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Tentacles & Eyeballs


Miniatures

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Star Voter 2013

Pathfinder Roleplaying Game Subscriber

There is a new kickstarter for Tentacles & Eyeballs. My collection doesn't really need them, but figured some of you might like them.

Lantern Lodge

1 person marked this as a favorite.
Caineach wrote:
There is a new kickstarter for Tentacles & Eyeballs. My collection doesn't really need them, but figured some of you might like them.

I admit i'm hazy on the intellectual issues, but as your sculpts are rather faithful representations of various beholders, beholderkin and deepspawn artwork from WOTC monster manuals, are they legal to produce? I believe Beholders and Deepspawn are Wizards of the Coast intellectual property, hence why Paizo is unable to reproduce them in any of their products.

I hope I'm wrong, because the Deepspawn sculpt is really nice :)


They bear remarkable resemblance to things that I'm pretty sure are copywrighted.

You may want to edit them just enough that you can at least call them satire. Make a comic where they all are members of a sitcom or something. It might work.

Shadow Lodge Marathon Voter 2013, Marathon Voter 2014

Pretty sure Caineach is just posting the link, I don't think this is his/her work.

Star Voter 2013

Pathfinder Roleplaying Game Subscriber

Not my kickstarter, and I agree that they may be getting close to copyright infringement. That doesn't mean you can't buy minis from them until they get that cease and decist order that may never come though.


Pathfinder Roleplaying Game Subscriber

You'd be surprised what counts, and doesn't count, as copyright infringement.

I've backed this myself and look forward to painting some big beasties. Like other mini's kickstarters it just gets better overtime.

Also, they've made their goal already. If you back this, you get figures. If WoTC was going to somehow intervene they would've done so already.

Me, I'm all squee about the whole thing. Tentacle monsters :)

Contributor

In my opinion as a guy who had a job knowing about such things, if Bob has a monster, and there's art for that monster, and a name for that monster, and Dave makes a mini of a monster, and that mini looks like Bob's art, and the mini's name is very similar to Bob's name for Bob's monster, that's copyright infringement.

Especially so if Dave puts five or more of examples of this sort of thing on the same webpage. It's a pattern.


Are the monsters lawyers? I thought whoever has the scarier monsters wins in these cases.

Sovereign Court

Copyright protects a particular expression of an idea, not the idea itself. Wizards of the Coast can trademark "Beholder" and stop people from using the trademark. They get copyright in a particular painting of a beholder and can prevent people from copying that particular painting but they can't prevent folks from drawing or sculpting floating eye monsters with ten eyestalks and toothy mouths.

If they could, then the toy company that first produced the owlbear, rust monster and bulette figs would be all over wotc.

The first example that pops to mind are those horrible Bratz dolls - the sculptor hung a photograph by Bernard Belair up on the wall and used that as the inspiration. Of course, those dolls were painted and had different clothes and had MGM's lawyers backing them up so.... (http://scholar.google.ca/scholar_case?case=16099048784242717746&hl=en&a mp;as_sdt=2&as_vis=1&oi=scholarr&sa=X&ei=ylJSUJXhJrHuiQKAqI CoAg&ved=0CB4QgAMoADAA

There's also a beholder who shows up in some futurama episodes iirc.


Pathfinder Roleplaying Game Subscriber

I've messaged the creator and asked he address this on the front page of the Kickstarter. Hopefully he can explain what convinces him that this is legit and not going to get lawsuited by WoTC.

It's especially frustrating because WoTC hasn't made paintable minis like this. Reaper minis made figures like these for years, just like other companies and without permissions (at least never publicized). I really want this to work out, but you've cast doubt in me Sean.


Hi Guys,

I put up a blog post on my website which explains my reasoning in thinking that I am not violating any copyrights with these figures.

Hope it helps!

-Andy

http://www.dark-platypus.com/blog/copyright-concerns

http://www.kickstarter.com/projects/806737090/tentacles-and-eyeballs-an-rpg -horror-miniatures-se

Contributor

1 person marked this as a favorite.

All I'm saying, Andy, is that your kickstarter project has

a "guath" that looks like a D&D gauth
a "doomkiss beholder" that looks like a D&D bloodkiss/death kiss
a "deepmother" that looks like a D&D deepspawn
a "phlemf" that looks like a flumph
an "energy being" that looks like a D&D yag-ya/xeg-yi
a "grabbie" that looks like a gorbel
a "wail snail" that looks like a flail snail
a "deep eye" stretch reward that looks like an eye of the deep

And your response appears to be
"they haven't stopped me yet so it must be okay,"
"they haven't stopped another company's D&D lookalike minis so it must be okay,"
"nobody stopped the Big Lebowski or Scooby Doo lookalike miniatures so it must be okay,"
"there are differences between my monsters and the Wizards monsters so it's not a violation," and
"they'll never make these obscure monsters anyway so I might as well be able to" (which isn't actually true)

What's telling is you did not say "I did not copy these D&D monsters." You can't say that because you know it isn't true. This isn't an accident of parallel creativity; you have 8 monsters not only look like specific D&D monsters, they're named very similarly to those monsters. It's obvious that you based your miniatures on those D&D monsters, as much as creating minis of 9-foot-tall quasi-catlike savage warriors called the "nar'vi" is an obvious copying of the Pandora natives from the Avatar movie.

Instead of creating something based on (public domain) mythology or something entirely new, you chose to sculpt a bunch of miniatures copied from well-established monsters that were created by Wizards of the Coast. Whether or not they try to stop you doesn't matter, whether or not a court would agree that this is a copyright violation doesn't matter. You've copied someone else's idea instead of creating something that's your own.

Sovereign Court

Sean K Reynolds wrote:
... whether or not a court would agree that this is a copyright violation doesn't matter. You've copied someone else's idea instead of creating something that's your own.

