Subject:
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Re: Custom Space: Obsidian Stealth Strike Craft for sale - The Brickee Mart
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Newsgroups:
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lugnet.off-topic.debate
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Date:
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Wed, 15 Dec 2004 05:12:56 GMT
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In lugnet.off-topic.debate, Douglas R. Clark wrote:
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In lugnet.off-topic.debate, Daniel Rubin wrote:
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In lugnet.off-topic.debate, Douglas R. Clark wrote:
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more snip-age
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If the creation of the first designer was not an original idea; instead,
either a scale model of a “real-life” object or a fictional setting/vehicle
not of the MOCer’s original design then MOC creator does not have IP
rights. I am reminded of this argument over selling a GunStar MOC that closely mimic-ed a previous
GunStar MOC. In this instance I believe that the seller would not have to
obtain permission from the first MOC’s creator. Instead the seller would
have to obtain the permission of the film company who created the movie
“The Last Starfighter”, not unlike the way Lego had to obtain a license
from Lucasfilm to produce and sell an X-wing set.
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The above is somewhat mistaken. While selling, or theoretically creating, a
moc based on a Gunstar would require the permission of the ownere (the movie
company most likely) this doesn’t mean that the first MOC maker doesn’t also
have IP here. The first MOC maker still own’s his/her design, as an
expression of the Gunstar property owned by the movie company. There are
plenty of ways to build a Gunstar MOC, so one particular design can still be
protectable IP.
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Thanks for the info. I guess I was considering that a moot point since
neither one of them had obtained the film company’s permission first. I
think that is something worth discussing since to achieve the end result of a
“movie accurate” gunstar MOC in minifig scale might lead two independent
designers to very similar implementations given the nature of lego
construction. I guess the question I’m trying to ask is how the concept of
“independant discovery” plays against IP rights?
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Independant discovery is a defense that works for copyright violation, including
copyright protection of design. The problem here is that if you are defending an
infringement suit, you have to prove that you didn’t have constructive access to
the earlier work.
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I’m not sure how it would work for “real-life” vehicles/objects. I would
think that Lego had to obtain a license to produce the Ferrari sets, but
would it be necessary to obtain a license from Boeing to produce and sell a
B-52 kit?? This is where an IP lawyer would be useful.
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Lego had to, and did aquire Ferrari lisences. Yes, you would need Boeing’s
permission to create a B-52 kit. Things could get sticky in court, and you
could probably fend off a suit from Boeing if they sued you, if you could
prove that the appearance of the B-52 was in no way designed for aesthetic
purposes... This would make a good IP exam question actually...
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I’m not sure I understand this. If I want to make and sell a MOC named
“B-52” I could as long as it looked nothing like a “real B-52 as built by the
Boeing Co.“? However if I wanted to market a scale model of a B-52 rendered
in lego elements then legally I would have to obtain Boeing’s permission
(even if I called it large 8-engined bomber instead of B-52)? What are the
limits on IP rights? Can I create and sell a minifig scale MOC of a P-51
mustang with out seeking permission from whatever company ended up aquiring
North American Aviation? When do “real-life” items that I would like to
model and sell as kits become “public domain?”
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Well, it depends, if B-52 is trademarked, they might be able to stop you from
using the name, but only if there was a liklihood of confusion of the products.
Nobody thinks that the band the B-52s is a part of Boeing, so you could probably
use the name for non-airplane related stuff. You can build whatever you want
without getting permission, if you started selling alot of kits of a P-51
without permission, they might come after you. There are several overlapping
forms of protection for design, design patents only protect purely ornamental
features (non-functional) and only last 14 years. Copyright protection is hazy
in many ways, but is automatic protection, and lasts practically forever (life
of the creator plus 70 years, you can thank Disney for that). If the shape is
100% functional, the creator might not be able to have copyright protection for
the design (this area of law is in flux). Basically, these days, real-life
things can take a loooooong time to enter public domain, but not everything
really has protection, it’s weird and requires case by case analisys. I don’t
think you need permission for the Wright Bros plane, or the other two historic
planes that Lego did, but for more modern planes, you might. The test involves
looking at whether the design is purely for functional or economic reasons, or
for aesthetic reasons.
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The next extension to this question is when a person actually creates
his/her own theme such as Chris Gidden’s PCS line or Mark Sandlin’s 3vil
line. Most people here think it is pretty cool if someone else attempts to
create and post a PCS or 3vil MOC. However if someone tries to sell a PCS
or 3vil MOC I would say you would need permission from the theme’s creators
first. For example, I have a SpacePoliceII MOC that is one of my original
creations. I would have to obtain permission from Lego to sell it as a
SPII MOC since Lego still owns the copyright to the SPII theme.
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In terms of good form, and peace in the community, I agree, but, I’m not
sure this is really true. You can’t own a visual style, it has to be a more
specific design than that. Of course, the theme names, and logos are all
ownable IP.
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Thats what I meant. If I created and tried to sell a MOC titled “3vil
hoverskull” that would be a problem. Assuming I didn’t use any logos or
other 3vil specific insignia, I could create a hoverskull MOC and sell it as
a “generic hoverskull MOC”.
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Disclaimer: I haven’t finished lawschool yet, but I am specializing in IP,
and have some experience in IP practice. Like any legal issue, all the
issues raised here could be debated ad naseum, and any of these cases would
have to be resolved in court, or settled out of court, on an individual
basis.
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Well, I would rather hear from someone who is training in this area of law
rather than myself who can only really let common-sense and morality be my
guide.
thanks,
drc
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-Dan Rubin
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