Wednesday, March 17, 2010

'It wasn't me officer..'

A bit busy today with visitors, so just a quick post.

Being a home caster and one time kit maker I've always been interested in copyright issues ie how much does one have to alter a master before it becomes another's property. New Zealand, being at the arse end of the world, has always had a 'do it yourself' streak, which has resulted in local home rip offs of overseas models (primarily in the overpriced wargaming figure area). I'm also aware that it's happened in the local model railway industry over the years, as the price of kits is perceived to be very high, to which I'd reply 'have a look at the British kit prices and then tell me we are expensive.'

I think its also because by-en-large, we tend to be tightwads when it comes to parting with money (and this is a charge that has been leveled at NZ120 on more than one occasion by major players in the NZ model scene. I guess its probably true.:v)

Anyway here are some interesting threads from England here and here.

I'd just like to finish up by saying that its not OK at any time to make direct copies of someone else's work. I'm also rather dubious that its OK to modify parts from a manufacturer and then on-sell them (I wouldn't feel right about it, and I also probably believe I could do a better job anyway). I always think that if I did something like that, and the kit maker gave up as a result, then the hobby would lose any new kits he may have produced.


sxytrain said...

Theres always going to be someone with the potential or self deserving need to rip-off a manufacturers product, unfortunately. To modify and on sell for own gain is illegal and genuine prosecution can be placed by the manufacturer. I do hope that modelers find my nz120 products are reasonably priced, and a cost effective scale to model.
Trackgang Products

Luke Ueda-Sarson said...

Speaking as somebody who used to work in an international intellectual property office, there is a lot of bollix written in that first thread.

E.g. "I think the difference (legally) is in what the OP is proposing to do with the resin mould afterwards. If its only for his own use, fair enough".

Crap. Copying "for your own use" is still illegal copying (if the item is copyrightable). It's just that the poor kit maker is a) unlikely to find out about it, and b) unlikely to pay the large legal bill in going after such a small fish.

"But if you are making an accurate model of something, the moulds are going to be identical whether you scratch build your own masters or take a copy off someone else model. So how could someone sue you for copying?"

More crap! Especially coming from the UK, where the "sweat of the brow" approach to copyright hasn't been formally overturned unlike in the US (in OZ, their High Court not so long ago affirmed its continuing existence). Under UK law, one function of copyright is to protect the author's investment in their labour. The barrier for copyright "originality" is very low. Making a *reduced* scale model of something is very clearly an "original" work, and qualifies for copyright protection, *if* it is in a qualified category.

The very much more interesting question is whether it is in a qualified category in the first place.

Russell, take note!

A very recent (Dec. 2009) UK case revolved around copyright in the original Stormtrooper helmets made for Star Wars in the 70s.

The guy who made the originals pulled out his old molds and started selling new castings. Lucasfilm wasn't impressed, saying they were commissioned by them; they were theirs.

The case turned on this important question:

"Whether the models for the helmet are in themselves copyright works depends on whether they are "sculptures" within the meaning of s.4 of the Copyright Designs and Patents Act 1988".

To further quote the Court of Appeal:

"Mann J rejected all of Lucasfilm's copyright infringement claims under UK law. He held that the models for the helmets did not have an independent copyright as being "sculptures" or "works of artistic craftsmanship" and that Mr Ainsworth had defences under s.51 and 52."

Thus the "models" in this case weren't copyrightable. The lower court's decision was upheld.

It was noted that in a previous case, concerning toy soldiers, the figures were held to be copyrightable because of the "toy" element in them (as opposed to, say being faithful to the prototype).

Now I am not an attorney, particularly not in NZ copyright law, but NZ usually sticks very closely to UK decisions in this area, even when the statutes are not very similar - and in this case, while they are not identical, they are indeed fairly similar.

It may well be that Russell has no copyright in any of his products at all (!), because they are not "an artistic work" within the meaning of section 19 of the NZ Copyright Act 1994.

It all depends on what an "artistic" work is. The UK court after all held that a non-prototypical fantasy helmet was, essentially, not a work of *artistic* craftsmanship, no matter how much it was admittedly a work of craftsmanship. The *artistic* element was crucial. Given a model railway kit is supposed to faithfully depicting an historical prototype, I can hardy see how it could be *more* artistic than a stormtrooper helmet; quite the opposite...

If I was Russell, the implications of this case would be *very* unsettling.

weeduggie said...

You have touched on several interesting, disturbing & perplexing aspects of the NZ model railroader profile in your original musing.

Having experience in several of the scales "we" choose to model in over the years, it is not just the NZ120 ers who may be sometimes labelled as " tightwads" - must have something to do with our fabled "number 8 wire" heritage, or our low wage economy or the beer we drink or ????

A perusal of the latest Aussie main rail modeller magazine lists a flood of near biblical proportions of new models in a variety of scale/gauge combinations with price tags which would make your average Kiwi modeller (if there is such an animal) blanch then go into catatonic shock. But having developed several kits now in another scale, and knowing what goes into trying to produce a high quality, accurate model, their retail prices do not look out of place at all - the NZ model rail market perception seems to be that the model producer should receive no recompense for the time cost involved in the development of a model, and into the bargain should discount the finished product price too.

We seem fixated on getting super cheap (auto) deals on stuff off trademe or ebay, with all sorts of fables & myths propounded which just serve to fuel the desire to get a bargain too, and not pay a fair price for an item, to ensure the manufacturer is encouraged to continue and expand and improve their offerings to the hobby.

The "rip-off" merchants would be discouraged if no-one bought their illegal imitations, but who is going to refuse to acquire that 40" LCD TV for $100?

There may not be an answer to your challenge, but maybe in the NZ120 arena it is worth giving some thought to the "collective" concept, especially as the Poms have developed it in the 2mm & N scale groups.

woodsworks said...

This one has been a hot potato for a looooong time, and will always remain so, because the temptation is great when we have resin casting materials able to take superb copies for not much effort or cost.

I'm inclined to come out all snarly and hissy towards any Pretenders, because I am investing considerable quantities of time and money in original work, and to then see the results of my labours taken without due regard to my input would be more than a little upsetting. I don't discuss my techniques for machining stripwood, because it is not all that difficult once you know how, but I spent a long time perfecting the technique and so I'm not about to give it away for free.

I liken it to the class bully copying over your shoulder in class and then winning the prize for the highest mark, and realistically, the only defence we have is to exert peer-pressure to desist, upon the persons who are rude enough to make use of someone else's hard work for their own gain in such a manner.

Motorised Dandruff said...

What i can't understand is that in most cases the people who get their work ripped off by someone else (and by this I mean quite clearly) just say 'Oh, but I don't want to name names'. I'd publish them and make sure people knew that they were copying stuff, and not just play nicely about it.

woodsworks said...

My thoughts exactly - most people would be none the wiser if presented with a ripped off kit unless the culprit has been named. By keeping things quiet, it effectively condones their actions.