Copyright question

Brianf1977

I recently saw on someone’s website claiming that they have exclusive rights to their MOCs and any likeness is forbidden. Is that even possible? How could they enforce such a claim in the first place? 

Which got me to thinking are copyrighted brands such as Star Wars and marvel subject to copyright laws if someone were to make a MOC with their parts? 

natro220

Most of the MOCs I’ve seen that say that are ones where they create instructions that they are selling.

I don’t see how you would risk copyright infringement as long as you don’t post all over online. You’re free to build what you want, just not advertise someone else’s creation as your own. That’s my interpretation.

Baby_Yoda

I believe you can copyright instructions (since you produced them) but it's not quite as simple to copyright a model (since Lego produces the bricks). That's part of the reason why Lego are having so much trouble suing Lepin: it's the designs of models that are being stolen, not the designs of bricks.

autolycus

Any artistic work can be copyrighted. However, copyrights mainly protect the creator from someone else’s commercial use of the work. “Fair use” allows a lot of non-licensed uses of copyrighted works. If you’re just building a copy of someone’s MOC for your own enjoyment, you’re fine. If you’re building it to publish in a magazine that you sell, you might be stretching it. If you’re selling copies of instructions someone else created for their MOC, you’re definitely afoul of the law.

SumoLego

That's generally correct.  One also has to demonstrate damages if infringement occurs.  If Lepin 'steals' a worthless idea, good luck trying to collect.  A worthless work is... worthless.  For those legal-types that like horribly boring copyright statutes - enjoy:

(a) Copyright protection subsists, in accordance with this title, in original works of authorship fixed in any tangible medium of expression, now known or later developed, from which they can be perceived, reproduced, or otherwise communicated, either directly or with the aid of a machine or device. Works of authorship include the following categories:

(1) literary works;

(2) musical works, including any accompanying words;

(3) dramatic works, including any accompanying music;

(4) pantomimes and choreographic works;

(5) pictorial, graphic, and sculptural works;

(6) motion pictures and other audiovisual works;

(7) sound recordings; and

(8) architectural works.

(b) In no case does copyright protection for an original work of authorship extend to any idea, procedure, process, system, method of operation, concept, principle, or discovery, regardless of the form in which it is described, explained, illustrated, or embodied in such work.

CCC

Plus what is a likeness? Change one brick to another colour and it is different. Change all the bricks' colours and it is very different. But also the same. Use 2x2's instead of some 2x4's and the design has changed.

The bit about Star Wars and co - if you use their logos or any registered character names to sell something, then you are on dodgy grounds. 

But even then, it seems small time players are not worth going after in most cases. For example:

https://minifigs.me/collections/music

uses lots of real people's names to sell their minifigures. Are they paying image rights? I doubt it. Whereas the sports ones

https://minifigs.me/collections/us-sports/products/team-of-your-choice-personalised-footballer-kit-and-head-no-hair-custom-lego-minifigure

have a disclaimer: *Please note - we are not able to recreate real world logos, so we'll replace sponsors and club logos with appropriate colours, shapes and fun alternatives.*

Pitfall69

George Lucas sued the Ideal toy company because of their "Star Team" action figures. It was obvious that the  Ideal action figures were likenesses of R2-D2, C-3PO and Darth Vader. The figures came out right before Star Wars, but the case was thrown out because the name "Star Team" was used years before Star Wars came out. Stanley Kubrick tried to sue the producers of Space:1999 and failed, even though the visuals and even the name was similar to his movie 2001: A Space Odyssey. 

Like @SumoLego mentioned;: Good luck using and trying to "demonstrate damages" 

Brianf1977

CCC said:

Plus what is a likeness? Change one brick to another colour and it is different. Change all the bricks' colours and it is very different. But also the same. Use 2x2's instead of some 2x4's and the design has changed.

The bit about Star Wars and co - if you use their logos or any registered character names to sell something, then you are on dodgy grounds. 

But even then, it seems small time players are not worth going after in most cases. For example:

https://minifigs.me/collections/music

uses lots of real people's names to sell their minifigures. Are they paying image rights? I doubt it. Whereas the sports ones

https://minifigs.me/collections/us-sports/products/team-of-your-choice-personalised-footballer-kit-and-head-no-hair-custom-lego-minifigure

have a disclaimer: *Please note - we are not able to recreate real world logos, so we'll replace sponsors and club logos with appropriate colours, shapes and fun alternatives.*

That’s what I thought too, like if you’re making a tree or something generic how can you claim rights to a tree? There are tens of thousands of designs that look similar to each other it’s the nature of using the same blocks to achieve the same look. 

SumoLego

Pitfall69 said:

Like @SumoLego mentioned;: Good luck using and trying to "demonstrate damages" 

I like when I'm mentioned.

Brianf1977 said:

That’s what I thought too, like if you’re making a tree or something generic how can you claim rights to a tree?

