Casting copies of K&C..etc (1 Viewer)

[Martin Tabony]

By the way "Fair Use" is a term used in U.S. law.

17 U.S.C. § 107
Notwithstanding the provisions of sections 17 U.S.C. § 106 and 17 U.S.C. § 106A, the fair use of a copyrighted work, including such use by reproduction in copies or phonorecords or by any other means specified by that section, for purposes such as criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research, is not an infringement of copyright. In determining whether the use made of a work in any particular case is a fair use the factors to be considered shall include:
1.the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes;
2.the nature of the copyrighted work;
3.the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and
4.the effect of the use upon the potential market for or value of the copyrighted work.
The fact that a work is unpublished shall not itself bar a finding of fair use if such finding is made upon consideration of all the above factors.[2

1. I don't think many are copying figures in order to educate. They have also made themselves profit by not paying for the work.
2. I don't see that you would need to steal a figure in order to revue it etc.
3. Well, that destroys the idea that as long as you "change 20 percent"!
4. This is I think the most important. You will notice it says "potential market". So again I believe destroys the idea that if they weren't going to buy multiples anyway, who cares!

Martin

 

[jazzeum]

Fair us is generally a US concept, which is why I had not mentioned it. That being said fair use is a very complicated doctrine and if I as an attorney needed to make an analysis I would consult an expert.

This is a very good website, http://fairuse.stanford.edu/Copyright_and_Fair_Use_Overview/chapter9/9-b.html, if you want to read up about it.

If you want to get a further idea on its complexity, look at the guidelines Harvard gives to its employees, etc., http://www.ogc.harvard.edu/copyright_docs/copyright_and_fair_use.php#23

 

[TomB]

Fair us is generally a US concept, which is why I had not mentioned it. That being said fair use is a very complicated doctrine and if I as an attorney needed to make an analysis I would consult an expert.

This is a very good website, http://fairuse.stanford.edu/Copyright_and_Fair_Use_Overview/chapter9/9-b.html, if you want to read up about it.

If you want to get a further idea on its complexity, look at the guidelines Harvard gives to its employees, etc., http://www.ogc.harvard.edu/copyright_docs/copyright_and_fair_use.php#23

Thank you for the Harvard Uni site....appears quiet intimidating ...should release another bust of comments after it has been read and digested ....who can anticipate what comments may follow.....WHACKO .....TomB

 

[Mitch]

Tom...

Don't know why you would think some of the forthcoming comments would be ''wacko''??? This is a complex legal area with important issues raised for the manufacturers who lose out because of theft. Nothing wacko in that at all!!

What it does show is the different ways that varying legislations deal with and interpret copyright infringement and, sadly, why those who choose to steal do so as they feel its benefits far outweigh the sanctions if they are ever caught.
Mitch

 

[DMNamiot]

As a matter of fact, I have. I contacted William Britains several years ago and they had no problem with my copying figures for my own collection. I have the letters somewhere; they were also published in one of the toy soldier magazines as well as I wanted to share both viewpoints.

Bosun Al[/QUOTE]

Hi Guys,

Al raises a great point here. WBritains found that the best way to deal with this was to do two things. One they made and sold castings of a lot of their figures so the collectors could buy the castings and paint them as they wanted. I have done this and have a nice large group of marching Gurkhas that I painted. They also gave permission to several companies and people to make castings of their figures/parts. I have seen several stores that did/do this and it has come in handy when I needed a lance arm or another part to fix a well played with figure. I dont know where the current ownership of WBritains stands on this issue but if they are worried about home casters making and selling copies of figures they certainly havent made it known. So if these major companies want to keep this type of thing from occuring then perhaps they shouldnt retire figures so rapidly and or generate larger runs of figures as castings so people can buy them and paint them as they want, also this will give these larger companies a profit from these sales and could well cut down on the backstreet casting...

Dave

 

[TomB]

Tom...

Don't know why you would think some of the forthcoming comments would be ''wacko''??? This is a complex legal area with important issues raised for the manufacturers who lose out because of theft. Nothing wacko in that at all!!

What it does show is the different ways that varying legislations deal with and interpret copyright infringement and, sadly, why those who choose to steal do so as they feel its benefits far outweigh the sanctions if they are ever caught.
Mitch

Wacko...not as in Wacko Jacko......but...Wacko...Ubeaut..bring it on..something exciting..Wow ......not wacko ...as in .....a sixpence short of a quid....type of thing......should be interesting in the various types of interpretation of said legislation (thats a mouthfull)...I await with bated breath,,,a question...how much longer can this debate carry on...must be close to exhausted by now...TomB

 

[Martin Tabony]

As a matter of fact, I have. I contacted William Britains several years ago and they had no problem with my copying figures for my own collection. I have the letters somewhere; they were also published in one of the toy soldier magazines as well as I wanted to share both viewpoints.