What's your point? Copyright doesn't protect ideas, and it doesn't protect ideas for a very good reason.

If a court wouldn't find a copyright violation, he's within his rights. Copyright is a creature of statute not based on natural law. Once published, authors do not have a natural, moral, or common law right to copyright in their works (Wheaton v. Peters, 29 F. Cas. 862 (C.C.E.D. Pa. 1832) (No. 17,486), Fox Film Corp. v. Doyal, 286 U.S. 123, 127 (1932)). If it was a moral right you wouldn't be able to copyright something illegal (marijuanna pipes) or something that was itself a copy (you can paint a version of an image that is in the public domain and get copyright for your painting), or something in the public domain (you can play a song in the public domain and get copyright for that performance).

Copying by itself is neither moral nor immoral, it's the breach of the law that is moral or immoral.

If all forms of copying were wrong, you wouldn't see neat things like this:

http://geekleagueofamerica.com/wp-content/uploads/2012/08/Jaws_HD_by_heymel by-602x338.jpg

http://sphotos-b.xx.fbcdn.net/hphotos-snc7/303121_436041569768127_360824090 _n.jpg

Or, say, a gelatinous cube....

Or, the beholder, otyugh, grell etc by reaper sold through paizo: http://paizo.com/products/btpy8914?Dungeon-Horrors-Boxed-Set, http://paizo.com/products/btpy86yl?Xeldorian-Tyrant-of-Darkness

Or illustrations by TSR:
http://grognardia.blogspot.ca/2012/09/more-greg-bell-swipes.html

http://grognardia.blogspot.ca/2009/04/mighty-marvel-method.html

Marathon Voter 2013

Pathfinder Campaign Setting, Companion Subscriber

Bad Andrew. No cookie.

Perhaps someone suggested you do a piracy Kickstarter, and you misunderstood?

Seriously, man, this is really blatant. I make no pretense of legal expertise, but c'mon....

Sovereign Court

1 person marked this as a favorite.
Sean K Reynolds wrote:

a "phlemf" that looks like a flumph
a "wail snail" that looks like a flail snail

Instead of creating something based on (public domain) mythology or something entirely new, you chose to sculpt a bunch of miniatures copied from well-established monsters that were created by Wizards of the Coast. Whether or not they try to stop you doesn't matter, whether or not a court would agree that this is a copyright violation doesn't matter. You've copied someone else's idea instead of creating something that's your own.

What's so wrong about a sculpt of a flumph or a flail snail that isn't also wrong about a painting of one?

http://images.wikia.com/pathfinder/images/c/cf/Flumph_on_goblin_action.jpg

http://images.wikia.com/pathfinder/images/f/f8/Flail_snail_fight.jpg

Contributor

Robert, why are you so ardent about defending someone who has blatantly copied someone else's work?

(By way, count the eyestalks of those Reaper minis you keep calling "beholders." Hint: there aren't ten of them. Is it really a "beholder" if it doesn't have ten eyestalks?)

(Also, notice that the D&D beholder and its relatives aren't in the OGL. Notice that the flumph and flail snail are in the OGL. So that's the difference between an image of a flumph [or a mini of a flumph] and a mini of a beholder: WotC has allowed everyone to use flumphs, they haven't allowed everyone to use beholders. In fact, there is a company making looks-like-and-called-beholder miniatures... under paid license from Wizards. If GaleForce9 has to pay a licensing fee to make actual beholder minis, how come this guy can make other beholderkin without paying Wizards a licensing fee?)

(So why did I mention the flumph and flail snail at all? To establish that there is a pattern of copying monsters, whether those monsters are reserved by Wizards or open to everyone.)

(Oh, and as for "Copying by itself is neither moral nor immoral," you may want to look up "plagiarism" in the dictionary. Things can be immoral even if they are legal. Laws do not create morality.)


Pathfinder Roleplaying Game Subscriber

Sean, I am stunned. I never meant this discussion to become what it has. Someone is finally making these figures, which is enough for me. Would you be more comfortable with Andrews sculpts if they had slighty more skewed names or +/- eye stalks? Is that really the minutia that should be focused on?

The people of Paizo follow your lead. This responce pretty much guarentees many people, who read these posts, will avoid the Kickstarter based soley on your statements. I'm just curious what it would take to put your mind at ease.

You're also a busy man and have said your peace. No reply necessary, but thank you for participating.

Shadow Lodge

Robert Hawkshaw wrote:
If all forms of copying were wrong, you wouldn't see neat things like this:
Quote:

I don't remember him saying "all forms of copying" were wrong. I think there is an element of profit in the argument.

Quote:

http://geekleagueofamerica.com/wp-content/uploads/2012/08/Jaws_HD_by_heymel by-602x338.jpg

http://sphotos-b.xx.fbcdn.net/hphotos-snc7/303121_436041569768127_360824090 _n.jpg

Parody.

Quote:
Or, say, a gelatinous cube....

Is he selling those?

Shadow Lodge

1 person marked this as a favorite.
Shane LeRose wrote:

Sean, I am stunned. I never meant this discussion to become what it has. Someone is finally making these figures, which is enough for me. Would you be more comfortable with Andrews sculpts if they had slighty more skewed names or +/- eye stalks? Is that really the minutia that should be focused on?

The people of Paizo follow your lead. This responce pretty much guarentees many people, who read these posts, will avoid the Kickstarter based soley on your statements. I'm just curious what it would take to put your mind at ease.

You're also a busy man and have said your peace. No reply necessary, but thank you for participating.

Maybe he is concerned for Andrew, Andrew's customers, and Andrew's customers that are also Paizo's customers. Let's say that I give 100 dollars and Andrew gets sued and loses before he even makes it to production. What happens to my money? Legally would he be obligated to refund everyone of his backers? What if he already spent the money on the materials and he doesn't have it? Do we then sue him? Things get messy pretty quick.

