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So, Chapterhouse gets a 4+ save and modified WBB?
I'll support that!

AndrewC wrote: So IIRC there is a freedom of expression allowed, CHS has sculpted a three dimensional representation of a literary figure. IE if someone sculpted a DaVinci 'David' using nothing but a written description of it then they are safe from prosecution.

Several times over, as the Bible - the original source material, and the works of DaVinci, (and Michealangelo- who sculpted the most famous David) are all in the public domain.

YMMV if you choose a character who's sculpt and desc are -not- in the public domain...

I understand that Lancer I was trying to use a item that was iconic in its' own right that wasn't a wargaming figure, rather than produce a specific example.

The fact that I have 'derived' a three dimensional figure from a literary context means that it is a derivative work. Which is a valid defence if prosecuted.

Does that make it a bit clearer?

Cheers

Andrew

AndrewC wrote:I understand that Lancer I was trying to use a item that was iconic in its' own right that wasn't a wargaming figure, rather than produce a specific example.

The fact that I have 'derived' a three dimensional figure from a literary context means that it is a derivative work. Which is a valid defence if prosecuted.

Does that make it a bit clearer?

Cheers

Andrew

Still have no idea what you're saying brah

take it easy
-Vladsimpaler

Sorry sleep deprivation.

As long as a work is derivative it is a personal expression rather than a copy.

If someone creates something in one medium in this case literary and then someone else then converts it into another medium, sculpture, then it's not a copy but a derivative work.

As a derivative work I am then able to use that work to my own benefit.

So if, using another example, Picasso had only described his sunflowers picture as a blue vase with X sunflowers sticking out of it, I could paint a picture and say this is my rendition of Picassos sunflowers.

There was a similar case brought up in another conversation re a photograph of a real life rendition of a painting. But because the models wore the same colour/style clothes and the cats were the same colours, to the painting, it was deemed an infringement, however had the cats been dogs, or even different colours, then it appears it would have been a derivative work and so 'legal'

Do I make more sense?

Cheers

Andrew

AndrewC wrote:As long as a work is derivative it is a personal expression rather than a copy.

If someone creates something in one medium in this case literary and then someone else then converts it into another medium, sculpture, then it's not a copy but a derivative work.

As a derivative work I am then able to use that work to my own benefit.

You keep using that word. I do not think it means, what you think it means.

"Derivative work" has a very specific meaning in the context of copyright law, and it is NOT a defense to copyright infringement. Generally speaking, only the original copyright holder has the right to create derivative works. (When, as in all your examples, the original work is in the public domain, anyone may create derivative works from the original.)

I think what he means is inspired by.

AndrewC, Janthkin is correct. You should be careful about what terms you use because "derivative work" is a legal term. A derivative work is a translation, motion picture adaptation, abridgment, or other work that recasts, transforms, or is adapted from the root copyright. (I think I'm missing one of the specific examples but that's pretty much it) The owner of the original copyright owns all works that are derivative.

As I said, what you likely mean is something closer to inspired by. Legally-speaking, it is perfectly appropriate to be inspired by another's protectable work as long as you don't unfairly appropriate that which is protectable, i.e. as long as you don't make a copy. I can read a story and be inspired to write a similar story, or draw a picture, or make a sculpture, or write a song. You only cross a line when you start to copy something, unless you have created a derivative work, which would be the property of whoever owns the original copyright.

That said, I've argued in the past that a derivative work is necessarily rather narrow. The reason is that if it is not one of the specific examples cited in the definition it must be "recast, transformed, or adapted from" the root copyright in order to be derivative. Copyright only covers those elements of a work that are protectable, thus narrowing the window for derivative. Further, the definition implies a same or similar medium, or at least only directs one towards a work produced in the same or similar medium. All of the examples in the definition refer to literary works, aside from a motion picture adaptation. However, a motion picture adaptation starts as a written screen play and it also includes the elements that give a literary work meaning, e.g. narrative, characters, et.

