Artist Thwacked for Conan the Barbarian Infringement

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**reds8n**

https://www.courthousenews.com/artist-thwacked-for-conan-the-barbarian-infringement/

BROOKLYN, N.Y. (CN) – Cracking down on the unauthorized sale of miniature Conan the Barbarian figurines, a federal judge hit a Spanish artist on Wednesday with a $21,000 copyright judgment.

Conan Properties International LLC brought the underlying suit last year as the owner of the trademarks and copyrights associated with the works of the the late 1930s fantasy author Robert E. Howard.

Rejecting a recommendation by U.S. Magistrate Judge Roanne Mann that the Conan character was not sufficiently distinct to warrant copyright protection, Senior U.S. District Judge Frederic Block called it erroneous Wednesday to treat “characters as separate and distinct copyright subject matter, divorced from the works in which they are embodied.”

“By requiring plaintiffs to plead specific facts showing their entitlement to a separate and distinct copyright in their characters, the magistrate judge improperly heightened the pleading requirements,” Block wrote.

“Plaintiffs plausibly alleged that they owned a valid, registered copyright in the characters by virtue of their copyright in the underlying works,” he added.

Block found that Spanish artist Ricardo Jove Sanchez infringed these copyrights by hawking his miniature sculptures of Howard’s characters on Facebook and Kickstarter, a crowd-funding website.

Sanchez failed to appear in the case, but Conan Properties entered several of his online posts as evidence in the case.

In one exhibit, Sanchez pointed to the fact that Howard died more than 80 years ago and had no children or heirs, saying “it must be assumed that personality is a public domain (as HP Lovecraft, Edgar Allan Poe, Jules Verne or William Shakespeare for example) at least on my part it deserves great respect and that their work should be taken into consideration.”

Sanchez ranked Howard in another post as “the father of the sword and sorcery genre,” and the ruling notes that he priced his figurines between from $31 to $11,425.

Judge Block noted that Sanchez’s conduct suggests “a strong threat of continuing infringement.”

“After receiving a DMCA takedown notice, Sanchez filed a counter-notice insisting his sculptures were legal and continued to sell them under thinly veiled, generic names,” the ruling states, using an abbreviation for the Digital Millennium Copyright Act. “For example, he changed ‘Conan the Barbarian’ to ‘The Barbarian’ and ‘Dark Agnes’ to ‘Swordswoman.’ The magistrate judge speculated that he did so for the innocent purpose of avoiding trademark infringement. Even if that were so — and the court is skeptical — it also suggests Sanchez’s belief that he could freely copy plaintiffs’ characters so long as he avoided using their exact names. Such a belief increases the likelihood of ongoing infringement.”

Conan Properties entered a screenshot of this post into evidence to support its copyright claims over figurines of its character, Conan the Barbarian.

An attorney for Sanchez has not responded to an email seeking comment.

Robert E. Howard was born and raised in Texas in 1906 and wrote dozens of comic books, graphic novels and assorted stories for pulp magazines that were published in the 1930s. He died in 1936. Though Conan the Barbarian was Howard’s first and most famous creation, other original characters that appeared in his works include Kull, Ironhand, Bran Mak Morn, Dark Agnes, Solomon Kane and El Borak.

Magistrate Mann had recommended in June that the court only find Sanchez liable for infringement related to the the characters El Borak, Solomon Kane and Kull. In his ruling this week, Block disagreed with Mann on the nuances of the copyright issue.

Judge Block emphasized, however, that the Second Circuit recognizes that “copyright protection for characters is a result of their embodiment in original works of authorship” like Howard’s stories.

“Because the characters are elements of the underlying literary and graphic works in which they appear, plaintiffs’ copyright registration in the underlying works satisfies the requirement that they plead ownership and registration of valid copyrights,” Block concluded.

Conan Properties and co-plaintiff Robert E Howard Properties Inc. were represented in the case by Loeb & Loeb attorney Wook Hwang.

“The characters created by Robert E. Howard, including Conan the Barbarian, Kull, Ironhand, Bran Mak Morn, Dark Agnes, Solomon Kane, and El Borak, are staples of fantasy fiction,” Hwang said in an email. “We’re gratified that Judge Block ruled in our clients’ favor and reaffirmed the continuing protection of these characters under U.S. copyright law.”