Sovereign Court

What Asphere just wrote is pretty much exactly why I am waiting before I click go on this Kickstarter. I really would like to have some of these figures. I'm just not sure of it. My friend is a trademark/copyright lawyer. I need to go ask him some questions about this I think.

Contributor

Shane LeRose wrote:
Sean, I am stunned. I never meant this discussion to become what it has. Someone is finally making these figures, which is enough for me. Would you be more comfortable with Andrews sculpts if they had slighty more skewed names or +/- eye stalks? Is that really the minutia that should be focused on?

That "minutia" is the difference between a comic about a flying superhero and a comic that's a knockoff of Superman. The minutia matters. When someone files a copyright infringement lawsuit, one of the things the lawyers do is list all the points of similarity between the two things. In White Wolf v. Sony (where WW sued Sony because the Underworld franchise blatantly copied many ideas from Vampire: The Masquerade and the World of Darkness), the filing included a list of something like 200 points of similarity between the two properties.

Would you be fine with Andrew making obviously-Seoni, obviously-Valeros, obviously-Ezren, and obviously-Merisiel minis? Obviously-jawa minis? Obviously-Batman minis? Obviously-Dresden minis? Obviously-Firefly minis? Obviously-Harry Potter minis? Obviously-Gandalf minis? Andrew doesn't own the rights to any of those things. He didn't create them, he didn't ask the creators for permission to make and sell minis based on them.

So why should it be okay to do so if he's making obviously-beholder minis just because they're part of D&D or owned by Wizards of the Coast? And especially when Wizards has been so incredibly generous in giving away the D&D engine and hundreds of TSR monsters for everyone to use in any way they want, but chose to hold back a few monsters as proprietary? Why choose those proprietary monsters that they've said "ya know what, these are iconic to D&D, we're going to keep those for ourselves"? That's like having a neighbor who says you can borrow any of the tools in his garage, at any time, no need to ask... and you borrow his car without asking. And "but I really wanted to borrow your car" isn't a good enough reason to excuse doing it.

Shane LeRose wrote:
The people of Paizo follow your lead. This responce pretty much guarentees many people, who read these posts, will avoid the Kickstarter based soley on your statements. I'm just curious what it would take to put your mind at ease.

It would put my mind at ease if he stopped copying someone else's work. It looks like Andrew is a pretty good sculptor, I'm sure he could have a kickstarter for a set off totally-made-up new monster miniatures (say, like this kickstarter by artist Andy Hopp where sculptor Jason Wiebe is sculpting minis based on Hopp's art, at Hopp's request). Andrew doesn't need to copy someone else's work to have a successful project.

I don't have a personal vendetta against Andrew or even Dark Platypus; I bought some Dark Playtpus stuff at GenCon last year and mentioned them in my blog about cool things at GenCon. I am a guy who loves miniatures, respects others' intellectual property, and doesn't like to see people who create new things get their rights infringed. It doesn't matter if the original work is from one little guy or a big company, copying someone else's work is in poor taste and (depending on the extent of it) may be a copyright violation.

This all may come out in the wash. Wizards of the Coast may not care, or it may think that stopping this isn't worth its time. But that doesn't change the fact that this is obviously copying someone else's work, and I have a real problem with that.

Sovereign Court

Sean K Reynolds wrote:

Robert, why are you so ardent about defending someone who has blatantly copied someone else's work?

A whole number of reasons. Property law, the history and development of copyrights trademarks and patents, human rights, and chilling effects are some of my research interests.

But right now because I'm confused about where and how you are drawing your as to where blatant copying kicks in and where it doesn't.

If Reaper's floating Tyrant and Eyebeast (also described as abberations on their webpage) are okay in your eyes because they don't have ten eyestalks - then presumably the floating eye monsters called Peepers on the kickstarter would be okay?

http://s3.amazonaws.com/ksr/assets/000/130/675/482a219162ba8e55d6af4b4b7561 57f4_large.jpg?1345924696

Likewise the ten-tenticaled floating eye doomkiss abberrant that has mouths instead of eyestalks?

http://s3.amazonaws.com/ksr/assets/000/130/685/2bd05b850dc9a11fd32196d872cf 22d0_large.jpg?1345924984

The aboleth, flumph, and flail snail fall under your OGL reasoning do they not?

Not quite sure where the deep mother comes from, but paizo has sold in the past a miniature called a deep mother that looks similar if a bit cruder than the one on offer on the kickstarter:

Pic of the mini: http://www.fantization.com/deepmotherx1fig.aspx

Discussion of it on Paizo: http://paizo.com/products/btpy7cn4/discuss?Deep-Mother

Looking at copyright claims with a critical eye and being leery of moral arguements and aware of the possibility of overreach, expansionism, and stifling effects is not a new thing, nor is it a pro-piracy pro-theft position.

For example Stephen Breyer (who is now an Associate Justice of your Supreme Court) wrote pretty persuasively about not extending copyright protection to computer programs:

The Uneasy Case for Copyright: A Study of Copyright in Books, Photocopies, and Computer Programs, Stephen Breyer
Harvard Law Review Vol. 84, No. 2 (Dec., 1970), pp. 281-351


Sean and all,
I will definitely take your advice and concerns to heart for future projects. I know that you are giving it with the best of intentions, and I do take that to heart. I honestly never meant to stir up any controversy or upset anybody. I certainly never meant to be taken as or portrayed as a villain when all I'm trying to do is make some things gamers want, and make my way in the world. And you can rest assured that my next Kickstarter will be all original creations.

Most of these sculpts were done as one-offs, something you clearly feel is ok, and it was only after I became convinced it was alright (and yes, by observing the world around me...if it's ok for some, why does it have to be not ok for me? And yes, you can find 'not' miniatures of most of the characters you mentioned out there, but not by me.) that I decided to do the Kickstarter.

