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Post by 00silvergt on Feb 16, 2011 12:17:38 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? I think you need to read on to my last post in which I took all this back, after actually researching the statute. |
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Post by newtype78 on Feb 16, 2011 12:32:00 GMT -5
I think you need to read on to my last post in which I took all this back, after actually researching the statute. I just responded to the posts in the order they were posted in. |
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Post by 00silvergt on Feb 16, 2011 12:44:24 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. We may be talking about two different things here or perhps we are saying half a dozen on one hand and 6 on the other. In respect to US copyright laws, had this been in the US, which was what I was trying to argue at first and then realized, the US has a similar stand on the issue. In US Copyright law, if you take an existing toy, which is copyrighted and creating a derivative without written permission of the copyright owner is a violation of copyright. (Chapter 1 section 103 of the US Copyright law). If the character they use to create the figure is also copyright, then that's also the violation. In other words, one cannot take a Mickey Mouse figure and create Donald Duck. Also, you cannot take a Mickey Mouse Figure and create Robert Rodent, who is an original creation. |
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Post by 00silvergt on Feb 16, 2011 13:19:47 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. It's iffy, more of a question, if you get caught. Simply put...if it was created as a violation and you bought it and then you sold it, you would also be violating the law. Just as if you bought a stolen TV from a burglar and then sold it on eBay, you are also violating. |
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Post by mechamasterj on Feb 16, 2011 21:35:00 GMT -5
So are we wrong for reselling our own action figures? It seems to be publicly accepted to resell unwanted items that we bought at one point or time.
Secondly, lets say they just gave the figure away, that would be good also? Would that also offend the creator? Is it still considered theft under the law?
I for one wouldnt get too upset if someone took my creation and made it into a figure, that is, if I had no plans to do so myself. I guess I would be mad that if I had the skills of these artist to make my own figure of my own character and they made thousands or even hundreds off of one figure..... I may be like "damn why didnt i do that" or maybe I would want a cut. Now this would be if I was just coming onto the seen and wasnt part of a big corporation that makes millions yearly where one figure selling for thousands would be like pennies to me. Furthermore, I would see it as free promotion for my product. Now if said creator was mass producing figures and really made a business out of it then that would be a problem. In the end, its up to the creator if they feel offended or not.
It begs to question people that do illegal downloads of music, movies, and that includes anime. How bad are we hurting the industry? I am going to ask a similar question in another thread but curious of your thoughts on this. Because in the end, how bad are these custom figure makers really hurting these companies? could they actually be helping them?
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Post by recca74 on Feb 16, 2011 23:40:04 GMT -5
Man, interesting discussion, all! Topics got some legs! LOL! So are we wrong for reselling our own action figures? It seems to be publicly accepted to resell unwanted items that we bought at one point or time. I don't think its really the same thing is it? Most folks may not have an official business license, but that doesn't keep masses of people from selling clothes, cars, furniture and toys on Ebay. New and/or used. Ebay also charges fees for selling services as you know, so I would think you'd be okay in selling a MISB or a used SIC Kabuto for example. If I understand in correctly, per newtype78 and 00silvergt, I think Toei was primarily concerned that they didn't authorize particular reproductions of specific characters to be sold rather than this person making it for his own collection. So If I wanna make a nice Zambot 3 custom from a base figure of an old RX-78-2 for my personal collection...cool. If I sell it and for a LOT the IP owner has the right to pursue legal actions. You really don't hear that happening all too often, which is why I thought this case was so strange. But yeah, Toei basically was like "Aww HELLZ No"! LOL! Secondly, lets say they just gave the figure away, that would be good also? Would that also offend the creator? Is it still considered theft under the law? Gifting or trading would also be fine I think. If I made a custom Armuro Rei figure from an old Marvel Legends figure and I give it to you for a b-day gift and there's no exchange of funds then I don't think it would garner the attention of creators. I for one wouldnt get too upset if someone took my creation and made it into a figure, that is, if I had no plans to do so myself. I guess I would be mad that if I had the skills of these artist to make my own figure of my own character and they made thousands or even hundreds off of one figure..... I may be like "damn why didnt i do that" or maybe I would want a cut. Now this would be if I was just coming onto the seen and wasnt part of a big corporation that makes millions yearly where one figure selling for thousands would be like pennies to me. Furthermore, I would see it as free promotion for my product. Now if said creator was mass producing figures and really made a business out of it then that would be a problem. In the end, its up to the creator if they feel offended or not. Oddly enough, Touhou creator ZUN actually encourages doujin creators to make and publish their own fan works. Not sure if he encourages selling it necessarily, but I believe that he's publicly gone on record stating that he's OK with fan work. You see doujin Touhou stuff on YJapan and ebay all the time. But that's just one guy. Other creators might not dig that! Which is their right I s'pose. Just depends maybe. Now if said creator was mass producing figures and really made a business out of it then that would be a problem. In the end, its up to the creator if they feel offended or not. Ahem. *cough*G-System*cough*? For some reason and maybe it's because HK/China is an IP, copyright black hole, you don't hear all that much about Sunrise pursuing these rogue GK makers. I know there have been cases where Bandai/Sunrise have sent cease and desist letters, but just look how well those are working.  It begs to question people that do illegal downloads of music, movies, and that includes anime. How bad are we hurting the industry? I am going to ask a similar question in another thread but curious of your thoughts on this. Because in the end, how bad are these custom figure makers really hurting these companies? could they actually be helping them? Yeah, another interesting topic, good sir!  |