This exhibit shows figurines that Conan Properties claims were modeled without authorization on the protected works of 1930s fantasy author Robert E. Howard.

**Grimtuff**

Not surprising, the house of mouse ultimately owns Conan IIRC and litigation is their bread and butter.

**Hanskrampf**

This is bs and sets a dangerous precedent.
Hope this gets thrown out later on.

**Grimtuff**

Hanskrampf wrote:
This is bs and sets a dangerous precedent.
Hope this gets thrown out later on.

I don't think it will. Marvel since January of this year own Conan.

Marvel is owned by Disney. Disney are known for 2 things- Being overly litigious and fiddling around with the public domain. Both of which this has got caught in.

**Azreal13**

So, broadly speaking, Conan was a literary figure, Howard himself wasn't responsible for the art that the models are based on, but the case has successfully been brought against the idea of Conan by an organization that owns rights to the books and not by the artist(s) who created the actual imagery?

This seems massively wobbly and the implications are indeed severe.

**Ghaz**

Grimtuff wrote:
Hanskrampf wrote:
This is bs and sets a dangerous precedent.
Hope this gets thrown out later on.

I don't think it will. Marvel since January of this year own Conan.

Marvel is owned by Disney. Disney are known for 2 things- Being overly litigious and fiddling around with the public domain. Both of which this has got caught in.

Marvel Comics regained the publishing rights for comics based on Conan the Barbarian from Dark Horse Comics. I don't believe they own the character lock, stock and barrel.

https://www.hollywoodreporter.com/heat-vision/conan-barbarian-comics-moving-back-marvel-1074351

**Orlanth**

I remember a quiet article that ghosted through the press at how the Saul Zaentz company were preparing legal work in the US courts to secure a perputual trademarking on JRR Tolkien's IP as they enter public domain.

**Grimtuff**

Ghaz wrote:
Grimtuff wrote:
Hanskrampf wrote:
This is bs and sets a dangerous precedent.
Hope this gets thrown out later on.

I don't think it will. Marvel since January of this year own Conan.

Marvel is owned by Disney. Disney are known for 2 things- Being overly litigious and fiddling around with the public domain. Both of which this has got caught in.

Marvel Comics regained the publishing rights for comics based on Conan the Barbarian from Dark Horse Comics. I don't believe they own the character lock, stock and barrel.

https://www.hollywoodreporter.com/heat-vision/conan-barbarian-comics-moving-back-marvel-1074351

I don't think it would stop them- Remember this is the company that tried to trademark a culture. They legit filed a trademark for Day of the dead

**Ghaz**

And yet Marvel has a license from somebody to publish Conan the Barbarian comics. Hardly what somebody would do if they already owned the intellectual Property outright.

**Ashitaka**

Azreal13 wrote:
So, broadly speaking, Conan was a literary figure, Howard himself wasn't responsible for the art that the models are based on, but the case has successfully been brought against the idea of Conan by an organization that owns rights to the books and not by the artist(s) who created the actual imagery?

This seems massively wobbly and the implications are indeed severe.

This is indeed the point I was going to make and would like to echo.

It wasn't the artist of that picture, or indeed any specific picture that was used as a basis of the models that brought claim or won.

Does that mean that GW and MB infringed with the Heroquest barbarian? (as a hyperbolous example of a long-haired, muscled barbarian with a sword)
Is He-man in trouble? (there's decent info that he was based, at least in part, on Conan

Very wobbly - I don't think that Conan actually looks like the popular 'Boris paintings' idea we have of him in the actual stories. But this decision was based on the literary works? And not the art?

I believe that in the past you needed to do special work to get a copyright on a Character itself, separate from the work(s) it appears in.

**Greywing**

Hanskrampf wrote:
This is [bs] and sets a dangerous precedent.

Counterpoint: No it isn't and no it doesn't.

You can't trade on other people's intellectual property. It really is that simple.

