# Are accuratizing kits ethical?



## Chuck_P.R. (Jun 8, 2003)

I understand that recasting is an issue that seems cut and dry for the most part so I won't get into it at all...

Perhaps my question has been discussed and thought of fairly thoroughly and being a newbie to the boards I haven't come across it...

Opinions wanted, not advocacy of course...

Aren't accuratizing kits also unethical? Are they even legal?

It seems that the main point is that when someone has created a kit legally, the main thing about going through that process is not so much how many dies are required or how much work is involved(people are paid to do that or else they do it with the idea of some future reward -monetary, bragging rights or whatever).

The main issue to me is that they manufacturer of the legal kit has paid for the rights to produce it to the owner of the intellectual property...

That being said, is it unethical to buy or sell accuratizing kits without doing the same? 

Are accuratizing kits legal, or do they fall under some "fair use" loophole etc?

The letter of the law aside(although I'd be interested in knowing what it is) all of these things seem to be issues of degree...

Anybody else have any thoughts about accuratizing kits?

I personally think that they are often tremendously helpful, but don't feel I have a full grasp of all of the issue's implications...


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## Trek Ace (Jul 8, 2001)

I think the main reason why accurizing kits have never been legally challenged is that you have to purchase the licensed kit in order to make use of the accurizing parts, as they would be of little use without it. If the existence of the accurizing kits results in the increased sale of licensed model kits, what licensor would want to challenge that?


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## Steve CultTVman Iverson (Jan 1, 1970)

Think of it like a auto part. There are many companies that produce parts to go with automobiles. They are produced independently of the original and compliment the original product, rather than take the place of the original product. 

The real ethical issue comes when you label something using a name brand, trademark, or otherwise protected property. 

Polar Lights encourages aftermarket parts as it helps them sell more product.

Conversely, I once tried to obtain a license to produce an aftermarket part using a certain likeness of an actor. I figured it would be good marketing to be able to call it "officially licensed by XXX". The image I was interested in could be considered public domain, so it really was not needed. I was was ultimately ignored and at least one other company has produced a similar, unsanctioned product. It hasnt hurt their sales, nor have they been C&D'd.

Steve


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## John P (Sep 1, 1999)

That's silly. What about decals? You could use the same argument for decals. Hasegawa comes out with a P-38 with a nice decals sheet that someone slaved over and within a month Aeromaster has five decal sheets on the market with alternate markings. Aftermarket decals have been available for models for decades.

I have no ethical problems at all. I doubt Verlinden, Cutting Edge, Eduard, True Details, CMK, Aeromaster, Eagel Strike, Superscale and the dozen other aftermarket companies making resin and photoetch detail sets and decals for specific airplane models think twice about it. They're accessories.


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## flyingfrets (Oct 19, 2001)

Well said all. I look at from a consumer *and * manufacturer's standpoint. Subjects that I'm not familiar with...for instance "Star Trek" kits, I wouldn't really notice any inaccuracies on a given kit, so I'd just build it & not worry about it. But there are subjects and kits that I'm very familiar with, and while I appreciate someone taking the time to license, design, manufacture and market them, I sometimes look at the model and think, "Okay, I understand they had to do it this way because of the limitations of the mold (or cost, etc.). It sure would be great it there were someway to make it look like I saw it in the show or movie." Enter the aftermarket accessory manufacturer. Becuse they are using mediums (RTV or urethane molds and resin) that the "Big Guys" don't, they can produce accurizing parts that couldn't be incorporated into the original model. Since they are not producing an entire kit, they can sell their parts at affordable (if sometimes pricey due to the limited life of the molds) rates. They are intended to *improve * the original kit in someway, but are of little or no use to anyone who didn't buy the model they were intended for.

One example I can think of is the F-117 Stealth Fighter. When the first model of it came out back in 1988, it was based on a (blurry) photo that appeared in "Aviation Week & Space Technology." As more information on the aircraft became available, the inaccuracies of the kit became more apparent. I did aftermarket kits for the gear & the cockpit, which were welcomed by the folks who chose to purchase them. Eventually, other manufacturers did newer, very accurate tools of the plane, so I think the cottage industry supports and sometimes encourages the big companies to bigger and better things. In no way does it take anything away from the manufacturers of the models we want to accurize.

So *BUY * that kit...and whatever accurizing kit(s) you think will make it look better / more realistic...with*OUT GUILT!!!* :thumbsup:


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## woozle (Oct 17, 2002)

One of my buying decisions, when I consider a new project, is to look at what aftermarket kits are out there. I think it behooves the kit manufacturer to work WITH the aftermarket manufacturer's. The arguement isa totally different animal, from recasters.


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## eradicator (Aug 24, 2000)

*I agree...........*

I agree with Trek Ace if the after market parts are going to boost the sales of the kit who in their right mind would complain about that.


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## bccanfield (Nov 17, 2002)

Not too mention the fact that sometimes you buy two or three of the same kit just because you were not satisfied with the first one you built and want to make improvements with the accurizing kits... or... to use as a kit bash (like "Yesterdays Enterpise").


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## Chuck_P.R. (Jun 8, 2003)

various said:


> I think the main reason why accurizing kits have never been legally challenged is that you have to purchase the licensed kit in order to make use of the accurizing parts, as they would be of little use without it. If the existence of the accurizing kits results in the increased sale of licensed model kits, what licensor would want to challenge that?...





Steve CultTVman Iverson said:


> ...Think of it like a auto part. There are many companies that produce parts to go with automobiles. They are produced independently of the original and compliment the original product, rather than take the place of the original product...





woozle said:


> One of my buying decisions, when I consider a new project, is to look at what aftermarket kits are out there. I think it behooves the kit manufacturer to work WITH the aftermarket manufacturer's. The arguement isa totally different animal, from recasters...


All of the above quotes make it clear to me that there is nothing wrong with accuratizing kits. They don't harm sales of the kits.

However, I can't agree that "often" -not always, but "often"- this is totally different with recasts. Recasts usually are done only of kits that are no longer made. 

So refusing to buy them isn't going to hurt the original model manufacturer at all. They've sold all they are going to sell. The only people who see any kind of pain from this are the people who get to charge $100 or more for kits that originally costs $8-$20.

I also question just how much even these people suffer from the recasts, as I have bought AMT kits for $150 that when they were bought in the 60's cost less than $3. I still pay that much for the kits that have recasts available because recasts that I have seen don't compare to the quality of the original.

I've haven't seen many kits that there are positively, absolutely impossible to find, they may be expensive, but so are resin copies. 

I'm sure this was different in the pre-internet days. 

But I could understand if someone really wanted a particular kit and couldn't find anything else resorting to a recast.

If and when a model manufacturer decides to re-release a kit the demand for the recasts pretty much disappear.

They disappear for the best reason I can think of not to buy recasts - they, unlike accuratizing kits, are of poor quality compared to the original.

The_best_reason_not_to_buy_recasts_is_that_they_aren't_very_good_compared _to_the_originals.

So instead of spending 7 times more than the model originally costs, spend another week or so living on beans, dig a little deeper and spend that 10 times the original price.

It may be expensive buy you'll probable find in the long run that you would rather spend 30% or above more for an original kit to get what you're really happy with, then to spend less and get something that probably won't make you happy.


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## Chuck_P.R. (Jun 8, 2003)

Sorry about the mis-attributed "various" quote Trek Ace.

I was originally going to lump them together but then decided against it, unfortunately somehow I forgot to update the "copy" command before pasting everything into the post.


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## JPhil123 (Jan 1, 1970)

Chuck_P.R. said:


> I understand that recasting is an issue that seems cut and dry for the most part so I won't get into it at all...
> 
> Perhaps my question has been discussed and thought of fairly thoroughly and being a newbie to the boards I haven't come across it...
> 
> ...


Hello!
This is a neat question I've often thought about but never verbalized. I think accuratizing kits are ethical for some of the same reasons listed in prior posted responses. Its one thing if someone were to intentionally put out a series of model parts sold as accuratizing kits over time that could be assembled to exactly match a licensed product (that's unfair), but its quite another for someone to market a few accurizing kit parts that could be used to replace/upgrade parts found to be incorrect or poor fitting in an original product. When I was a kid, I took model building seriously and tried to build the best model I could. If I did make a serious mistake and bought a second kit for spare parts, or wanted to have a second kit to collect or build in the future, it wasn't too bad because model kits were only a few bucks. Today, you might spend 3,4, or 5 times for the same kit. I like accurizing kits because it gives the builder an option to send a few more bucks and correct or refine an already expensive licensed kit if he/she so desires. And if they were to crack down on accurizing kits, then I would surely expect a better original kit to be available with less flaws/inaccuricies (and I know it would be more expensive).
Regards,
Jim


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## Mike Warshaw (Feb 23, 1999)

I'm one of those who buys a model partly based on the availability of aftermarket, accurizing parts. That makes it practical for me to build a special kit, detailed to the outer limit of my skill -- not that that's so far.

But I find an ethical dilemma in buying aftermarket parts, as some providers have accused others of doing something very similar to recasting and I have seen evidence of that. If one supplier produces an accurized part, and another recasts it, say, in a translucent resin or a modified version built on some other guy's original part, that's downright thievery in my book.

I have had some Trek accurizing parts that were carefully crafted; some that were just castings of modified original kit parts; and some that were obviously building on another hobbyist's work, either by recasting hand-built accurizing parts or adding a little detail and then casting a "revised" part.

When I see the hand-crafted, original, thoughtfully engineered parts in other aspects of the hobby -- try Copper State Models' WWI planes, or Tom's Modelworks photoetched parts for ship models -- it's an incredible boon. But I refuse to buy from those building on the work -- or ripping off -- other garage kit-and-part makers. As far as I'm concerned, they're as low as a recaster; maybe lower for taking from individuals rather than real companies.


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## A Taylor (Jan 1, 1970)

But what if the original producer of a kit is simply taking a break from producing that kit for a while? It's still his intellectual property and he should have the right to produce it or not, shouldn't he? It's his sculpt, it's his right to decide how many castings of that sculpt are made and how much they cost.
Not just while he is selling them but forever. The only recasts I find acceptable are when the original producer has sold his rights to a piece to a new kit producer. I think it's also ok to recast old Aurora kits, since TOMY, who owns all of Aurora's intellectual properties, have abandoned the rights to the kits lawfully. Polar Lights has made some nice scratch reproducing them.
AT


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## John P (Sep 1, 1999)

First thing I did when I bought, for instance, Trumpeter's 1/32 scale A-10, was find all the aftermarket accurizing kits and decals I could. And there are pah-lenty! I think I spent as much on them as on the model.

Gotta build that puppy some time .


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## rossjr (Jun 25, 2001)

About the only thing I would add to this thread is that their is a big difference between recasters and authentication kits. 

Authentication kits - are addo-ons to other kits to enhance them or adapt them to something they were otherwise intended to be. To Steve's point earlier this is no different then putting a spoiler on your car and painting it a differnt color.

ReCasters - are people that take a kit or authentication parts and duplicate them and resell them. Again to Steve's point their are strong feelings about this topic, So I will not go into detail on this but suffice it to say this. IMHO the dangers/ethic they represent is to both the consumer and creator of the recasted item. For the consumer they often are not aware that they are getting a recast - which is often of less quality of the original. The the creator they are robbed of proceeds they are entitiled. Taking this the final step some people recast for themselves and that is another matter.


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## John O (Mar 8, 2000)

I don’t think there is an ethical dilemma with accurizing/aftermarket kit parts if you look at it as I do. I see myself as someone assembling a product, the model, usually for myself (not for sale). The purchased kit may suit my complete needs or it may just be basic and require a great deal of finishwork. If I feel it needs more, then I’ll address that if I have the skills and time. If not _…*I’ll sub it out!!! *_ (so to say) 

Because the volume of upgrade parts a garage "manufacturer" might make are soooo very low, and his mfg capabilities are usually extremely modest, I truly consider him to be sub-contracter for _my_ project. Sorta like me saying to Joe Castmaster, "I need a more accurate set of seats for my Spindrift cabin, can you make me up a set?" He says, "sure, but it’ll cost ya. How ‘bout I make up a bunch and I sell ‘em on the internet to defer the cost of the set you need?" Sounds great to me. All parties get their appropriate compensation ($$$), I get my parts.

I haven’t personally run into the unethical issues Mike mentioned, but they certainly sound like bad practice. However, my experience with re-casters has been that they are shamelessly willing to recast anything to cash in on the popularity of a kit and even undercut the price of a kit which is in current production and readily available. I've even seen claims of "our re-cast is better than theirs". What nads. Caveat Emptor.

John O.


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## El Gato (Jul 15, 2000)

John P said:


> First thing I did when I bought, for instance, Trumpeter's 1/32 scale A-10, was find all the aftermarket accurizing kits and decals I could. And there are pah-lenty! I think I spent as much on them as on the model.


Another dimension to the aftermarket accurizing parts question is whether it's ethical of manufacturing companies to continue producing models that are [email protected] and require an extensive amount of money on the part of the modeller to accurize. I can understand that a highly accurate model can't be attained for lack of information or some type of production constraint. An error here or there is, I think, excusable. 

