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Post by recca74 on Jan 22, 2011 20:33:57 GMT -5
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Post by ancer on Jan 22, 2011 21:56:39 GMT -5
Feel really bad for those guys . the photos look great .
they should get jobs for this instead of jail .
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Post by xiombarg on Jan 22, 2011 23:08:53 GMT -5
Ridiculous. I can't believe a company would actually be so uptight as to arrest someone for making a one of a kind custom.
The only reason for I can think of for such extreme action would be because the figure was actually too good, and viewed as an artistic threat by TOEI and their plans to make a mass production version of the figure. That is so lame though..
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Post by KingboyD on Jan 23, 2011 15:23:55 GMT -5
Damn, that sux. What a great custom!
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Post by newtype78 on Jan 27, 2011 19:39:50 GMT -5
While I'm morally on the side of the arrested, I have to say that I can understand Toei's decision to pursue legal action against the auctioners of the custom figure. The main reason, I think, is the fact that the auction of the custom figure resulted in such a high winning bid "269,001 yen (about US$3,300)". If the auction ended up selling the figure for a few hundred dollars, I don't think Toei would have done this. Due to the seemingly high quality of work in this particular custom figure and the high winning bid, I think Toei is looking to make an example of these unfortunate custom figure makers.
Let's keep in mind that custom figures often uses the image of a copyrighted characters. Then consider that custom figures are normally sold via public auction or through custom orders. So that means custom figure makers profit from someone using someone else's intellectual property. That's at the heart of this matter. It's nice to say that these guys should be offered jobs or something similar because they did such a good job on the custom work but that's probably not the first thing I'd think of if I was in the same position of having my own intellectual property used without my permission.
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Post by mechamasterj on Jan 31, 2011 21:50:04 GMT -5
yeah I would friggin make a mass produced one thats what I would do if I was smart and Toei!! this makes people not want to do custom work but I wonder really in the US custom figs of marvel char and others are sold on ebay all the time. it doesnt seem to hurt the marvel or the other companies (or else they would of seeked legal action long time ago) so whats the big deal in Japan? honestly if someone wants to pay 3K for a peice of art then so be it...... we are allowed to paint pictures and make sculptures of "intellectual properites" so why not a figure? A damn good figure at that. I really dont think Toei lost anything out of this, i hope they spent more trying to pursue legal action then they got out of stopping this guy.
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Post by magengar on Feb 11, 2011 1:23:17 GMT -5
If I were a Toy Manufacturer, and someone made a custom
toy figure of My product, I'd take that as a Compliment and
as a Tribute. I'd even offer that person a job since he or she
is That GOOD!
JEEEZ! This is the 2nd bad news I've just stumbled upon in
the last five minutes.
I just don't get it. Well, I do... it's about Copyright infringment issues
or related. Still, gimme a break, that person wasn't making any money
of that custom wasn't he!? He made it because he's a hardcore fan!
His work is awesome and very dedicated to his hobby.
I hope he wins the case, I really do.
zozo-Magengar
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Post by newtype78 on Feb 12, 2011 10:13:33 GMT -5
I think the problem that people are either skirting around or not understanding is that it's something that was sold. That's the main issue. Fan art made for your own enjoyment in the privacy of your home isn't illegal. Selling fan art, however, is illegal when that fan art uses protected likeness/imagery/concepts.
My concern in this case is that if Toei is able to have their law team succeed in punishing the men arrested to the fullest extent of the law in Japan, it'll set a precedent that will allow other companies to pursue similar actions against any other custom toy maker that sells their work, regardless of the price.
I do have to say, though, that if one uses an existing concept in their custom toy work and then they sell it on the open market, they should be aware that they're taking a risk. The main reason most companies don't go after custom toy makers is that there's too many out there and arresting a few won't stop the rest from continuing to do what they do. However, it's not as if these companies aren't aware of the situation. I believe during Botcon 2009, Hasbro stated that they don't have much of an issue against 3rd party products as long as they don't exceed $100. They were basically drawing a line in the sand, declaring that if anyone makes a Transformers related product that sells for over $100, they'd be in trouble.
