge Patterson wrote:
The evaluation of these factors is “an open-ended and context-sensitive
inquiry,” Blanch, 467 F.3d at 244; accord Campbell, 510 U.S. at 577 (stating that “the
statute, like the doctrine it recognizes, calls for a case-by-case analysis”), and the
examples listed in the statute (i.e., criticism, comment, news reporting, and teaching) are
illustrative rather than limiting, Campbell, 510 U.S. at 577-78. The four statutory factors
may not “be treated in isolation, one from another”; instead they all must “be explored,
and the results weighed together, in light of the purposes of copyright.”

(Just the easiest example, from the J.K. Rowling decision earlier this month.

*edit: While I'm in here, for Mannahnin:

Judge Patterson wrote:
“The ultimate test of fair use, therefore, is whether the copyright law’s goal of ‘promoting the
Progress of Science and useful Arts,’ U.S. Const., art. I, § 8, cl. 8, ‘would be better served
by allowing the use than by preventing it.’” Castle Rock, 150 F.3d at 141 (quoting Arica
Inst., 970 F.2d at 1077).

I can't see how allowing someone to create recasts of figures for their own use promotes the progress of sciense & the useful arts. Can you, Augustus?

Yes I can. I think miniature wargaming is a useful art.

...and I can spell science, (just kidding).

But what is useless art?

I am not a lawyer, I wouldn't even know where to get a case record.

Do you know of any cases specifically concerning 3d duplication?

Tell us about one?

Can you find even one case where someone was persecuted for making a recast without profiting or damaging the market value?

Useless art? That's easy.

Damien Hirsts 2 Halves of a Cow, that pile of Bricks, Tracy Emins shitted bed.....basically, any crap Charles Saatchi is willing to fork millions out on really.

Heh, funny

I was being serious.

Augustus wrote:Yes I can. I think miniature wargaming is a useful art.

...and I can spell science, (just kidding).

But what is useless art?

I was using the silly "double click to edit" functionality, and had already lost my comments twice, through clicking outside the box without hitting "update." It made me hasty and irate.

You've fallen into the trap set by the Constitution: PATENTS are "art," where other IP is "science."

But things that are unprotected by copyright include functional descriptions (like the white pages of the phone book), as well as all "functional" things (which are intended to be protected by patent, rather than copyright).

Augustus wrote:Can you find even one case where someone was persecuted for making a recast without profiting or damaging the market value?

Et tu, Augustus? You sound like Stelek, both in use of "persecuted" (rather than "prosecuted," which is also not quite correct in this matter - we're dealing in terms of civil infringement, rather than criminal), and in caring about whether a recaster will actually be called to account.

I am concerned here with the law, rather than "will I get in trouble if I do this?" As I noted previously, I don't care about people's opinions of recasting, I just don't want people walking away from the thread with misconceptions about what the law actually is.

(As far as finding cases goes, you've got access to the same tools I do - Google doesn't suck, and Lexus offers free searches of their database (just don't download any documents - take the case name, and search for it on Google).)

I'm highly amused that people are arguing with the IP attorney.

Woooo!

Iorek wrote:I'm highly amused that people are arguing with the IP attorney.

Woooo!

I don't know about you, but in any debate between an expert in the field and a guy who is utterly convinced about his position, I'm going with the guy that seems more certain.

Janthkin wrote:

Augustus wrote:Can you find even one case where someone was persecuted for making a recast without profiting or damaging the market value?

Et tu, Augustus? You sound like Stelek, both in use of "persecuted" (rather than "prosecuted," which is also not quite correct in this matter - we're dealing in terms of civil infringement, rather than criminal), and in caring about whether a recaster will actually be called to account.

Oh my, I sound like Stelek? Tit for tat, my spelling joke, you caught me on persecuted, touche!

(I like Stelek's style!)

Janthkin wrote:I am concerned here with the law, rather than "will I get in trouble if I do this?" As I noted previously, I don't care about people's opinions of recasting, I just don't want people walking away from the thread with misconceptions about what the law actually is.