Bosun Al

Hi Guys,

Al raises a great point here. WBritains found that the best way to deal with this was to do two things. One they made and sold castings of a lot of their figures so the collectors could buy the castings and paint them as they wanted. I have done this and have a nice large group of marching Gurkhas that I painted. They also gave permission to several companies and people to make castings of their figures/parts. I have seen several stores that did/do this and it has come in handy when I needed a lance arm or another part to fix a well played with figure. I dont know where the current ownership of WBritains stands on this issue but if they are worried about home casters making and selling copies of figures they certainly havent made it known. So if these major companies want to keep this type of thing from occuring then perhaps they shouldnt retire figures so rapidly and or generate larger runs of figures as castings so people can buy them and paint them as they want, also this will give these larger companies a profit from these sales and could well cut down on the backstreet casting...

Dave[/QUOTE]

All good points, and lots of ways to make figures without stealing., which is what I've said. But if the owner of the copyright doesn't want the figures reproduced, copied, or whatever that is the choice of the owner.

Martin

 

[jazzeum]

Basically, Britains gave a license. If you have legal permission there is no issue. Of course, you have to comply with its terms and conditions, whatever they may be.

 

[BLReed]

.....I see no harm casting to fill in numbers for a dio....TomB

Ask any school age kid what happens when they get caught copying a classmate's work.
You'd think adults would remember that when they grow up.

I never understand people that are satisfied with a copy. Give me an orginal or forget it.
Besides if a person has the time and talent to make copies why not take the next step
and create your own. It may take a couple dozen tries, but you'd have something unique
that no one else has. Nothing more boring than seeing the same figures appearing in dio
after dio. Mostly just arranged differently on a fake grass matt.

That said, I tend to go with limited editions or Russian which tends to lessen that everybody and
his brother has the same thing.

 

[TomB]

Ask any school age kid what happens when they get caught copying a classmate's work.
You'd think adults would remember that when they grow up.

I never understand people that are satisfied with a copy. Give me an orginal or forget it.
Besides if a person has the time and talent to make copies why not take the next step
and create your own. It may take a couple dozen tries, but you'd have something unique
that no one else has. Nothing more boring than seeing the same figures appearing in dio
after dio. Mostly just arranged differently on a fake grass matt.

That said, I tend to go with limited editions or Russian which tends to lessen that everybody and
his brother has the same thing.

I asked a question...stated an opinion..right or wrong...and there have been plenty of replies....I agree with you on the unique bit...I make my own figure's..all one off...I cannot cast and am not interested in learning...but..not everyone can sculpt..good or bad or indifferent....however their work is......but...if they could.....there would be no threads of this nature.....cheers TomB

 

[jazzeum]

I think you asked this question previously so I'm not sure why it needed to be asked again. Moreover, you could have done your research instead of asking the question here as the question is more legal than the opinions you would see or expect on a toy soldier forum.

 

[TomB]

I think you asked this question previously so I'm not sure why it needed to be asked again. Moreover, you could have done your research instead of asking the question here as the question is more legal than the opinions you would see or expect on a toy soldier forum.

Jasseum....who were you referring to on your last post......you gave no reference........as my last post was directly above yours and if you were answering it...I do not understand what you mean......just courious.....TomB

 

[TomB]

I think you asked this question previously so I'm not sure why it needed to be asked again. Moreover, you could have done your research instead of asking the question here as the question is more legal than the opinions you would see or expect on a toy soldier forum.

jazzeum.....sorry I spelt your name wrong...not intended.....keyboard skipping letters or something or I am a lousy typer...probably both...my previous post was to Blreed,....I dont think I was asking a question.....TomB

 

[OzDigger]

I found this a very interesting thread which came as some surprise to me as it concerns a subject I have very little interest in. However after doing some online research it seems recasting is more prevalent than I thought. Recasting being the term used by those that make copies of original figures.

Basic Wiki link for Australian Copyright Law: http://en.wikipedia.org/wiki/Copyright_law_of_Australia#Copyright_Act_1968

The above includes a brief explanation of Fair Dealing (similar to US Fair Use) one of which allows copying for "Parody or Satire" that I thought may be of particular intererest to TomB as his cartoon figures suggests he's into that kind of thing.