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Post by recca74 on Feb 13, 2011 0:11:30 GMT -5
I think the problem that people are either skirting around or not understanding is that it's something that was sold. That's the main issue. Fan art made for your own enjoyment in the privacy of your home isn't illegal. Selling fan art, however, is illegal when that fan art uses protected likeness/imagery/concepts. My concern in this case is that if Toei is able to have their law team succeed in punishing the men arrested to the fullest extent of the law in Japan, it'll set a precedent that will allow other companies to pursue similar actions against any other custom toy maker that sells their work, regardless of the price. I do have to say, though, that if one uses an existing concept in their custom toy work and then they sell it on the open market, they should be aware that they're taking a risk. The main reason most companies don't go after custom toy makers is that there's too many out there and arresting a few won't stop the rest from continuing to do what they do. However, it's not as if these companies aren't aware of the situation. I believe during Botcon 2009, Hasbro stated that they don't have much of an issue against 3rd party products as long as they don't exceed $100. They were basically drawing a line in the sand, declaring that if anyone makes a Transformers related product that sells for over $100, they'd be in trouble. So I would imagine that the revenue cap is how dojin artists are able to sell at Comiket, WF and JAFcon? That makes sense. I've always sort of known I suppose that creators can face reprisal from corporations if the conditions are just right. Still pretty crazy that with all the bad stuff happening, people who customize action figures can be the target of such strong actions. Tough deal, man!  |
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Post by magengar on Feb 13, 2011 3:29:57 GMT -5
Now I'm getting the picture clear. If I were to make a custom Maz figure and sell it. then Of Course my ass is Grass by the Brass. How about if I made some to pass out to friends for Free so they can paint it up and dress it up in Bratz clothes and whatever, and just charge for Shipping? Never mind, it's still considered making money off an existing product. The FEDs will Always find technical ways to nail someone.  zozo-Magengar |
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Post by newtype78 on Feb 13, 2011 10:01:09 GMT -5
So I would imagine that the revenue cap is how dojin artists are able to sell at Comiket, WF and JAFcon? That makes sense. I've always sort of known I suppose that creators can face reprisal from corporations if the conditions are just right. Still pretty crazy that with all the bad stuff happening, people who customize action figures can be the target of such strong actions. Tough deal, man! I'm not sure how things work in the dojin industry but I imagine the situation is a similar sort of deal. The Tokyo Wonder Festival is an example where unofficial products can be sold legally. Companies such as TakaraTomy will issue limited time licenses to 3rd party product makers to grant them the ability to sell products during Wonder Festival with the official company's permission. Normally, custom toy makers wouldn't be targeted by a company like Toei because there's simply too many out there to stop but I think this situation where people were arrested was due to the particularly high price the custom figure in this situation sold for. I hope that the situation ends up with being more of a scare tactic by Toei than something that results in jail time or significant fines on the men arrested. Now I'm getting the picture clear. If I were to make a custom Maz figure and sell it. then Of Course my ass is Grass by the Brass. How about if I made some to pass out to friends for Free so they can paint it up and dress it up in Bratz clothes and whatever, and just charge for Shipping? Never mind, it's still considered making money off an existing product. The FEDs will Always find technical ways to nail someone. zozo-Magengar As long as the shipment price is actually what was charged and the receipts from the post office or courier service was kept to verify that, one could easily argue in court that the shipping price is for shipment of the item, not payment for the item itself. Transportation of a free custom figure isn't illegal since you're not selling the figure, just recouping the cost of the shipping expense. |
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Post by mechamasterj on Feb 14, 2011 21:58:09 GMT -5
Ha thats a loop whole.