Interesting, well then perhaps our concerns are not that different. I invite you to simplify your argument to yes or no: is the recasting I have been advocating (for non proffit artistic personal use) illegal? Is the recasting described in the original post illegal?

I'm not trying to pigeon hole you into a quotable gotcha, just to get a strait answer. If you are saying that one could get into trouble recasting I certainly wouldn't disagree, but if you are saying that any reporoudction under any circumstances is ilegal I certainly challenege that. Furthermore I advocate that given everything said so far, limited recasting for personal use, under the contexts previously described, and originally proposed in the thread is perfectly legal, ethical and moraly acceptable.

Janthkin wrote:(As far as finding cases goes, you've got access to the same tools I do - Google doesn't suck, and Lexus offers free searches of their database (just don't download any documents - take the case name, and search for it on Google).)

This sounds like a very long no. What if I were to counter your argumet earlier with "Have you ever been able to find a prosecuted recasting case (that did not involve proffit or marketplace damages) because I looked and couldn't find any?" How would you respond?

EDIT for mistakes on Quote tag.

Polonius wrote:

Iorek wrote:I'm highly amused that people are arguing with the IP attorney.

Woooo!

I don't know about you, but in any debate between an expert in the field and a guy who is utterly convinced about his position, I'm going with the guy that seems more certain.

Polonius, just because they are lawyers doesn't make them right.

(Besides isn't this fun and educational?)

Augustus wrote:

Polonius wrote:

Iorek wrote:I'm highly amused that people are arguing with the IP attorney.

Woooo!

I don't know about you, but in any debate between an expert in the field and a guy who is utterly convinced about his position, I'm going with the guy that seems more certain.

Polonius, just because they are lawyers doesn't make them right.

(Besides isn't this fun and educational?)

It doesn't make it right, but it makes it hard for you to understand his answers. Janthkin can't answer your question with a straight yes or no because this question has never been resolved. It's like making a mix tape: it's most likely an impoper use of protected material, but who on earth is going to actually litigate that case, much less to the point where it goes to an appeals court (where the vast majority of reported cases come from). For such a case to be published, the series of events would occur something like this:

somebody makes the copy

GW notices

GW sends Cease and Desist

Duper ignores the letter

GW sues for violation of IP

Duper refuses to settle, takes the case to Federal district court.

Whoever wins decides to appeal.

A circuit court decides to hear the case.

At virtually every step along the way, the odds of the event occuring are staggeringly low. If there's no money on the table, why wouldn't you simply cease and desist?

No lawyer can answer a question like this with any certainty, which is why Janthkin can't simply give you a yes or no. I think your legal base for saying that such actions as the OP suggested are legal are weak. Fair use exists as a counterbalance to standard Copyrights. Copyrights exist to protect creative works so that it encourages such work. Fair use steps in where such actions would actually hurt progress and creative works, most notably in criticism, education, etc. Personal use, on it's own has not yet fallen into that category. If you were able to produce case law that shows that personal use has qualified as fair use, you'd have an argument, but Janthkin has produced case law showing that such use would require a broadening of current law. Keep in mind that general rules are usually interpreted broadly, while exceptions are interpreted narrowly.

Augustus wrote:

Janthkin wrote:I am concerned here with the law, rather than "will I get in trouble if I do this?" As I noted previously, I don't care about people's opinions of recasting, I just don't want people walking away from the thread with misconceptions about what the law actually is.

Interesting, well then perhaps our concerns are not that different. I invite you to simplify your argument to yes or no: is the recasting I have been advocating (for non proffit artistic personal use) illegal? Is the recasting described in the original post illegal?

I'm not trying to pigeon hole you into a quotable gotcha, just to get a strait answer. If you are saying that one could get into trouble recasting I certainly wouldn't disagree, but if you are saying that any reporoudction under any circumstances is ilegal I certainly challenege that. Furthermore I advocate that given everything said so far, limited recasting for personal use, under the contexts previously described, and originally proposed in the thread is perfectly legal, ethical and moraly acceptable.

