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To what extent does an artwork copyright protect against real life 3D replicas of objects in a video game?

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#1
I make and sell real life, 3D replicas of daggers from video games, TV, and movies. Currently I am using the original names of the daggers to sell my products (and I am aware that I am likely infringing on intellectual property). However, if I rename the weapons to more generic names to sell them under as opposed to their in game names, would this still be copyright infringement? My main concern is that the appearance is still the same as it is in the game. Is it likely to get me into legal trouble?

If my stuff falls under the category of derivative work, how much would the work have to be changed to be legally considered no longer a derivative work? Obviously this is a very difficult question, but in particular this brings to mind the "lightsaber" versus "laser sword" thing. The "laser swords" available for purchase almost always seem like a clear derivative work of lightsabers, yet for the most part they are not sued to my knowledge. Would this be because the concept of lightsabers is generic, or because the laser swords themselves are physically distinguishable enough from lightsabers to not be considered derivative?
 


#2
However, if I rename the weapons to more generic names to sell them under as opposed to their in game names, would this still be copyright infringement? My main concern is that the appearance is still the same as it is in the game. Is it likely to get me into legal trouble?
Yes, it will likely still get you in trouble if the game publisher discovers what you are doing. You are using its creative work and it is entitled to control how its work is used. I strongly suggest you consult an intellectual property attorney to discuss what you are doing and get advice on how to do it without infringing the copyright or trademark of the publisher. The major game publishers are very protective of their IP and if you are caught infringing it could be very expensive for you.
 

quincy

Senior Member
#3
I make and sell real life, 3D replicas of daggers from video games, TV, and movies. Currently I am using the original names of the daggers to sell my products (and I am aware that I am likely infringing on intellectual property). However, if I rename the weapons to more generic names to sell them under as opposed to their in game names, would this still be copyright infringement? My main concern is that the appearance is still the same as it is in the game. Is it likely to get me into legal trouble?

If my stuff falls under the category of derivative work, how much would the work have to be changed to be legally considered no longer a derivative work? Obviously this is a very difficult question, but in particular this brings to mind the "lightsaber" versus "laser sword" thing. The "laser swords" available for purchase almost always seem like a clear derivative work of lightsabers, yet for the most part they are not sued to my knowledge. Would this be because the concept of lightsabers is generic, or because the laser swords themselves are physically distinguishable enough from lightsabers to not be considered derivative?
What is the name of your state, Casey or, if not in the US, what is the name of your country?

IP laws vary in significant ways between countries.

With your replicas, you have both copyright laws and trademark laws to consider, among other possible claims (e.g., unfair competition).
 
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#4
What is the name of your state, Casey or, if not in the US, what is the name of your country?

IP laws vary in significant ways between countries.

With your replicas, you have both copyright laws and trademark laws to consider, among other possible claims (e.g., unfair competition).
I'm in california
 

quincy

Senior Member
#5
I'm in california
Thank you for providing your state name.

You avoid some of the trademark problems by changing the names of your daggers. Any use of another's trademark on the goods you are selling, and any marketing of your goods that make or is likely to make consumers believe your goods originated with the trademark holder, leaves you especially vulnerable to a costly lawsuit.

There can be copyright issues if the appearance of the daggers is distinctive enough to warrant copyright protection, but the imitation/replication of a distinct appearance is most likely to lead a rights-holder to claims of trade dress infringement, dilution, unfair competition, and trademark infringement.

Following is a link to a Batmobile replica suit filed by DC Comics against Mark Towle and his Gotham Garage. You might find it informative.

https://caselaw.findlaw.com/us-9th-circuit/1713742.html

And following is another link to a more recent infringement suit (Colleen Wolstenholme v. Damien Hirst, et al) that involved jewelry made from replicas of pharmaceutical pills. Although this is less about the replica of pills and more about copyright infringement of jewelry design, it does discuss the "ordinary observer" test and the total concept and feel of works.

When viewing an original work and an alleged copy of the work, a court starts with a first impression look at the sameness or similarities of the works before getting into a deeper analysis.

https://www.leagle.com/decision/infdco20171021g14

Replicas attract the attention of rights-holders and their attorneys. It is hard to escape that fact.

Good luck.
 
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