Yeah many companies allow the sale of their intellectual properties if you would at special events. They usually put a cap on price and the amount they can sell the figures. I also hear that the temporary licenses are free to acquire but I do believe they have to pay a booth price at the event which im not sure if companies get any kind of kick back from these. One thing they do get is free promotion since the custom builders are making figures of their properties.
I assume they went after these figures because of the price of the final sale. Now if this is a way to curb these crazy auctions (meaning they dont care as long as a large profit is made) than im all for it because these custom figures can sell for astronomical ammounts and sculptors take advantage on that. But again, art is art right? and only you can put a price on art.
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Post by newtype78 on Feb 15, 2011 1:52:19 GMT -5
The high winning bid basically singled out these custom toy makers from the others and drew Toei's attention. Rather than going after each custom toy maker they can find, which would be time consuming, I think Toei is hoping, with a single act, to make a harsh example from these two men in order to curb the activities of other custom toy makers.
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Post by 00silvergt on Feb 15, 2011 14:42:42 GMT -5
See, the problem here is that we are talking about Japan using American mentality. To understand the Japanese Criminal Justice System, one have to look at their society. They are forbidden to own, use, carry guns, hence the popularity of airsoft replicas, they do not have miranda rights, often suspects are beaten into confessing. They have a cop assigned to a block that knows the residents and will enter premises whenever he deems it necessary. Hence the murder rate in Tokyo, being one of the largest cities on earth in population is lower than an American township in BFE. They have traded their civil liberties for security. Something, Ben Franklin realized when he coined, "Sell not virtue to purchase wealth, nor Liberty to purchase power."
So, this is not a question of morality. If you think about it, what these guys have done has no moral implications- they took a mass produced toy, used their skills and talents and made a custom, unique toy. Perhaps the violation was trading or selling such a creation, but regardless. I don't see an ethical conflict. The moment they made the modifications, this toy became unique, if they choose to sell it in return for their hardwork and talent, that's free enterprise.
So this is a question of legality in a certain locality. According to the article, these guys were arrested for violating the Japanese Copyright Act. I am not a copyright lawyer, but I do have an understanding about copyright, being a photographer. US law and international treaty law has deemed any original work is thereby copyrighted the moment it is produced. So no, you do not have to register the copyright for the copyright to belong to you. You used to, but that's now changed. The law is pretty strict about the use of copyright without permission with the exception of what can be determined as fair use. Fair use includes that of satire, commentary and education. This makes sense, for if an editor of a newspaper or magazine or anyone else would like to do a review on a movie or whatever, she or he need not get permission from the owners. Same as people studying works of art, music, etc. Also, copyright infringement on something like this would have to depend on whether people will recognize or mistakenly identify the new item as the old. So if the mods were done so extensively, that the figure becomes a totally new figure, then it can be argued as an original. The original figure serves as basic building materials, after all, does the plastic company have copyrights to the figure that was created? No, of course not. So if you can prove that the figure is original then I can't see how they can say it is a copyright violation. Now, I can see it, if one were to take say a Faiz figure and created a Kabuto figure with it. Sure, that would be some impressive work, but Kabuto or the end result is copyrighted property, so this would still be a violation.
I would agree with the suspects that because their work is not similar to the original, I cannot identify that figure with any other, it is original and they should be able to sell that one, if they want. But again, I am in the United States. So yes, Oakland, with 60+ murders last year is horrible, compared to like 5 in Tokyo, but I would not trade my civil liberties as the Japanese have done.