**Monkeysloth**

Lets also not forget that there are several companies currently paying the Howard Estate for rights to make Conan figures and they all probably have clauses in the contracts where the estate could probably be penalized for not protecting it's IP.

There are lots of Not Conan stuff out there and they don't get into trouble even though they all base themselves off of the same artwork. The issue I'm sure got this guy into trouble is, and you can see it in the KS URL, he used the name Robert E Howard in the name of his KS project as well as lots of the character names. But by using Howard's name it make it look like an official licenses and I don't blame them for going after him.

**Platuan4th**

Greywing wrote:
Hanskrampf wrote:
This is [bs] and sets a dangerous precedent.

Counterpoint: No it isn't and no it doesn't.

You can't trade on other people's intellectual property. It really is that simple.

Except all those times that people and companies do.

It's not as simple as you're making it out to be.

**XuQishi**

This is very odd, given that this is just one artist's idea of Conan, in the first artworks he does not look like that.

In my opinion this should be thrown out because they sued over the wrong thing. There's no doubt that the guy ripped off that particular artwork (Vallejo, sometime in the 60s or 70s I guess?), but the literary Conan? Now that is odd, given that he is hardly ever described like that in the Conan stories by Howard, which are indeed in the public domain.

**YeOldSaltPotato**

If they've got specific works this person was effectively reproducing and making money off of it's not exactly a new precedent. And then naming after, and creating a series of miniatures also clearly based off other such works.

Minis has long been a haven of some pretty blatant unlicensed image use, but most are smart enough to play the 'this is totally a generic character' game, this guy made a legal case for them in citing a specific work he's basing a commercial miniature off of.

It's a lot like fanartists of other stripes getting legally reamed for leveraging someone else's IP.

**Azreal13**

Greywing wrote:
Hanskrampf wrote:
This is [bs] and sets a dangerous precedent.

Counterpoint: No it isn't and no it doesn't.

You can't trade on other people's intellectual property. It really is that simple.

Well that would be irrelevant anyway. Suing someone for making a visual work based on a written description is and of itself decidedly shaky.

Imagine
Author A writes a description of a character in his book. He's tall, with long hair, muscular and carries a sword.

Sculptor B makes a miniature of a tall long haired muscular guy carrying a sword, legitimately innocently with no idea of Author A's work.

Author A slaps Sculptor B with a lawsuit for ripping off his idea.

This is, in essence, what's happened here unless Howard made some sketches I'm unaware of.

Sanctioning someone for using an IP without permission to promote their work is one thing, or for ripping off artwork (but there is some grey area when translating to another medium) but to sanction them for making a visual work based on a written description is much shakier.

Automatically Appended Next Post:

Minis has long been a haven of some pretty blatant unlicensed image use,

This isn't image use. Conan doesn't have an image, he's a written character. All images of Conan are interpretations of that description, which will vary based on the artist and the specific text referenced. There is no definitive image of Conan, he exists solely as words.

Suing people for copying art is fine, but the artist needs to do that and it isn't what happened here.

**Hanskrampf**

Greywing wrote:
Hanskrampf wrote:
This is [bs] and sets a dangerous precedent.

Counterpoint: No it isn't and no it doesn't.

You can't trade on other people's intellectual property. It really is that simple.

No, it really isn't that simple.

Like others have said, Howard invented Conan and wrote books about him. The descriptions of Conan in them are very vague. Huge, muscular, guy with bronze skin and long dark hair and bangs. Wow.
You really saying I can't make a figure about this description or for that matter, of any fictional character from a book and how I imagined it in my mind?
There are literally dozens of "The Barbarian"s out there.

What's more, and what the sculptor indeed cited, is that novels normally become public domain 70 years after the author's death. This is valid for most countries, including all EU members and the US.
Keep in mind, this infrigment isn't based on the artwork, it is specifically mentioned that it is from the description in the books of Robert E. Howard.

Conan also counts as pop culture icon, making any claim to a IP infringement even more wobbly than it already is.

Anyone can make a model of a guy in a suit with pistol and call him "The English Agent".