Flyingfrets' comments on the stealth bomber is an example of ethical behavior: eventually the manufacturing company was forced to re-issue its model once more information was attained. 

ERTL's TOS E is an example of unethical behavior: I spent three times the amount for accurate parts than what the kit originally cost. Never mind that ERTL had *decades* to correct the kit (and access to the filming model) but they continued to issue the same inaccurate abomination (with few modifications that made incremental improvements). 

After all is said and done, thank God for Polar Lights....

José


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## trooper109 (Jun 14, 2000)

El Gato said:


> Another dimension to the aftermarket accurizing parts question is whether it's ethical of manufacturing companies to continue producing models that are [email protected] and require an extensive amount of money on the part of the modeller to accurize. I can understand that a highly accurate model can't be attained for lack of information or some type of production constraint. An error here or there is, I think, excusable.
> 
> Flyingfrets' comments on the stealth bomber is an example of ethical behavior: eventually the manufacturing company was forced to re-issue its model once more information was attained.
> 
> ...


IMHO It all comes down to the bean counters. Is the price of retooling and remanufacturing the TOS E worth the sales that it will generate? I guess their answer was no. Everything now-a-days comes down to the bottom line.

And to add my 2 cents I see nothing wrong with accurizing. You're buying "their" model, and adding detail to it for yourself. Now if you were to add to it then cast it as your own - thats a no-no in my book.
I see no acceptable reason for recasting. And it's not just models that are out of production are being recasted. On EZ Board just last week on board member alerted another that his sculpture was being recasted and sold on ebay for a quarter of the real price. I know CultTVMan doesn't want another recasting thread so I'll end it there.

Kev


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## Trek Ace (Jul 8, 2001)

Well, hmmmmmnnn... Let's seeeeeee...

What possible angle on this topic _hasn't_ yet been covered?

Oh, I know... How 'bout _the ethics of recasting aftermarket parts_ ?



A guaranteed thread-closer reply if there ever was one.


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## ThomasModels (Mar 8, 2000)

And so it was.

I've reopened this thread as some very valid points have been made and could warrent further discussion.

Trek Ace made a very accurate post which got this thread locked down by it's former ctv moderator.

It makes you wonder why.


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## Trek Ace (Jul 8, 2001)

Sure does.


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## uss_columbia (Jul 15, 2003)

I noticed that one well-known individual that was apparently recasting parts has since replaced some parts offerings with new parts cast from new, legitimate masters. I don't know if there was any admission or apology, but ceasing and desisting is at least something.


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## ThomasModels (Mar 8, 2000)

It would been nice if that individual would have ceased and desisted the first time he was told to stop in 1996.

Or when he was notified in writing a month after that.

Or even when he was notified again in 2001 after a vendor that sold his stuff ratted on him.

It all must be coincidence now that new masters have been made and molds taken from them after prior activities were 'discovered' at a hobby show.


> I don't know if there was any admission or apology...


 None that I've ever heard. Unless you count "You're not making these parts anymore and they want them and I'm the one to see that they get them!"

I have seen an offer on another message board of an 'accurate secondary hull hanger bay door section' for the Ertl Enterprise-A very recently. Hopefuly that too is a newly crafted master.

In any case, I wish the best of luck to this person in his endeavors casting his own crafted parts. I am sure they are very nice.


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## Zombie_61 (Apr 21, 2004)

My take on this subject is this: If the manufacturers of the original kits did their homework and produced a 100% accurate kit, there would be no need for aftermarket accurization parts. Along those lines, if the aftermarket suppliers can produce an accurate part, so can the original kits' manufacturers. And, as has been said before, you still have to purchase the original kit in order to use the aftermarket parts. So there really are no losers in this situation.

Recasting, on the other hand, is an entirely different matter. And Chuck_P.R.'s statement, "Recasts usually are done only of kits that are no longer made," is inaccurate. Right now, there are several recast kits available on eBay that have been recast from kits that are readily available. But most people, when faced with paying top dollar for an original kit or buying a recast for much less, will take the recast so they can save money. Personally, I wouldn't knowingly buy a recast unless the original kit was absolutely unavailable and the original manufacturer has publicly announced that it will never be reissued. Or if the recaster has an agreement with the original manufacturer.


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## woozle (Oct 17, 2002)

I noticed that the original castings (which I bought) where losing their detail, but to the molds aging, while the aleged recastings where nice and crisp. The hanger door details are pretty crisp too, better then the softer, older ones.


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## Griffworks (Jun 24, 2002)

If I understand what you're referring to, Michael, the pieces/parts you're talking about are what you got from Lunar Models, right? If so, LM has been selling those accurizing kits for the Refit/-A for more than 10 years. As such, they're not recasts, unless I've missed something about ownership of pieces/parts in regards to the shuttlebay and other LM parts.... 

- - - - - - 

Jeffrey Griffin
Griffworks Shipyards

* * * * * *

Star Trek Scale Modeling WebRing


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## woozle (Oct 17, 2002)

um.. they're the ones that YOU YOURSELF asked me to compair, between the old lunar models castings and the newer ones, by a different caster.


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## Griffworks (Jun 24, 2002)

Um... YOU YOURSELF showed me pics of a lot of things, but I don't recall YOU YOURSELF ever showing me pics of a hangar bay door, which is what was mentioned above. I was assuming it to be a part of the LM hangar bay set that you had previously mentioned, dude. I know you had shown some pieces/parts that went on either side of the hangar doors and we had a conversation about THAT, as well as a few other pieces/parts. Then you showed pics of the LM pieces/parts w/the hangar bay. And that was also how many months ago...?  

- - - - - - 

Jeffrey Griffin
Griffworks Shipyards

* * * * * *

Star Trek Scale Modeling WebRing


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## John O (Mar 8, 2000)

Zombie_61 said:


> I wouldn't knowingly buy a recast unless the original kit was absolutely unavailable and the original manufacturer has publicly announced that it will never be reissued.


 This is an ethical problem too. If I as a manufacturer decide to discontinue a product, there may be a lot of reasons for it which are unknown to all but me. So if its my "intellectual property" and I don't want the product manufactured any more, that doesn't give anyone the right to reproduce without my permission because they might think, "well gee, John O's Model Co has given up on it, so it must be okay for me to pick up the ball". Nope, no-one has the right to copy anyone's work unless its agreed upon.

John O.


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## ThomasModels (Mar 8, 2000)

As a retailer, if I were to carry John Q's line of model kits and lighting products, and John O came up to me and said "Those parts are recast or derived from my masters and work" I would be under moral, ethical and quite possibly legal obligations to at least question John Q as to the origins of 'his' products and to not carry or endorse those specific products I had any doubts over.

Instead, as a retailer and non-manufacturer, a conscious thought out decision was made to dismiss fact and do what was in his personal best interest for profit and gain.

Is a retailer responsible to follow up claims made by a manufacturer to investigate the authenticity and origins of certain products made by an individual known to recast main stream plastic model kit parts? You bet.




> _So if its my "intellectual property" and I don't want the product manufactured any more, that doesn't give anyone the right to reproduce without my permission because they might think, "well gee, John O's Model Co has given up on it, so it must be okay for me to pick up the ball". Nope, no-one has the right to copy anyone's work unless its agreed upon._


 That is exactly what was said at WF '03. Except for the "Well gee, John O's Model Co" part, but the rest almost precisly word for word.

The really sad thing is that had the recaster asked about offering those parts, the original producer would have most likely agreed to having the recaster produce his parts. He recasts clean castings very well. Instead, the recaster decided he could do what he wished with the work of main stream plastic model kit companies, why not with the products of a 'garage' kitter?

The recaster was notified multiple times to stop over the years and didn't. Even sadder was the fact the table sponser was notified with ample time to do the right thing and opted not to. As far as I and others who are aware of what actually transpired are concerned, the whole situation is the apitomy of everything wrong with the 'garage' industry.


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## Zombie_61 (Apr 21, 2004)

John O said:


> If I as a manufacturer decide to discontinue a product, there may be a lot of reasons for it which are unknown to all but me. So if its my "intellectual property" and I don't want the product manufactured any more, that doesn't give anyone the right to reproduce without my permission because they might think, "well gee, John O's Model Co has given up on it, so it must be okay for me to pick up the ball". Nope, no-one has the right to copy anyone's work unless its agreed upon.


You make a very valid point, and, quite honestly, one I had not thoroughly considered. I would imagine, then, that a recaster would have to accept the possibility of losing whatever finances he/she has paid out (to reproduce an "obsolete" kit) if the original manufacturer requests or forces them to discontinue that practice.

This raises another question in my mind: What if the legal rights to a particular intellectual property have lapsed?


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## uss_columbia (Jul 15, 2003)

^ Copyright lasts until death of the author plus 70 years or somesuch. For corporation-produced copyrighted work, it lasts 90 years, if I remember right.
So, it will be quite some time before you can recast stuff from John O's Model Co.


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## Zombie_61 (Apr 21, 2004)

Well, that answers _that_ question.


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## StarshipClass (Aug 13, 2003)

My questions in this area are:

If someone has a part that is not quite accurate, is it okay to take the part, accurize it and then use it, the modified original kit part, to make castings without permission from the owner of the original kit part?

Where does the ownership begin and end? Does the accurizer have to make the part up completely from scratch or can he use the kit part as a starting point for his modified part?

Also, if one is to make castings for one's own use, say, adding more crew to a ship model, is that okay?


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## John P (Sep 1, 1999)

For one's own use, I figure anything is fine. You're not making a profit off of someone else's efforts.


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## heiki (Aug 8, 1999)

uss_columbia said:


> ^ Copyright lasts until death of the author plus 70 years or somesuch. For corporation-produced copyrighted work, it lasts 90 years, if I remember right.
> So, it will be quite some time before you can recast stuff from John O's Model Co.


The copyright law is not so clear as that. Recently, here in the U.S. of A., the copyright law was extended. The so named "Bono" law, which was passed shortly after his death. Some feel it was passed as an emotional issue in rememberance to Sonny. The change only affected and extended the copyrights here in the U.S. of A.. In other parts of the world, other shorter terms exist. In fact, in China, there is no copyright over movies, music, etc.. China does not belive in this type of intellitical right. China belives such works belongs to the people of the state. Much like the American Indian who belived that man belings to the land and that man cannot own land.


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## StarshipClass (Aug 13, 2003)

John P said:


> For one's own use, I figure anything is fine. You're not making a profit off of someone else's efforts.


I tend to agree with you since I make VHS tapes of programs I want to view later.

However, I do wonder that it's not considered a sort of 'profit', at least for yourself, since you're not buying more of the kits due to your copying.


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## John P (Sep 1, 1999)

^That could be argued, 'tis true.


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## John O (Mar 8, 2000)

If one were going to be completely and anally consistent, sure. But, I consider a certain amount of home adaptation and copying to fall under "fair use".


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## Chuck_P.R. (Jun 8, 2003)

My take, complete kit recasters - bad.
Garage kit manufacturers who create their own original works - great!
People who recast accuratizing kits - bad.
People who take the time to create accuratizing kits and share their skills with us - great!!! :thumbsup:

Sorry if these views don't detail all the legal aspects. Just the way I feel.


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## Chuck_P.R. (Jun 8, 2003)

John O said:


> If one were going to be completely and anally consistent, sure. But, I consider a certain amount of home adaptation and copying to fall under "fair use".


I agree. In the printed copyrighted arena the test at least used to be simple, "reproducing" small enough parts of a work that the sales of that work are not diminished is "fair use." Thus allowing people to quote extended passages legally, colleges to copy a chapter or two from a book for use in a course, etc. 

In the case of those who create accuratizing kits, not only do they not diminish the number of kits sold, they undoubtedly increase the numbers of kits sold!


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## uss_columbia (Jul 15, 2003)

John P said:


> For one's own use, I figure anything is fine. You're not making a profit off of someone else's efforts.


This is absolutely true. It's the copyright "doctrine of first sale." It means that once you buy a particular authorized copy, you are free to do with it as you please, such as resell it, destroy it, paint pink polka dots on it, etc. You're even allowed to sell your defaced pink polka dot version. What you aren't allowed to do is then copy your modified version and distribute the copies. While the modifications are yours, you don't have the right to copy the elements retained of the original item.

(You might even make a profit off of someone else's efforts (combined with your own efforts) if, for example, you can sell your pink polka dot modified version for more than you paid for it. Good luck with that!  )


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## uss_columbia (Jul 15, 2003)

The perfesser poses some good and difficult questions.
As far as "is it okay," there are two interpretations: strictly legal and ethical. (Something can be legal but unethical or ethical but illegal.)




PerfesserCoffee said:


> If someone has a part that is not quite accurate, is it okay to take the part, accurize it and then use it, the modified original kit part, to make castings without permission from the owner of the original kit part?