"What is truth?" /handwash

There are actual reasons why lawyers don't hop into public forums and start tossing around straight yes-no opinions; it's not all just professional wishy-washiness. But if I had a hypothetical client who suggested doing actions such as those laid out in the OP and wanted an opinion on legality, I would counsel them that what they propose appears to be copyright infringement, and none of the applicable defenses apply.

No, I'm not saying "any reproduction == illegal." There are a number of limitations on the copyright owner's rights defined in the statute, and a couple more in caselaw. But I can't see how any of them apply here.

Janthkin wrote:(As far as finding cases goes, you've got access to the same tools I do - Google doesn't suck, and Lexus offers free searches of their database (just don't download any documents - take the case name, and search for it on Google).)

This sounds like a very long no. What if I were to counter your argumet earlier with "Have you ever been able to find a prosecuted recasting case (that did not involve proffit or marketplace damages) because I looked and couldn't find any?" How would you respond?

Lamentably, my time is not completely my own, and the open-ended question of "are there any cases involving 3d reproductions?", while interesting, isn't something I can answer in 5 minutes.

I would, however, assert that the burden falls on the person advocating some action which appears in conflict with the written law. We know what the copyright owner's rights are. We know that recasting falls within those rights. You suggest that "fair use" offers a blanket defense - I wondered if you had reason to believe that, beyond a (IMO) flawed reading of 107.

Iorek wrote:I'm highly amused that people are arguing with the IP attorney.

Woooo!

I need the practice; most of my work is arguing in written form.

*EDIT originally written in response to Palonius

Wow, what a great read, well written sir, thank you.

I found some very interesting quotes on wikipedia (I know) for common misconceptions, look at these:

http://en.wikipedia.org/wiki/Fair_use

Noncommercial use is invariably fair. Not true, though a judge may take the profit motive or lack thereof into account. In L.A. Times v. Free Republic, the court found that the noncommercial use of L.A. Times content by the Free Republic Web site was in fact not fair use, since it allowed the public to obtain material at no cost that they would otherwise pay for.

If you're copying an entire work, it's not fair use. While copying an entire work may make it harder to justify the amount and substantiality test, it does not make it impossible that a use is fair use. For instance, in the Betamax case, it was ruled that copying a complete television show for time-shifting purposes is fair use.

Not part of what I was advocating but still interesting:

If you're selling for profit, it's not fair use. While commercial copying for profit work may make it harder to qualify as fair use, it does not make it impossible. For instance, in the 2 Live Crew—Oh, Pretty Woman case, it was ruled that commercial parody can be fair use.

Janthkin wrote:Lamentably, my time is not completely my own, and the open-ended question of "are there any cases involving 3d reproductions?", while interesting, isn't something I can answer in 5 minutes.

Granted, of course. I am earnestly interested however, if you did find one, at some point in the future. I have never heard of it, but then, I have never heard of a lot of things.

Janthkin wrote:I need the practice; most of my work is arguing in written form.

Me too.

No one is asking the important question here...

Why haven't you posted pictures of this super-rare and super-awesome army? I need moar pikz plx!

I'm going to take this unusual ( ) opportunity to agree with Typeline.

Augustus wrote:*EDIT originally written in response to Palonius

Wow, what a great read, well written sir, thank you.

I found some very interesting quotes on wikipedia (I know) for common misconceptions, look at these:

snip

Well, I hope it helped. Not a lot of people really understand how civil law works. it's not like criminal law, where there is a crime and a punishment. Civil law is a way of working out disagreements, and even among those disagreements that lead to legal action (i.e. lawyers are retained, complaints are filed) almost none of them go to trial (it can be as low as 3-5% are actually litigated), and of those, hardly any actually get an appeal. As a general rule, the less money is on the table, and the bigger the entity, the more likely settlement is. Why? Litigation is expensive as well as unpredictable. It's usually cheaper in the long run to settle 10 cases then to try all 10 and lose half of them.

As for misconceptions, I think IP laws are even more mispercieved by people than age of consent laws (another prime area of negative knowledge). One of the big problems is that Fair Use allows for some things, such as parody, that don't seem really worthy of protection. Most of those cases were decided under 1st amendment principles, and allowing for satire is important.

Stelek wrote:Legally, you aren't doing anything wrong--despite all the claims otherwise.