Does that mean I can call any model I make "Conan" or "James Bond" when there is someone protecting this very IP as a trademark? No, of course not.
This lawsuit opens up the possibility of some ugly lawsuits in the future.
Want GW to try again to sue everyone making parts compatible with Space Marines? This is how you do it.

There is only so much truly original art you can make. You always copy from someone or are inspired by something.
So the next time someone makes a 08/15 zombie in a doctor's coat, I can come running and sue because I wrote and published a short story describing this very thing a few years ago?

Not so simple now, is it?

**Monkeysloth**

The Howard estate may very well own the art or have various licensing rights that allow them to sue over this. Just stating that since they're not the artist so they can't doesn't take into account how rights like this actually work.

**YeOldSaltPotato**

Azreal13 wrote:

Minis has long been a haven of some pretty blatant unlicensed image use,

This isn't image use. Conan doesn't have an image, he's a written character. All images of Conan are interpretations of that description, which will vary based on the artist and the specific text referenced. There is no definitive image of Conan, he exists solely as words.

Suing people for copying art is fine, but the artist needs to do that and it isn't what happened here.

There's been illustrated volumes of Conan stories for years that could easily be used here. I've got two sitting on my shelf. Including some downright old ones that actually depict him in mail and the funky helmet. Or do those not count as literary Conan? I'll be very specific too, these are not the comics I'm referring to, but collected stories with a handful of illustrations per story published by the estate. So there's more there than words already. Then there's the looks like Frazetta work that was copied to create this mini. And the intentional resemblance to the character as seen in the comics of the last 30 years or so.

If they didn't sue him over the correct specific work, that's one thing, but the guy openly produced a derivative of existing work and sold it.

**Greywing**

Hanskrampf wrote:

[A bunch of stuff that has literally nothing to do with the actual case under discussion]

Not so simple now, is it?

Yes, it really is.

The guy was literally selling a miniature he called "Conan the Barbarian."* And regardless of how you imagine the concept of "public domain" might work, the court specifically found the plaintiffs had valid IP rights that the guy was infringing.

* “For example, he [the infringer] changed ‘Conan the Barbarian’ to ‘The Barbarian’" -- from the original post.

**Hanskrampf**

YeOldSaltPotato wrote:
Azreal13 wrote:

Minis has long been a haven of some pretty blatant unlicensed image use,

This isn't image use. Conan doesn't have an image, he's a written character. All images of Conan are interpretations of that description, which will vary based on the artist and the specific text referenced. There is no definitive image of Conan, he exists solely as words.

Suing people for copying art is fine, but the artist needs to do that and it isn't what happened here.

There's been illustrated volumes of Conan stories for years that could easily be used here. I've got two sitting on my shelf. Including some downright old ones that actually depict him in mail and the funky helmet. Or do those not count as literary Conan? I'll be very specific too, these are not the comics I'm referring to, but collected stories with a handful of illustrations per story published by the estate. So there's more there than words already. Then there's the looks like Frazetta work that was copied to create this mini. And the intentional resemblance to the character as seen in the comics of the last 30 years or so.

If they didn't sue him over the correct specific work, that's one thing, but the guy openly produced a derivative of existing work and sold it.

No, he didn't. He didn't even use the same art medium.
He made a model, based on artwork. Suing over this is already a stretch and has gone wrong often enough to not make a solid case.

Automatically Appended Next Post:

Greywing wrote:
Hanskrampf wrote:

[A bunch of stuff that has literally nothing to do with the actual case under discussion]

Not so simple now, is it?

Yes, it really is.

The guy was literally selling a miniature he called "Conan the Barbarian."* And regardless of how you imagine the concept of "public domain" might work, the court specifically found the plaintiffs had valid IP rights that the guy was infringing.

* “For example, he [the infringer] changed ‘Conan the Barbarian’ to ‘The Barbarian’" -- from the original post.

And other courts have disagreed on this PoV in the past.
And I'm not sure the sculptor ever used the trademark protected names (no argument here, but that's also not what this lawsuit is about), because I remember the Kickstarter, and the last image in the OP was in this Kickstarter with these generic names.

