As some of you may have seen recently a prominent 3d Modeler was given a cease and desist letter from GW about one of their models and is vowing to dispute it. So it looks like the stage may be getting set for another showdown similar to the Chapterhouse Vs. Games Workshop case from 2013.
Games Workshop Opens the War Against 3D Artists
As it turns out it looks like a lot of artists also received similar notifications from GW lately in what many are calling a targeted campaign by them against 3d artists worldwide.
That got us thinking about how the copyright laws really have changed and what’s actually infringement and what’s not. Recently, there have been some changes in the laws, and a few big lawsuits from large companies have also changed how issues like these are handled now.
Disputes with miniatures are harder than most objects. Mainly because they are all so complex and based on things that have “already happened.”
How do you say you came up with a space robot? How do you say someone copied your space robot, and it’s too similar to theirs? Well, that’s what we’re going to try and get to the bottom of today for you!
We’ve included some videos as well because sometimes it is better to hear things from the experts themselves!
With 3D printing growing every day in the tabletop gaming space, its laws are evolving to protect products and brands, but those same laws do leave room for the big guys to push around the smaller ones a bit. Let’s get into it!
Copyright Issues in the Age of 3D Printed Models
Duncan Shadow is the creator currently under the microscope. His recent public posts say that GW contacted MMF to take down the model above. They say it is “identical” to one of their miniatures. Obviously, it has differences, as well as similarities to the Eldar Revenant Titan, and in his opinion does not contain a trademarked symbol.
Here’s a pic of his full model:
Here is a pic of the Forge World Eldar Revenant Titan:
Does this mean GW is starting to crack down hard on creators? Or do they just send out as many letters as they can since they are fairly cheap and the majority of people will just take the sculpts down? It’s hard to tell, but let’s look at a recent copyright case and what some experts have to say about the current state of copyright laws.
The Adidas Case
A trademark is about protecting from customer confusion. In a recent case, (he talks about it at the 2:34 mark) Forever21 was sued by Adidas by simply having three stripes on some shorts, (like something you would expect to see on a pair of Adidas shorts).
If you re-shot it as “Star Whores” and made it into a porno that only loosely followed the script, that would probably fall under the “parody” exception to copyright. (probably…)
The other item Duncan mentioned, trademarks, is a little different. Branding is related to trademark law, which is somewhat different. The double-headed Aquila, for instance, is probably trademarked, so that has stronger protection since that’s “the brand” and not just a particular design.
What This Means for Platforms
In a very recent law, which was made to protect places like YouTube from Copyright issues, Section 230 of the Communications Decency Act protects platforms from what its users do.
So part of the CDA “safe harbor” provisions is that the service provider (MMF in this case) is protected from liability if they take potentially “bad” things down once they’re notified of it. I.E. this design, which it seems that Duncan may dispute with GW.
In the case above, My Mini Factory is most likely protected from any actions that GW is taking against Duncan. So the good news is, places like MMF (or Cults, etc) will generally be affected little by claims such as these as long as they themselves comply with any requests like the one they received by GW.
In summary, seller platforms cannot really be attacked directly, as long as they don’t create the content. But, and a big but, they have to take down the items once notified. So if they do not take down the models after notification, then they could get into trouble as well.
Why This is All Super Relevant Now
Congress recently passed the 2021 Appropriations Act, which according to Norton Rose Fulbright makes it easier for any brand, large or small to take action against any they believe is “infringing” on their works.
For companies, the 2020 Trademark Act:
- Improves the ability and consistency for obtaining injunctions against infringers by restoring and codifying the rebuttable presumption of irreparable harm where a likelihood of confusion is shown;
Since the act passed, it is overall good for smaller content creators but does leave room for the big guys to hassle them. When looking at something like the Adidas case, it may not look too good for some artists.
That is because with some miniatures, regardless of the use of a trademark or not, it may not be that hard for someone like GW to prove that something could very well create confusion among customers as to where it comes from.