This is not legal but I consider it ethical IF (and only if) the accurized part is only usable with a licensed whole. If your part could only be used by licensed end users on licensed complete models, it would be extremely hard for the copyright holder to show any damages. You could look at this as subcontracting accurization of your licensed while, if you wish, as has been said here before.
Legally, the accurizer holds the copyright to any and all "original" changes made to the original but not to the original work. Thus, if your accurization adds to but does not duplicate a copyrighted item, it would be fine. Usually, though, you would copy elements of the original part along with your new elements when you make your mold and castings. However, even in the case of a strictly add-on component, no recasting of the kit parts, it's probably only strictly legal if the accurate component you are making is a miniature of a public domain item. If you are making even a scratch-built interpretation of a copyrighted work, your interpretation is a derived work.




PerfesserCoffee said:


> Where does the ownership begin and end? Does the accurizer have to make the part up completely from scratch or can he use the kit part as a starting point for his modified part?


Again, legally, even from scratch might not put you in the clear (a from-scratch model of a copyrighted starship design is a derived work). However, I consider production of a scratch built or even heavily modified part to be ethical.

Since it is extremely unlikely that an individual casting parts for his own use (or even a few friends) is likely to show up on a copyright holder's "radar," the ethical question is perhaps more relevant than the legal one. If you plan to produce lots of for-profit parts, though, you should pay more heed to the legal issues.

(Disclaimer: I am not a lawyer, but I play one on HobbyTalk.  )


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## ChrisW (Jan 1, 1970)

One other not-so-apples-to-oranges comparison.
I sell limited edition prints. When that print is sold out, I do not issue a "second edition". When someone bought my print from the original edition at the original price, there is the understanding that the limited number and availability should help to maintain, and hopefully increase the value of the print on the secondary market. If someone else wanted a copy of that image, they can try to purchase one on the secondary market. Under no circumstances can someone look at the situation and say "Hey, he's not making any more prints, I 'll copy one of the original prints and sell those..."
If It was an "open editon" (not limited) I (or whomever I sell reproduction rights to) have the right to print (or not print) images from my artwork.


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## Trek Ace (Jul 8, 2001)

The provocateur in me has come up with a scenario applying a real-world kit and company that hopefully will generate a good discussion on the pro & con of aftermarket replacement parts.

Thomas, if you and/or Dave Metzner would like to chime in on this from the commercial kit designer/producer side, please do.

Okay,

Most of us own one or more of the PL 1/1000 1701 kit. Many of us have attempted to light it through various techniques. The major hull parts that contain the many viewports are shot in opaque plastic, with only the engine and sensor domes shot in clear styrene. To make it possible to light the many viewports, a modeler would normally have to drill out and file each and every viewport, or sections of hull that contain viewports, and insert clear material of choice that can be lit from an internal source. Very labor intensive.

Now, say someone decided to market clear, hollow aftermarket replacement parts of those very same pieces (top and bottom saucer, left and right secondary hull) to make it easier for the modeler to light the viewports without the burden of extensive microsurgery. The clear replacement parts are made from molds taken directly from the original, opaque kit parts, without further modification, and would be sold with the intention that the modeler would still be required to purchase a licensed kit in order to have a complete, easily-lit model.
_
What are the possible legal and/or ethical issues with this scenario?_

_Since PL doesn't plan to offer an all-clear version of the kit, does that open the door freely for such aftermarket parts without violation? _

_Can a clear-cast part of a commercial kit opaque part be considered different enough to be an original work?

Would this effort be considered "recasting"?
_ 
_If the resulting aftermarket parts would cause an increase in licensed kit sales, would the kit designer/kit producer be damaged in any way by this?


_Note: I came up with this scenario because I face this lighting situation myself many times over with this kit and thought it would be a good topic of discussion.

Feel free to chime in with your opinions.


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## razorwyre1 (Jan 28, 2004)

Trek Ace said:


> _
> What are the possible legal and/or ethical issues with this scenario?_
> 
> _Since PL doesn't plan to offer an all-clear version of the kit, does that open the door freely for such aftermarket parts without violation? _
> ...


uss. columbia, back me up on this:
1. it's a violation of both paramount's and polars copyrights. you are duplicating both the ships image and polars parts. the purpose for doing so and the color of the part is irrelevant.
2. depends on what you mean... legally, no. ethically, i think polar might have a big argument with what you propose, so probably not.
3. no. all clear cast parts that duplicate the original kit parts are technically a violation, even just a section of them. 
4 & 5. depends on who you ask.

you raise an excellent theroretical question, because its sort of a slippery slope thing. what youre proposing is such a huge chunk of the model in question, it makes you wonder where the borderline is. if its ok (ethically) to do a little piece of the ship, why not most of it? when is "altered" altered enough? again these are all ethical questions. legally, its all verboten.


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## StarshipClass (Aug 13, 2003)

uss_columbia said:


> The perfesser poses some good and difficult questions.
> As far as "is it okay," there are two interpretations: strictly legal and ethical. (Something can be legal but unethical or ethical but illegal.)
> 
> 
> ...


Thanks for the info, uss_columbia, you point out some very relevant aspects as to the legality and ethics of the situation. :thumbsup: 

I agree with you regarding the legal aspects -- ANY copying and selling is a technically legal violation at least of Paramount's copyrighted work. I tend to lean towards the ethical side of the equation since, as pointed out, the accurizing kits do enhance the value of the original kits. It's also nearly a case of silence being acquiescence. The makers of accurizing kits are doing the companies a favor by generating interest in and sales of their kits.

As to the legal aspects, while perfectly ethical IMHO, it would seem to me that even contracting with someone to make a duplicate completely of scratch of a copyrighted design to be a technically illegal act. To build one on your own, I would guess to be legal, but to then sell it to someone without paying licensing fees, etc. would seem to be technically illegal. 

I can't imagine any company going to the extreme of prosecuting or attempting to take possession of the copied work in such singular cases but it would be possible at least. I remember reading of Barris calling the law and taking possession of an unauthorized copy of his copyrighted TV Batmobile back in the '60s. (Nowadays, there are 1/1 scale kits of the car available. I wonder if those are licensed.)


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## woozle (Oct 17, 2002)

Interesting, I had't considered that a recaster of a garage kit is also violating the original copywrite.


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## John O (Mar 8, 2000)

Trek Ace said:


> _Since PL doesn't plan to offer an all-clear version of the kit, does that open the door freely for such aftermarket parts without violation? _
> 
> _Can a clear-cast part of a commercial kit opaque part be considered different enough to be an original work?_
> 
> ...


I'm gonna say that a clear cast part based on an original opaque kit part is NOT recasting for the intent of violating a copyright or license. I think if you re-cast the entire kit, or more than say 30%, you're stepping on toes. But if you were to use the kit's edges, surfaces, or limited selection of small parts to create _replacement_ plugs or add-ons which have significantly different characteristics than the kit's parts (IMHO, light transmission counts as significantly different), you're ethically okay as they still rely on your purchase of the source kit to produce a finished piece. I think this is pretty much DLM's approach.

John O.


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## uss_columbia (Jul 15, 2003)

Trek Ace said:


> Now, say someone decided to market clear, hollow aftermarket replacement parts of those very same pieces (top and bottom saucer, left and right secondary hull) to make it easier for the modeler to light the viewports without the burden of extensive microsurgery. The clear replacement parts are made from molds taken directly from the original, opaque kit parts, without further modification, and would be sold with the intention that the modeler would still be required to purchase a licensed kit in order to have a complete, easily-lit model.





razorwyre1 said:


> it's a violation of both paramount's and polars copyrights.


Agreed.
The real concern here would be that casting the saucer and secondary hull would enable one to build complete starships without buying licensed kits. (Indeed the kit already comes with spare nacelles). However, the fact that the cast copies would be more expensive than the licensed article would lend credence to the argument that the copies would not be used as a market substitute for the licensed article.




John O said:


> I think if you re-cast the entire kit, or more than say 30%, you're stepping on toes. But if you were to use the kit's edges, surfaces, or limited selection of small parts to create _replacement_ plugs or add-ons which have significantly different characteristics than the kit's parts (IMHO, light transmission counts as significantly different), you're ethically okay as they still rely on your purchase of the source kit to produce a finished piece.


Clearly, you are infringing the copyright, and the owners are within their rights to stop you. However, if your parts are only for use with the licensed kit, I don't believe you are damaging them. In the case of copyright infringement, monetary damages are not required to get an injunction. Thus, you could be forced to stop. Your parts could likely be seized, too. They wouldn't be able to recover monetary damages for lost sales and such. They might be able to recover attorney's fees, though, which could be substantial. In any event, it's very unlikely for something like this to go all the way to trial. There'd be some kind of a settlement, most likely. If it's truly a win-win situtaion for the kit maker and the accurizer, there's not likely to be a problem.


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## Darth Bill (Oct 5, 2004)

*Holy Cow*

Well I've just begun surfin' the sci-fi model boards having found them through the library PC. While I'm thrilled to see that there's a large community out there for something I used to love doing, I can see I've landed right in the middle of a whole lotta drama! Yikes!

As for aftermarket kits, it seems to me that anyone who produces an accessory or improvement kit is only helping to sell an existing model. Don't copy other guy's stuff though, if there's already one out there go do something else!


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## StarshipClass (Aug 13, 2003)

ChrisW said:


> One other not-so-apples-to-oranges comparison.
> I sell limited edition prints. When that print is sold out, I do not issue a "second edition". When someone bought my print from the original edition at the original price, there is the understanding that the limited number and availability should help to maintain, and hopefully increase the value of the print on the secondary market. If someone else wanted a copy of that image, they can try to purchase one on the secondary market. Under no circumstances can someone look at the situation and say "Hey, he's not making any more prints, I 'll copy one of the original prints and sell those..."
> If It was an "open editon" (not limited) I (or whomever I sell reproduction rights to) have the right to print (or not print) images from my artwork.


I've got a question for you, Chris.

Let's say you've painted a canvas for someone on a commission basis, an original work of art that you've sold to him for a considerable sum. Does that person, as the owner of the original work of art, have the right to make prints of it and make a profit without giving you a portion?


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## John O (Mar 8, 2000)

uss_columbia said:


> Clearly, you are infringing the copyright, ...If it's truly a win-win situtaion for the kit maker and the accurizer, there's not likely to be a problem.


I disagree that it is clear infringement. When Don Matthys makes his replacement parts and bases them in some degree on the kit's parts, but ends up with something which behaves differently than the originally supplied kit part (ya know, it transmits light) I believe this does not take money out of anyone's pocket.

My experience with judges and the law is that were an infringement case of this sort to come before a real judge (Jim's Clear Enterprise Parts v. Polar Lights, LLC), and the judge were to see what exactly Jim's ledgers showed as his net profit, he'd wag his finger at Jim and tell him to stop making his parts and award no damages to PL - and everyone could go home with their legal bills in hand.

Win/win is the way to go. Military and car model companies accept and expect aftermarket mfgs to fill in the gap where their mfg limits prevent them from doing more.


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## uss_columbia (Jul 15, 2003)

John O said:


> I disagree that it is clear infringement. When Don Matthys makes his replacement parts and bases them in some degree on the kit's parts, but ends up with something which behaves differently than the originally supplied kit part (ya know, it transmits light) I believe this does not take money out of anyone's pocket.


Copyright isn't (just) about money. It's about right to copy and right to derive. Don is copying elements of Viacom's original art and of RC's derived work (the transformation into model kit). He is infringing both copyrights when he makes his derived work. He owns copyright in his modified parts, if there is sufficient originality (which is debatable for just casting in clear, less debatable if accurizing). (Nobody has the right to copy Don's copyrighted parts, regardless of whether he had permission to copy Viacom's or AMT's copyrighted material.) Don only has the right to reproduce and sell his own parts with Viacom's and AMT's permission. This is the law. Ethically, it may not be a problem, but legally, it is clearcut infringement. 


See http://www.copyright.gov/circs/circ1.html#wci for copyright basics.
Viacom has the EXCLUSIVE right to reproduce, to create derived works, etc., of Star Trek art. Viacom has licensed RC (via AMT and PL) to produce model kits. RC has the EXCLUSIVE right to the transformation. I don't know whether Viacom's agreement with RC gives RC the right to sublicense the Viacom material; I would guess not. Thus, someone like Don would need a license from RC AND from Viacom to produce, for example, a clear-cast Star Trek part. There really is no legal question whatsoever. The question is one of damages and remedies. It can be argued that Don's practice does not damage Viacom or RC and even that it enhances RC (and therefore Viacom), in which case, no damages would be awarded. A permanent injunction, however, is all but guaranteed unless the parties reach a good settlement.

More likely, someone like Don would continue to remain "below the radar," especially if no damage is perceived by RC or Viacom bigwigs; so, we're not likely to ever see such a court case. (We do hear about the copyright owners sending cease-and-decist orders to garage model producers from time to time, though. These are usually honored for fear of ending up paying hefty legal fees even though it's unlikely any damages would be awarded in the end.)