**Azreal13**

YeOldSaltPotato wrote:
Azreal13 wrote:

Minis has long been a haven of some pretty blatant unlicensed image use,

This isn't image use. Conan doesn't have an image, he's a written character. All images of Conan are interpretations of that description, which will vary based on the artist and the specific text referenced. There is no definitive image of Conan, he exists solely as words.

Suing people for copying art is fine, but the artist needs to do that and it isn't what happened here.

There's been illustrated volumes of Conan stories for years that could easily be used here. I've got two sitting on my shelf. Including some downright old ones that actually depict him in mail and the funky helmet. Or do those not count as literary Conan? I'll be very specific too, these are not the comics I'm referring to, but collected stories with a handful of illustrations per story published by the estate. So there's more there than words already. Then there's the looks like Frazetta work that was copied to create this mini. And the intentional resemblance to the character as seen in the comics of the last 30 years or so.

If they didn't sue him over the correct specific work, that's one thing, but the guy openly produced a derivative of existing work and sold it.

But if they didn't own the rights to that work (assuming the illustrations weren't created by Howard, therefore unless they were signed over to the estate in perpetuity then they wouldn't) then they can't sue for them.

**YeOldSaltPotato**

Hanskrampf wrote:

No, he didn't. He didn't even use the same art medium.

Which you don't have to do to create a derivative work.

He made a model, based on artwork. Suing over this is already a stretch and has gone wrong often enough to not make a solid case.

He made a derivative work of art of a specific character image he did not own right to. It's not all that hard and will get a lot of minis companies stomped on if they follow your interpretation here.

There's a reason the one guy backed off the Cain and Jurgen miniatures a few months back. Right before I had the money to buy them too, if GW wanted to he didn't have much of a leg to stand on against them legally. So now he's now mostly doing slightly more generic characters instead.

**Azreal13**

Derivative works in a different medium is a murky area. When the GW (or Disney) legal gorillas come knocking, you better be able to afford to lose, even if you're technically correct.

I've no great insight into the subject, it ever since Blight Wheel I've seen a few come up, and little people can't afford to bet the farm on what essentially seems to be a coin flip.

**Hanskrampf**

YeOldSaltPotato wrote:
Hanskrampf wrote:

No, he didn't. He didn't even use the same art medium.

Which you don't have to do to create a derivative work.

He made a model, based on artwork. Suing over this is already a stretch and has gone wrong often enough to not make a solid case.

He made a derivative work of art of a specific character image he did not own right to. It's not all that hard and will get a lot of minis companies stomped on if they follow your interpretation here.

There's a reason the one guy backed off the Cain and Jurgen miniatures a few months back. Right before I had the money to buy them too, if GW wanted to he didn't have much of a leg to stand on against them legally. So now he's now mostly doing slightly more generic characters instead.

Again, this lawsuit isn't about the artwork. It's about the written stories by Howard.
I wouldn't argue if they were suing over the artwork. But they're not.

Your Cain and Jurgen miniatures are also still available, so I'm still not seeing your point.
He's also selling a 40k-ified Solomon Kane. So I guess he's next after Hasslefree, Reaper, Gorgon Studios, etc.

**YeOldSaltPotato**

Azreal13 wrote:

But if they didn't own the rights to that work (assuming the illustrations weren't created by Howard, therefore unless they were signed over to the estate in perpetuity then they wouldn't) then they can't sue for them.

Even accepting your position on those volumes, comic Conan isn't literary Conan? Despite being more or less identical to the later depictions for the illustrated editions? Odds are quite good that the estate owns part of the image of Conan used in those comics, and similarly the rights to these images if they're using them so many years later.

You're splitting hairs on the idea of image here when the miniatures involved are openly based on specific artworks portraying the character. That gak takes licensing. It's no different than if Disney walks up to someone selling knock off stuffed mickey mouses at the state fair.

**Hanskrampf**

YeOldSaltPotato wrote:
Azreal13 wrote:

But if they didn't own the rights to that work (assuming the illustrations weren't created by Howard, therefore unless they were signed over to the estate in perpetuity then they wouldn't) then they can't sue for them.

Even accepting your position on those volumes, comic Conan isn't literary Conan? Despite being more or less identical to the later depictions for the illustrated editions? Odds are quite good that the estate owns part of the image of Conan used in those comics, and similarly the rights to these images if they're using them so many years later.