I can see we have a difference of opinions on what is right and wrong here, and I can see and appreciate where you are coming from. From my perspective, I already had these sculpts done, people wanted them, and it seems to me that I can legally provide them. I'm sorry if I've given offense, and if I was not well-informed enough at the outset of the project (I thought Beholders were in the ogl, for one). If I'm on the wrong side of the Law, that's what matters, and I don't think that I am.

For what it's worth, everyone who pledges to my Kickstarter will either get their minis, or in the event someone (in authority) does tell me I can't make them, they will get a full refund, or they will get the minis I can produce, and a refund for the minis that are disallowed, at their discretion.

Contributor

Andrew's peepers aren't based on anything from D&D, as far as I can tell.

As I mentioned above, the "doomkiss beholder" (there's that name again) is looks like a D&D beholderkin monster called a "bloodkiss" or "death kiss," so it, too is a copy of a D&D monster (it doesn't look like a true beholder because it looks like a different D&D beholder-kin monster).

As for aboleth (which I didn't mention), flumph, and flail snail, as I said earlier, are included in my list because I'm showing a pattern of copying D&D monsters. I never said that the aboleth, flumph, and flail snail were a copyright violation, I just listed them to show other examples of things Andrew is obviously copying.

And as I said, Andrew's "deepmother" is a copy of the D&D monster deepspawn. Finding other companies that have done knockoff minis of D&D monsters doesn't mean that Andrew isn't also copying D&D monsters.

Let me put it this way, Robert: are you saying that Andrew isn't copying D&D monsters?

Sovereign Court

Sean K Reynolds wrote:


Let me put it this way, Robert: are you saying that Andrew isn't copying D&D monsters?

I am saying that you've got more work to do before you convince me he's infringing on WoTC's copyrights.

Things like the word 'beholder' are not a protectable element under copyright law (Alberto-Culver Co., 466 F.2d at 710 - words, short phrases, names, titles and slogans are not copyrightable).

I'm saying a trademark search reveals that Beholder is not a registered mark.

I'm saying even if the name beholder was copyrightable, even though it shows up on the website once, unless it appears on the model itself, the model wouldn't be infringing (Ideal Toy Corp - you don't look at advertisments, you compare the two physical objects).

The idea of a bloodkiss, eye tyrant, deepspawn, or normal beholder is not copyrightable (FASA Corp. v. Playmates Toys, Inc., 869 F. Supp. 1334 (N.D. Ill. 1994) (“FASA I”).

Their underlying themes are not copyrightable (Ideal
Toy Corp. v. Kenner Products Div. of General Mills Fun Group, Inc., 443 F. Supp. 291(D.C.N.Y. 1977).

Individual elements present in a beholder that come from nature, are lifelike, or that are fantastical are required to draw or sculpt a beholder (teeth, chitin, eyes, eyestalks, round shape etc...) are not copyrightable. (Wildlife Exp., 18 F.3d at 508 and Nimmer On Copyright).

I'm saying there is a bunch of case law that says that you can take a competitors toy, put it on your desk, and design your own based on it: bratz doll case, the fasa case and Mattel, Inc. v. Azrak-Hamway and Mattel, Inc. v. Goldberger Doll Mfg. Co.

If he was to recast an existing sculpture or use parts of an existing sculpture of a beholder in his mini or as his armature I'd be happy to say he was copying a miniature of a beholder.

Sovereign Court

As a complete aside, since you mentioned jawas, George Lucas lost his copyright on stormtrooper armour fairly recently in the UK. Hasn't had a lot of fallout yet, but I would expect to see a bunch off star wars knock of toys popping up. (http://www.supremecourt.gov.uk/decided-cases/docs/UKSC_2010_0015_Judgment. pdf)

Shadow Lodge Marathon Voter 2013, Marathon Voter 2014

Robert Hawkshaw wrote:
Sean K Reynolds wrote:


Let me put it this way, Robert: are you saying that Andrew isn't copying D&D monsters?
I am saying that you've got more work to do before you convince me he's infringing on WoTC's copyrights.

I think the problem here is a lot of talking past one another.

Sean is saying it's bad because he's copying someone else. It's not as much an issue of copyright law to him as it is "You're ripping off someone else's idea rather than being original." It's an ethical issue to him.

Whereas Robert is arguing purely from legal standpoint, and leaving ethics out of the equation.

Sovereign Court

Orthos wrote:
Robert Hawkshaw wrote:
Sean K Reynolds wrote:


Let me put it this way, Robert: are you saying that Andrew isn't copying D&D monsters?
I am saying that you've got more work to do before you convince me he's infringing on WoTC's copyrights.

I think the problem here is a lot of talking past one another.

Sean is saying it's bad because he's copying someone else. It's not as much an issue of copyright law to him as it is "You're ripping off someone else's idea rather than being original." It's an ethical issue to him.

Whereas Robert is arguing purely from legal standpoint, and leaving ethics out of the equation.

Heh, well, I wouldn't say I'm leaving ethics out of the equation - I have a civil libertarian streak. Copyright law is a state intrusion onto what were pre-existing rights and norms around copying and reproduction. It is a useful and acceptable intrusion so far as it furthers the public good. Overbroad, overreaching and over expansive copyright laws and copyright claims harm the public good by stifling creativity, innovation and the spread of new ideas as broadly as possible, instead of supporting it like it is supposed to. It is ethical to push back against them the same way it is ethical to fight for freedom of speech, or against the growth of state surveillance or the manipulation of the tax code for improper purposes etc...

Shadow Lodge Marathon Voter 2013, Marathon Voter 2014

Ah, point taken. Different ethics then, rather than none. My mistake.