Note: when determining whether an activity is infringement or fair use, several things are considered, including how big or significant the copied part is compared to the whole and whether it is done for profit. I'm quite confident that someone's casting of a few small parts of a large kit and passing of them to a few friends with no profit would be considered fair use. If he were to be recasting full hulls and selling them for profit, damages would likely be awarded. Stuff between is in the gray area legally.

Here's another interesting link: http://www.itaweb.it/jhyphen/toys/caveat.htm
It's mostly about prop replicas, but the concepts are the same for other scale models.


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## Chuck_P.R. (Jun 8, 2003)

Trek Ace said:


> The provocateur in me has come up with a scenario applying a real-world kit and company that hopefully will generate a good discussion on the pro & con of aftermarket replacement parts.
> 
> Thomas, if you and/or Dave Metzner would like to chime in on this from the commercial kit designer/producer side, please do.
> 
> ...


I'd love to see just such an accuritizing kit as well, Trek Ace!

PL has sometimes in the past made reference to expecting that there would be aftermarket "accuratizing" manufacturers to fill certain niches, such as adding a hanger bay to the NX-01 kit.

I don't see any way such kits could damage sales, and though they have never said "go buy an accuratizing kit" the implication seemed to be that at the least they would not be that worried about that sort of thing. Those kinds of kits increase rather then decrease sales.

Just look at how many different ships John P has built based around the 1/1000th TOS E!!! 

Since Thomas is contracted by PL for specific pieces, and they are under new management, I don't think the guy will probably be able to comment on such a thing officially. Wouldn't want to see him get in trouble with the new bosses!

There's still a few Trek kits left we'd all like to see get finished! 

Technically though, the question isn't only whether or not accuratizers are hurting the kit manufacturer. By the letter of the law the accuratizer would have to have their own license from Paramount to sell their parts for it to be totally legal.

But personally I couldn't care less. Paramount has seemed to recognize lately that intentionally pissing off fans for no particular reason doesn't improve their profits. And while accuratizing part manufacturers may not have licenses they make popular products that help their licensees make more money, as well as allow the Trek universe to be more diverse and popular, and therefore profitable.

So personally I don't see them going after too many accuratizing kit manufacturers.
No point to it and no profit in it, even though they probably could do so if they wanted to.

Here is another scenario, though...

Someone who makes accuratizing parts could PROBABLY be hired to assemble a kit that he made his own accuratizing parts for. So that way the only thing you are really paying for is materials, the original manufacturers kit, and the SERVICE of having it fully or partially assembled.

Don't think that could be construed as a violation, but hey, I'm no lawyer...


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## Chuck_P.R. (Jun 8, 2003)

uss_columbia said:


> Copyright isn't (just) about money. It's about right to copy and right to derive. Don is copying elements of Viacom's original art and of RC's derived work (the transformation into model kit). He is infringing both copyrights when he makes his derived work. He owns copyright in his modified parts, if there is sufficient originality (which is debatable for just casting in clear, less debatable if accurizing). (Nobody has the right to copy Don's copyrighted parts, regardless of whether he had permission to copy Viacom's or AMT's copyrighted material.)


Actually, printing the word copyright on pages included with pieces doesn't legally copyright anything. 

Don would have to have filed for copyright and provided proof that he had a license from Paramount AND whatever model company and only then would the government give him a copyright. Considering the expense of a Paramount Trek license, I doubt that has happened. But I could be wrong.

If that hasn't been done he doesn't have one, originality or no originality. The word copyright can't be used unless he has permission to produce the parts from the owners of the intellectual property. No matter how many bells and whistles he slaps on the piece.

Paramount could, for example, say "Don, we don't like your parts. We think they could potentially reduce the value of our property so you can't make any."

Or, of course, they might be convinced and sell him a license.
But without a license, a derivative work can't be copyrighted - originality or no originality.

You can not copyright something that is illegally produced without a license.

So Don and whoever copies Don's parts are both violating the rights unless they have a license.

The statement that "(Nobody has the right to copy Don's copyrighted parts, regardless of whether he had permission to copy Viacom's or AMT's copyrighted material.)" is not at all accurate.

Someone who produces something illegally has no legal recourse. You can't sue in court if someone makes copies of an unauthorized part without your permission. If you tried, you would just get yourself in as much trouble as the other person.

Having said that let me say that I HAVE BOUGHT two of Don's accuratizing kits. They are fantastic, legal or not!

And while someone like Don might have no legal recourse if someone ripped him off by copying his pieces, let me say that such people should simply be exposed and people should avoid buying from them.

If not, people who take the time to create such kits for us will simply stop making them and we will all be screwed.

The fact that no one could do anything about it legally has nothing to do with the fact that it's just plain wrong to rip off someone who is helping the Trek modeling community. People who rip off accuratizers may make a few quick bucks today, but in the long run buying from them will make us all suffer.


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## Darth Bill (Oct 5, 2004)

Are ya'll a bunch of hobbyists or amateur copyright attorneys???


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## Chuck_P.R. (Jun 8, 2003)

Darth Bill said:


> Are ya'll a bunch of hobbyists or amateur copyright attorneys???


This subject has been beaten to death a bit.
But no harm done.
Once every possible angle has been discussed it will be dropped by most people.
Great thing about Cyberspace, if you get bored there are a thousand other things to see. I predict that most of us will soon move on as far as this subject is concerned...


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## elohssas (Oct 5, 2004)

This is a great discussion. Causes me to have a LOT of questions

Did you know that even though a Model Master maybe completely fabricated from ‘scratch’ by the artist, the production and sale of that item fall under the ‘Intellectual Property’ category and can therefore be designated illegal? 

Intellectual Property is something that can be identified with or as a copyrighted item. i.e. if it looks like Star Trek and a large enough portion of the general public identify it as belonging to Start Trek even though it isn’t, it’s considered Intellectual Property. 

I find it very odd that each and every one of us states how wrong recasting is and how it hurts the original part maker and/or a company like Polar Lights who obtains a license. Yet each and everyone of us will rush right out and buy garage kits which are illegal to produce seeing as the manufacturers of said kits have not obtained the proper permission and licensing to produce said kit. As Mr. Spock would say, “Fascinating”.

Why is it that we say no to recasts because it steals from the pattern/garage kit makers, but buy the kits and aftermarket parts which is technically stealing from a Large Corporation like Paramount, Lucas Films, 20th Century Fox, to name a few?

If it’s okay to steal from Large Corporations, does that mean that it’s now okay to steal from Polar Lights since they are owned by RC2 – a Large Corporation? 

Why is one way okay, yet the other not?

Why is it perfectly okay for a Person A to complain about Person B stealing his work (recasting), yet when that same Person A gets caught recasting Person C’s work nothing is said? Oh the hypocrisy!

It’s my understanding that if you change something by 10% it can be considered a NEW item. So that would make accurizing parts legal if they meet the 10% change requirement except that (here it comes) they fall under the “Intellectual Property” category.

Face the facts. All garage kits, aftermarket parts, accurizing kits etc are technically illegal. You can look at the aftermarket auto parts if you want but it’s the same there. What happens is that the industry as a whole overlooks it to avoid bad press and or (in the case of auto parts) the same manufacturer makes the part and sells to both the auto industry and the aftermarket products. The manufacturer has the copyright so there’s no problem. Doesn’t pay to sue yourself. If they are a separate company altogether, you can bet there is some sort of license agreement in play. If there isn’t, then they are probably not as greedy as the entertainment industry.


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## woozle (Oct 17, 2002)

Your not human, are you.


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## capt Locknar (Dec 29, 2002)

elohssas said:


> It’s my understanding that if you change something by 10% it can be considered a NEW item. So that would make accurizing parts legal if they meet the 10% change requirement except that (here it comes) they fall under the “Intellectual Property” category.


This also falls under the Commercial Copyright laws that state that any work that is Derived from anothers work is the sole property of the original artist. Therefore under Commercial Copyright law, a 10,20 or even a 90% change is still considered derived works and in violation of commercial copyright law. I am in the middle of a violation like that on one of my products that were derived by another company. Also under commercial copyright law, once 10 items are sold its considered a felony.


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## sbaxter (Jan 8, 2002)

Chuck_P.R. said:


> Actually, printing the word copyright on pages included with pieces doesn't legally copyright anything.
> 
> Don would have to have filed for copyright and provided proof that he had a license from Paramount AND whatever model company and only then would the government give him a copyright.


The fact that Paramount owns _Trek_ certainly complicates things, but if we could take that aspect of things out of the picture (and we cannot in this instance) for just a moment ...

If Don (or whoever) creates a model of a ship that exists only his mind or one derived from works that he created completely on his own -- or if he wrote a book about creating aftermarket parts in general -- he does _not_ have to "file" for copyright protection to own that copyright. Technically, copyright law automatically protects anyone who creates an original work (except in certain complicated -- and fairly rare -- "work for hire" situations). However, apprising the government of your copyright claim in advance is a good idea, because it will generally make it easier to prove you created the item in question and thus hold the legal copyright.

Qapla'

SSB


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## Chuck_P.R. (Jun 8, 2003)

sbaxter said:


> The fact that Paramount owns _Trek_ certainly complicates things, but if we could take that aspect of things out of the picture (and we cannot in this instance) for just a moment ...
> 
> If Don (or whoever) creates a model of a ship that exists only his mind or one derived from works that he created completely on his own -- or if he wrote a book about creating aftermarket parts in general -- he does _not_ have to "file" for copyright protection to own that copyright. Technically, copyright law automatically protects anyone who creates an original work (except in certain complicated -- and fairly rare -- "work for hire" situations). However, apprising the government of your copyright claim in advance is a good idea, because it will generally make it easier to prove you created the item in question and thus hold the legal copyright.
> 
> ...


I was only discussing a situation in which the work was derivative. No matter how much or little it is changed *a work that is derivative cannot be copyrighted. *

I may not have been as clear as I thought I was being, if so I apologize. My main point was that people slap the word copyright all the time on their works and often they are not copyrightible because they are derivative.

I then also pointed out that those people really aren't able to take legal action against someone who copies their works even exactly because those pieces were not copyrightable to begin with. However, those who, for example, copy an unauthorized accuratizing kit manufacturer's work aren't in the clear, because they could be prosecuted by the person who owns the original work to the same degree.

Saying that if Paramount didn't have an intellectual property named Star Trek Don's work would be automatically copyrighted is a little puzzling. 

You simply can't take the fact of Paramount owning the original property "out of the picture." It's in the picture. It's the entire crux of the issue. A work that is derivative cannot be copyrighted. 

However, again, having said that let me say I personally couldn't care less about the legalities, and would not hesitate in purchasing an accuratizing kit from Don or anyone else who makes a product I like.

The guys like Don who share their abilities and skill with us I have no problem buying from. However, I think those who do decide to by accuratizing parts/kits should try to do so either directly from the artists or someone the artist has authorized to sell their work.

The people who recasts these artist's works shouldn't be patronized. At the very least you shouldn't buy those parts from such people.


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## Guy Schlicter (May 3, 2004)

Hi,You know on the subject of model kits being accurate,I see all these people going to extremes to make a model perfectly accurate.In my opinion as long as a model isn't grocely inaccurate,I can live and make use of it.Model building is supposed to be fun and its up to the person to do what he wants with the kit.I don't nitpick.A while ago I posted a thread about how much I liked the Star Trek The Motion Picture USS Enterprise model,the good ol smoothie.People told me about all the inaccuracies about it but I still feel its a Damn good model and remember it was made in 1979.Its still an excellent model even if it has some flaws, and most importantly it looks like the first Movie USS Enterprise when built and thats good enough for me,Thanks Guy Schlicter.


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## uss_columbia (Jul 15, 2003)

Chuck_P.R. said:


> Actually, printing the word copyright on pages included with pieces doesn't legally copyright anything.


True. Copyrighted is granted *automatically* as soon as the material is put in a tangible form (which is clearly the case with sculpture). No notice is needed. The word Copyright or the symbol is not needed. (These things are advisable but not necessary.) (Notice was required for stuff published before March 1, 1989.)


> Don would have to have filed for copyright and provided proof that he had a license from Paramount AND whatever model company and only then would the government give him a copyright.


False. Copyright is automatic. However, one must register his copyright before he could sue anyone, and there are advantages to registering in a timely manner. You *can* register a derived work. You have to state from what is was derived. I don't recall there being anything about permission on the form. It would be interesting to try to register an unauthorized derivative to see what the copyright office does. (Perhaps they'd even notify the copyright holder of the work from which it was derived.)


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## uss_columbia (Jul 15, 2003)

Chuck_P.R. said:


> I was only discussing a situation in which the work was derivative. No matter how much or little it is changed *a work that is derivative cannot be copyrighted. *


They most certainly can and are all the time.
However, I think you mean "*unauthorized* derivative works." These, of course, are illegal.
(I just rechecked the applicable copyright registration form, and you do NOT have to state whether you have a right to create the derived work. See http://www.copyright.gov/forms/formvai.pdf, "Space 6.")

However, from the copyright statutes:


> § 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.