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Post by 00silvergt on Feb 15, 2011 14:55:28 GMT -5
I think the problem that people are either skirting around or not understanding is that it's something that was sold. That's the main issue. Fan art made for your own enjoyment in the privacy of your home isn't illegal. Selling fan art, however, is illegal when that fan art uses protected likeness/imagery/concepts. My concern in this case is that if Toei is able to have their law team succeed in punishing the men arrested to the fullest extent of the law in Japan, it'll set a precedent that will allow other companies to pursue similar actions against any other custom toy maker that sells their work, regardless of the price. I do have to say, though, that if one uses an existing concept in their custom toy work and then they sell it on the open market, they should be aware that they're taking a risk. The main reason most companies don't go after custom toy makers is that there's too many out there and arresting a few won't stop the rest from continuing to do what they do. However, it's not as if these companies aren't aware of the situation. I believe during Botcon 2009, Hasbro stated that they don't have much of an issue against 3rd party products as long as they don't exceed $100. They were basically drawing a line in the sand, declaring that if anyone makes a Transformers related product that sells for over $100, they'd be in trouble. But what I think you are (respectfully) missing and/or not understanding is that if you create fan art, it bears likeness to the original. As in a drawing of Mazinger in your style of art. However, if the resulting product is not recognizeable or a reasonable person would not make the mistake of identifying the new toy with the original, I see no violation in copyright. Since there are no violations, this should be able to be marketed in a free enterprise society. |
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Post by 00silvergt on Feb 15, 2011 15:33:50 GMT -5
Okay, I did some research and I take back all I said! We (US) suck too. US Copyright Law, Chapter 1,§ 103: "Subject matter of copyright: Compilations and derivative works
(a) The subject matter of copyright as specified by section 102 includes compilations and derivative works, but protection for a work employing preexisting material in which copyright subsists does not extend to any part of the work in which such material has been used unlawfully.
(b) The copyright in a compilation or derivative work extends only to the material contributed by the author of such work, as distinguished from the preexisting material employed in the work, and does not imply any exclusive right in the preexisting material. The copyright in such work is independent of, and does not affect or enlarge the scope, duration, ownership, or subsistence of, any copyright protection in the preexisting material."
Basically, this would be considered a derivative. If they did not obtain the initial permission to modify the work, it is illegal.
With that said, perhaps the problem would be the admission of the artist that it was made using the original Kamen Rider figure. Since, again, if they did not mention what they infringed upon to create it, they can argue that they did not use Bandai's toy, thereby not violating the Toei copyright. They also should not have mentioned that it was a KR or whatever it is, since that is certainly copyrighted. Lastly, even if they did all of the above, had they not sold it, it would have been legal. So yes, there's the morality question and conflict. Using someone else's property without permission to create your own IS a violation of international copyright laws.
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Post by 00silvergt on Feb 15, 2011 15:51:23 GMT -5
The moral of the story? If you are going to mod some action figure, which includes generic Revoltechs, etc, obtain permission from the copyright owner first or at least attempt to ask for permission and wait at least 90 days. Because if you can prove you made reasonable attempts, you can proceed. READ: Certified Letters! I say, do this whether you plan to sell it or not, with the exception of Gunpla of course, since there is a reasonable acceptance that most plamo builders can modify the models for personalization. Finally, just don't sell it, find another means of income!
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Post by mechamasterj on Feb 15, 2011 22:21:40 GMT -5
or they dont sell it on a public auction site. I mean we can sell figures we bought right? so they could of sold it non-publicly and been good correct? doubt the price would of went so high though but i am sure someone would of bought it.