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Post by newtype78 on Feb 17, 2011 0:42:12 GMT -5
We may be talking about two different things here or perhps we are saying half a dozen on one hand and 6 on the other. In respect to US copyright laws, had this been in the US, which was what I was trying to argue at first and then realized, the US has a similar stand on the issue. In US Copyright law, if you take an existing toy, which is copyrighted and creating a derivative without written permission of the copyright owner is a violation of copyright. (Chapter 1 section 103 of the US Copyright law). If the character they use to create the figure is also copyright, then that's also the violation. In other words, one cannot take a Mickey Mouse figure and create Donald Duck. Also, you cannot take a Mickey Mouse Figure and create Robert Rodent, who is an original creation. I think we are talking about different things in this case. I'm referring specifically to the use of the concept and character design of "Utopia Dopant" from Kamen Rider W, which is owned by Toei. The use of a toy, though, would fall under patent law, I believe, since copyright doesn't cover physical objects/designs aside from architecture and sculptures. Toei is concerned only with the use of the concept/character design of the "Utopia Dopant" character from Kamen Rider W. Bandai is the designer and manufacturer of the S.I.C. product line of action figures and they would own the patent for the design of S.I.C. action figures so it's Bandai who would be concerned with the use of the S.I.C. action figure that the custom toy makers used to make the Utopia Dopant figure. However, I think they would be countered in court with the citation of the Exhaustion doctrine. So are we wrong for reselling our own action figures? It seems to be publicly accepted to resell unwanted items that we bought at one point or time. Secondly, lets say they just gave the figure away, that would be good also? Would that also offend the creator? Is it still considered theft under the law? I for one wouldnt get too upset if someone took my creation and made it into a figure, that is, if I had no plans to do so myself. I guess I would be mad that if I had the skills of these artist to make my own figure of my own character and they made thousands or even hundreds off of one figure..... I may be like "damn why didnt i do that" or maybe I would want a cut. Now this would be if I was just coming onto the seen and wasnt part of a big corporation that makes millions yearly where one figure selling for thousands would be like pennies to me. Furthermore, I would see it as free promotion for my product. Now if said creator was mass producing figures and really made a business out of it then that would be a problem. In the end, its up to the creator if they feel offended or not. It begs to question people that do illegal downloads of music, movies, and that includes anime. How bad are we hurting the industry? I am going to ask a similar question in another thread but curious of your thoughts on this. Because in the end, how bad are these custom figure makers really hurting these companies? could they actually be helping them? Actually, reselling your action figures would be protected under the "Exhaustion doctrine". Once you buy a lawfully obtained patented object such as an unmodified toy, the control of the transfer of the object is given to the person who bought it. The "First sale doctrine" is the equivalent law for copyright matters. Giving a custom figure away would be fine. Again, it would be protected under the Exhaustion doctrine. This is a situation involving a company rather than an individual who has had IP of theirs used for someone else's profit. It's less complicated for a single person to make such a decision whether or not to pursue legal action. Toei, as a public corporation, is accountable to its share holders at the very least and will have many other individuals and groups who are affected by the use of the company's properties. I definitely think that the question of to what degree illegal acquisition of media such as music and movies harm the media industries is suitable for a separate thread. I would just say for the purpose of this thread's discussion that Toei's perspective on this matter is less about harm done than simply that their IP was used without their permission. Man, interesting discussion, all! Topics got some legs! LOL! Indeed it does.  I think that the main problem faced by companies like Bandai/Sunrise in the KO/bootleg gunpla industry is that there are too many separate groups to chase down and the international waters they have to navigate in order to pursue legal action stifles their efforts. The time and money that would be spent trying to close down such companies would probably outweigh whatever losses they'd suffer from the continued operations of companies like G-System. Even if they took down a few companies, more would spring up elsewhere to replace them. |
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Post by magengar on Feb 18, 2011 0:29:29 GMT -5
Of all the topics addressed here at RJ, THIS ONE sure has a lot of deeep substantial provocation*** ***by That term I mean, it Makes a reader THINK about what's being discussed here. Carry on, I'd like to read more on this topic. zozo-Magengar |
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Post by mpchi on Feb 22, 2011 17:00:52 GMT -5
Good discussion, if not a bit much to read LOL.
I guess the main point is 'selling such creation'. Gunpla has long history or customs and modifications. But they are all fine and dandy as long as they are not marked 'For Sale', outside any legal venue. But still, who would have thought, having such talent, would have brought them down (possibly ruining their life in a way) like this. Such a shame.
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