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Using other people's creations/art

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JollyJoel
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I am using Hirst Arts mold castings for my science fiction RPG board game. Having the little blocks is required for my game. I also require 28mm figurines.

I always had a problem with finding the right style because most of these miniatures are to not have weapons most of the time. They are Doctors, Engineers, Scientist, and Security, they can be equip with weapons on an off chance, so an occasional miniature with a weapon can work. It was difficult finding miniatures that work with my game except SteamPunk.

Well steam punk isn't the style I'm going for but then after a long time of searching I found these

Bombshell Miniatures - Maelee the Mechanic BOM10023
http://www.ebay.com/itm/360744738316?ssPageName=STRK:MEWAX:IT&_trksid=p3...
I don't know how long that link will stay active.

When it comes to a finished game product. Am I able to use Hirst Arts mold castings and figurines like Maelee the Mechanic? I'm actually in the process of sculpting my own 28mm models. It will be difficult and time consuming for sure. I can't live with making my own Hirst Arts style block pieces for a board.

Would I be infringing Copy Rights if I sold a game using these product?

questccg
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Probably No.

JollyJoel wrote:
...Would I be infringing Copy Rights if I sold a game using these product?

That is actually a very good question: Can you use another game's miniatures or other miniatures?

My initial reaction would be to say NO. The miniatures are designed to be used by a consumer... In other words, they are not sold to be re-packaged in another product.

I have seen Kickstarters in which miniatures were part of the game. Like these games:

http://www.kickstarter.com/projects/524168246/shadowsea-conquest-of-the-...
http://www.kickstarter.com/projects/770568564/combat-armor-mecha-1-285th...

Looks like people are hiring sculptors and casters to design their miniatures...

mindspike
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Not technically copyright violation.

When you purchase a product from the manufacturer, you are purchasing the right to use and resell that individual product, but not to reproduce it. This means that if you purchase the minis, you are legally allowed to repackage and resell them. When you purchase the molds, that purchase comes with the implied right to use that mold to make and sell castings. That is the simple version. It gets more complex depending on the exact terms of the purchase agreement or the level of trademark protection the original company wishes to enforce. Don't try this with any Games Workshop product - they are legendarily draconian and without a sense of humor.

If this particular product is such a perfect fit for your game, you might write to Hirst Arts and see if they will provide you with wholesale product for repackaging. Or depending on your intended distribution, just buy their products and resell them at a small markup.

Don't claim their work belongs to or originates with you, pay the company for the originals, and you should be fine.

JollyJoel
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Thanks

Thank you guys. I'll be emailing Hirst Arts soon but after looking at Maelee kickstarter I seriously doubt I would be able to use any of those figurines... besides I had already started Sculpting a little bit. My best bet is to make a common Male and Female faceless body and make casting molds of them etc.. and customize them as I go along. I have everything to do this I just need to trial and error now.

questccg
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Clarifications

mindspike wrote:
When you purchase a product from the manufacturer, you are purchasing the right to use and resell that individual product, but not to reproduce it. This means that if you purchase the minis, you are legally allowed to repackage and resell them.

There are some assumptions being made here... That I would like to clarify for my own "knowledge". Firstly a *manufacture* does not "normally" sell product to a consumer. He usually sells a product to a distributor who then sells it to a *retailer* who then sells it to a consumer. I am not sure a consumer has the same rights as a retailer does when buying directly from a manufacture. This might be a question of law... that I am unfamiliar with.

That is why we have *retailers* who sell to consumers and the fact that a consumer does not directly buy products from a manufacturer... Is is not a CONSUMER's business to SELL product. He is supposed to be the end-user of a product (ie. the consumer).

mindspike wrote:
When you purchase the molds, that purchase comes with the implied right to use that mold to make and sell castings. That is the simple version. It gets more complex depending on the exact terms of the purchase agreement or the level of trademark protection the original company wishes to enforce. Don't try this with any Games Workshop product - they are legendarily draconian and without a sense of humor.