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Post by newtype78 on Feb 16, 2011 11:20:59 GMT -5
But what I think you are (respectfully) missing and/or not understanding is that if you create fan art, it bears likeness to the original. As in a drawing of Mazinger in your style of art. However, if the resulting product is not recognizeable or a reasonable person would not make the mistake of identifying the new toy with the original, I see no violation in copyright. Since there are no violations, this should be able to be marketed in a free enterprise society. First of all, did the gentlemen who have been arrested stated what they made is fan art? That term, "fan art", is thrown around in these kind of discussions all the time as an attempt to protect violation of intellectual property use. People often site doujinshi as an example of fan art that is protected, which isn't true. Doujinshi does violate Japanese copyright law. That fact of the matter is that most publishers choose not to pursue legal action against doujin creators. The problem with the standard defense of custom toy makers claiming fan art or fan work or things made purely for the love of the original material is that it fails if given even the slightest examination. Where that argument fails is the fact that custom toy makers make income by selling their fan work. I'm more familiar with Transformers custom toy makers but I can think of at least two TF customizers who make hundreds of dollars per custom toy. It's true that they are craftsmen and that they do what they do partly from their enjoyment of Transformers but when they create web sites to advertise their items for sale, when they go to forums to advertise their latest eBay custom toy auctions, please don't try to tell me that a significant portion of their motivation isn't based in monetary gain. If they were truly doing what they did for the love of the original material then they'd only have people cover the shipping costs and costs of parts and labour of making the custom rather than putting the objects up on public auction in hopes of garnering high winning bids. These gentlemen who were arrested did not make one or two custom figures. I've seen their work and web site referenced numerous times at various forums. They're not new to selling custom figures. They were aware of the risks. They even stated that they thought their actions would be "overlooked", implying that they knew that they were violating the law but hoped that they wouldn't catch Toei's attention. Secondly, it's not about copying an existing toy, it's about the unauthorized use of the design/image of Utopia Dopant. By your logic, I can make a toy of Mickey Mouse and sell it on a public auction web site without fear of action from The Walt Disney Company as long as my toy doesn't resemble an existing Mickey Mouse toy. However, Disney would have the right to take me to court for using the image/concept/design of Mickey Mouse in order to sell an object/product. Any argument I could put forth in court could simply be countered with "You used the image of Mickey Mouse, which belongs to Disney, not you.". It doesn't matter if I made a unique object because that's not the point of violation. It's the fact that I used a concept/image that is owned by someone else who has the right to control the use of that concept/image. If I made true fan art that was enjoyed privately, then there would be no reason for anyone to take me to court. If, however, I sell so-called fan art through any venue that is accessible by the general public(ie. auction web sites)then it would enter the realm of national or international commerce, which is no longer a private matter. Once that happens, I'm open to scrutiny and legal action when I make money from the selling of objects that utilize the concepts/images of protected intellectual property that I do not own. It's not about making a unique toy or object or painting or anything of the sort. Anyone do what they want with respect to creating objects that homage or use someone else's intellectual property so long as it's for private use. Where these gentlemen got into trouble was when they made their creation available to public sale, which then crossed into the territory where Toei possesses the right to control matters such as money made from the use of their registered IP(Utopia Dopant in this case). Now I find it interesting that people are talking about the rights of the custom toy creators but no one is objective and also considers the rights of the IP owners. I wonder if the same situation would be met with the same response if the exact same thing happened to an individual author or artist who had a character/concept design that was used without their permission? Would people gang up on an indy comic book creator if they tried to take a custom toy maker to court for such a situation? |
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Post by newtype78 on Feb 16, 2011 11:25:58 GMT -5
With that said, perhaps the problem would be the admission of the artist that it was made using the original Kamen Rider figure. Since, again, if they did not mention what they infringed upon to create it, they can argue that they did not use Bandai's toy, thereby not violating the Toei copyright. They also should not have mentioned that it was a KR or whatever it is, since that is certainly copyrighted. Lastly, even if they did all of the above, had they not sold it, it would have been legal. So yes, there's the morality question and conflict. Using someone else's property without permission to create your own IS a violation of international copyright laws. It's not the use of the figure that got them into trouble, it was the fact that they used the Utopia Dopant design, which is owned by Toei, for a custom toy and then sold the toy via public auction. Their photos of the figure for auction had "Utopia Dopant" in stylized lettering splashed across the images. They can use existing products like S.I.C. figures to make custom toys for sale, they just can't derive their designs from protected concepts/images. It's the combination of using someone else's IP for a creation and then selling the creation that's the problem. They could have made up their own character design for a custom toy and sold it without a problem. They obviously have the artistic skill to create appealing custom toys of their own design. |
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