Is it legal to sell built free downloaded paper models?

Discussion in 'Feedback & Support Forum' started by Rocco13, Jul 24, 2008.

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  1. cgutzmer

    cgutzmer Guest

    StevO - the poll was a community based discussion. Bspline is a copyright lawyer giving his personal opinions about what he understands (he cant give legal advice here) about copyright laws.

    HK - its a moral choice for you to make ;) to keep a model within a reasonable price you would have to charge about 10 cents per hour :p well depending on the model I suppose.
  2. Runkle

    Runkle New Member

    Well it's not that fine of a line at all. Matter a fact, once built , it has been altered from it's original format that makes it legal to sell as the copyright is attached to the original design (flat format).

    Best wishes,
    Mason Runkle (graphic designer for over 20 years)
  3. Nothing

    Nothing Longtime Member

    i think we can agree that laws are insanely complicated which is why we have lawyers to make sense of them(somewhat). it really sounds like it comes down to a personal moral decision.

    Bspline i have learned quite a bit from this discussion, and thank you for insight on the matter.
  4. Wily

    Wily Member

    Hmmm. Have to weigh in here with a thoroughly middling answer - it depends.

    I deal with copyright all the time - I have an advertising agency. We create copyrighted material and deal with copyright ownership and use on a daily basis.

    Selling of copyrighted work without consent is wrong, but there's legal precedent in favor of language specifically stating use.

    The Copyright Act of 1976 is germane here as it allows for fair use - model kits are sold under a "first sale doctrine." Transfer of copyright doesn't even have to be written - it can be assumed, based on the nature of the work, without any legal contract.

    It is legal for a book owner to buy a book, then resell it, same with music. Same with art.

    The Star Wars analogy isn't quite right as the Star Wars toy is a proprietary design and ownership is easy to prove. But who owns the copyright to a Panzer Tiger? A Lockheed Constellation? (btw- I know that certain American manufacturers are trying to assert their ownership of old names such as P-51 "Mustang".)

    Though I am not a legal advisor and make no claim to legal authority, and any and all semblances to sanity, cognizance or rationality is hereby deemed suspect, I would bet the issue of reselling a built kit would not make it to court.

    You can bet I'll bring this up with our IP Attorney on Monday - what a fascinating topic!
  5. Art Decko

    Art Decko Member

    Actually, I'm not sure that's correct.

    In the US, copyright law also covers exclusive rights over derivative works, not just the original format (note: for anyone unfamiliar, "derivative work" = a work based on, or adapted from some original work).

    Examples: I cannot legally make a film based on your novel without your permission. You cannot legally publish a book of photos of my paintings without my permission.

    This also means it is technically illegal to sell (or even give away) paper models based on movies or pc games without the copyright owner's permission, although as Bspline explained, it may be unlikely the copyright holder would pursue legal action.

    What I'd like to have cleared up is whether or not an assembled model is a "derivative work", or if it can be legally sold under the "first sale" doctrine that Wily mentioned. After all, the model was designed and sold with the intention of being assembled, so I'm not clear if an assembled model is a different work from the unassembled original.

    EDIT: Oops, I see that Bspline already gave his/her opinion on this:

  6. Wily

    Wily Member

    Besides this...

    Any card model designer who would sue someone who, having legally purchased the kit, and resold the completed model would be alienating a potential distribution source and secondary market. If I were a designer, I'd be happy to have someone out there promoting the new aspect of the hobby...but that's just me.

    Of course, if the builder did a totally awful hack-job (like me) and then paraded it as a representative sample of quality...

    Then, I think we'd be talking about Defamation, which is a different topic altogether.

    I can see it now - Halinski sending me a Cease and Desist because I suck as a builder.
  7. Wily

    Wily Member

    Mason - you're right in so much as the verbiage I think is "...sufficiently altered..." We have a client that came in with packaging design made by a competing firm that had used clipart. The mark was not allowed and they ended up having to change their design and packaging in order to protect it. We did the work of "sufficiently altering" the other firm's design.

    Did Andy Warhol get in trouble for his Soup art? (asking).

    Copyright is also "attached" to use as well as form. Think about melody, lyrics of music...
  8. Paragon

    Paragon Active Member

    Copyright laws are designed to prevent the unauthorized reproduction of creative works that damage the value of the creative work. For example, if I were to scan every page of a book, then distribute copies of the scanned images, it would damage the value of the book by taking away purchases. Courts dismiss cases in which there is no damage to the value of the creative work.

    A freely available cardmodel suffers no loss in value when it is transferred from one person to another, because it has no monetary value that the transfer would dilute. As long as the person to whom you are selling the complete model has the ability to access the model, or already possesses the model, the only thing you should worry about is charging for the service of construction. Similarly, you could charge for the construction of a non-free model, as long as the company selling the model is paid for each person who recieves a model - that would not damage the value of the work; basically, you or the person buying the complete model from you should pay the seller again for the model. in USA at least.
  9. Lex

    Lex Dollmaker

    Now that's a lesson learnt for me from an expert... Thanks for the input Bspline! :thumb:

    (whisper... yes... I understand... but I still hate copyright laws... you know...)
  10. Art Decko

    Art Decko Member

    Hmmm, but copyright law also grants the designer exclusive control over distribution as well. Even if a work was given away free, they could conceivably be deriving value from the distribution.

