I ran across this thread a day or two ago and, due to my schedule, it has taken me a bit of time to craft a meaningful contribution to this discussion.
I have to say I’m shocked and very disappointed in the rather casual attitude of people who are engaged in the illegal copying production figures from various manufacturers. We are all friends and colleagues here, and it’s not my style to be the heavy online; but someone needs to set the record straight, and that job seems to fall to me. Full disclosure: I’m an Attorney in the US, and Intellectual Property is one of my practice areas. My clients include software developers and those making and marketing a product like toy soldiers. I can tell you that in the miniature figure painting world, where I spend much of my time, this subject is taken very, very seriously. Our ethic is not to make unauthorized copies, purchase unauthorized copies or tolerate those who do, whether for profit or not. It should be no different here.
On a moral level (An old fashioned concept, I know, but one I still respect!), make no mistake. If you copy a figure without permission, you are stealing. Stealing being defined as appropriating the property of another for your own use without compensation or their consent. There is no difference between illegal copying and lifting a box of soldiers off a dealer’s table without paying. If you would not do this, then you should not copy figures (“copy” here means unauthorized/illegal copy). It’s simply morally wrong. When you copy, you deny the maker and the dealer their fair income. This means that they make less money on their business – which has many fixed costs. At some point, they must either raise prices for the rest of us or go out of business. There is also the psychological damage to the maker of seeing their hard work stolen. Manufacturers make a substantial investment of time and money and take large financial risks to bring us our little joys. Imagine seeing these products copied without your permission. Imagine struggling with or losing your business to someone capitalizing on your work without properly compensating you. It’s disheartening, to say the least. Besides many of us count these dealers and manufacturers as friends. We see them at shows, eat and drink with them, correspond with them, etc. Is that how you treat a friend who supplies you with the things you enjoy??
Now on to the legal part. I strongly disagree with the statement of the law given elsewhere in this thread. The copyright law is found at Title 17 of the US Code at Chapters 1 – 12. Here’s a link to the US Government pamphlet:
http://www.copyright.gov/title17/circ92.pdf. As is often said, “When all else fails, read the instructions.” ….in this case, the law. Sections mentioned below are in the pamphlet.
Section 202 – owning the work does not give you any right to copy it. Ownership of reproduction rights is separate from ownership of the work itself. Just because you buy a figure does not give you the right to copy it – whether or not for profit. Section 106(1) - reproducing the work is the exclusive right of the copyright owner. (By the way, just because an owner is out of business or not making the item anymore does not give you the right to copy it. I have a client who funded his new business on revenues from infringers on a product that was out of production.) Sect 107 - a limitation on the owner’s exclusive rights to reproduce is “fair use.” Fair use is discussed in the sections following 107; I’ll summarize here. (If you want a more detailed discussion, I am available at my regular hourly rate
to discuss this.) Generally, fair use means reproducing a relatively small portion of the work for purposes of discussion, review or education. Slightly different rules apply to libraries, universities and the like, which may copy entire works in certain cases; but the point is: Conceptually, these fair use rights are aligned with free speech and the free flow of information. There are also special rules that apply to electronic media owing to the rather uncertain permanency of that media, including rights to make backup or archival copies for personal use. These rules do not apply to hard goods like toy soldiers. Further, a back up copy of your favorite music CD has no intrinsic value – people buy only one copy of a CD or DVD. This is not true with toy soldiers since each copy you make has an intrinsic value equal to market value – that’s why you are motivated to copy: “to save money” And that’s why it is an infringement to do so. Every infringer argues fair use as their first defense, if they are not attacking the owner’s rights. Courts don’t usually buy it. If you make 50 copies of a figure “for your own use,” the fact that you are not selling them does not make them authorized copies, but goes only to how damages for your infringement are calculated. Bottom line: Unless you have the authority to make a copy, making a copy for personal use is not fair use and does not make your action lawful. DON’T DO IT!!
So, now that you have been found by a court to be an infringer, what can you look forward to in the way of penalties? There are two kinds of damages: statutory damages and actual or compensatory damages (Section 504). Since you made copies for your own use, I would counsel Plaintiff (his choice!) to go with statutory damages. Statutory damages can be assessed at between $750 - $30,000 for all infringements of each work. If you copy 5 different figures, each figure is a separate “work,” and you multiply the statutory damages by 5. If the court finds your infringement “willful” the statutory damages can be increased to up to $150,000 per work infringed. Each of the figures in your cabinet, evidence which you have so thoughtfully preserved for the copyright owner, will make it very hard for you to say “Whoops!” (…I didn’t know what I was doing, …didn’t mean it, …only joking, …giving proceeds to charity, …dog ate my homework, etc.). Plus, you have announced your scofflaw, willful intentions here on the internet for all to see and record – probably something you’ll regret in court!! In addition, the court may award costs and attorney fees to the copyright owner – I.P. attorneys are notoriously EXPENSIVE. So add a good six figure sum to the above if a trial is involved. Then, pay your own lawyer – probably another six figures. You can value the personal stress, marital difficulties with SWMBO, and the aggravation of dealing with lawyers and the courts on your own. Oh! And there’s the possibility of criminal penalties in Section 506. Have I got your attention yet?
Do the math. Retail seems cheap, doesn’t it? Your taking these risks for a few lousy bucks? And we have left out of this equation the investment in your own time, equipment and materials, possible health risks, etc. Even if you calculate based on paying yourself only minimum wage, it’s probably cheaper – and certainly easier - to buy the figures you want. Hey, here’s an idea! Contact your friendly dealer and see if you can negotiate a discount based on buying a bunch of the same figure! Why not discuss your situation with the manufacturer at the next show – maybe they have an answer. The point is: illegal copying is not a victimless crime, and you do not have the right to make copies just because your formation needs a few figures and you're too cheap to buy them. The people who bring us these figures depend on our honesty and respect of their rights in running their business. I think we owe them that.
I don’t intend to respond here to a thousand questions on the above or to help you figure a way to infringe with no legal consequences. I’ve given you the tools to verify what I say. A word to the wise ought to be enough. Now you are warned. If you choose to continue copying, and I most strongly advise against this as a lifetime modeler, painter and toy soldier enthusiast, that is your decision. You may or may not be caught and prosecuted. You may or may not be able to prove fair use or that your infringement is not willful. Moral goodness, friendship and common decency may or may not be trumped by selfishness and greed. But, as Dirty Harry would say, “Do you feel lucky? Well, do ya?”
