Thoughts on recasting micromachines

[mrsuitcasegames]

Well, I've thought about getting some of my old Micro Machine toys out and recasting them. Galoob (manufacturer) has been out of business for at least five years, but the things I would be recasting woudl be proprietary (star wars, star trek, etc) as well as nonproprietary (such as the wierd tanks and such they printed for a while).

I would be doing this for my own benefit, but could I sell/trade them assuming I tell people what they are, etc? Looking for legality here as well as legit ways to pass under the copyright radar.

I'm sure there are a number of casts I could get going for scenery too- But that could be anything. thinking home made terrain from random terrain parts such as plastic bottles, PVC pipe, greenstuff etc recasted into resin/dental stone. Aslo including random toys, etc.

Also, that doesn't mean "business" does it?

Basically, looking for what I can and cannot legally (or unsueably) recast.

Any input from anybody in the know would be much appreciated.

Thanks!
-Zack

[montaa]

You may not have to pass under the copyright radar. Depending on what happened to the copyright of Micromachines when the assets of Galoob were purchased during bankruptcy, they may have simply passed into public domain.

[Linrandir]

Also consider what they may have had a license to reproduce - Star Wars, Star Trek, etc. THOSE copyrights are still firmly in effect.

I'm not a lawyer, so take this with a grain of salt: Generally speaking, sticking to the Fair Use clause (personal use ONLY with no selling/trading/transferring to others) will hold you in good stead.

[JohnHwangBT]

IMO, if you're going to go through the trouble of recasting copyrighted designs, you might as well go whole hog and sell them on eBay.

[mrsuitcasegames]

John, theres a big difference between making stuff for my own use legally, and selling them possibly illegally. Where is the "might as well" in that statement? Just curious, as I'm sure you have a good answer.

I also just have a fascination with the art of casting- not going to be recasting 40k minis or anything. I don't want them to get mixed into my "real" stuff and get accidentally traded. So I'm not going to even touch copyrighted material.

So how do I find out, if you guys don't know?

Thanks
Zack

[JohnHwangBT]

You're in the US, so there is no legally-recognized right of "fair use" to recast copyrighted mini designs, even for personal use.

In Europe, the law recognizes personal fair use, so that's different, but you don't live there.

So you're illegally copying. As you're crossing the line, you might as well sell on eBay and so forth.

After all, you could always demonstrate proper demand by buying the stuff at collector's prices on eBay.

[Linrandir]

You're in the US, so there is no legally-recognized right of "fair use" to recast copyrighted mini designs, even for personal use.

In Europe, the law recognizes personal fair use, so that's different, but you don't live there.

So you're illegally copying. As you're crossing the line, you might as well sell on eBay and so forth.

After all, you could always demonstrate proper demand by buying the stuff at collector's prices on eBay.

Please cite your source for making the claim that there is no legally recognized right of fair use to recast/copy for personal use. If you're a lawyer, then you should be stating that you are providing pro bono legal advice based on the information the OP has given. If you're not a lawyer, you need to be stating that too.


To the OP, this is how you find out:
http://www.copyright.gov/fls/fl102.html

One of the rights accorded to the owner of copyright is the right to reproduce or to authorize others to reproduce the work in copies or phonorecords. This right is subject to certain limitations found in sections 107 through 118 of the copyright law (title 17, U. S. Code). One of the more important limitations is the doctrine of “fair use.” The doctrine of fair use has developed through a substantial number of court decisions over the years and has been codified in section 107 of the copyright law.

Section 107 contains a list of the various purposes for which the reproduction of a particular work may be considered fair, such as criticism, comment, news reporting, teaching, scholarship, and research. Section 107 also sets out four factors to be considered in determining whether or not a particular use is fair:

1. The purpose and character of the use, including whether such use is of 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
4. The effect of the use upon the potential market for, or value of, the copyrighted work

The distinction between fair use and infringement may be unclear and not easily defined. There is no specific number of words, lines, or notes that may safely be taken without permission.

Acknowledging the source of the copyrighted material does not substitute for obtaining permission.

The 1961 Report of the Register of Copyrights on the General Revision of the U.S. Copyright Law cites examples of activities that courts have regarded as fair use: “quotation of excerpts in a review or criticism for purposes of illustration or comment; quotation of short passages in a scholarly or technical work, for illustration or clarification of the author’s observations; use in a parody of some of the content of the work parodied; summary of an address or article, with brief quotations, in a news report; reproduction by a library of a portion of a work to replace part of a damaged copy; reproduction by a teacher or student of a small part of a work to illustrate a lesson; reproduction of a work in legislative or judicial proceedings or reports; incidental and fortuitous reproduction, in a newsreel or broadcast, of a work located in the scene of an event being reported.”

Copyright protects the particular way an author has expressed himself. It does not extend to any ideas, systems, or factual information conveyed in the work.

The safest course is always to get permission from the copyright owner before using copyrighted material. The Copyright Office cannot give this permission.

When it is impracticable to obtain permission, use of copyrighted material should be avoided unless the doctrine of fair use would clearly apply to the situation. The Copyright Office can neither determine if a certain use may be considered fair nor advise on possible copyright violations. If there is any doubt, it is advisable to consult an attorney.

FL-102, Revised May 2009

[JohnHwangBT]

Fine, IANAL.

The OP is suggesting to cast copyrighted designs IN TOTO for the sole purpose of not having to pay the additional cost associated with the licensed, official product - while simultaneously devaluing the legitimate copies that are out there by artificially reducing demand.

US Fair Use is typically tied to reproduction of parts, for various "worthy" reasons (e.g. education, criticism) that advance the public interest. Nothing in the US Fair Use clause can be remotely construed as providing any such right to complete reproduction for selfish reasons.