So, if you wanted to argue that a sculpture is "recast, transformed, or adapted from" a story, I think you'd have a pretty difficult time of it. One can attempt to interpret the definition of derivative work broadly, as Games Workshop has attempted to do, but the definition directs one towards a narrow interpretation. If it did not, it could begin to stretch the boundaries of copyright protection into the realm of ideas, concepts, systems, methods, etc. which is expressly outside the boundaries of copyright protection, even to the extent that anything which is as a practical matter indispensable from the expression of an idea is not considered to be protectable.

Here is a somewhat relevant section from a 2008 post on Bill Patry's copyright blog (http://williampatry.blogspot.com/2008/02/photographs-and-derivative-works.html):

"Photographs of other objects are not derivative works of those objects. First, a photograph of an object is not “based on” that object: It is a mere depiction of it. Second, even if one were to find that a photograph of an object is based on that “preexisting work” within the meaning of the definition of “derivative work” in Section 101, such a photograph must still “recast, transform, or adapt” the authorship in the preexisting work to be considered a derivative work. Such recasting, transformation, or adaptation does not occur in a photograph of an object, even copyrighted objects. What makes a derivative work a derivative work is the contribution of changes in the actual authorship of the preexisting work, not a mere depiction of that work."

Janthkin wrote:

AndrewC wrote:As long as a work is derivative it is a personal expression rather than a copy.

If someone creates something in one medium in this case literary and then someone else then converts it into another medium, sculpture, then it's not a copy but a derivative work.

As a derivative work I am then able to use that work to my own benefit.

You keep using that word. I do not think it means, what you think it means.

"Derivative work" has a very specific meaning in the context of copyright law, and it is NOT a defense to copyright infringement. Generally speaking, only the original copyright holder has the right to create derivative works. (When, as in all your examples, the original work is in the public domain, anyone may create derivative works from the original.)

Do you have a specific Case? Link? Quote?

It is interesting that the English word and meaning differ from the Legal meaning.

AvatarForm wrote:

Janthkin wrote:"Derivative work" has a very specific meaning in the context of copyright law, and it is NOT a defense to copyright infringement. Generally speaking, only the original copyright holder has the right to create derivative works. (When, as in all your examples, the original work is in the public domain, anyone may create derivative works from the original.)

Do you have a specific Case? Link? Quote?

It is interesting that the English word and meaning differ from the Legal meaning.

I'm going to largely refer you to Weeble's post, as he's put a lot more effort into it than I'm going to.

But "derivative work" is defined by the copyright act, and the rights of copyright holders include the exclusive right to create derivative works.

I don't see any conflict between English & law here, merely a misunderstanding of the term in the context of the law - a derivative work is, indeed, derived from the original. It's just not a defense to copyright infringement.

I've never been aware of, nor understood an accepted meaning of, the phrase "derivative work" except in the context of copyright law.

It means what weeble1000 says it means.

I think AndrewC may have malapropped something.

AndrewC wrote:There was a similar case brought up in another conversation re a photograph of a real life rendition of a painting. But because the models wore the same colour/style clothes and the cats were the same colours, to the painting, it was deemed an infringement, however had the cats been dogs, or even different colours, then it appears it would have been a derivative work and so 'legal'

Rogers v. Koons. We discussed it a few pages back.

I'd bet that there's some case where a literary character was recast as either a picture or sculpture. If I have some time at the office this week I'll see if I can look it up.

First of all, everyone you are right, I have used the completely wrong term in most of my posts here. I'm sorry for the confusion. I hope that you can see past the mistake to the idea expressed. I should have used the word 'inspired' instead.

To use another example, Alan Lee, and John Howe are probably the best know artists of Tolkien, yet to my knowledge they are not licence holders, or at least weren't when they made their name. They take a literary reference and translate it to a picture. Yet ownership of that picture stay with them. Even though the picture is clearly Tolkien, it doesn't belong to Tolkien Estates or whichever company currently holds the copyright.