Again you assume that moulds are purchased with the implied right to RESELL the end product. Is this correct?! As you mention "Game Workshop" being draconian with their products, that would seem like the norm since the products are sold for end-user consumption not resale. Consumers do not have an implied right to resell product - retailers do.

mindspike wrote:
If this particular product is such a perfect fit for your game, you might write to Hirst Arts and see if they will provide you with wholesale product for repackaging. Or depending on your intended distribution, just buy their products and resell them at a small markup.

Don't claim their work belongs to or originates with you, pay the company for the originals, and you should be fine.[/quote]

I would tend to agree that prior to making any ASSUMPTIONS, you speak with your source (Manufacturer or Retailer) and state that you would like to repackage the product to be a part of another product. Even if it is moulds, I would check to see if the source would agree to you being able to repackage them as part of another product...

Corsaire
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Doesn't matter what your

Doesn't matter what your title is, in the US if you buy something you can resell it. If like in software, you are instead purchasing a license agreement, that is a different matter. Hirst Arts has a legal page describing their specific point of view relating to their products.

I'd suggest reading up on the doctrine of first sale, http://www.justice.gov/usao/eousa/foia_reading_room/usam/title9/

Molds are a much more complicated animal. Dirivative works can also be tricky. But barring money to protect yourself from legal bullying tread lightly even with resale.

I'm not a lawyer, but I've been fairly steeped in copyright, patent, and trademark legislation in one form or another since I first explored patenting a product thirty years ago.

questccg
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Broken link

Corsaire wrote:
Doesn't matter what your title is, in the US if you buy something you can resell it. If like in software, you are instead purchasing a license agreement, that is a different matter.

Interesting... I wonder what the law is in Canada. Because I believe as a consumer you don't have the same rights as a business. That is why I own and operate a business.

Corsaire wrote:
Hirst Arts has a legal page describing their specific point of view relating to their products/.

Ya he says if you sell over $1,000 of product, you need a license agreement with him. Exactly what I believe, he is a business and if you sell more than $1,000 he assumes you are a business ALSO.

So if you have a Kickstarter and earn $15,000 worth of contributions, you probably would fall under the category of $1,000 or more, meaning you would need a license agreement with him.

Corsaire wrote:
I'd suggest reading up on the doctrine of first sale, http://www.justice.gov/usao/eousa/foia_reading_room/usam/title9/

The link doesn't work... I would be interested in reading it though... :(

Corsaire
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Definitie differences amongst

Definitie differences amongst countries. US is one of the few countries that specifically has the right of first sale. As Hirst Arts is in UK, not sure the implications are there, or if other posters are in US or not.

http://www.justice.gov/usao/eousa/foia_reading_room/usam/title9/crm01854...

That's the same link again, pasted it in and navigated there... Not sure issue. Here's Wikipedia on it, but I prefer government sites when I can..
http://en.wikipedia.org/wiki/First-sale_doctrine

Kroz1776
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Ebay

There are tons of people here in the United States that will buy things that are on sale in bulk, and then sell them on Ebay or other websites like that to help them make some extra dough on the side all without owning or starting a business. Heck, I know people that will buy a product and then sell the components of it seperatly as "spare" parts for a marked up price.

mindspike
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Case law provides a guide.

There is case law that affects several of the concerns raised in this discussion. Being in the US, that is the law with which I am familiar.

First sale rights: the right of first sale as applied to products originating internationally has been upheld in a case brought against Supap Kirtsaeng by John Wiley & Sons over Kirtsaeng's purchase of textbooks on the international market for use in the US. The US Supreme Court upheld that first sale rights apply to products made internationally and brought into the US. This means that if you purchase your minis or dungeon tiles, and the item was originally legally manufactured, you are free to resell and repackage that item on its own or contained within another product.

http://www.theverge.com/2013/3/19/4123740/supreme-court-upholds-first-sa...

Copyright infringement: copyrights cover the particular expression of an idea as well as its derivative works. In this case, copyright violation will occur if you fail to credit the original creator for his repackaged and resold work. In the particular instance of using molds to create castings, the mold is the original work and the casting is the derivative work. They are both protected by copyright laws. However, the purpose of the mold is to provide the user with the ability to reproduce the derivative work – the casting. By purchasing the mold, you become an authorized manufacturer (see “first sale rights”). It has already been pointed out that Hirst Arts appends contract law to their molds limiting the number or value of reproductions you are allowed to make.

http://www.justice.gov/usao/eousa/foia_reading_room/usam/title9/crm01849...

