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GW is just nervous. Quess what the Salamander Chapter will get in the upcoming Space Marine Codex

Regarding the C&D letter itself

Is the time frame standard in these type of C&D letters ? 7 Days doesnt seem to be a reasonable time to be able to provide details of all profits ( should there be any ) or much time to seek legal representation or advice on how to respond to the letter or to arrange many of the other ' demands '

 Dynamix wrote:
Regarding the C&D letter itself

Is the time frame standard in these type of C&D letters ? 7 Days doesnt seem to be a reasonable time to be able to provide details of all profits ( should there be any ) or much time to seek legal representation or advice on how to respond to the letter or to arrange many of the other ' demands '

The requesting profits bit is offensive. Those would be discoverable documents if GW followed up this threat to pursue legal action, but they are entirely private. You don't just fork over that stuff on request. The letter encourages the incorrect assumption that providing such documents is normal, effectively taking advantage of the author's presumably relative sophistication to mislead the recipient. Shenanigans.

"Say, do me a favor and help me build my lawsuit against you before you have formal access to my documents. Don't worry guy, this is how these things go. You'll be fine. Play ball with us and we won't destroy you."

Shenanigans

 Flashman wrote:
Lorien - Home to Wood Elves in Middle Earth

Loren - Home to Wood Elves in the Old World

That may not be IP infringement, but it's an example of GW's moral hypocrisy with regards to copying themes and ideas.

Sly Marbo, the pic is obviously Stallone, and Marbo is an adjusted version of Rambo.

And then there is this:


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Having said that, that space lizard by some random guy is pretty close to that art that Ive never seen in the book Ive never heard of. Seems kind of strange that a nobody can attract attention of GWs (fine)lawyers.

Couple of things for Blight Wheel to do...

First, talk to a lawyer. Even if they fully intend on complying with GW - they still will want to have a lawyer go ahead and write up a quick letter saying something along the lines of "By complying with your request we are not acknowledging any wrong doing on our part..." You know, the types of things that you always have a good laugh about when you here about some payout by a celebrity to their "massage therapist".

Find out what jurisdiction it would be fought out in - should anything happen. Luckily everything should be centered around the UK - so no flying a couple thousand miles to deal with it...but still, just make sure.

Second, the fight on this would be a more difficult one - as the concept is somewhat more unique. Under copyright laws, there is a substantial amount which may fall under protection by GW. There is also a fair amount which is pretty generic (what they describe as an ammo belt with separate bullets is a pretty standard bandolier, the "shield" on the back corresponds to a shield on the front...with mounted gun...and for anyone actually examining it would likely realize that that is the logical manner that lizards would where armor if they did where armor). Other things are a bit more vague. The face is, to me, a dead ringer. Hands are different (specifically the lack of a "dew claw"), and although the feet are similar - lizard feet are nothing special or unique. The circular "head implant" on the head...would be what biologists often refer to as an ear on a real lizard - they have exposed tympanic membranes which are generally circular and behind the ear. I can't see clearly on the model if the modeled the "jack" between the ear and the eye as shown on the illustration. The base of the tail shares a pair of spines as well. Still, it wouldn't be each one of those points - but rather all of them put together. It is somewhat more unique than other GW concepts.

Next, you need to track down who did the original sketch and where they worked. The UK has that interesting design issue to deal with - and if the original sketch was actually done by a member of the "Design Studio" as opposed to a Black Library artist - a claim could be made that the purpose of the original sketch was not for use in the Black Library book rather instead that it was meant for use as a design document for miniature development within the design studio. A drawing done specifically for the book is treated differently in the UK than a drawing that happened to end up in the book. I don't think the drawing itself is attributed - and the Sabbat World campaign book was 2005 IIRC. Several of the artists were studio artists, and several were Black Library artists (then of course their is the whole issue of whether or not GW bothered to get assignments from their freelance artists who do work for Black Library...).