You may be correct that no protection would be granted in an accurize-and-cast situation:
"protection... does not extend to any part of the work in which such material has been used unlawfully."

I think the case could be made that the entire accurized casting is a "part of the work in which such material has been used unlawfully," leaving no part "clean" for copyright protection.

But this refers to the casting, not the original accurized master; the act of accurizing a kit part from a licensed kit is not unauthorized (nor specifically authorized, but it's extremely likely to be held as a fair use); it's the reproduction that's unauthorized.

In something like an original modification, lighting scheme, or original paint job, one would be granted copyright protection; this derivative work is not unauthorized. By selling you the kit, RC authorized you to build it and display it as you see fit (and Viacom has authorized RC to authorize you.)

Someone accurizing an original part is likewise creating an *authorized* derivative work. Now one could argue (weakly) that AMT was only licensing you to build the inaccurate shape (not derive an accurate part from the inaccurate source material) and that you'd need a license from Viacom to incorporate more accurate shapes. I think the courts would agree that using the more accurate shapes to accurize a licensed model would be fair use, though.

So, if the accurizing can be considered transformative (and sufficiently original), which it should be as the accurization involves going from differently shaped parts and 2d movie frames to an accurate 3d "sculpture," the accurizer does indeed have copyright in the accurized part and can indeed prevent (even by lawsuit) people from recasting it. Of course, he can't cast it himself, either.

(It's possible that the accurized part would have no protectible elements by reaon of "scenes a faire," which states that elements necessary for anyone to create a particular *type* of art are not protected. (To protect these elements would be to preclude anyone from doing the same *type* of thing rather than merely the same *specific expression* of a type of thing.))


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## razorwyre1 (Jan 28, 2004)

PerfesserCoffee said:


> I've got a question for you, Chris.
> 
> Let's say you've painted a canvas for someone on a commission basis, an original work of art that you've sold to him for a considerable sum. Does that person, as the owner of the original work of art, have the right to make prints of it and make a profit without giving you a portion?


that depends on the contract you signed with them. as a "work for hire", the person who commissions the art is usually considered the owner, so therefore the answer to your question is yes.


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## StarshipClass (Aug 13, 2003)

Thanks, razor! That's what I was thinking but wasn't sure I had it right.


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## John O (Mar 8, 2000)

razorwyre1 said:


> that depends on the contract you signed with them. as a "work for hire", the person who commissions the art is usually considered the owner, so therefore the answer to your question is yes.


As with the design contract I regularly use, which is basically a "work for hire" contract, the Producer does not retain the rights to re-use of the design or any images related to it without my consent and payment of royalties. It is however, my option, depending on the situation and the folks involved, to allow under the _special provisions_ section of the contract to waive "royalty payment as provided in paragraph 6 provided designs and settings used are credited prominently". In other words, I don't care if you steal from me as long as you say you did.

uss_columbia makes some good points, some I had not considered, some I had. But while we've been looking only at the legal and ethical aspects of this, let me add the following from a historical perspective on the subject FWIW. 

There has been a tradition throughout history for artists, craftsmen, architects, designers, etc. to inspire, borrow, and steal blatantly from each other. Students regularly steal from their Masters (trust me, on an egotistical level the Masters prefer this) and counter-wise as well. There is even a term used by art historians for such an act of lifting elements of another artists work, it's called "quotation". If you think Michelangelo's _David_ was original through-and-through, think again.

An artist has choices of how to respond to this copying. One possible is flinging law suites and accusations of fraud. That's fine and sometimes very appropriate in extreme cases, but it will never _ever_ stop the un-authorized copying - we have a long rich history of it. I cannot imagine the loss to Western art had pilgrim artists, from the Renaissance on, been restricted from copying the frescos of the Sistine chapel ...as they still do today.

The better choice? Go with it, as much as is reasonable. Compliment the theif-of-the-moment on the his artfull use of your ideas. Because in the end (and I think you'll agree it applies to what we've been talking about here) the aknowledged kinship that we as artists are all thieves, only serves to make more _paying work_ for everyone. Over time, good will in the face of petty annoyances can be very very profitable - Paramount could learn this.

And THAT in few paragraphs has been the biggest lesson of my professional life as an artist - friends, even if competitors, make you more money than enemies do.

John O.


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## Chuck_P.R. (Jun 8, 2003)

uss_columbia said:


> You may be correct that no protection would be granted in an accurize-and-cast situation:
> "protection... does not extend to any part of the work in which such material has been used unlawfully."
> 
> I think the case could be made that the entire accurized casting is a "part of the work in which such material has been used unlawfully," leaving no part "clean" for copyright protection.
> ...


Umm... I wasn't talking about an original accurized master.
I was talking about the subject of the thread - accuratizing kits made for sale.

Claiming that someone can have a copyright on something they themselves can not reproduce for sale seems pointless.

You can be sued for producing unauthorized derivative works. It's illegal. Besides Capt. Locknar's lawyers you can also ask several Anne Rice fans who published their own fanfiction for free on the internet based on her works. She threatened dozens of her fans and almost had a court date with one before settling - even though not a penny was being made. The owners of the intellectual property do not need to allow you to distribute material based on their work even if you don't make a penny off of it. They can even get punitive monetary damages even if you are giving the stuff away.

You might also want to ask people like Aridas Sofia and several others who were threatened by Paramount with action in the past for creating fan-produced Trek materials.

I don't know what a copyright means in your mind, but to me if it doesn't protect your derivative work it seems quite pointless.

Though an uncopied "master part" for personal use doesn't violate copyright law(something I'd agree with), claiming that a "master piece" is copyrighted seems to make no sense if you can't reproduce it legally. Since such a work is derivative, you also wouldn't even have the right to sue someone copying your derivative - though the original property owner could. Given the circumstances, the term copyright fails to have meaning, if it is accurate at all. Perhaps it could be "registered" as an proposed improvement of an existing product with the patent office. That way if you then got the owner(s)/licensor(s) to agree to allow you to produce the part legally you would not be able to be undercut by someone else who had the same idea.

I also seriously doubt the contention that someone seeing someone's "original painting scheme" or "lightening scheme" could ever be dragged into court and sued for copying it, even if they provided the service of model building and sold that service using those schemes.

Someone decides to paint a TOS E blue with pink polka dots could then sue someone who decided to paint one the same way after seeing yours?

I personally don't believe it.

I think the problem here is that we are all a bunch of non-copyright-lawyers trying to interpret copyright law, and also have no experience in the case law to understand how all the terms are to be interpreted.

Even a lawyer who hasn't specialized in copyright law wouldn't jump to some of the conclusions many of us(including myself) have made as to proper language and how to interpret it. A lawyer who doesn't specialize in the area would do a ton of research at the least, and would usually defer to a lawyer with experience in the field.

Capt Locknar has hired an actual lawyer, as opposed to we amateurs guessing as to the proper way to interpret the law(myself included), to handle a copyright case for him.

He stated above 

"This also falls under the Commercial Copyright laws that state that any work that is Derived from anothers work is the sole property of the original artist. Therefore under Commercial Copyright law, a 10, 20 or even a 90% change is still considered derived works and in violation of commercial copyright law. I am in the middle of a violation like that on one of my products that were derived by another company."

If Capt Locknar's lawyer has told him this I'm inclined to trust that opinion.

If a derivative product is in violation of copyright law, I fail to see how such a person can claim to have a legal copyright.


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## StarshipClass (Aug 13, 2003)

So in other words, "How can you get a permit to do a d----d illegal thing?" as Dr. McCoy might ask.

If someone recasts an accurizing part to sell it, the original accurizing derivative work cannot be copyrighted by the original caster. Therefore, if something derivative is out there, it's no more wrong to recast it and make money off it than to make the derivative design(s)/part(s) in the first place and make money (or not) off them. 

Also, this means that much of the whining by original derivative casters is 'hooey' since they don't own the designs in the first place and are just as much in the wrong as the copiers of their uncopyrightable work.


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## jtwaclawski (Aug 7, 1999)

Chuck_P.R. said:


> If a derivative product is in violation of copyright law, I fail to see how such a person can claim to have a legal copyright.


I've been watching this thread and now I'm getting confused here. 
To take this back to something earlier (TM vs DLM) in conjunction with the quote above....

Is what you are saying, that since Thomas created masters for accurizing parts from kit parts, that he is in violation of copyright law and therefore has no LEGAL recourse against DLM?

If that is the case then isn't Thomas creating an Illegal product and if he is, then aren't all unlicensed products illegal?

If all unlicensed products are illegal, then aren't we all unethical for creating and purchasing such products?

Just a few questions, I'm not meaning to bash anyone here.


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## John O (Mar 8, 2000)

Chuck_P.R. said:


> ...you can also ask several Anne Rice fans who published their own fanfiction for free on the internet based on her works. She threatened dozens of her fans and almost had a court date with one before settling - even though not a penny was being made.


 This actually helps make my point. She was absolutely within her rights to do what she did ...but did it gain her one new fan or help sell another book? Stupidly played on her part, IMHO. She had a great opportunity for good will and chose to let the lawyers handle it.

Say what you might about George Lucas and his C&D order to SMT or his recent poorly made films, I've probably said it too. But he's found a way to be a God-Father of sorts to many dozens of budding filmmakers who have derrived their inspiration directly from his Star Wars movies. _Troops_ anyone? He's held up and promoted their work. Looks good on him and sells more "special editions", I think ...and it doesn't cost him anything except time. He might not be a great filmmaker anymore (great Producer, YES), but he ain't dumb.

John O.


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## Chuck_P.R. (Jun 8, 2003)

jtwaclawski said:


> I've been watching this thread and now I'm getting confused here.
> To take this back to something earlier (TM vs DLM) in conjunction with the quote above....
> 
> Is what you are saying, that since Thomas created masters for accurizing parts from kit parts, that he is in violation of copyright law and therefore has no LEGAL recourse against DLM?
> ...


My point, legality aside, had nothing to do with anyone in particular. I wasn't aware of *any* allegations that DLM had recast *any* of Thomas' parts, though I've heard from several different sources that another seller was.

I used DLM as an example because someone else had.

My point was simply that those who produce accuratizing kits provide a great service to us - legalities aside.

They can't really go after one another for legal recourse if one person copies another.

However, I believe we as consumers should encourage accuratizing part manufacturers to keep sharing their skills with us by only buying from them directly or from someone who they authorize to sell their products.

If someone wants a DLM part they should try to buy it from DLM directly or someone Don specifically authorizes to sell his parts.

If someone wants a part Thomas produces they should try to buy them from Thomas or someone he authorizes to sell his stuff.

That way recasters will be discouraged, even though it's still not impossible.

People selling Thomas' parts years after he has discontinued producing them is really good evidence that those parts might be recast. Theoretically they might not be, but let's get real.

Some might say it's unethical to buy or sell accuratizing parts.
Personally I think ethics and legality are two different things.

Thomas and other accuratizers provide a great service and don't reduce the sales of the kits they make parts for - in fact they unquestionably increase that company's sales.

So personally I don't have an ethical problem with it, legalities aside.

Paramount has learned of late, as John O pointed out, what Lucas did, that if there is no harm and your franchise's image is improved or licensee's profit's increased, let it lay.

Accuratizers help modelers and improve kit sales by leading people to buy and build more then just one version.

It's win-win for kit companies, especially considering how there seem to be less and less customers as time goes by.

They only way for kit companies to stay profitable is either to charge more(which could backfire) or have what customers they do have buy more units.

Thomas and other accuratizing kit makers help kit companies see greater profits and potentially help to keep them from having to jack up kit prices to stay in business.


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## Chuck_P.R. (Jun 8, 2003)

John O said:


> This actually helps make my point. She was absolutely within her rights to do what she did ...but did it gain her one new fan or help sell another book? Stupidly played on her part, IMHO. She had a great opportunity for good will and chose to let the lawyers handle it.
> 
> Say what you might about George Lucas and his C&D order to SMT or his recent poorly made films, I've probably said it too. But he's found a way to be a God-Father of sorts to many dozens of budding filmmakers who have derrived their inspiration directly from his Star Wars movies. _Troops_ anyone? He's held up and promoted their work. Looks good on him and sells more "special editions", I think ...and it doesn't cost him anything except time. He might not be a great filmmaker anymore (great Producer, YES), but he ain't dumb.
> 
> John O.


I agree with all of your points in the quote above^^^.

To a large degree Paramount has also backed off from going after fan sites etc, probably because they have realized the same thing.


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## Darth Bill (Oct 5, 2004)

Sorry to point it out, but that doesn't appear to answer the most compelling question:



jtwaclawski said:


> If all unlicensed products are illegal, then aren't we all unethical for creating and purchasing such products?


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## John O (Mar 8, 2000)

Darth Bill said:


> Sorry to point it out, but that doesn't appear to answer the most compelling question:
> Originally Posted by *jtwaclawski*
> _If all unlicensed products are illegal, then aren't we all unethical for creating and purchasing such products?_


I ultimately disagree with the thesis: _all unlicensed products are illegal_. I don't think there is a blanket nor automated response to a potential copyright violation/infringement. As someone who generates ligitimately copywritten material, I feel it is up to each copyright holder to determine _if _and _to what degree_ they feel they are being infringed upon, and then _what course of action to take_ in response. If I as the copyright holder feel no action is warranted, that is _de facto_ consent. But of course there may be no way for you to know unless a C&D shows up ...or unless I drop you a line with some advice on how to do a better job with the material you ripped of from me.  