I have also provided links for the relevant Australian Acts for those interested in the details:

Australian Copyright Act 1968: http://www.comlaw.gov.au/Details/C2012C00482

Australian Copyright Ammendment Act 2006: http://www.comlaw.gov.au/Details/C2006A00158/Html/Text#param212

Obviously these matters are best explained and handled by qualified legal people. Pending such input I did read enough of the above Act(s) to suggest to me that it is a difficult and expensive process for a Complainant (person that owns the copyright) to bring a successful case against a Defendant (person accused of infringing the Copyright) that is the person accused of copying the Artistic Work (Figure) for their own private collection. For example the difficulty for the Defendant in providing the court with an actual amount for Damages in such cases. And if the Defendant was unaware they infringed on someones copyright they appear to be exempt from paying any damages.

In lieu of Damages, the Complainant may opt for an Account of Profits if they think that will provide a higher remedy to them. However the Defendant can reduce the amount of their Profit by actual costs involved in production, such as cost of the metals used.

Of course there are stricter 'Remedies', including Gaol, for those dealing in Commercial Quantites, but that is another matter.

 

[TomB]

I found this a very interesting thread which came as some surprise to me as it concerns a subject I have very little interest in. However after doing some online research it seems recasting is more prevalent than I thought. Recasting being the term used by those that make copies of original figures.

Basic Wiki link for Australian Copyright Law: http://en.wikipedia.org/wiki/Copyright_law_of_Australia#Copyright_Act_1968

The above includes a brief explanation of Fair Dealing (similar to US Fair Use) one of which allows copying for "Parody or Satire" that I thought may be of particular intererest to TomB as his cartoon figures suggests he's into that kind of thing.

I have also provided links for the relevant Australian Acts for those interested in the details:

Australian Copyright Act 1968: http://www.comlaw.gov.au/Details/C2012C00482

Australian Copyright Ammendment Act 2006: http://www.comlaw.gov.au/Details/C2006A00158/Html/Text#param212

Obviously these matters are best explained and handled by qualified legal people. Pending such input I did read enough of the above Act(s) to suggest to me that it is a difficult and expensive process for a Complainant (person that owns the copyright) to bring a successful case against a Defendant (person accused of infringing the Copyright) that is the person accused of copying the Artistic Work (Figure) for their own private collection. For example the difficulty for the Defendant in providing the court with an actual amount for Damages in such cases. And if the Defendant was unaware they infringed on someones copyright they appear to be exempt from paying any damages.

In lieu of Damages, the Complainant may opt for an Account of Profits if they think that will provide a higher remedy to them. However the Defendant can reduce the amount of their Profit by actual costs involved in production, such as cost of the metals used.

Of course there are stricter 'Remedies', including Gaol, for those dealing in Commercial Quantites, but that is another matter.

OZ...when I have a spare couple of hours I will read though the paperwork....looks interesting...Tom

 

[Martin Tabony]

I found this a very interesting thread which came as some surprise to me as it concerns a subject I have very little interest in. However after doing some online research it seems recasting is more prevalent than I thought. Recasting being the term used by those that make copies of original figures.

Basic Wiki link for Australian Copyright Law: http://en.wikipedia.org/wiki/Copyright_law_of_Australia#Copyright_Act_1968

The above includes a brief explanation of Fair Dealing (similar to US Fair Use) one of which allows copying for "Parody or Satire" that I thought may be of particular intererest to TomB as his cartoon figures suggests he's into that kind of thing.

I have also provided links for the relevant Australian Acts for those interested in the details:

Australian Copyright Act 1968: http://www.comlaw.gov.au/Details/C2012C00482

Australian Copyright Ammendment Act 2006: http://www.comlaw.gov.au/Details/C2006A00158/Html/Text#param212

Obviously these matters are best explained and handled by qualified legal people. Pending such input I did read enough of the above Act(s) to suggest to me that it is a difficult and expensive process for a Complainant (person that owns the copyright) to bring a successful case against a Defendant (person accused of infringing the Copyright) that is the person accused of copying the Artistic Work (Figure) for their own private collection. For example the difficulty for the Defendant in providing the court with an actual amount for Damages in such cases. And if the Defendant was unaware they infringed on someones copyright they appear to be exempt from paying any damages.

In lieu of Damages, the Complainant may opt for an Account of Profits if they think that will provide a higher remedy to them. However the Defendant can reduce the amount of their Profit by actual costs involved in production, such as cost of the metals used.

Of course there are stricter 'Remedies', including Gaol, for those dealing in Commercial Quantites, but that is another matter.