You can claim copywrite for a unique rendition of a tree, or a particular interpretation of a tree.  (If you try to sell prints of Monet, someone will come calling.)

autolycus

I mean, it’s literally the origin of the word: you have an exclusive right to make copies of your original creative work.

MrShinyAndNew

There are different kinds of intellectual property that might apply to a MOC. The look of the moc can be copyright if it is an artistic work. The actual design of the instructions can be copyright. If the moc encapsulates an invention it could be patented. A moc could represent something trademarked. 

Many popular brands are trademarked and so cannot be used in derivative works. Even the minifigure shape itself is trademarked and this is why Lego doesn't allow minifigures in logos for recognized lugs. 

If you take an existing work and recolour it or rebuild it bigger or smaller, you are creating a derivative work. Just like if you take a song and sing it in a different key or sing it slower or faster. Derivative works usually require permission of the original copyright holder to be distributed, but furthermore, they are subject to their own copyright as well.

In some jurisdictions it's not necessary to have actual damages when suing for copyright infringement. For example, in the US if you register the copyright for something, you are eligible for statutory damages even if you can't show actual damages.

Registering copyright is not typically required, as under the Berne convention copyright for artistic works exists automatically on its creation.

So I am not a lawyer but my understanding is that any Lego creation that is original would have full copyright protection the same as a painting or sculpture, and that if that creation incorporates other copyright elements it may be considered a derived work of that element.

The Lego bricks themselves are not copyrightable (they are not works of art) and thus are not (IMO) relevant to the copyright status of the original work. Lego can successfully sue Lepin for copying their designs, but not the bricks (except patented bricks). Also Lucasfilm can sue Lepin for infringing on their Star Wars trademark. Finally, Lego can sue Lepin for infringing on the minifigure trademark.

Brianf1977

MrShinyAndNew said:

There are different kinds of intellectual property that might apply to a MOC. The look of the moc can be copyright if it is an artistic work. The actual design of the instructions can be copyright. If the moc encapsulates an invention it could be patented. A moc could represent something trademarked. 

Many popular brands are trademarked and so cannot be used in derivative works. Even the minifigure shape itself is trademarked and this is why Lego doesn't allow minifigures in logos for recognized lugs. 

If you take an existing work and recolour it or rebuild it bigger or smaller, you are creating a derivative work. Just like if you take a song and sing it in a different key or sing it slower or faster. Derivative works usually require permission of the original copyright holder to be distributed, but furthermore, they are subject to their own copyright as well.

In some jurisdictions it's not necessary to have actual damages when suing for copyright infringement. For example, in the US if you register the copyright for something, you are eligible for statutory damages even if you can't show actual damages.

Registering copyright is not typically required, as under the Berne convention copyright for artistic works exists automatically on its creation.

So I am not a lawyer but my understanding is that any Lego creation that is original would have full copyright protection the same as a painting or sculpture, and that if that creation incorporates other copyright elements it may be considered a derived work of that element.

The Lego bricks themselves are not copyrightable (they are not works of art) and thus are not (IMO) relevant to the copyright status of the original work. Lego can successfully sue Lepin for copying their designs, but not the bricks (except patented bricks). Also Lucasfilm can sue Lepin for infringing on their Star Wars trademark. Finally, Lego can sue Lepin for infringing on the minifigure trademark.

How would you be able to make sure it was an original work? There are dozens of such things like trees and furniture on eBay or the countless flicker pages. Is it the responsibility of the person trying to copyright to check?

MrShinyAndNew

Brianf1977 said:

How would you be able to make sure it was an original work? There are dozens of such things like trees and furniture on eBay or the countless flicker pages. Is it the responsibility of the person trying to copyright to check?

Copyright isn't meant to prevent the expression of an idea, just protect a particular work of art. Trees, as a concept, cannot be copyright. A particular representation of a tree can be. Two people could independently come up with the same idea to represent a tree and they might end up looking very similar - that doesn't mean they copied each other. But, then it becomes a question of proof for the courts to decide. George Harrison lost a copyright lawsuit because he inadvertently copied a song. A tune was in his head and he made a song using it, but it turns out that tune had been used before by someone else.

For most Lego creations there's no point in chasing down copyright violations - there are no damages, there are no statutory damages available, there is no money available to pursue the lawsuit, there is no money available from the defendant to be won. 

Intent can matter though. For patent law, in the US, the damages for patent infringement are tripled if the infringement was found to be voluntary.

SprinkleOtter

SumoLego said:

Pitfall69 said:

Like @SumoLego mentioned;: Good luck using and trying to "demonstrate damages" 

I like when I'm mentioned.

Brianf1977 said:

That’s what I thought too, like if you’re making a tree or something generic how can you claim rights to a tree?

You can claim copywrite for a unique rendition of a tree, or a particular interpretation of a tree.  (If you try to sell prints of Monet, someone will come calling.)

@SumoLego