John O.


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## sbaxter (Jan 8, 2002)

Chuck_P.R. said:


> You simply can't take the fact of Paramount owning the original property "out of the picture." It's in the picture. It's the entire crux of the issue. A work that is derivative cannot be copyrighted.


I said as much. My point was simply that in cases where a copyright can be legally claimed, it is not _necessary_ to file for such with the government. The central idea is that the government does not _grant_ copyright; the act of creation confers an automatic copyright. The government can record a copyright and keep a record of it, however, which can make things easier if an infringement occurs later.

Qapla'

SSB


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## sbaxter (Jan 8, 2002)

So, in terms of the legality of the sale of accurizing parts made to augment a commercial kit for which a license was obtained (by the kit producer, not the creator of the accurizing parts), it seems to me there is one way to answer the question, at least in a _de facto_ manner -- Has anyone ever been sued, C&D'ed, or actually taken to court for this?

Qapla'

SSB


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## Chuck_P.R. (Jun 8, 2003)

PerfesserCoffee said:


> So in other words, "How can you get a permit to do a d----d illegal thing?" as Dr. McCoy might ask.
> 
> If someone recasts an accurizing part to sell it, the original accurizing derivative work cannot be copyrighted by the original caster. Therefore, if something derivative is out there, it's no more wrong to recast it and make money off it than to make the derivative design(s)/part(s) in the first place and make money (or not) off them.
> 
> Also, this means that much of the whining by original derivative casters is 'hooey' since they don't own the designs in the first place and are just as much in the wrong as the copiers of their uncopyrightable work.


I agree with everything you said, in terms of legality except I would disagree with the last sentence in terms of the copiers of an accuratizing piece being just as "wrong" as the originator. One guy is creating an improvement to the model, not just copying a piece of someone's work for resale.


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## Chuck_P.R. (Jun 8, 2003)

sbaxter said:


> So, in terms of the legality of the sale of accurizing parts made to augment a commercial kit for which a license was obtained (by the kit producer, not the creator of the accurizing parts), it seems to me there is one way to answer the question, at least in a _de facto_ manner -- Has anyone ever been sued, C&D'ed, or actually taken to court for this?
> 
> Qapla'
> 
> SSB


There have been resin kit manufacturers who have received "cease and desist" notices from intellectual property owners. You can do a search on starshipmodeler to get the name of at least one I remember reading about in the last couple of years.

Don't recall anyone being brought to court.


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## John O (Mar 8, 2000)

Those were whole kit makers reproducing easily recognizable designs who were C&D'd, not the makers of "aftermarket parts". Two different ideas.


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## Chuck_P.R. (Jun 8, 2003)

John O said:


> Those were whole kit makers reproducing easily recognizable designs who were C&D'd, not the makers of "aftermarket parts". Two different ideas.


Yep, that's true. Though I do know of lots of people who have received C&D demands from stuff from Trek blueprints to uniforms to jewelry, you are right. I can't recall anyone making C&D demands of accuratizing kit makers.

Sorry about that. I stand corrected.


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## StarshipClass (Aug 13, 2003)

Chuck_P.R. said:


> I agree with everything you said, in terms of legality except I would disagree with the last sentence in terms of the copiers of an accuratizing piece being just as "wrong" as the originator. One guy is creating an improvement to the model, not just copying a piece of someone's work for resale.


Just as wrong _legally_, perhaps even committing more wrongs _legally _ in the sense that they didn't just copy something, they were the originators of the derivative master as well.

Ethically, however, it seems a different matter in this case.


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## TAY666 (Jan 8, 2000)

elohssas said:


> I find it very odd that each and every one of us states how wrong recasting is and how it hurts the original part maker and/or a company like Polar Lights who obtains a license. Yet each and everyone of us will rush right out and buy garage kits which are illegal to produce seeing as the manufacturers of said kits have not obtained the proper permission and licensing to produce said kit. As Mr. Spock would say, “Fascinating”.


First of all, unlicensed and recast are 2 completely different things.
Unlicensed kits are original works. They might be derived from something, but they are original and take skill/vision to create.
Recasts are nothing more than cheap knock-offs. Either of a licensed product or and unlicensed one. They do nothing but harm. Either the holder of the licensee through lost sales. The creator of the unlicensed item through lost sales. The hobbiest. Who in the long run lose out becuase the people creating great kits get disgusted at their work being stolen and quit making new things.
Also, not all garage kits are illegal.
Geometric got licenses for their stuff. Didn't help with the recasting though. The license holder wouldn't bother to help them shut down the recasters because it wasn't worth the effort.
I know Diceman creations acquires licenses for a lot of his kits.
There are many others that do too.
So not all garage kits are illegal.

[/QUOTE]


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## TAY666 (Jan 8, 2000)

Chuck_P.R. said:


> Umm... I wasn't talking about an original accurized master.
> I was talking about the subject of the thread - accuratizing kits made for sale.
> 
> Claiming that someone can have a copyright on something they themselves can not reproduce for sale seems pointless.


Why?
It happens all the time. Maybe not in the garage kit industry, but in other artistic circles.
An artist can paint a picture of the Mona Lisa and sell it. It is an original artwork (based on another work). If people like the way he does it, he can hand paint as many as he wants and sell them, since each one is a unique work of art. If someone tried to take one of his paintings and make a bunch of copies to sell, he could sue for copyright infringement because it is his work, and it would hurt his ability to sell his original paintings.



You can be sued for producing unauthorized derivative works. It's illegal. Besides Capt. Locknar's lawyers you can also ask several Anne Rice fans who published their own fanfiction for free on the internet based on her works. She threatened dozens of her fans and almost had a court date with one before settling - even though not a penny was being made. The owners of the intellectual property do not need to allow you to distribute material based on their work even if you don't make a penny off of it. They can even get punitive monetary damages even if you are giving the stuff away.

You might also want to ask people like Aridas Sofia and several others who were threatened by Paramount with action in the past for creating fan-produced Trek materials.

I don't know what a copyright means in your mind, but to me if it doesn't protect your derivative work it seems quite pointless.



> Though an uncopied "master part" for personal use doesn't violate copyright law(something I'd agree with), claiming that a "master piece" is copyrighted seems to make no sense if you can't reproduce it legally. Since such a work is derivative, you also wouldn't even have the right to sue someone copying your derivative - though the original property owner could.


The uncopied 'master part' doesn't have to be only for personal use. It can be for sale too.
You can sue someone for copying your derivative, because they don't have permission to copy your work. Weather or not you are able to reproduce it yourself doesn't matter. It is still your work, and no-one else has the right to copy it. In this case, I think both the original property owner and the person who made the master could sue.
To put this in terms more familiar around here.
Say there was someone out there that made a killer reprduction of one of the Star Wars lightsabers. That is his original work. He can't make molds and make exact copies of it because that would infringe on Lucasfilms. He could sell his reproduction, since it is his creation. If there was demand, he could create more one-of-a-kind reproductions of that same lightsaber. Since he did it once, it would probably be easy for him to do it again.
Now if someone came along and said hey this guys lightsabers are selling for a ton of money. I think I will recast a few of them for some easy money. Then the person who created that lightsaber could sue for copyright infringement. It is after all his original creation. 
If you sculpt, draw, paint, machine, create one, it is art.
If you make exact copies (with molds, dies, photocopier, etc) then you are running production / distributing.
Even in the example, Lucas could send a C&D to the guy making the lightsabers. And if the guy didn't stop making them Lucas could sue him.
The guy making the lightsabers could probably win in court, but probably couldn't afford to go to court.
That's the thing. The big guys issue a lot of C&D's for thing that aren't actually illegal. The small guys just can't afford to go to court to have the case heard. So they just cease their actions.
Just like PL changing the name of the Hunchback because Disney might decide it infringes upon their copyright. We all know that the kit has nothing to do with the Disney cartoon, and Disney's copyright doesn't apply to the original movie, and that if a case like that went to court, Disney would lose. The problem is that there are very few companies that can afford to go toe-to-toe with Disney, even if they are right.
So, just because someone gets a C&D doesn't mean they are wrong. Just means that a big company knows they can bully a small guy into stopping.


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## John O (Mar 8, 2000)

TAY666 said:


> ...An artist can paint a picture of the Mona Lisa and sell it. ...
> ...The guy making the lightsabers could probably win in court, but probably couldn't afford to go to court.


Now I'm going to ague a bit against the point I previously made. The lightsabre guy would in fact lose in court if it could be shown that his pieces were clearly copies of the Lucasfilm design - and in your example they are very faithfull to the original. In the case of Mona, Leonardo and his heirs are not around to sue anyone if they chose and the old girl comes out of a different tradition where copying was considered _homage_. Its pretty clear to me that C&D's _usually, though not always, _are triggered when the copyright holder has already established a licensing deal with another entity to produce the item or similar end products to those being pirated.

John O.


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## StarshipClass (Aug 13, 2003)

I'll wager that ANY copying other than excerpts for review and such is technically illegal. IF the copyright owner wished to pursue it, they would probably get satisfaction from someone even if he only made one copy. If he sold even just one copy, I'm sure he'd be breaking the law. I seriously doubt anyone is going to pursue such a case but it has happened before. As I previously pointed out, Barris managed to acquire complete ownership of an unauthorized copy of his TV Batmobile design. It was siezed by the law and turned over to him through the court system. Anne Rice legally pursuing those who post derivative works on the net seems to indicate that _anything_ derivative, whether making money or not, is technically illegal.

All we can argue about are the ethics involved since the activities we support _are _ illegal even though they are not pursued by the copyright owners who are indeed _helped _ by the accurizing and other derivative works.


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## Ignatz (Jun 20, 2000)

Well, I don't think copyright existed in Leonardo's time (someone please correct me if I'm wrong!) and if the current US copyright laws did exist, they would've lapsed a long time ago. Corporate greed had distorted copyright law in the name of greed. Even though Mickey Mouse should've lapsed into the public domain sometime last year, legal mischief has extended that past most people's lifetime. The spirit of Copyright, to protect, reward, and foster creative thinking was a notion that's been trampled and ignored.


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## StarshipClass (Aug 13, 2003)

Ignatz said:


> . . . Corporate greed had distorted copyright law in the name of greed. Even though Mickey Mouse should've lapsed into the public domain sometime last year, legal mischief has extended that past most people's lifetime. The spirit of Copyright, to protect, reward, and foster creative thinking was a notion that's been trampled and ignored.


You're exactly right! One of the sweetest things in recent years has been Sherlock Holmes coming into public domain. After so many years, some things become history more than copyright. It seems unfair to keep such things out of public domain after such a long time.


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## John O (Mar 8, 2000)

Ignatz said:


> Well, I don't think copyright existed in Leonardo's time


Not as such. Anyway, he knew _as history has shown_ it was going to get copied. It was reality, so better to embrace it than shovel s#!t against the tide. It was once considered an honor to have your work held up as something worthy of study ..._and copy,_ this is the way artists learn. When I went to art school, one of my favorite classes was a studio painting course where we copied old masters works! In another painting class, the instructor blantantly pushed us toward his style why belittling the methods of our other instructors! He was inviting us to steal his style. All this propriety behavior is BS that lawyers came up with, its really not in the artists' tradition.


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## elohssas (Oct 5, 2004)

TAY666 said:


> First of all, unlicensed and recast are 2 completely different things.
> Unlicensed kits are original works. They might be derived from something, but they are original and take skill/vision to create.
> Recasts are nothing more than cheap knock-offs. Either of a licensed product or and unlicensed one. They do nothing but harm. Either the holder of the licensee through lost sales. The creator of the unlicensed item through lost sales. The hobbiest. Who in the long run lose out becuase the people creating great kits get disgusted at their work being stolen and quit making new things.
> Also, not all garage kits are illegal.
> ...


If you read my post you'll see that I specified that garage kits are illegal IF they are not licensed. I agree that an original work is just that - an original work. HOWEVER, the moment you start marketing that original work WITH OUT A LICENSE, you are in voilation of copyright law. In those respects, an unlicensed product and a recast are the same thing. Just because you created the original does not mean you are above the law.

You are right about recasting hurting legal companies like Geometrics. But again, my point was about unlicensed kits.


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## uss_columbia (Jul 15, 2003)

Chuck_P.R. said:


> Claiming that someone can have a copyright on something they themselves can not reproduce for sale seems pointless.


Indeed there is a point: you can stop others from reproducing it. Copyright has never been about making copies; it's about stopping others from making copies.
The fact that one can't cast his masters is due to Viacom's (and perhaps RC's) copyright. The fact that someone else can't recast his master without permission is because of the master maker's own copyright as well as Viacom's copyright. Both permissions would be required.