It has always been expensive to chase someone through the courts! I find the bit about the defendant being "unaware" interesting though, that is even more reason to keep threads like this going, if only to be sure everyone is made aware and can't use that excuse.
At first look it would appear that the Australia courts takes copyright very seriously though.

Martin

 

[theBaron]

...I did read enough of the above Act(s) to suggest to me that it is a difficult and expensive process for a Complainant (person that owns the copyright) to bring a successful case against a Defendant (person accused of infringing the Copyright) that is the person accused of copying the Artistic Work (Figure) for their own private collection...

See my earlier post. You're absolutely correct. The copyright holder has to decide if the expense of prosecuting is worth it to him, to balance the loss of income from a loss of sales. For a larger manufacturer, whose output and turnover are higher, it might not cost as much as it does for the small manufacturer, working out of a small home shop, possibly even as a sideline while working another, full-time job.

And the reaction to copying definitely varies across cultural lines. Go to anime forums based in Asia and Southeast Asia, like e2046.com, and the question is not whether it's right or wrong to copy another's work, but whether the copy is a good one or not.

I also like to see the various reactions, that is, how collectors and kit builders recommend dealing with a known copycat. Most commonly, there is agreement not to buy from someone identified as a copycat, and then, depending on where the copy was found, suggestions range to reporting the sale to the site owner (eg, eBay) or the show promoter (lately reported copycats have been selling at shows). However, as was mentioned, the copyright holder has the best legal standing to do something, and so, I always add my suggestion, which is to contact the manufacturer, if possible, and alert him. He can decide what to do. If he decides not to pursue it, we can't force him to do so, and we can remain at choosing not to buy a known copy.

As far as copying for your own collection goes, if you're going to--and no one can stop you--at least be sharp enough not to bring it up in public.

Prost!
Brad

 

[Martin Tabony]

"As far as copying for your own collection goes, if you're going to--and no one can stop you--at least be sharp enough not to bring it up in public."

In other words, if you're going to steal (and you think you can get away with it) don't brag about it!

Martin

 

[OzDigger]

See my earlier post. You're absolutely correct. The copyright holder has to decide if the expense of prosecuting is worth it to him, to balance the loss of income from a loss of sales. For a larger manufacturer, whose output and turnover are higher, it might not cost as much as it does for the small manufacturer, working out of a small home shop, possibly even as a sideline while working another, full-time job.

And the reaction to copying definitely varies across cultural lines. Go to anime forums based in Asia and Southeast Asia, like e2046.com, and the question is not whether it's right or wrong to copy another's work, but whether the copy is a good one or not.

I also like to see the various reactions, that is, how collectors and kit builders recommend dealing with a known copycat. Most commonly, there is agreement not to buy from someone identified as a copycat, and then, depending on where the copy was found, suggestions range to reporting the sale to the site owner (eg, eBay) or the show promoter (lately reported copycats have been selling at shows). However, as was mentioned, the copyright holder has the best legal standing to do something, and so, I always add my suggestion, which is to contact the manufacturer, if possible, and alert him. He can decide what to do. If he decides not to pursue it, we can't force him to do so, and we can remain at choosing not to buy a known copy.

As far as copying for your own collection goes, if you're going to--and no one can stop you--at least be sharp enough not to bring it up in public.

Prost!
Brad

Yes it would be wise not to bring the subject of recasting/copying up in public if you intended to carry out that activity ^&grin

TomB doesn't seem interested in metal casting and it's not something I will ever be involved in as I learned at an early age when making lead sinkers in my Mothers teaspoons that molten metal and me just don't get on {eek3} In anycase I only collect original matte WWII figures and have no interest in traditional toy soldiers which seems to be the main target of recasters, but it was interesting to read the differing opinions of other members.

 

[mbennett]

You may disagree Matt but that's a way of measuring damages. People make copies so they don't have to pay. I don't think we can say with precision that they would or would not have purchased the figure. We do know, however, that if they make an illegal copy they have definitely denied that person a sale.

Great discussion!

Now, here is another wrinkle on this question. Years ago Ron Barzso used to create metal versions of his Rogers Rangers and woodland Indian figures, and I have quite of few of them in my collection. I purchased them from Ron himself, or from collectors who had bought from him. They paint up very nicely. I have asked Ron on many occasions if he would do his more recent figures in metal, but he says "no". So, if I make a casting of one of his figures for personal use only, I am not costing him a sale because he doesn't produce the figures in metal. (If he did, I would buy them!)

I have heard him say that those who reproduce his figures are cheating him because he has had the expense of paying the sculptor, but that is with reference to those who try to sell their reproductions. I just want to fill out my dioramas, and I would rather do it with metal than plastic.

Mike