You're splitting hairs on the idea of image here when the miniatures involved are openly based on specific artworks portraying the character. That gak takes licensing. It's no different than if Disney walks up to someone selling knock off stuffed mickey mouses at the state fair.

And again, this lawsuit isn't about the artwork. It's about making claims out of very vaguely written descriptions of characters.

**Azreal13**

+1

If there is no artwork owned by the Howard estate, then all they have is words.

You cannot use words to litigate over visual imagery.

**Orlanth**

Ashitaka wrote:
Azreal13 wrote:
So, broadly speaking, Conan was a literary figure, Howard himself wasn't responsible for the art that the models are based on, but the case has successfully been brought against the idea of Conan by an organization that owns rights to the books and not by the artist(s) who created the actual imagery?

This seems massively wobbly and the implications are indeed severe.

This is indeed the point I was going to make and would like to echo.

It wasn't the artist of that picture, or indeed any specific picture that was used as a basis of the models that brought claim or won.

Does that mean that GW and MB infringed with the Heroquest barbarian? (as a hyperbolous example of a long-haired, muscled barbarian with a sword)
Is He-man in trouble? (there's decent info that he was based, at least in part, on Conan

Very wobbly - I don't think that Conan actually looks like the popular 'Boris paintings' idea we have of him in the actual stories. But this decision was based on the literary works? And not the art?

I believe that in the past you needed to do special work to get a copyright on a Character itself, separate from the work(s) it appears in.

To muddy the waters further the loin-clothed muscle bound Conan is itself an artistic reinterpretation. Howard's Conan was big and strong, but he was also fast. He appeared to be of more medium-heavy build, but very tall, and he wore whatever clothes suited the occasion or climate and went into battle fully armoured.

**Sqorgar**

I think this lawsuit is bs. Many of the Howard works are public domain (it's been almost 100 years since they were published), and the ones that weren't are using legal loopholes in order to prolong ownership well past the intended point. The legality of current copyright ownership over Howard's works are muddy, confusing, and probably not 100% legally accurate. Howard did not own the copyrights to his own published works, and the rights were owned by the publishers and required constant renewal over the years - much of which was either not done or done improperly. I don't think Conan IP Trolls LLC can factually prove that they have the ownership of all the works that they are suing over. A large majority of the works they unequivocally own were published in the 60s - previously unpublished works, annotated versions, etc. Not the original stories and certainly not the character of Conan himself.

They've sued people before over this, such as suing a group that had a fan-recorded reading of Conan stories, using the complaint that their works could potentially reach a country in which Conan was not public domain yet. These guys are IP trolls of the worst order and a blight on copyright law. Over the next few years, more and more Howard works will be going public domain, and my guess is that these guys are trying to get a payout while they can still argue they own it.

Second, one can easily argue that changing the names of the figures from "Conan" to "Barbarian" is more than enough to protect itself. Basically, you can copyright a specific character but you can't copyright the looks of a character. Even if the model is OBVIOUSLY Conan, if you don't call it Conan, you are in the clear (and there are MILLIONS of examples of this out there). In fact, this article specifically shows the judge throwing out that idea against recommendation from a US Magistrate judge. Instead he forced the sculptor to prove that he had the right to make something similar to Conan, which is absurd and the reverse of how copyright law works. You aren't guilty until proven innocent. That's grotesque.

This whole thing is irritating. Conan has become a de facto standard of the fantasy literary genre and is an archetype found in Dungeons and Dragons, He-Man, Thundarr the Barbarian, Hero Quest, and just about everything else. Hell, Howard's works are basically the beginning of the fantasy genre, and as many tropes and standards can be traced back to him as Tolkien. Conan was already effectively in the public domain with regard to its influence and use throughout the world, but some copyright troll went and bought some rights (that aren't nearly as substantial as they are suggesting) and suddenly all that derivative work is in danger. At the very least, future derivative works are in danger, and I guess my recommendation to that is say that you were influenced by Thundarr - maybe Hannah Barbara is less litigious.