Shadow Lodge

Robert Hawkshaw wrote:
Orthos wrote:
Robert Hawkshaw wrote:
Sean K Reynolds wrote:


Let me put it this way, Robert: are you saying that Andrew isn't copying D&D monsters?
I am saying that you've got more work to do before you convince me he's infringing on WoTC's copyrights.

I think the problem here is a lot of talking past one another.

Sean is saying it's bad because he's copying someone else. It's not as much an issue of copyright law to him as it is "You're ripping off someone else's idea rather than being original." It's an ethical issue to him.

Whereas Robert is arguing purely from legal standpoint, and leaving ethics out of the equation.

Heh, well, I wouldn't say I'm leaving ethics out of the equation - I have a civil libertarian streak. Copyright law is a state intrusion onto what were pre-existing rights and norms around copying and reproduction. It is a useful and acceptable intrusion so far as it furthers the public good. Overbroad, overreaching and over expansive copyright laws and copyright claims harm the public good by stifling creativity and innovation instead of supporting it like it is supposed to. It is ethical to push back against them the same way it is ethical to fight for freedom of speech, or against the growth of state surveillance or the manipulation of the tax code for improper purposes etc...

I agree with this. Think about what the pharmaceutical industry does with their patents.

Anyway, if we are talking ethics...I have a problem saying that Andrew is ripping off a corporation who merely owned the artist's labor or bought it from another corporation a long time ago. Didn't Gygax and Kuntz come up up with back in the 70s anyway? You are ripping off those guys if their families still get royalties from WoTC I guess...but you would think that it would become public domain by now unless WoTC can show that their company would go under without the copyright.

Anyway...I have these new monster designs I am going to make into miniatures...one is a giant floating eye called a Beholden and the other is a Mindfrayer.

Shadow Lodge

As an aside...if I pledge $60 I get one 2" x 2" miniature? $90 gets me 1 3" x 3" miniature? How much will these be when they come out?

The pledge rewards seem low compared to the pledge costs.

Sovereign Court

Sean K Reynolds wrote:


Notice that the flumph and flail snail are in the OGL. So that's the difference between an image of a flumph [or a mini of a flumph] and a mini of a beholder: WotC has allowed everyone to use flumphs, they haven't allowed everyone to use beholders.

...

Would you be fine with Andrew making obviously-Seoni, obviously-Valeros, obviously-Ezren, and obviously-Merisiel minis?

....

And especially when Wizards has been so incredibly generous in giving away the D&D engine and hundreds of TSR monsters for everyone to use in any way they want, but chose to hold back a few monsters as proprietary?

[emphasis added]

I did not address it earlier, but your 'they were released under the OGL so it's okay' response is a bit off.

Other than the iconics you mention, Paizo has created a number of unique monsters and released them under the OGL.

Per your response it would be all right to sell paintings, or illustrated books or miniatures based off of those OGLed monsters? Wouldn't need a licence to make a rune giant miniature? If not, why are those monsters different than the flumph, flail snail or aboleth?


1 person marked this as a favorite.
Pathfinder Adventure Path, Campaign Setting, Modules, Roleplaying Game Subscriber
Robert Hawkshaw wrote:

I did not address it earlier, but your 'they were released under the OGL so it's okay' response is a bit off.

Other than the iconics you mention, Paizo has created a number of unique monsters and released them under the OGL.

Per your response it would be all right to sell paintings, or illustrated books or miniatures based off of those OGLed monsters? If not, why are those monsters different than the flumph, flail snail or aboleth?

Which is why he mentioned the iconics, which are product identity, not open content.

Although strictly speaking, if you are making a painting of an OGL'd monster, you should include a copy of the OGL and the proper copyright statements with it.

As it is Robert, you are arguing from a standpoint of wanting to change the existing laws. So you are showing cases that push the boundaries. I do agree that copyright law needs to be reigned in. 100+ years is too long for copyright. But maybe 30-50 years is ok. But there's a difference between civil disobedience of a law you don't like and ignoring a law you don't like to make money.


Pathfinder Roleplaying Game Subscriber
Asphere wrote:

As an aside...if I pledge $60 I get one 2" x 2" miniature? $90 gets me 1 3" x 3" miniature? How much will these be when they come out?

The pledge rewards seem low compared to the pledge costs.

As more people back this project the better the rewards become. To be fair you picked the crappiest of reward tiers to cite in your example. You're jus outright paying for the figure this point, but if you aim hirer you could get everything as the stretch goals are reached.

So obviously it's in my best interest if more people join in.

Robert is correct by the way. Beholder, illithid and so on do not exist in the copyrights or patents database. They are product identity only so far as the OGL is concerned. Beyond that WoTC needs to file a retroactive copyright, it needs to be approved and if they go after anybody it can't start with these figures. A precedent exists and all the creators before Andrew would be brought to court first.

Regardless though, if such a thing happened, these and all other figures made by other companies become rare collectors items. Is it unethical? That can actually be debated.

If you have a morale problem with it though, then I'm sorry. You get to miss out on a great deal and some awesome figs. I've been waiting a long time for minis like these. They'll have to pry them out of my cold dead hands!


Pathfinder Adventure Path, Modules Subscriber
Nitesynth (edited for space) wrote:

I understand that one would feel that they are copying another company's creation because of similarities but you have to think about it in this sense.

Here is a Reaper miniature sculpted by Geoff Valley and released on 03-01-03.

http://www.reapermini.com/OnlineStore/phase%20cat/sku-down/02664

Now doesn't it look almost identical to this:

http://en.wikipedia.org/wiki/Displacer_beast

Here is the Illithid:

D'Kuhl, Bathalian ($5.49)Sandra Garrity

http://www.reapermini.com/OnlineStore/bathalian/sku-down/65097

Also known in Dungeons and Dragons as a Illithid or Mind Flayer.

http://en.wikipedia.org/wiki/Mind_flayer

I don't know anything about what counts as copy right infringement, but these two examples came to my mind when i read through this thread earlier.