Now, if the second party is not casting the master but is recasting an illegal casting, the master maker probably has no legal recourse.

Of course, as we've both been saying, the legal issue isn't as important as the ethical and practical one.


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## uss_columbia (Jul 15, 2003)

jtwaclawski said:


> I've been watching this thread and now I'm getting confused here.
> To take this back to something earlier (TM vs DLM) in conjunction with the quote above....
> 
> Is what you are saying, that since Thomas created masters for accurizing parts from kit parts, that he is in violation of copyright law and therefore has no LEGAL recourse against DLM?


Legally, Thomas was in the clear making his accurized masters but probably not casting copies of them. Don would clearly not be in the clear casting copies of Thomas' masters. However, if Don recast copies of an illegal cast made by Thomas from his legal master, then there might not be a legal recourse: copyright would not protect the unauthorized copy of the derivative work from further copying. Of course, this doesn't put Don in the clear, it just means Thomas might not have legal recourse against Don.






> If that is the case then isn't Thomas creating an Illegal product and if he is, then aren't all unlicensed products illegal?
> 
> If all unlicensed products are illegal, then aren't we all unethical for creating and purchasing such products?


Indeed all unlicensed products derived from material with a valid, subsisting copyright are technically illegal. However, some of them are probably ethical; at least some of them are to me. Ethics and legality can be different.
Recast parts from someone else's accurized parts that weren't authorized by the copyright holder are probably no more illegal than the original unauthorized castings, but they are less ethical, at least to me and pretty much everyone I know.


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## uss_columbia (Jul 15, 2003)

sbaxter said:


> The central idea is that the government does not _grant_ copyright; the act of creation confers an automatic copyright.


This isn't exactly true. It is only by government grant and the constitution which gave congress the power to make that grant that you have copyright. It's just the goverment has granted automatically upon your putting the creating into tangible form (at least after March 1, 1989). You don't need to file anything to get it; it's automatic. You do, however, have to register it before you can sue anyone. (And there are advantages to registering it in a timely fashion.)


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## uss_columbia (Jul 15, 2003)

Chuck_P.R. said:


> ...from intellectual property owners.


I'd like to comment on the term "intellectual property." It's an abstract concept with no legal meaning. People use it to refer to legal concepts including copyright, patent, trademark, and trade secret.

When someone receives a C&D, it's nearly always about copyright or trademark infringement. Copyright is granted automatically and subsists for 95 years or author's death plus 70 years. Trademark is also granted automatically and subsists as long as it is being actively used and protected. 
(Often you'll hear someone say "they had no choice but to send the C&D, or they'd forfeit their rights"; this is basically true of trademark. It's not true of copyright, except that if they know specifically about YOUR infringement and act in a way that implies consent, the doctrine of "estoppel" would let you rely on their consent if you relied on their consent and it was reasonable for you to have believed they were consenting.)
Someone like Viacom could go so far as to claim such sweeping features as The Federation (perhaps successfully), and certainly their races as trademarks, not just copyright. For copyright infringement, one has to show copying (duh) (non-literal copying counts, though). But with trademark, they just have to show confusion between your "mark" and theirs. Indeed, many states have anti-dilution and there's a recent federal law against tarnishment. With these laws, there doesn't have to even be confusion in the specific market.

You might also infringe patents. In the case of design patents, you might get a C&D. With a utility patent, you aren't likely to; instead you'll get a polite "we think you should look at the following patents which you may be infringing and consider licensing them from us" letter. It's more difficult to tell whether you're infringing, and they need to be careful about outright accusing you (lest you sue for declaratory judgement).

Trade secrets are things like contact lists, processes used internally, and the like. It's perfectly legal to reverse engineer (unless you contractually waived this right for a particular situation) to discover the secrets. It's illegal to break in and steal them (such as from their computers by cracking the system). You're not likely to get a C&D, because it doesn't help. Once the secret's out, trade secret protection is gone. If you were to learn trade secrets (say under non-disclosure agreement) and illegally divulge them, you will get sued for monetary damages (and in nearly all if not all states, it's also a crime).

There are other forms of "intellectual property" including the knowlege contained in your or your employees' brains. These have no legal protection, and cannot be considered "property." (Beyond any trade secret status.)
Some employment agreements purport to control this "property," but I'm not aware of them ever being held as enforceable. (Even non-compete provisions in employment agreements are on shaky ground.) (Non-disclosure provisions, on the other hand, are going to be enforced.)

Many people object to the term "intellectual property" because it clouds the issue. If you mean copyright, say so. If you mean trademark, say so. etc.


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## uss_columbia (Jul 15, 2003)

TAY666 said:


> First of all, unlicensed and recast are 2 completely different things.
> Unlicensed kits are original works. They might be derived from something, but they are original and take skill/vision to create.
> Recasts are nothing more than cheap knock-offs. Either of a licensed product or and unlicensed one. They do nothing but harm. Either the holder of the licensee through lost sales. The creator of the unlicensed item through lost sales. The hobbiest. Who in the long run lose out becuase the people creating great kits get disgusted at their work being stolen and quit making new things.
> Also, not all garage kits are illegal.
> ...


Well said!


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## capt Locknar (Dec 29, 2002)

Ignatz said:


> Well, I don't think copyright existed in Leonardo's time (someone please correct me if I'm wrong!) and if the current US copyright laws did exist, they would've lapsed a long time ago. Corporate greed had distorted copyright law in the name of greed. Even though Mickey Mouse should've lapsed into the public domain sometime last year, legal mischief has extended that past most people's lifetime. The spirit of Copyright, to protect, reward, and foster creative thinking was a notion that's been trampled and ignored.


That may be true but Copyrights can also be transferred to living Family members or other person the original copyrighter deems, there for transferring the time the copyright stays in place. I know this not only because my father has transferred copyrights to me (he's getting old and wants some of his artwork to remain protected) and its also listed on the copyright registration form. Once transferred the copyright remains in effect to the new person.


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## Chuck_P.R. (Jun 8, 2003)

uss_columbia said:


> I'd like to comment on the term "intellectual property." It's an abstract concept with no legal meaning. People use it to refer to legal concepts including copyright, patent, trademark, and trade secret.
> 
> When someone receives a C&D, it's nearly always about copyright or trademark infringement. Copyright is granted automatically and subsists for 95 years or author's death plus 70 years. Trademark is also granted automatically and subsists as long as it is being actively used and protected.
> (Often you'll hear someone say "they had no choice but to send the C&D, or they'd forfeit their rights"; this is basically true of trademark. It's not true of copyright, except that if they know specifically about YOUR infringement and act in a way that implies consent, the doctrine of "estoppel" would let you rely on their consent if you relied on their consent and it was reasonable for you to have believed they were consenting.)
> ...


I purposely used a vague term, which you yourself have to admit is correct(you simply object to the use of the simpler language).
I used the simpler language intentionally.

I did this for a couple of reasons:
1) a I saw no reason to contradict or lecture anyone on their use of legal terms as we are modelers, and should be pretending to be lawyers.
2) secondly because we have all, including yourself, abused the term "copyright."

An improvement to an existing product is usually patented, not copyrighted.
But please, don't get into a long list of circumstances where they might be both copyrighted and patented, or cases where two people might have copyrights and one a patent and one able to produce a product legally and the other not... yada, yada, yada...

Again, I intentionally used the more vague term because it is more accurate then to continue to misuse other terms as most of us have. 

I saw no need to pretend to be a lawyer and correct everyone in their use of the term copyright so I chose a *more accurate*, if less specific, phrase.

I was trying to get across a more salient ethical point, not a legal one, we have gotten bogged down and have way over analyzed this issue. My choice of less precise but totally accurate language was intentional. 

I was attempting to make a statement about the forest, not attempting to continue to describe the needles of a single pine tree.


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## Chuck_P.R. (Jun 8, 2003)

TAY666 said:


> First of all, unlicensed and recast are 2 completely different things.
> Unlicensed kits are original works. They might be derived from something, but they are original and take skill/vision to create.
> Recasts are nothing more than cheap knock-offs. Either of a licensed product or and unlicensed one. They do nothing but harm. Either the holder of the licensee through lost sales. The creator of the unlicensed item through lost sales. The hobbiest. Who in the long run lose out becuase the people creating great kits get disgusted at their work being stolen and quit making new things.
> Also, not all garage kits are illegal.
> ...


Thank you! You have put into very straightforward language exactly how I feel about the subject without getting caught up in the minutae of legalistic language that myself and others have!

I agree entirely!


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## Chuck_P.R. (Jun 8, 2003)

sbaxter said:


> I said as much. My point was simply that in cases where a copyright can be legally claimed, it is not _necessary_ to file for such with the government. The central idea is that the government does not _grant_ copyright; the act of creation confers an automatic copyright. The government can record a copyright and keep a record of it, however, which can make things easier if an infringement occurs later.
> 
> Qapla'
> 
> SSB


Not to nitpick. But this is a bigger issue then it may seem to be on the surface. An ethical, not just a strictly legal, issue. Otherwise I wouldn't bother discussing it.

Actually, SBaxter the government *does grant the right* to copyright material. They simply _*no longer require that paperwork be filed in advance*_ for you to be able to latter claim your copyright has been infringed.

The entire concept of copyright is that there is a protection given to the author *by the state.*

As liberal as I am on some issues, I will be the first to acknowledge a point made by many conservatives of the past that people have no rights that are not protected by their governments.

You might make a claim such as "in my mind, for a government to be *just and fair* they *should* *provide* their citizens with the following rights:________"

For example, *domestically* China does not acknowledge the concept of intellectual property _*at all*._ They believe that *inspiration is not the property of those inspired.*

They believe that inspiration is a result of all the interactions you've had with others in your community/society, from your teachers to your parents, to things you've seen utter stranges do and invent. As a result, the believe the only honorable thing to do is to have all inventions/creations be the equivalent of public domain, so that the society that has provided you with sustenance and inspiration can both share in and improve/build further apon such inventions, creations.

The only reason that they have in the last decades made even *token* efforts to force some chinese companies to stop violating *international *copyright agreements and producing tons of nock off DVD's, software, etc. is because of international *law* and fear of trade sanctions.

Again, in that case *it is the intervention of governments and governmental agreements that is the source of even that token protection*.

A famous conservative Englishman once said about "The Rights of Man." "To hell with "the rights of man" give me instead the rights of an Englishman! *I can tell you what those are*!"

Meaning, quite simply, that you have *zero natural or "automatic" rights*, including copyrights, *that are not protected by the state*.

*If a right is not protected it is not a right at all.* It's a pointless wish, at best an admonishment, a statement about the type of protection you think you _should be_ afforded, but not a right at all.

I believe a goverment *should *provide certain rights and protections to it's citizens *to be desirable, to be even tolerable and not be overthrown*. But the *simple fact of the matter* is we have no legal rights, copyright or otherwise, that are not protected by the state.


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## Chuck_P.R. (Jun 8, 2003)

uss_columbia said:


> Legally, Thomas was in the clear making his accurized masters but probably not casting copies of them. Don would clearly not be in the clear casting copies of Thomas' masters. However, if Don recast copies of an illegal cast made by Thomas from his legal master, then there might not be a legal recourse: copyright would not protect the unauthorized copy of the derivative work from further copying. Of course, this doesn't put Don in the clear, it just means Thomas might not have legal recourse against Don.


Again guys. Cool it on Don. Don was never accused of recasting Thomas' parts. Another reseller was.

Don was only used as an example of someone who makes accuratizing kits, like his great kit for the 22" TOS E cutaway.

Again, Don was used simply as an example of someone who makes original accuratizing pieces.


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## sbaxter (Jan 8, 2002)

Chuck_P.R. said:


> the government *does grant the right* to copyright material. They simply _*no longer require that paperwork be filed in advance*_ for you to be able to latter claim your copyright has been infringed.


Okay, but I'd say the practical difference between the two is negligible. One could argue that the government recognizes some of our rights as being assumed as inalienable, and thus the goverment cannot later decide to take them away, whereas the above is one they could decide to revoke. However, as you state later, all rights (whether they technically exist as a birthright or are created by the government) are not worth much if the government is not willing and/or able to safeguard our ability to exercise them as needed.

And, of course, our inalienable rights aren't worth much if the government falls and a new one arises which does not recognize those rights.

Qapla'

SSB


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## uss_columbia (Jul 15, 2003)

Chuck_P.R. said:


> For example, *domestically* China does not acknowledge the concept of intellectual property _*at all*._ They believe that *inspiration is not the property of those inspired.*
> 
> They believe that inspiration is a result of all the interactions you've had with others in your community/society, from your teachers to your parents, to things you've seen utter stranges do and invent. As a result, the believe the only honorable thing to do is to have all inventions/creations be the equivalent of public domain, so that the society that has provided you with sustenance and inspiration can both share in and improve/build further apon such inventions, creations.


And I agree with them. However, I also feel strongly that artists need to be able to eat. I don't know how to simultaneously encourage artists to produce art for society without giving them some control over that art to ensure that they are paid.