If it isn't a design though - then you have to address it like a copyright. GW would need to prove you copied them (having access to the original, and then demonstrating similarities is normally enough). The common elements are subtracted. A determination would then be made to figure out if it is or isn't a copy or derivative work (transformation from 2D to 3D is not normally significant enough of a transformation to be outside copyright laws on its own). The easiest way to deal with GW would be to look for a prior example of the same idea which they stole from (dirty hands principle...plus their work becomes a derivative of the original and they no longer have standing to sue). I don't have access to my library right now, but I would look at things like Alternity, Rifts, Aliens Unlimited, Traveler and GURPS books to start with. All very prolific in terms of art and number of aliens/weird tech creatures they introduced.

nkelsch wrote:
WotC did almost the exact same thing to a KS I backed for making 'not' versions of some of their literary characters. They simply didn't want someone to make miniatures which were clearly their character in every way shape and form except for name. WotC doesn't want to make a mini, but it is still their character, and it dilutes their control for being able to use it however they want.

The KS changed the model design and colorschemes to be a unique Darkling ranger instead of "Not-Drizzt Do'Urden" and Aged wizard instead of "Not-Elminster"

WotC was in the right regardless if they make the Mini or not and the company responded reasonably because they wer clearly designing something off someone else's IP. And simple changes in design made both parties happy and customers still get what they want.

This idea that anyone can just make a model of anyone else's character and that is 'free game' isn't reality and GW isn't the only one who sends out C&D letters to mini makers.

Those were trademark issues - which are significantly different and carry different requirements under the law. The KS actually called them "Not-Iconic Character Name" - once the name was removed...WotC didn't care one bit at all.


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weeble1000 wrote:

 Dynamix wrote:
Regarding the C&D letter itself

Is the time frame standard in these type of C&D letters ? 7 Days doesnt seem to be a reasonable time to be able to provide details of all profits ( should there be any ) or much time to seek legal representation or advice on how to respond to the letter or to arrange many of the other ' demands '

The requesting profits bit is offensive. Those would be discoverable documents if GW followed up this threat to pursue legal action, but they are entirely private. You don't just fork over that stuff on request. The letter encourages the incorrect assumption that providing such documents is normal, effectively taking advantage of the author's presumably relative sophistication to mislead the recipient. Shenanigans.

"Say, do me a favor and help me build my lawsuit against you before you have formal access to my documents. Don't worry guy, this is how these things go. You'll be fine. Play ball with us and we won't destroy you."

Shenanigans

The bigger issue is that it is a timed request, and based on the "Ok we found this in our spam box " quote - they didn't get a letter...they got an email. Legal correspondence of this variety are always handled with physical (generally delivery confirmation requested) letters. Quite often the short period of time and the threat of further legal action will be a violation of legal procedures on its own...but that is something a lawyer would be able to address - as I am not familiar enough with specific requirements in that regard under UK law.

 azreal13 wrote:
Isn't it already established that IP infringement can't cross mediums? So a 3D sculpt of a 2D artwork is not an issue?

No. If that was true, why would anyone ever produce licensed films or merchandise, when you could just make it without giving the creator anything?

For example, here's a sculpture by Jeff Koons that was found to infringe the IP of a photographer.

Didn't Blightwheel's previous incarnation break up over them producing a jetbike "inspired" by Sabertooth Game's art in the Horus Heresy art books?

Seems like an obvious case of infringement to me.

 Sean_OBrien wrote:

nkelsch wrote:
WotC did almost the exact same thing to a KS I backed for making 'not' versions of some of their literary characters. They simply didn't want someone to make miniatures which were clearly their character in every way shape and form except for name. WotC doesn't want to make a mini, but it is still their character, and it dilutes their control for being able to use it however they want.

The KS changed the model design and colorschemes to be a unique Darkling ranger instead of "Not-Drizzt Do'Urden" and Aged wizard instead of "Not-Elminster"

WotC was in the right regardless if they make the Mini or not and the company responded reasonably because they wer clearly designing something off someone else's IP. And simple changes in design made both parties happy and customers still get what they want.

This idea that anyone can just make a model of anyone else's character and that is 'free game' isn't reality and GW isn't the only one who sends out C&D letters to mini makers.