Games Workshop: most recently, GW has been in the news for suing Chapterhouse Workshop for copyright infringement. The case is mostly settled, and the result is a mixed bag involving what imagery originates with and is trademarked by GW and what imagery belongs to the genre as a whole. GW has also enacted legislation attempting to claim ownership of the term “space marine” against the author of the book “Spots the Space Marine”, even though the product is materially dissimilar to the GW property. They have also famously issued cease-and-desist letters to gamers who posted gallery photos of their miniatures online, both painted and unpainted, stock and customized – again claiming copyright infringement and unlawful reproduction.

http://apocalypse40k.blogspot.com/2012/02/games-workshop-vs-chapterhouse...

Lots of good stuff here. This is important material to chew on, and the case law is constantly being revisited.

JollyJoel
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Update

Whoa... Didn't think it would turn into this much of a discussion.

I asked Bruce from Hirst Arts which I thought was in Montana which is why his molds I buy cost $7 for shipping in USA but $24 over seas and $20 for Canada, unlike Corsaire said but anyways he emailed me this.

QUOTE
Yes, the blocks are copyrighted by me. You can get more information by looking at our legal statement at http://www.hirstarts.com/legal/legal.html.

You might seriously consider just making your own blocks from scratch if you want to sell them as part of your game.

You would need a license agreement to sell castings from the mold as part of your game. There is a one-time license fee of $150. The license will renew each year as long as sales reports are filed on time and we follow through with the items listed on the license agreement. The royalty amount will be 5% or $20.00 (US Dollars) per quarter - whichever is greater for that 3 month period.
Here's what's involved in a license. Once every 3 months you have to file a sales report The report is pretty simple. You just list a brief description of what you've sold (such as "dragon's Inn" or "ruined tower"), the price you ended up selling it for (gross, not net).
Then you figure a 5% royalty from that price and send a royalty payment with your report (or $20.00, whichever is greater). The reports are due April 10th (for the months of Jan, Feb, March), July 10th (for the months of April, May, June), October 10th (for the moths of July, Aug, Sept) and finally on January 10th (for the months of Oct, Nov, Dec). So far I have about 28 licensees, but I've had to discontinue several because they had trouble filing their sales reports and sending royalty payments on time.

Keep in mind that the 5% royalty has to be figured on the total item for sale. If you wanted to sell buildings or ruins on a foam hill, it would be better to price and sell the building separately from the hill. I can't piece-meal royalties by saying "this item uses 10% Hirst blocks so I'll only pay 10% of the 5% royalty". Trying to sort out percentages of royalties of each individual items for sale is not something I'm willing to do.
For me to write a license, you will need to send me a few pieces of information along with the $150 license fee before I can send it to you to sign:
Name:
Address:
Phone number:
E-mail address:
Business name:
Business address:
Business phone number:
Business e-mail address:
Fax number:
Web site address:
Let me know if you have any more questions,
Bruce Hirst
END QUOTE

I love how he flat out says, "You might seriously consider just making your own blocks from scratch if you want to sell them as part of your game."
HAHAHA
Anyways... About the whole Consumer selling stuff. The Government (specifically the IRS) doesn't care as long as you do not make a profit off the things you're selling. If you are, you must report to the IRS.

Here's my source http://consumer-law.lawyers.com/consumer-fraud/Sell-Safely-and-Tax-Free-...

However Bruce wont even let people do partial rights. So if I want to use his stuff I would need to give him 5% of my whole games net-worth.

Didn't take me long to think of a good alternative though... One I should had used sooner because it's cheaper. Not as easy and as fun as making mold castings using Plaster Of Paris but still cheaper. I'll make a YouTube video of my progress once I buy the supplies and post it somewhere on here.

Kroz1776
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Just a wee hint laddie?

So what was this alternative that you found? I'm as curious as a dead cat now!

JollyJoel
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Posted in a new catagory

Sorry I deleted it... I'll go with my original plan and make a YouTube video of it.

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