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Ok, here's the short version, I've come up with an idea for an alternative table-top wargame that uses cardstock punch-outs with detailed photographs of miniatures that I painted myself as the "army" that a player would use on the table. Saving someone from spending hundreds of dollars and hundreds of hours buying and painting the army themselves. It's a good idea, the problem is that I've e-mailed the different companies whose models that I painted, and none of them have agreed for me to proceed with my idea. So my question is: If I legally purchased the model, painted it myself, and then photographed it myself, would that be an infringement of copyright for the model company? I'm looking for opinions on both sides of the aisle on this one, and any copyright attorneys are more than welcome to chime in.

From my understanding (not a lawyer) based on researching various bits and pieces related to copyright over the years, taking photographs of something that is protected by copyright is probably technically copyright infringement. The 'probably' is because it's a bit of a grey area, depending on the specific legal classification of the product in question, and miniatures fall into a legal grey area of their own (are they sculptures? are they merely a functional product? Nobody knows for sure!)

That's not usually a problem where it's just, for example, sharing photos of a miniature you painted, to show off your work. But using those photos without permission as part of a game that you are producing and selling is likely to result in a letter from someone's legal representative.

You would be better off finding an artist (unless you have the skills yourself) to work up some suitable illustrations to use instead.

if you bought the model, painted it yourself, photographed it and than share the picture, everything is fine

the problem starts as soon as you start selling the picture, so unless you give away the cardstock for free or just share the file for people to print on their own, you have to make your own models or 2D art.

2D paper models is nothing new, you can find a lot of them free on the web for printing on your own, as well as "books" with cardstock models for all kind of armies
(there are pics in the club when it started back in the 70ies and they played ColdWar and WW2 with paper models only)

PS: and One-Page Rules is doing exactly that, he is offering 2D models to print on paper for his games

Way way back when I worked in a gallery in my less bald years, we had an issue with professional photographers coming in and taking high quality photos of the paintings on show without permission. Something about how the copyright applied to the photograph not the object within the photo, meaning the photographer was free to publish and sell prints of the photo of the painting. (This is back in the hazy past so don't take it as anything other than a vague memory of something that could've been poorly explained to me)

Copyright and Intellectual Property are two different things.
Even if you own the copyright to a photo, because you took it, doesn't mean you can freely publish, distribute and sell it.

I'm also pretty sure that each country has different laws regarding those two things.
Going from German laws from here, so your country's may differ:

If you take a photo, you have the copyright of that photo. But depending on what the photo shows and where it was taken you are allowed to do different things with it.

Example:
Photo taken in a public place - do whatever
Photo taken in a public place, but focus is on a small group of people or a single person - you need to get their consent to publish and/or sell the photo
Photo taken in a public place, focus on a small group of people or a single person during a public event - do whatever
...
Photo taken in a private place - you need the permission to take the photo beforehand, and consent to publish and or sell
...
Photo taken in a public place of an art installation - need permission to sell (example: Eiffel tower by day: you're fine; Eiffel tower by night with the light installation on: it's art, need permission)


Now add IP laws to that and it gets even more complicated.
As you want to use the photos as a deriviate you intend to sell and they are the main driving point of the product, I don't think you stand any chance, in basically any country with halfway 'normal' IP laws.

Think of it like this, whilst you're using your own work, the actual design of the model is someone else's design work. You're attempting to sell and profit not just off your own work, but another persons and that's where the issue comes in. It's the same as how you might own a codex, but you can't scan the photos, print them and then sell them even if you changed them to black and white or colourized the black and white ones.



As noted the idea is nothing new and you would be better working with your own designs. You might get some luck with the 3D printing market though. Dragon Trappers Lodge also sell 2D game card designs, so there's a few doing it. You might approach one and show an example of your work and see if that might work for them. You'd more be working for them to make the photos up and such.


Though honestly you'd have to have some very good painting and photography to beat 2D art designs.

You're asking if you can legally use someone else's work when explicitly forbidden by them. Lemme tell you, no matter the legal answer, that puts you deep into "not touching your product with a 10-foot pole" category.

If it's legal, they have no grounds to forbid him. Is it legal? I don't know, I imagine it depends on how much you're willing to spend on lawyers to prove your work was transformative enough.

Cronch wrote:
If it's legal, they have no grounds to forbid him. .

Even if it's technically legal (which I don't believe it is) it would be common courtesy to not use someone else's product for your own benefit if they've asked you not to. (ref: Wierd Al getting permission from song owners before releasing his parodies, despite not being legally required to do so)

Wargaming is a comparatively small industry, and it generally pays to try to play well with others.

Quite aside from your legal position, which I'm in no way qualified to comment on and as others have mentioned would be entirely different from Country to Country.

If you're using tiles/standees/tokens with images then I think illustrations of the different things would look better. They can be far more identifiable too.