Those were trademark issues - which are significantly different and carry different requirements under the law. The KS actually called them "Not-Iconic Character Name" - once the name was removed...WotC didn't care one bit at all.

They actually never called them "not-Trademark". They called them generic things, but they had clear features and colorschemes which uniquely represented specific WOTC characters. Hell, I thought they were 'Not-Gandalf' and 'Not-WorldOfWarcraft-Darkelf' until the C&D.

They had to change the design of the model to remove swords and scrolls which looked like established WotC art. They also had to kill 4 Monsters which looked too much like iconic D&D monsters. Only 2 of which survived a redesign.

So for a total of 6 offending models, 2 got redesigned, 2 got heavily modified and 2 were killed outright. None of which were using any trademakrs or WotC names, simply similarity to the imagery in WotC books. I don't see that it was a trademark issue and seems to be super similar to this situation.

 Kingsley wrote:
Seems like an obvious case of infringement to me.

No surprise there.

Did Blight Wheel move? I seem to recall them being Polish originally, but now their flag is showing as Monaco.

nkelsch wrote:
They actually never called them "not-Trademark". They called them generic things, but they had clear features and colorschemes which uniquely represented specific WOTC characters. Hell, I thought they were 'Not-Gandalf' and 'Not-WorldOfWarcraft-Darkelf' until the C&D.

They had to change the design of the model to remove swords and scrolls which looked like established WotC art. They also had to kill 4 Monsters which looked too much like iconic D&D monsters. Only 2 of which survived a redesign.

So for a total of 6 offending models, 2 got redesigned, 2 got heavily modified and 2 were killed outright. None of which were using any trademakrs or WotC names, simply similarity to the imagery in WotC books. I don't see that it was a trademark issue and seems to be super similar to this situation.

Pretty sure either someone at Impact - or one of the people who were pushing hard for the campaign actually did. In any case, the underlying factor is in fact the same. WotC was not concerned with copyright issues - rather Trademark issues. Elminster has long been an iconic character which was used by TSR and now WotC to sell D&D products in the Forgotten Realms setting as well as a stand alone character in several books. The artwork which was used to create the chibi caricature was actually the same artwork that was used to represent Elminster on the cover of books like "The Forgotten Realms Atlas". The same applied in fact to Drizzt, who was also used to sell products in the Forgotten Realms setting as well as stand alone character in several books. When a character moves from just a drawing or a throw away in a book - to something which is core to a company to sell products, it moves from primarily copyright protection to primarily trademark protection. WotC would not have gotten upset about an elf using two scimitars (take a look at any fantasy miniature company and you will find dozens of not-Drizzt) or an old man with a staff, pointy hat and a pipe - their issues were with the trademarks. I would have to double check the others that got changed in the Chibi Dungeon Adventurers KS - but those likely also fell into the realm of trademarked as opposed to copyrights.

When WotC rolled out their d20 and OGL concepts - they acknowledged that their IP was rather limited with regards to fantasy and science fiction. They portioned off a few unique concepts which were called out in the SRD that were primarily trademarks and opened everything else up. It is pretty easy to do a whole lot of stuff with D&D related materials and not get WotC on your back. They encourage it in fact.


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 Kanluwen wrote:
Did Blight Wheel move? I seem to recall them being Polish originally, but now their flag is showing as Monaco.

Their blog mentions translating the letter into French...not sure where they are actually at. I think the big thing is that the figures were for Salute in the UK - which would allow GW to go after them under UK law in UK courts.

 Sean_OBrien wrote:

nkelsch wrote:
They actually never called them "not-Trademark". They called them generic things, but they had clear features and colorschemes which uniquely represented specific WOTC characters. Hell, I thought they were 'Not-Gandalf' and 'Not-WorldOfWarcraft-Darkelf' until the C&D.

They had to change the design of the model to remove swords and scrolls which looked like established WotC art. They also had to kill 4 Monsters which looked too much like iconic D&D monsters. Only 2 of which survived a redesign.