    In the case of a free download card model, the designer may be profiting from site traffic (via advertising), or may be using the free download as a draw to the site to promote sale of other models. Seems to me you would be depriving them of that value if you were to distribute their free model yourself without their permission.
  11. nebeltex

    nebeltex Member

    you are correct Art, just because a model is free does not mean others may distribute it free (or charge for it). sometimes free models are free for a limited time, and then are sold at a price later by the creator. it is difficult to make any real money from a model which was once free. most who are interested in the model already have it as a free down-load. just because something is free of cost does not mean it is free of restrictions inherent to copyright.

    really though, i think the BONEHEAD in any case would be someone who thinks there is a lucrative market for built paper models. those who "collect" free models to compile onto CD and sell are not collecting them for their own personal use and are therefore in violation of the license agreement of the copyright.

    most of all, i'd like to say "thank you" to our original poster for asking in the first place. it shows a level of consideration all too absent these days....
  12. Paragon

    Paragon Active Member

    Well, I would suggest having the buyer download said cardmodel each time to avoid the (miniscule) potential of copyright violation, that way they're not paying you for the model, just the service of construction. Either that or download it again yourself each time you sell a built model.
  13. nebeltex

    nebeltex Member

    some say BONEHEAD might be too strong a term. i think it is mild but i guess it is a matter of! the thing is, many of the best modelers who could make money from selling built models are accomplished enough to scratch-build, making copyright a moot point.
  14. Wily

    Wily Member

    As promised.

    As promised, I spoke with our Agency's IP Attorney, laying out the issue of a builder's right to resell copyrighted work.

    His opinion is based on verbiage stated in legal precedent to the effect of, "...deprivation of the creator's right to income."

    Based on that, he believes copyright law and any subsequent challenges would end up supporting a builder's right to resell a kit...provided the builder buy a new kit each time.

    If the kit is free, the copyright holder wouldn't have much of a chance defending the resale of a free kit (even if such a thing is uncouth or tacky).

    That being stated, if a builder really wanted to build and resell a freebie kit, the builder would be wise to find the creator and offer a commission.

    There ya go.
  15. SteveM

    SteveM Member

    [I am not a lawyer and in light of Wily's previous reply maybe what I'm about to say doesn't hold any legal water, but I think it makes sense; even so, it is just my opinion.]

    I agree, that it seems like splitting semantic hairs or defining a
    distinction with no difference, but to me, there is a very real and
    important difference between someone building free models and
    offering them for sale as opposed to hiring yourself out as a
    builder; even if you end up building exactly the same model!

    First, I think it is important to explain my understanding of what a copyright
    means and how it relates to publishing. With printed kits, let's
    assume that the artist retains the copyright and a publisher purchases
    a license to produce the kits. The license is negotiated between the
    two with the knowledge that the kits will be sold for a certain price
    (or the artist will be paid a certain percentage of the price). So
    when the consumer buys the kit, the artist is essentially paid for his
    work and then the physical kit becomes the buyer's to do with what he
    will, including reselling it.

    With online electronic publishing, the "consumer" is no longer simply
    a buyer of a printed work. He is assuming the role of a publisher and
    so must follow the rules of the license that the artist posts as the
    agreement allowing you to download and print his work. He is not
    downloading a kit, per se, only permission to print that kit subject to
    the terms of the license. Whether or not you have permission to then
    sell that kit (either assembled or not) should be stated in the
    license. If it isn't stated, then one should assume that it is not

    So, it is obvious why one cannot sell the unassembled kit if the
    license doesn't allow it, but what about assembled kits? When you
    offer an object, any object, whether paper, clay, metal, etc. you are
    selling the object, not the work that went into it. Yes, your work is
    what gives it value, that makes you put a certain price on it, but the
    customer is buying the object itself. If one pot took you two hours to
    make and an identical one took you only an hour (because you got
    faster with practice, say), a customer will not be willing to pay you
    more for the first one. When you download a model, assemble it and
    offer it for sale, the customer is not going to pay you for the time
    it took you to build it regardless of what the model is. The reason he
    is buying it is for the model itself as well as the fact that it is
    assembled. When you decide to offer that particular model for sale it
    is because you know people want that particular model and it is the
    original designer that makes it possible for you to offer it for sale.

    However, it is entirely different if someone were to bring you an
    unassembled kit and offer to pay you to assemble it. Then, it is clear
    that you are being paid purely for your time, and skill to assemble
    it. You can even advertise that you are available for hire to assemble
    kits. The distinction is that it is clear that you are being paid for
    your skill alone, regardless of the model.

    So even though the end may be the same, you getting paid for
    assembling a free kit, the means are what makes all the difference.
  16. SteveM

    SteveM Member

    Open-source pact subject to copyrights law: court
  17. Art Decko

    Art Decko Member

    Wily, thanks for contributing your lawyer's advice.

    And SteveM, thanks for posting that article - good luck to Robert Jacobsen!
  18. ecleo

    ecleo New Member

    Sell Paper Model

    I think the true issue in this forum are " It is legal to sell the Paper Model I can built from free Download Paper Model?" YES or No!.
  19. WizardMaster

    WizardMaster New Member

    I was searching for web sites for paper airplanes for some board gaming minatures. I found one web site where they were selling the airplane paper models and the web site states that it was not legal to sell their templates but perfectly fine to sell the model once you completed it. Just something I noticed on one web site.
  20. atamjeet

    atamjeet Member

    I think you have all the rights to sell a completely built model. It takes a lot of time and effort to make a model... and if someone asks to make a model for him/her, it would be purely justified to ask for some money for the time / effort you have put into your model. I myself am keen to sell the models I have built, and I am the one who will decide the cost of a completely biult model regardless the fact from where the model was downloaded. Thats just my own opinion...

    On a funny note I must say " An opinion is like an A** Hole... Everyone has one" :)
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