You can find decent artists all round the place and there are a lot of enthusiastic amateurs who may be interested in getting involved. Take a look on Fiverr, there's a guy I spotted page one of the illustration listings who'll do Sci-Fi or Fantasy Characters for £3.71 each.

I think it's a grey area.

Imagine you bought some clay, created a sculpture, painted it, and photographed. I don't think the clay seller would have any leg to stand on claiming that's their work.

Now imagine you go to Warhammer world, and snap a picture through the display cabinet. I think you'd have a hard time claiming that isn't entirely GW's product.

Obviously, this situation falls somewhere in the middle of those two extremes. I think it would depend on how much you convert the models. Building them out of the box I think would still be the model seller's art and therefore you couldn't use it.
But if you heavily converted it, used lots of different pieces with cutting and greenstuff and such, so it's not identifiable as a GW or whoever model, I think you could confidently say you had transformed it enough to where it was now your creation.

Just hire an artist to draw a different yet inspired version of the model you want and you are good to go. Then you own the copyrights.

You can see this in "action" on the Wargame Vault. Here is a link:

https://www.wargamevault.com/



Also, these punch-outs you talk about? I think they are called Standees in Mini-wargamer lingo.

So what exactly is entailed in this gaming system?

And there is a way you could do it legally if you did not include work from a game company that exists.

But if you made a game where people could use their own photos at home and place them in empty slots, it would work.

The main hurdle here would be simply hiring a 3D artist, printing out a bunch of minis and painting them up, photograph them then punch out the pics. Just for advertising the concept on the box.

If you Sold the game system but not the images, and explained how it works "USE YOUR OWN PHOTOS OF MINIS" and provided rules for different weapons
then it could work.

However it probably would not be a huge success, but you could push a few units. Maybe enough to almost break even.

Explain the game system that you want to make its rules etc. Show us some samples.

Interesting idea, not sure how much traction it will have. But then again George Lucas sold products to Hold products he didn't yet have for Starwars.

I'd also like to add that making a game of any kind is a huge undertaking and risk. It requires hours and hours of playtesting, strong concepts that people might find interesting. You're going to need an editor, and an artist at the very least. So all of that requires a cost.

There are systems that exist where you can "bring your own minis" You could market your game system as this, or as "use your own photos"

But you need experienced people to for a lot of stuff, and all of that costs money.

Regardless I wish you well in your journey to publishing a game. lol Just don't use any of our miniatures without our permission.

I'm also confused as to how you reached out to different game producers. Most of them have systems in place so you can't really talk to anyone except customer service.

Bayonet&Ricochet wrote:
And there is a way you could do it legally if you did not include work from a game company that exists.

But if you made a game where people could use their own photos at home and place them in empty slots, it would work.

The main hurdle here would be simply hiring a 3D artist, printing out a bunch of minis and painting them up, photograph them then punch out the pics. Just for advertising the concept on the box.

If you Sold the game system but not the images, and explained how it works "USE YOUR OWN PHOTOS OF MINIS" and provided rules for different weapons
then it could work.

However it probably would not be a huge success, but you could push a few units. Maybe enough to almost break even.

I'm not sure that 'Instead of buying miniatures and using them in your games, buy miniatures and take photos of them to turn into standees to use instead of the miniatures' is going to catch on at all, honestly...

OP here, thanks for the responses, I guess I'll shut down the project at this time.

 insaniak wrote:

Bayonet&Ricochet wrote:
And there is a way you could do it legally if you did not include work from a game company that exists.

But if you made a game where people could use their own photos at home and place them in empty slots, it would work.

The main hurdle here would be simply hiring a 3D artist, printing out a bunch of minis and painting them up, photograph them then punch out the pics. Just for advertising the concept on the box.

If you Sold the game system but not the images, and explained how it works "USE YOUR OWN PHOTOS OF MINIS" and provided rules for different weapons
then it could work.

However it probably would not be a huge success, but you could push a few units. Maybe enough to almost break even.

I'm not sure that 'Instead of buying miniatures and using them in your games, buy miniatures and take photos of them to turn into standees to use instead of the miniatures' is going to catch on at all, honestly...

I'm inclined to agree. I was stating more of a legal way that it could work. Not so much that it would sell well or gain traction.


Automatically Appended Next Post:

 sub-zero wrote:
OP here, thanks for the responses, I guess I'll shut down the project at this time.

You could always take your ideas and game system and sell it as a bring your own minis book.

It did seem very unlikely that it would have done well in its original idea.

But if you have a game system, flush it out and get it published. *Bring your own minis* is a thing that people actually enjoy.

Can we see what you have so far? Maybe we can help you fill in the holes.

I encourage you not to give up, but instead just modify your concepts.

In many ways "bring your own miniatures" is likely to be more popular as it allows people to play the game without feeling like they'd be wasting the big expensive collections they've lovingly acquired.