In an idealistically communist society (not to be confused with socialist or Communist Party), each gives according to his ability and takes according to his need. The artist would give art and take food, home, etc. This has never been acheived on any large scale, though.

In a capitalistic society, we must associate direct monetary value with the creation of art. While the original art isn't physically diminished by copies in any way, its value is. In simple economic terms, the price (or value) is the intersection of the supply and demand curves. As supply is increased (faster than demand), price drops. Thus, the copiers deprive the artist of monetary value. Copyright restores the value to the artist by giving him control over the copies (to prevent them or earn from them). Proper copyright also lasts for a limited time so that the public gets the art eventually and can build on it (as the original artist built upon the public domain in the first place).

Some believe in a perpetual artist's right: there is no expiration of copyright. The US provides a limited-term (and scope) copyright, which is a balance between the extremes of "perpetual artists' rights" vs. "everything belongs to the public." (Unfortunately, the US congress has over-extended copyrights term to be effectively perpetual though technically limited, and the US Supreme Court has allowed this. 95 years is a far cry from the original 14 years!)

I found your discussion of "rights" being actually "desired government protections" quite interesting! I would add, though, that it isn't just up to the government. A right is an appeal to all mankind to honor something. Regardless of the absence of government protection for a right, people have the choice to uphold or curtail the right. (This can be simple when the government is less restrictive and the people choose to act in a way that upholds the right. It's trickier when the government is more restrictive; it may be very difficult for people to uphold a right when it goes against the law. For example, if freedom of speech is denied by the government, and you are a police officer, you could uphold the right of free speech by overlooking an observed public demonstration, but you would do so at your own personal risk.) Governments eventually will change to make the laws compatible with the rights as practiced by the people, but this can take a very, very long time, especially for some forms of government.

Wow, this is so far off topic. If Steve were here, he'd exercise his right to delete this post or lock the thread. (There's no right to full freedom of speech in a non-public forum.)


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## uss_columbia (Jul 15, 2003)

Chuck_P.R. said:


> Again guys. Cool it on Don. Don was never accused of recasting Thomas' parts. Another reseller was.
> 
> Don was only used as an example of someone who makes accuratizing kits, like his great kit for the 22" TOS E cutaway.
> 
> Again, Don was used simply as an example of someone who makes original accuratizing pieces.


If you say so. Consider what I wrote as hypothetical. You can replace Thomas with "John" and Don with "Joe," if you prefer.


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## uss_columbia (Jul 15, 2003)

sbaxter said:


> Okay, but I'd say the practical difference between the two is negligible. One could argue that the government recognizes some of our rights as being assumed as inalienable, and thus the goverment cannot later decide to take them away, whereas the above is one they could decide to revoke. However, as you state later, all rights (whether they technically exist as a birthright or are created by the government) are not worth much if the government is not willing and/or able to safeguard our ability to exercise them as needed.
> 
> And, of course, our inalienable rights aren't worth much if the government falls and a new one arises which does not recognize those rights.


The only truly inalienable right is the right to choose. (And of course, there will be consequences to your choices.)


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## John O (Mar 8, 2000)

uss_columbia said:


> ...I also feel strongly that artists need to be able to eat.


You are in a distinct minority, but THANKS!:thumbsup: Some reasonable control is approriate, but at the end of the day if an artist is smart (as I've noted in my previous exmples) it is usually serves the bottom line better to be on the generous side than it does to be a Scrooge. That doesn't mean being a nitwit about it and making yourself poor, but finding ways to say "yes" that also serve you well. And I agree that inspiration doesn't belong to the artist anymore than random chance, a cool breeze, or his DNA does. But it is reasonable to expect to be compensated in some measure for the lifetime spent preparing to produce what the inspriation begs. Deep, huh?


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## uss_columbia (Jul 15, 2003)

ThomasModels said:


> It would been nice if that individual would have ceased and desisted the first time he was told to stop in 1996.
> 
> Or when he was notified in writing a month after that.
> 
> ...


I have heard that his casting quality is extremely high. The parts I've seen did look good. However, I have some reservations about doing business with a former recaster. I admire your forgiving attitude.


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## razorwyre1 (Jan 28, 2004)

y'know, the debate about the ethical difference between unlicensed kits, and by extention accurizing kits, and recasts comes up again and again, and theres usually a bunch of rationalization involved to justify what is, at the end of the day, copyright infringment. (my favorite is "the garage kit hobby wouldnt exist without unlicensed kits".)

i make this paralell. lets say someone, representing the original unlicensed kit manufacturer, plans to rob a bank. he spends months in preparation and a sum of money for equipment so that he can stealthily break in and releive the bank of its money. then after having done so, another theif, representing the recaster, having somehow heard about the robber's plans to knock over the bank, robs him of his ill-gotten gains at gunpoint in the bank's parking lot. 

is the first theif any more entitled to the money because of the time, trouble and expense he went to, or the amount of skill and talent needed, in order to get it than the second theif? is he in any way morally superior, or are they both theives take someone elses property? im sure the first theif would see the second one as taking "his" money, but isnt it truly the bank's money, and isnt the second theif really just robbing the bank second-handedly?

as i said when this comes up the rationalization gets heavy, and usually comes down to "what i do is ok, what the other guy does is wrong".


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## Chuck_P.R. (Jun 8, 2003)

^^^ In the case of someone making original accuratizing kits(not entire garage kits) a better analogy would be that a guy builds a remarkably improved toaster that somehow only works if you have an account at that bank and sets up a little tent on the bank's property to sell them. 

He may not be legally right to do so, but he ends up getting the bank tons of new customers, and even gets some existing customers to open more accounts then they originally had, thus greatly improving the banks profits.

Then that person is held up by the parts recaster.

That would be a more precise analogy.

But anyhow, one thing is for sure. It does appear we have talked this subject almost to death. I think most people know everyone's position by now.


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## TAY666 (Jan 8, 2000)

John O said:


> Now I'm going to ague a bit against the point I previously made. The lightsabre guy would in fact lose in court if it could be shown that his pieces were clearly copies of the Lucasfilm design - and in your example they are very faithfull to the original.
> John O.


So your saying, if I had the skill (which I don't) I couldn't legally sculpt a lightsaber then turn around and sell my original sculpture?

Or that I couldn't paint a picture of Darth Vader then sell my painting?


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## uss_columbia (Jul 15, 2003)

^^ Both of the above are technically true. Your sculpture and painting would be unauthorized derivative works of the Lucasfilm/Fox copyrighted Star Wars material. However, selling just your originals is extremely likely to be ignored by the copyright holders. (Making the sculpture and painting for personal use would most likely be held to be a fair use. Selling them, perhaps not. Making and selling repeatedly, probably not.)


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## razorwyre1 (Jan 28, 2004)

columbia, ive got to differ with you there. as original works of art, tay would be perfectly within his rights to make and sell that lightsabre or that painting, dispite the fact that it is derivative. it's only when reproductions get involved that the restrictions kick in.


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## uss_columbia (Jul 15, 2003)

Nope. Copyright grants the copyright holder exclusive control over the *creation* of derivative works, not just their reproduction. Again, I think making them for personal use would be held to be a "fair use," though. (I certainly consider it fair.)



> § 106. Exclusive rights in copyrighted works36
> Subject to sections 107 through 122, *the owner of copyright under this title has the exclusive rights to do and to authorize any of the following*:
> 
> (1) to reproduce the copyrighted work in copies or phonorecords;
> ...


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## razorwyre1 (Jan 28, 2004)

i see what you are saying, but notice that section of the law that lists the types of works covered does not mention original works of visual art, such as paintings, drawings, and sculpture. as you say that does fall under fair use, and the artist is free to publicly display and sell the artwork. 

anecdotally, several years ago, a buddy of mine was working at a shop where they sculpted candles into all sorts of things, including disney characters. one day, lawyers for disney showed up. however once the lawyers discovered that all the candles were hand made one of a kinds, and that there were no molds, they backed off.


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## heiki (Aug 8, 1999)

As I recall, If at least 20% of an image/material work was changed, it is considered a new work and the person making the change is the holder of the rights to the change.

This came up during the making of the "Babylon 5" TV show. Foundation image or someone connected with them had modified some of the ships and used them in another show. The producers could not persue recourse.


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## uss_columbia (Jul 15, 2003)

razorwyre1 said:


> but notice that section of the law that lists the types of works covered does not mention original works of visual art, such as paintings, drawings, and sculpture. as you say that does fall under fair use, and the artist is free to publicly display and sell the artwork.


I think you mean this:
"(5) in the case of literary, musical, dramatic, and choreographic works, pantomimes, and pictorial, graphic, or sculptural works, including the individual images of a motion picture or other audiovisual work, to display the copyrighted work publicly;"

That means only the stated type of work (including paintings and sculptures) are protected from public display by anyone but the copyright holder (and those he authorizes). The "prepare derivatives" applies to ALL forms of work that qualify for copyright protection.


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## uss_columbia (Jul 15, 2003)

heiki said:


> As I recall, If at least 20% of an image/material work was changed, it is considered a new work and the person making the change is the holder of the rights to the change.


There is no specific statutory percentage threshold to qualify for copyright. Regardless, only the new elements are copyrighted. The original elements of a derived work are still subject to the original copyright. Thus, if you change by 20%, you may protect your 20%, and the original copyright holder may protect his 80%. If you weren't authorized to create your derivative work, your 20% isn't protected, either. (As asserted by Chuck in some of his previous posts and backed up with citations from the law in some of mine.)


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## razorwyre1 (Jan 28, 2004)

i need to learn to read more carefully... thanks columbia. now im quite confused, as the letter of the law differs wildly from its practice. could it be a matter of court interpretation (although theres not a lot of wiggle room)?


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## Chuck_P.R. (Jun 8, 2003)

razorwyre1 said:


> i need to learn to read more carefully... thanks columbia. now im quite confused, as the letter of the law differs wildly from its practice. could it be a matter of court interpretation (although theres not a lot of wiggle room)?


I personally don't believe it's that. The law is pretty explicit, though since we aren't copyright lawyers our interpretations might understandably be less then perfect.

I think it's more likely that the reason the letter of the law and the practice differing is more due to a combination of what John O. said and economics.

Many intellectual property owners realize that to go after such "small offenders" of the law would only alienate them from their fans.

Going after some poor fan who spends hours apon hours painting a derivative work and sells it for probably ten cents per hour of labor expended would be an unpopular move.

Secondly, it would be expensive. You would have to haul these guys into either court or at least an administrative hearing and pay for legal representation.

Usually a corporation would not even break even in such a circumstance, even if the offending party were ordered to pay the legal fees of prosecution many probably wouldn't even have the money to do so, at least not up front.

Unless it's a really big offender who had made tons of profit and was likely to still have at least some of that profit in their possession, it just wouldn't pay.

In short, even if they could prosecute in most cases it wouldn't be worth the negative publicity,

and secondly in most cases it would cost more money then it would recoupe.

I once heard a quote of Gene Roddenberry saying he had implored Paramount not to go after fanzines and fans who had sold so much merchandise during the dark ages of the 70's when we had no Star Trek and it's future was far from uncertain.

The fanzine made it sound as if he were the champion of fans everywhere.

However, what Roddenberry had failed to mention was his wife's company - Lincoln Enterprises - was the single biggest violator!!!!!

Of course Gene didn't want Paramount to go through with such actions!
They couldn't have and ignored the biggest violator - Majel Roddenberry!
How would that have looked for Paramount to go after all the small blueprint and other fan producers and left the creator of the series' wife untouched?

Talk about an unpopular move!

So instead they cut tons and tons of Cease and Desist letters and sent them everywhere.

There are lots of reasons the letter of the law is not pursued in court.
It's often about politics, popularity, and profit.


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## Trek Ace (Jul 8, 2001)

Lincoln Enterprises was not a violator of any copyright. It had exclusive rights to sell merchandise from the franchise without legal recourse.

The original _Star Trek_ property was owned by both Paramount and the Roddenberry estate (Norway Productions), and has only recently been challenged by the Paramount legal department. According to Eugene, the situation is currently being worked out between the two parties and is apparently close to reaching a resolution.


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## Darth Bill (Oct 5, 2004)

Wow, Chuck, you write a LOT


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## Trek Ace (Jul 8, 2001)

But, he doesn't say much.


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## Chuck_P.R. (Jun 8, 2003)

Darth Bill said:


> Wow, Chuck, you write a LOT


I still feel, as I did several posts ago, "But anyhow, one thing is for sure. It does appear we have talked this subject almost to death. I think most people know everyone's position by now."

But guys still keep insisting on slicing the discussion into thinner and thinner slices...

And I often bite when I should pass...

like just now...


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## TAY666 (Jan 8, 2000)

Ok, to bring things back to the original topic, accurizing kits.

I ran across this a few minutes ago, and thought it should be posted here.


> *Question:* *What is copyright infringement? Are there any defenses?*
> 
> 
> 
> ...


So, I wonder if an accurizing kit would fall under fair use, because it doesn't actually compete with the original?


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