Am I forgiven? I did point out that I'm rather sleep deprived at the moment.

Cheers

Andrew

AndrewC wrote: To use another example, Alan Lee, and John Howe are probably the best know artists of Tolkien, yet to my knowledge they are not licence holders, or at least weren't when they made their name. They take a literary reference and translate it to a picture. Yet ownership of that picture stay with them. Even though the picture is clearly Tolkien, it doesn't belong to Tolkien Estates or whichever company currently holds the copyright.

A little search-fu on google revealed, that Alan Lee has been doing Tolkien for about 25 years, before that, having made a name for himself with fantasy illustrations and illustration of various myth cycles, for at least a decade before that.

http://www.bpib.com/illustrat/lee.htm

In 1987, he was apparently hired to do art and illustrations for a re-issue of the books, and then later hired to do conceptual art for the movie, so he in fact -is- a license holder, or is employed by one. It's quite possible that he might -not- own the copyright on the pieces he did, or if he does so, he's done so through elements of his contact with the publisher.

Professional Illustrators tend to be -very- careful about working with rights holders, as if they mess up, they might loose their job prospects...

But, yes, you are forgiven...

OT posts deleted.

PLEASE stay on topic!

So far, this thread has been amazing it its ability to stay on topic, be informative AND remain polite and, dare I say, friendly?

Please help keep it that way...

Thanks!

Alpharius wrote:So far, this thread has been amazing it its ability to stay on topic, be informative AND remain polite and, dare I say, friendly?

Friendly? How very dare you!

I have another question for our cadre of legal experts: It was suggested very early on in these discussions that the firm representing CHS could be doing so pro bono with a view to setting a legal precedent in this field. Is there some form of benefit to the law firm for setting a legal precedent, or is this sort of thing largely about company prestige and client attraction?

That was answered.

They could have a HUGE interest in setting precedent. It *could* be that they've got another -much bigger- lawsuit in the works which would benefit from setting precedent with the CHS case.

Eric

It's also just plain good advertising.

Lanceradvanced wrote:A little search-fu on google revealed, that Alan Lee has been doing Tolkien for about 25 years, before that, having made a name for himself with fantasy illustrations and illustration of various myth cycles, for at least a decade before that.

In 1987, he was apparently hired to do art and illustrations for a re-issue of the books, and then later hired to do conceptual art for the movie, so he in fact -is- a license holder, or is employed by one. It's quite possible that he might -not- own the copyright on the pieces he did, or if he does so, he's done so through elements of his contact with the publisher.

Professional Illustrators tend to be -very- careful about working with rights holders, as if they mess up, they might loose their job prospects...

But, yes, you are forgiven...

I would dispute that he is a licence holder, as he has either been hired to produce work, in the case of New Line and the aniversary book, in which case the copyright of the items produced pass to the commissioner {Has vision of Peter Jackson in a Commissars uniform with a bolt pistol to Alan Lees head "Draw man, draw!"}

However, Alan Lee / John Howe are also both independent artists in their own right, and have both produced artwork inspired by Tolkien, and that artwork is their copyright. I went looking for a link, but ended up with a virused site, which curtailed any further research.

The assertion that a non licenced individual can produce artwork from a literary source which is theirs to do with seems to be borne out. Whether artwork = sculpture I dont know.

Cheers

Andrew

PS Thanks for forgiving me my horrendous error

Sculpture is an artistic work protected under UK (and most countries') copyright law.

Kilkrazy, sorry what I was getting at was that if an artist can produce a picture inspired by a literary work, and keep the copyrights, would a sculpture receive the same retention of rights.

Hence my question of does artwork equal sculpture.

Cheers

Andrew

I am not a lawyer, however I don't see what would prevent it.

Literature is a conceptual medium. 2D art and sculpture are both visual media.

For example, Tolkien described Gandalf as being tall, with a tall staff, piercing eyes, long beard and so on. An artist had to visualise this using imagination and skill to depict it as visual art. Of course once a visual representation has been made in 2D, a sculpture based on it will probably be a derivative work.