The phase cat does only have four legs instead of six but there can't really be any doubt as to what kind of monster it is supposed to represent. I'm guessing that reaper didn't have permission from WotC to create the miniature, as then it would probably be called a Displacer Beast. I feel the same way about the Bathalian figure. There are some differences but i think that they both balancing on the edge between "heavily influenced by" and "copied".

Otherworld miniatures fall into a similar territory. All the giants (at least the fire and frost) are taken from the monster manual (1st edition?), as i'm sure alot of the other miniatures are.

To me it seems like the kickstarter is just filling a need. Although i may be wrong.

The main reason i'm not backing this project is that i don't feel that the sculpts look that good. Except for the Aboleth. That one looks kinda cool.

Contributor

Robert Hawkshaw wrote:
Sean K Reynolds wrote:


Let me put it this way, Robert: are you saying that Andrew isn't copying D&D monsters?
I am saying that you've got more work to do before you convince me he's infringing on WoTC's copyrights.

I'm not talking about copyright law. I'm talking about copying.

Peter Jackson paid a lot of people good money to design and create all of the Gondor armor for his Lord of the Rings movies. If some guy makes a miniature of a soldier in that kind of armor, he's copying a design that Peter Jackson paid for.

It doesn't matter if Jackson has a trademark on that look.
Or a copyright of an image of that look.
Or if the guy is doing it for free.
Or if the guy is selling it.
Or if someone else is copying that look from Jackson.
Or if it's "filling a need."
Or if you "really want it."
He is copying the work that Peter Jackson paid for.
More precisely, he is copying the work that the costume designer was paid for. He's saying, "nice work, costume designer, and even though you get paid for this sort of thing, I'm going to copy your idea and not pay you and not give you credit."
And in this case, he's saying, "I'm going to raise some money so I can make a bunch of copies of your idea and sell them, and not pay you and not give you credit."

And if anybody can make those Gondor miniatures, why should anyone bother to pay Jackson for the rights to use those designs? Or Tolkien, for that matter?

This isn't a libertarian paradise; just because there isn't a law against something doesn't mean it isn't wrong. Many states in the USA don't have a law against bestiality, that doesn't mean bestiality isn't wrong. There isn't a law against adultery, that doesn't mean adultery isn't wrong. Copying someone else's work is wrong, even if there's no legal consequence (such as a violation of copyright law) for doing so.

I'll be the first to wave the banner of "copyright laws need to have a shorter duration." But, to repeat myself, I'm not talking about copyright law. I'm talking about copying. Copying someone else's work. Which is something you were taught not to do in school. Don't copy Amy's test answers, it's wrong. Don't copy John's essay as your own, it's wrong. Don't copy TSR's monster (one of the few monsters they've decided to not share, after sharing almost everything else they had), it's wrong.

But because Robert isn't answering my very simple question ("Are you saying that Andrew isn't copying D&D monsters?"), I guess I'm done here.

Sovereign Court

Copyright aside? I think he's copying - but I think Xendrick and the eyebeast are copies as well. As long as what they are doing is legal i think its a-okay morally.

Contributor

Robert Hawkshaw wrote:
Copyright aside? I think he's copying - but I think Xendrick and the eyebeast are copies as well. As long as what they are doing is legal i think its a-okay morally.

See my above comments about bestiality, adultery, and plagiarism.

Shadow Lodge

Sean K Reynolds wrote:
Robert Hawkshaw wrote:
Sean K Reynolds wrote:


Let me put it this way, Robert: are you saying that Andrew isn't copying D&D monsters?
I am saying that you've got more work to do before you convince me he's infringing on WoTC's copyrights.

I'm not talking about copyright law. I'm talking about copying.

Peter Jackson paid a lot of people good money to design and create all of the Gondor armor for his Lord of the Rings movies. If some guy makes a miniature of a soldier in that kind of armor, he's copying a design that Peter Jackson paid for.

It doesn't matter if Jackson has a trademark on that look.
Or a copyright of an image of that look.
Or if the guy is doing it for free.
Or if the guy is selling it.
Or if someone else is copying that look from Jackson.
Or if it's "filling a need."
Or if you "really want it."
He is copying the work that Peter Jackson paid for.
More precisely, he is copying the work that the costume designer was paid for. He's saying, "nice work, costume designer, and even though you get paid for this sort of thing, I'm going to copy your idea and not pay you and not give you credit."
And in this case, he's saying, "I'm going to raise some money so I can make a bunch of copies of your idea and sell them, and not pay you and not give you credit."

And if anybody can make those Gondor miniatures, why should anyone bother to pay Jackson for the rights to use those designs? Or Tolkien, for that matter?

This isn't a libertarian paradise; just because there isn't a law against something doesn't mean it isn't wrong. Many states in the USA don't have a law against bestiality, that doesn't mean bestiality isn't wrong. There isn't a law against adultery, that doesn't mean adultery isn't wrong. Copying someone...

I was pretty much with you until you said "it doesn't matter if the guy is selling it". Doesn't it? I mean...if I made a beholder at home out of clay to use in my home games I am being immoral? If I made one for a friend for free - that is immoral?

Edit: It dawned on me that you probably mean that if I made something like a beholder at home and then claimed that I came up with it that would be immoral. Right?

Contributor

2 people marked this as a favorite.

Actually, that questions closely relates to the reason why we have the OGL: Creating new D&D text for your home campaign was a legal gray area, and Ryan Dancey realized that if it ever went to court it would be the side with the most money that won, and he didn't want the right to create homebrew to be decided by a lawyer who didn't care about gaming.