That said, he is more than welcome contact the legal counsel of the current copyright holder / licensor (i.e Paramount for Star Trek, Lucas for Star Wars, etc.) and seek their permission or opinion. Most likely, they will not grant such permission, and, based on clearly illegal intent, would not be out of line to enjoin him from making any such copies in the future via preemptive restraint.

That is why I suggested that, if he is going to break US Copyright law, he might as well go all the way and sell the counterfeits.

[MagickalMemories]

1. The purpose and character of the use, including whether such use is of commercial nature

This is a potential "Get Out of jail Free" card if the caster isn't selling them.


Eric

[JohnHwangBT]

That's 1 point out of 4, barely.

Traditionally, valid Fair Use upholds all 4 factors, not just 1.

Again, it's not like the Star Wars or Star Trek licensors are hard to contact to seek permission... Just ask them!

[Linrandir]

John, you didn't answer my question. What source are you drawing your information from? Wikipedia, government copyright office, law university website?

Here's a real life example of copyright law and enforcement that Bartertown was involved with. I'm removing names, but things should be pretty clear without them.

A user posted an ad stating that they had made wreck markers for a certain game, made molds from those wreck markers, and was now selling the molds.

Bartertown staff contacted the game company that produced said game and forwarded the individual user's information. The game company investigated and issued a cease and desist letter stating that the user was violating copyright by selling the molds. The user withdrew the ad from their website and was also banned from Bartertown.
--------------------------------------------------------------------------------------
If the OP wants to enter the gray area of reproducing personally owned, licensed, copyrighted goods that are no longer being sold because the company who sold them (and was paying license fees) went out of business years ago...they do so at their own risk. The best possible advice is to consult an attorney specializing in copyright law.

[JohnHwangBT]

Lin:

The sources would be from a plain reading of *all* of the sources you mention: Cornell Law, Wiki, and the actual relevant text of the law. You, and the OP, are welcome to draw your own conclusions from the same source material. However, the default with Copyright is that no copying is allowed unless expressly permitted.

With the wreck markers, you don't state, but (presumably) the markers incorporated substantial copyrighted elements, akin to "digital sampling" in music. Without permission, license or royalty, those elements create an infringing "derivative work", that the copyright holder can (and did) assert IP rights over. That is, the wreck markers were not wholly new designs, but appropriated copyrighted designs and elements.

There is no "gray area" in copying licensed copyrighted goods for which the ultimate licensor is still in business. In effect, the OP is asking to exercise the previous license, but without paying for the license.

And, of course, he should contact a lawyer.

But the facts of what he is going to be asking are going to be so blatantly against him, it's a waste of a consultation.


Finally, the OP asked for a free opinion, he got one.

/John
____

@OP: DYOFH, I don't care.

[Linrandir]

So let me see if I understand this correctly - you're stating that the default option for copyright is that no duplication of copyrighted works is permissible at all, ever, unless the copyright holder expressly allows it? Would you then please explain the below from one of the sources you say you read:
Cornell Law:
http://www.law.cornell.edu/uscode/17/us ... -000-.html

TITLE 17 > CHAPTER 1 > § 107
Prev | Next
§ 107. Limitations on exclusive rights: Fair use

Notwithstanding the provisions of sections 106 and 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.

That's the text of the law that I'm talking about, John. Title 17, Chapter 1, Subsection 107. To use a football analogy, it punts the decision back to the individual courts. Look at the language. To use your own phrase, "a plain reading" of the law itself indicates the lack of hard, decisive language.

And that, as the Bard says, is the rub. Copyright holders have to vigorously protect their rights, otherwise the courts will not even bother looking at infringement cases they'll bring. Look at GW's legal page, it's a great bit of propaganda. The same thing goes for the use of DVD copy-protection software (remember kids, RESEARCH covers the ability to put online in a paper how to neutralize DVD copy protection software and dodge prosecution from overzealous RIAA attorneys).

I could go on for a long time citing sources as to why copyright law is a very gray legal area. But to avoid WALLOFTEXT, here're some links.

http://www.utsystem.edu/OGC/Intellectua ... pypol2.htm
http://en.wikipedia.org/wiki/Fair_use
http://www.copyright.gov/help/faq/

But it looks like you're withdrawing from the conversation anyway...I'll post this to act as a potential resource for anyone who is interested in the sticky sticky morass of copyright law.

And finally, a point of interest: Disney Corp is the biggest lobbyist for extension of Copyright past the death of the creator. How much $$$ would they lose if Mickey and Friends pass into public domain? How long has Uncle Walt been dead?

[HarlequinZero]

And finally, a point of interest: Disney Corp is the biggest lobbyist for extension of Copyright past the death of the creator. How much $$$ would they lose if Mickey and Friends pass into public domain? How long has Uncle Walt been dead?

[OT] c'mon Lin, everyone knows Walt ain't dead! He's frozen and awaiting re-animation! (much like some of his characters) [/OT]

[JohnHwangBT]

I'm only going to answer the question, because you asked it in such a was as to place me at disadvantage.

I am stating for the record that no duplication of copyrighted works is permissible at all, ever, unless the copyright holder expressly allows it.

Let's be clear that I'm talking about:
1. copying that does NOTHING to advance the public interest - not art, not criticism, not education - just saving money
2. copying as-is, without any embellishment, nor user-created content - no value added by the copier
3. copying entire works, in toto, - not parts, nor pieces, nor minor details
4. copying that has a destructive effect on the legitimate secondary market for authorized originals - artificially increasing supply and suppressing demand

Nowhere in the Fair Use language is there any support whatsoever for any sort of copying of the nature described.

If you wish to refute this, please state your case.

Otherwise, get the hell off my back.