If the writer described the character or object in enough detail to constitute a specification, it would be a different matter.

If Tolkien had said that Gandalf was six feet five inches tall, with neck, chest, waist and inside leg measurements of XYZ, etc. ... robes of Pantone no.1223, and so on...

You can see the difference.

A little case update:

John Paulson has new representation from McAndrews, Held & Malloy. This is a large Chicago firm specializing in intellectual property litigation.

This is from their website:

"When McAndrews, Held & Malloy was founded in 1988, our mission was to attract the most exceptional intellectual property and technology-focused attorneys the legal world has to offer. Our firm's steady growth has been accomplished at an attorney-by-attorney pace, rather than by merger or acquisition."

Clearly, McAndrews, Held & Malloy are representing Paulson pro-bono. So now we have two large firms representing the defendants pro-bono.

The attorneys representing Paulson are: Ronald H. Spuhler, Ronald A DiCerbo, and Thomas James Campbell, Jr.

The case just got a little more interesting.

I am glad that Mr Paulson has some decent support. He seemed to be dragged into the case by a tidal rip.

His alleged "Tau Walker" has hardly any similarity to any GW designs. He did not deserve to get pilloried by GW's legal bully boy tactics.

What effect does this have in practical terms? I suppose that GW's lawyers will have to copy all correspondence to Paulson's lawyers as well as Chapter House's lawyers, thus doubling their workload and costs.

How is running off an extra copy doubling workload or cost? It's an extra few dollars for copies and postage at most. Making a copy might take the office staff a few minutes. It's hardly any extra work at all for the attorney, I would imagine, and I'm sure they deal with this sort of thing regularly.

Hmm, the sharks smell blood it seems!

GW need to make an initiative test to break from combat and immediately move 3d6 x 100 miles in any direction.

Redbeard wrote:How is running off an extra copy doubling workload or cost? It's an extra few dollars for copies and postage at most. Making a copy might take the office staff a few minutes. It's hardly any extra work at all for the attorney, I would imagine, and I'm sure they deal with this sort of thing regularly.

You've never worked for or hired an attorney, have you? 4 words, charge by the hour. By the time GW sees the bill, the time taken to communicate with the defending counsel's office, consult with the attorneys there and extra filing charges and fees associated with paperwork costs.... yeah; not cheap but hardly sufficient to break GW's bank.

weeble1000 wrote:A little case update:

John Paulson has new representation from McAndrews, Held & Malloy. This is a large Chicago firm specializing in intellectual property litigation.

This is from their website:

"When McAndrews, Held & Malloy was founded in 1988, our mission was to attract the most exceptional intellectual property and technology-focused attorneys the legal world has to offer. Our firm's steady growth has been accomplished at an attorney-by-attorney pace, rather than by merger or acquisition."

Clearly, McAndrews, Held & Malloy are representing Paulson pro-bono. So now we have two large firms representing the defendants pro-bono.

The attorneys representing Paulson are: Ronald H. Spuhler, Ronald A DiCerbo, and Thomas James Campbell, Jr.

The case just got a little more interesting.

I'm not saying they AREN'T, but how is it clear that they're working pro bono?

Eric

I'm simply making the assumption that a man who couldn't pay the "Law Office of Kenneth J. Luptak" wouldn't be able to afford two shareholders and an associate from a prominent Chicago law firm. No offense to Mr. Luptak intended, of course, but I'm sure his billing rate is a little bit more modest.

I though Paulson had been wrongly identified by GW. CH are selling the thing. I'm unclear as to what the nature of his defence would need to be. I though it was clear he wasn't involved and you don't need a heavyweight legal team to clarify that with the court do you?

AvatarForm wrote:
It is interesting that the English word and meaning differ from the Legal meaning.

Ah yes, the legal profession...nowhere will you find a more retched hive of scum and villainy...