GW can tell you to take your 'fakes' and get out of events they run, but they don't prosecute (or even threaten it) unless you intend to sell their figures AND claim they are original.

Aside from unlicensed duplication of copyrighted works to avoid legally acquiring product, no, there's nothing wrong.

Actually, GW can confiscate those fakes on the spot if they have reasonable suspicion that they are copies. And then use them as evidence to sue you based on statutory damages (similar to how the RIAA and EA extract hundreds of thousands of dollars in settlement for tens of dollars of infringement).
_____

Come to think of it, that would be an awesome way to extract max scores out of one's opponent at a RTT...

Orlanth wrote:

Stelek wrote:You have noticed all the scratch-built titans that ARE costing GW money, and they don't give a flying .

They are encouraging scratchbuilding, the scratchbuilds are you property and you can sell them.

*Exactly*. Scratchbuilds are completely different from ording a new Warhound Titan from Forgeworld, and then duplicating it.

Janthkin wrote:No, it isn't. Can you find ONE case where "Fair Use" is an applicable defense for duplication of a tangible sculpture? I can't, and I have looked.

As I noted above, none of the "four factors" in a fair use analysis are individually dispositive.

From a cursory reading, *NONE* of the "four factors" are met by recasting. Therefore, there is no "fair use".
____

From my post on Btown on a related topic:

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

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

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

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

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

2. the nature of the copyrighted work;

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

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

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

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

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

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

JohnHwangDD wrote:Actually, GW can confiscate those fakes on the spot if they have reasonable suspicion that they are copies. And then use them as evidence to sue you based on statutory damages (similar to how the RIAA and EA extract hundreds of thousands of dollars in settlement for tens of dollars of infringement).

I don't think so. They can to call the authorities just like anyone else, they don't have the right to take your property away on the basis they are suspicious about it. You can't just take stuff from a person's house because you think they stole it from you, you have to do things through legal channels.

If you're stupid enough to say that you recast the minis, GW can and will confiscate them.

If it's a recast - *NEWSFLASH* - it's NOT your property. It's GW's.
____

Well, technically, GW *can* go the through the police, with the note that you will be sued to the tune of $100k+ worth of legal fees trying to prove that you have the right to break the law.

Or, you can do the easy thing and hand over the models on the spot.

Personally, I'd love to see GW make an example of somebody (i.e. drive into bankruptcy, seize house and car) simply to put this issue to bed.

However, it appears that when *real* money is on the line, nobody is willing to challenge GW on the law.

JohnHwangDD wrote:If you're stupid enough to say that you recast the minis, GW can and will confiscate them.

Well, technically, GW *can* go the through the police, with the note that you will be sued to the tune of $100k+ worth of legal fees trying to prove that you have the right to break the law.

Or, you can do the easy thing and hand over the models on the spot

So they can't confiscate them then. With only an accusation they can only ask for you to comply and hand them over.

No one can take things off anyone unless they have a court order or are part of authorities with those powers, like the police or HM Customs.

Hey Yakface, close the thread before Janthkin bills Dakka for his legal services

Howard A Treesong wrote:

JohnHwangDD wrote:If you're stupid enough to say that you recast the minis, GW can and will confiscate them.

Well, technically, GW *can* go the through the police, with the note that you will be sued to the tune of $100k+ worth of legal fees trying to prove that you have the right to break the law.

Or, you can do the easy thing and hand over the models on the spot

So they can't confiscate them then. With only an accusation they can only ask for you to comply and hand them over.

No one can take things off anyone unless they have a court order or are part of authorities with those powers, like the police or HM Customs.

So what if the minis I buy off ebay happen to be forgeries? Formally we cannot tell but there are a lot of Armorcast Warhounds floating out there, some are suspiciously cheap. I have a friend with one and am getting one myself, different source.

Now a lot of the Armorcast stuff on eBay today are knock offs. What in practicality, as opposed to theory will happen:

1. Can GW request/demand handing over of a suspected duplicate Armorcast model, or can only Armorcast do that?

2. Is this buying 'stolen' goods or any other offense under law?