So for a total of 6 offending models, 2 got redesigned, 2 got heavily modified and 2 were killed outright. None of which were using any trademakrs or WotC names, simply similarity to the imagery in WotC books. I don't see that it was a trademark issue and seems to be super similar to this situation.

Pretty sure either someone at Impact - or one of the people who were pushing hard for the campaign actually did. In any case, the underlying factor is in fact the same. WotC was not concerned with copyright issues - rather Trademark issues. Elminster has long been an iconic character which was used by TSR and now WotC to sell D&D products in the Forgotten Realms setting as well as a stand alone character in several books. The artwork which was used to create the chibi caricature was actually the same artwork that was used to represent Elminster on the cover of books like "The Forgotten Realms Atlas". The same applied in fact to Drizzt, who was also used to sell products in the Forgotten Realms setting as well as stand alone character in several books. When a character moves from just a drawing or a throw away in a book - to something which is core to a company to sell products, it moves from primarily copyright protection to primarily trademark protection. WotC would not have gotten upset about an elf using two scimitars (take a look at any fantasy miniature company and you will find dozens of not-Drizzt) or an old man with a staff, pointy hat and a pipe - their issues were with the trademarks. I would have to double check the others that got changed in the Chibi Dungeon Adventurers KS - but those likely also fell into the realm of trademarked as opposed to copyrights.

When WotC rolled out their d20 and OGL concepts - they acknowledged that their IP was rather limited with regards to fantasy and science fiction. They portioned off a few unique concepts which were called out in the SRD that were primarily trademarks and opened everything else up. It is pretty easy to do a whole lot of stuff with D&D related materials and not get WotC on your back. They encourage it in fact.


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 Kanluwen wrote:
Did Blight Wheel move? I seem to recall them being Polish originally, but now their flag is showing as Monaco.

Their blog mentions translating the letter into French...not sure where they are actually at. I think the big thing is that the figures were for Salute in the UK - which would allow GW to go after them under UK law in UK courts.

I hope they do, and I hope Blight Wheel get a solid team of lawyers and give GW's legal team just as much of a showing up as Chapterhouse have in the US, because the only thing that's ever going to stop GW's relentless bullying is a judgement against them in the UK(not 100% on this, but wouldn't a judgement against them be considered precedent anywhere in the EU, regardless of which EU country it's established in?).

You all assume that GW even owns the rights to said artwork, which as we've seen in the CHS case is hit and miss.

Now IMO this particular case isn't worth BWM fighting, but just because it looks like X doesn't mean that GW owns X.

Blight Wheel needs to tell them to get stuffed.

Then make four or five more sculpts with dual guns, chain guns, rockets, cannons, bfg's, bfg mark 2's, and one holding a kitty, or lovingly stroking a puppy.

The sculpt looks nothing like that artwork, and GW needs to worry more about it's own house then running around trying to convince itself it is the be all and end all with gaming.

 AlexHolker wrote:

 azreal13 wrote:
Isn't it already established that IP infringement can't cross mediums? So a 3D sculpt of a 2D artwork is not an issue?

No. If that was true, why would anyone ever produce licensed films or merchandise, when you could just make it without giving the creator anything?

For example, here's a sculpture by Jeff Koons that was found to infringe the IP of a photographer.

Watch out for the Rogers v Koons case. It was mainly a case of fair use as there was rare direct evidence of copying, and what amounted to a virtual admission of copying by the defendant. Also, the sculpture attempted to replicate the photograph in all details in which it was possible, so viewing the sculpture was essentially viewing the same people at the same angle as the photograph was taken.

When you are talking about what makes a photograph 'art', framing, staging, lighting, focus, basically all of the elements that con be manipulated potentially create protected expression. The subject itself is often not protectable. Koons replicated, or sought to replicate, those types of details. It was not that the people in the sculpture looked the same, but that the sculpture replicated the framing, positioning of the subjects, and so forth. In fact, the sculpture barely looked like a sculpture. So again, in copyright cases one is dealing with very fact dependent issues.

The case was decided on summary judgment and is a decision that remains hotly debated today.