Is creating a clay beholder mini for your home game copying? Yes.
Is it morally wrong to do so. Meh, not really, after all you could just use a poker chip with "beholder" written on it, your clay beholder is just a fancy poker chip.
Is Wizards going to care that you made a clay beholder? Doubtful.
Will Wizards think you creating a clay beholder is in any way harmful to their property? Doubtful.
If you made one for your friend, likewise... yes it's copying, but nobody will care that you did it. In the same way that people can make one-off custom action figures and sell them on Etsy (Jodi did some research on this and there's some corner case of the law that allows such a thing).

Wizards may not care about these minis at all. They may care, but decide that doing something about it is bad for PR. They may not care, but a Hasbro lawyer may insist on protecting something they've reserved as their property. They may think they're awesome and buy the sculpts to mass-produce them. I don't know, I don't speak for Wizards in any way. But it is clear to me that these are uncredited copies of D&D monsters, and it's disrespectful to Wizards to do that after how generous they've been with the OGL.

Asphere wrote:
Edit: It dawned on me that you probably mean that if I made something like a beholder at home and then claimed that I came up with it that would be immoral. Right?

That certainly would be immoral in my book.

Shadow Lodge

Sean K Reynolds wrote:

Actually, that questions closely relates to the reason why we have the OGL: Creating new D&D text for your home campaign was a legal gray area, and Ryan Dancey realized that if it ever went to court it would be the side with the most money that won, and he didn't want the right to create homebrew to be decided by a lawyer who didn't care about gaming.

Is creating a clay beholder mini for your home game copying? Yes.
Is it morally wrong to do so. Meh, not really, after all you could just use a poker chip with "beholder" written on it, your clay beholder is just a fancy poker chip.
Is Wizards going to care that you made a clay beholder? Doubtful.
Will Wizards think you creating a clay beholder is in any way harmful to their property? Doubtful.
If you made one for your friend, likewise... yes it's copying, but nobody will care that you did it. In the same way that people can make one-off custom action figures and sell them on Etsy (Jodi did some research on this and there's some corner case of the law that allows such a thing).

Wizards may not care about these minis at all. They may care, but decide that doing something about it is bad for PR. They may not care, but a Hasbro lawyer may insist on protecting something they've reserved as their property. They may think they're awesome and buy the sculpts to mass-produce them. I don't know, I don't speak for Wizards in any way. But it is clear to me that these are uncredited copies of D&D monsters, and it's disrespectful to Wizards to do that after how generous they've been with the OGL.

Asphere wrote:
Edit: It dawned on me that you probably mean that if I made something like a beholder at home and then claimed that I came up with it that would be immoral. Right?
That certainly would be immoral in my book.

To me the issue is that he is selling the miniatures that are clear copies of DnD monsters. If he just made them for any other use but profit I am pretty sure he would be protected under fair use. This is why I can dress up like Valeros at conventions, make my own beholder for private use at home, write fan-fiction, and make parodies. However, since he is seeking profit - it becomes a problem.

If I were him I would have sent some of my miniatures to WoTC in an attempt to get a job. I love how his miniatures turned out.

Sovereign Court

Do you mind fleshing out what contexts make copying moral? Bestiality isn't a great comparator because it is pretty much always immoral until you get into corner cases like furries, and weird scifi with intelligent aliens capable of informed consent.

Plagiarism is seperate from copying - copying is a required element but is also has an element of fraud and deceit - passing someone's work off as your own.

I can see you mentioning things like (lack of) credit being given, profit motive, private vs public use, one off versus multiple copies.

What about for the purposes of education, criticism, and parody? Does the amount copied or the amount changed matter? Potential for economic and reputational harm?

In order for a moral code to be useful you have to be able to use it to distinguish between different options.

If one kickstarter that has beholder copies in it is disrespectful, is another that has a close facsimile (the eyebeast by julie guthrie) that will be printed ~17k times in its initial run immoral as well? Is it a lost in the crowd effect?

Or am I being unreasonable in making the comparison?

Contributor

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{Do you mind fleshing out what contexts make copying moral? Bestiality isn't a great comparator because it is pretty much always immoral until you get into corner cases like furries, and weird scifi with intelligent aliens capable of informed consent.}

I'm not arguing that copying is moral. You're the one saying if "it's not illegal, it's not immoral."

{What about for the purposes of education, criticism, and parody? Does the amount copied or the amount changed matter?}

There's a whole aspect to the law called fair use that addresses that. That Wikipedia article also does a good job of explaining the four parts of the "balancing test" to determine if something counts as fair use or not.

{It just seems odd, to me, that one kickstarter that has beholder copies in it is disrespectful. Another that has a close facsimile (the eyebeast by julie guthrie) that will be printed ~17k times in its initial run is not. Is it a lost in the crowd effect?}

Julie Guthrie's eyebeast has a seven eyesstalks on top, multiple small eyes embedded in its spherical body, three big tentacles underneath, and a couple of eyestalks mixed in with the underside-tentacles. The 3E Monster Manual description of a beholder is "an 8-foot-wide orb dominated by a central eye and a large, toothy maw. Ten smaller eyes on stalks sprout from the top of the orb."
* Is the eyebeast a spherical eye-monster with eyestalks? Yes.
* Does it have ten eyestalks on top? No.
* Does a beholder have additional small eyes embedded in its orb? No.
* Does a beholder have eyestalks underneath its body? No.
To a person who knows what a beholder is, is an eyebeast a beholder? No... they're similar, but not the same, in the same way that a drider is similar to a manscorpion (humanoid upper body, arachnid lower body) but the two are not the same (drider is a spider below, manscorpion is a scorpion below, manscorpion has a tail, etc.). Or in the same way that a lion and tiger are similar, but not the same.