Further, the Koons case has been cited by Plaintiff counsel in the GW v CHS case, to not terribly significant impact. A far more apt case would be FASA v Playmate.

I doubt GW found this miniature by trolling the internet. Most likely a GW fan alerted them to its existence. Kind of silly to produce that miniature unless they thought it was so obscure it would fly under the radar of GW.

I have to wonder why they didnt do something like but the gun on the back of the lizard instead of the belly.

C'mon guys, don't pick on little ole Games Workshop, that Indestructible IP moat needs to spend its budget somehow?

If it wasn't for enthusiastic third parties making models we would love to buy how would Alan Merret and his team sleep at night?

Rogers v. Koons

For anybody who is unsure how this might turn out.

 Triggerbaby wrote:
Rogers v. Koons

For anybody who is unsure how this might turn out.

Again, blindly referencing a case does not say much.

Wasn't there an Allan Carasco Ad-Mech design previewed on their blog a while back that inspired another piece of John Blanches drunken ramblings...?

 Grot 6 wrote:
Blight Wheel needs to tell them to get stuffed.

Then make four or five more sculpts with dual guns, chain guns, rockets, cannons, bfg's, bfg mark 2's, and one holding a kitty, or lovingly stroking a puppy.

The sculpt looks nothing like that artwork, and GW needs to worry more about it's own house then running around trying to convince itself it is the be all and end all with gaming.

What? That sculpt looks exactly like the artwork - exactly.

On a more serious note. I totally understand why GW is going after these guys. Its just too similar, regardless of the legal ramifications.

That said, wouldn't GW's budget be better spent putting out a competing resin model? So instead of competing they are just shutting it down? who wins here?

Is the proper answer no one?

weeble1000 wrote:

 Triggerbaby wrote:
Rogers v. Koons

For anybody who is unsure how this might turn out.

Again, blindly referencing a case does not say much.

More so because it wouldn't be dealt with under US law - rather through courts in the UK or the home country of Blight Wheel (Poland, France, Monaco...where ever that might be).

JWhex wrote:
I doubt GW found this miniature by trolling the internet. Most likely a GW fan alerted them to its existence. Kind of silly to produce that miniature unless they thought it was so obscure it would fly under the radar of GW.

I have to wonder why they didnt do something like but the gun on the back of the lizard instead of the belly.

GW employees as well will troll the interwebs.

And the GW lap Lackeys will snoop out the heresy and then call to their masters and show them the vile deeds of the common folk.

And the GW master will raise his royal briefcase (full of money of course) and decree, "This is heresy! We can not have someone else make better things than we can! Call forth the legal dogs of writ and smite these heathens back to where we belong! We are the Masters of the H-H-H-obby"!

Eh just saying

 Sean_OBrien wrote:

weeble1000 wrote:

 Triggerbaby wrote:
Rogers v. Koons

For anybody who is unsure how this might turn out.

Again, blindly referencing a case does not say much.

More so because it wouldn't be dealt with under US law - rather through courts in the UK or the home country of Blight Wheel (Poland, France, Monaco...where ever that might be).

Wouldn't GW be hosed in the UK then since case law currently supports no copyright for toys?

 agnosto wrote:

 Sean_OBrien wrote:

weeble1000 wrote:

 Triggerbaby wrote:
Rogers v. Koons

For anybody who is unsure how this might turn out.

Again, blindly referencing a case does not say much.

More so because it wouldn't be dealt with under US law - rather through courts in the UK or the home country of Blight Wheel (Poland, France, Monaco...where ever that might be).

Wouldn't GW be hosed in the UK then since case law currently supports no copyright for toys?

Assuming that's true, I suspect these wouldn't fit the legal description of toys.

but it doesnt even sound like their making money on the model. it sounds like its just a freebee?

TheSecretSquig wrote:Because Games Workshop NEVER steal anyone else's IP........................................

I never realized how similar they look.

Howard A Treesong wrote:

 Kingsley wrote:
Seems like an obvious case of infringement to me.

No surprise there.

I lol'ed