None of Andrew's creatures are a standard beholder, so we're not comparing them to a standard beholder. But his guath looks like a gauth (orb body, central eye, six eystalks on top, tentacles underneath). His deepmother looks like a deepspawn (sphere body, three jaw-arms, three tentacle-arms, retractable eyestalks all over its body). His doomkiss beholder actually uses the name "beholder" and looks like a bloodkiss/deathkiss beholder (orb body, ten tentacles, each tentacle ending in a toothy mouth with a big claw-hook). If you show those minis to a gamer who knows what a gauth, deepspawn, and deathkiss beholder are, they'll say that each pair is the same creature.

That's the difference. It's copying the little details (and giving them basically the same name) that makes it obvious. Changing details so they're not obviously based on something prior is how it's been done for a thousand years. Sometimes it's adding or subtracting tentacles or giving them dog mouths instead of crocodile mouths; sometimes it's making your story set in space with laser swords instead of feudal Japan with katanas or in Mexico with pistols. And sometimes it's on Pandora with a beautiful alien girl instead of in America with a beautiful Native American girl. It's bringing something new to something old and familiar.

Contributor

1 person marked this as a favorite.

Heck, there's this weird thing I made. It's got a big blobby body, three fat tentacle-arms, two big body-eyes, and mouth tentacles. Is it a beholder? Only someone who is completely ignorant of gaming monsters would think this is a normal beholder. It's not anything like any kind of beholder-kin in D&D. No gamer is going to think this is a beholder. Some may wonder if it's a mutated beholder or if I mean it to be a new kind of beholder-kin (like Andrew's "floating eye" and "peepers", which I don't think are based on anything in the game), but it's obviously not trying to look like any type of beholder that already exists. It's a new thing.


Pathfinder Roleplaying Game Subscriber
Sean K Reynolds wrote:
Heck, there's this weird thing I made. It's got a big blobby body, three fat tentacle-arms, two big body-eyes, and mouth tentacles. Is it a beholder? Only someone who is completely ignorant of gaming monsters would think this is a normal beholder. It's not anything like any kind of beholder-kin in D&D. No gamer is going to think this is a beholder. Some may wonder if it's a mutated beholder or if I mean it to be a new kind of beholder-kin (like Andrew's "floating eye" and "peepers", which I don't think are based on anything in the game), but it's obviously not trying to look like any type of beholder that already exists. It's a new thing.

Those things look awesome and NEED game stats! Bestiary 4? Maybe a blog post?

Sadly, everyone is kind of right. Does it come off as copying? By a strict definition of the term Yes, but is it legal? It may feel wrong and look wrong, but in a court of law it actually may not BE wrong. If WoTC took issue with it then some minor tweaks would be all that is needed to satisfy differentiable definitions so that the figures no longer construe as copies. It's quibbling and that is probably why WoTC hasn't shut down all attempts at profiting off of similar designs. That and the fact that they don't have anything to protect their licenses except product identity. A HUGE legal gray area.

I guess backing this makes me a bad person looking for justification. Lawful Evil perhaps? I can live with that.

Liberty's Edge

Really nice miniatures ! I love the deepmother. This thing will look awesome in a call of chtulhu games.

Somehow, it is difficult to find tentacules monsters. Cant wait to see these being put in production.

As far as this copyright non sense goes, it is obvious that the sculptor has nothing to worry about. D&D fasn should be happy to see their favorite monsters being fleshed (or pewtered) out !

Silver Crusade

2 people marked this as a favorite.
Pathfinder Adventure Path, Card Game Subscriber
Sean K Reynolds wrote:


I'm not talking about copyright law. I'm talking about copying.

Does anyone think it's ironic, this is being argued by a guy who works and supports a company that copied Dungeons and Dragons?

Silver Crusade

Pathfinder Deluxe Comics Subscriber; Pathfinder Adventure Path, Card Game Subscriber
noretoc wrote:
Sean K Reynolds wrote:


I'm not talking about copyright law. I'm talking about copying.
Does anyone think it's ironic, this is being argued by a guy who works and supports a company that copied Dungeons and Dragons?

No, the difference being that WotC gave permission to copy DnD, but not some of those monsters.

Contributor

5 people marked this as a favorite.
Xzaral wrote:
noretoc wrote:
Sean K Reynolds wrote:


I'm not talking about copyright law. I'm talking about copying.
Does anyone think it's ironic, this is being argued by a guy who works and supports a company that copied Dungeons and Dragons?
No, the difference being that WotC gave permission to copy DnD, but not some of those monsters.

Exactly. As I said above: It's like having a neighbor who says you can borrow any of the tools in his garage, at any time, no need to ask... and you borrow his car without asking.

(Oh, and in case you didn't know, I helped create 3E D&D. There are spells in the PH that I wrote. There are monsters in the Monster Manual that I wrote. I worked at TSR before the Wizards of the Coast buyout. I playtested 3E in Monte Cook's home playtest. I discussed the positives and negatives of the OGL with Ryan Dancey. I'm not some kid fresh off the bus who's walked up and nabbed D&D for my own purposes. I've been working in the tabletop RPG industry since 2nd edition AD&D, and playing since basic D&D. So go ahead and make jokes about "copying" D&D; it's my D&D that I'm "copying." Sheesh! Whippersnappers!)

Sovereign Court

noretoc wrote:
Sean K Reynolds wrote:


I'm not talking about copyright law. I'm talking about copying.
Does anyone think it's ironic, this is being argued by a guy who works and supports a company that copied Dungeons and Dragons?

Well, no. Sean has already pointed out his many contributions, and if you go look at the rest of the company (and the freelancers and artists) you'll see that he isn't alone. Go look at a bookshelf full of 3.5 titles and read the names of the contributing authors. Look at the best adventures put out at that time. Look at all the content put out through Dungeon and Dragon.

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