Classic Dungeon Adventurers Miniature Set - Chibi Style

[DavidArcher]

I disagree with the parody defence. If parody is defined as 'using a work in order to poke fun at or comment on the work itself' how exactly are these miniatures doing that? They're just cutesy versions of copyrighted designs, its not Spitting Image embellishing Margaret Thatcher's attitudes to politics and the French to the point that she came across as a boarderline Nazi, is it?

[TheAuldGrump]

Dude - if you don't think a chibi version of anything is a parody... you need to update your dictionary.

 

They are parodies - does a death knight look 'cute'? No? Is a cute death knight funny? Yes. In other words - 'using a work in order to poke fun at or comment on the work itself' - your own definition for parody.

 

Seriously.

 

That parody is why this KS was done. There are many, many more serious miniatures that come closer to those images - and WotC has left them alone.

 

These miniatures were done to be funny. These are poking fun at WotC's properties, and WotC does not want that.

 

These would almost certainly be accepted as parodies by court. But taking this to court costs money.

 

WotC has money.

 

Impact! does not.

 

WotC is being a fiduciary bully. I will not support them.

 

The Auld Grump, and in case you are wondering - I did not invest in these miniatures - I have no need for parodies of WotC - but that does not make them anything other than a parody.

[Darsc Zacal]

I think the problem is that many companies do a "cutesy" version of their own IP's such as Star Wars. Marvel. Lord of the Rings. All do various cutesy versions of their property in many forms of merchandising. Allowing another company to do an unauthorized version that could impact the original companies future revenue stream should that original company want to licence out or produce such a line on their own would be fiscally irresponsible.

[Frankthedm]

These would almost certainly be accepted as parodies by court.

Which is exactly where the decision if the parody is fair use has to be proven. Not all parody is fair use.

http://en.wikipedia.org/wiki/Campbell_v._Acuff-Rose_Music,_Inc.

 

The Supreme Court then found the aforementioned factors must be applied to each situation on a case by case basis. '"The fact that parody can claim legitimacy for some appropriation does not, of course, tell either parodist or judge much about where to draw the line. Like a book review quoting the copyrighted material criticized, parody may or may not be fair use, and petitioner's suggestion that any parodic use is presumptively fair has no more justification in law or fact than the equally hopeful claim that any use for news reporting should be presumed fair."

http://caselaw.lp.findlaw.com/scripts/getcase.pl?court=US&vol=000&invol=u10426

 

And IMHO Impact seriously hurt their chances to win such a case when they intentionally modified the concept art to reduce the recognizably of some of the characters.

[Caffiene]

These figures were clearly under the Parody portion of Fair Use (look it up).

 

I did. And discussed it at length with you in the other thread. There is no such thing as a simple "parody portion of fair use". A parody must be a transformative use, making a justifiable commentary in order to be defensible parody, and this clearly has little to no transformative or commentary value.

 

And even if it was, as I described in the other thread WotC still have to issue the takedown notice anyway. Until they go through a court case and get a judgement that it is parody they are at risk of their IP rights being harmed. Saying "it seemed like it might possibly be parody if at a later date we decided to maybe take it to court" is not a defence when a more blatant infringer points to this project as a precedent.

[TheAuldGrump]

Given that parody has been successfully used in defense of a piece of pornography, it is unlikely, in the extreme, that these miniatures would be deemed other than parody. While the fair use can be challenged in court more often than not it is settled out of court or the purported infringer backs down before the matter is taken to court, as was the case here.

 

WotC did not need to contest this - the same argument of fair use in IP that allows most parody can also be used to protect against less humorous use - if you waive taking a parody to court you do not risk your trademark. Fair use has been assumed.

 

Now if I were to come out with a bold dark elf Florentine swordsman in a more serious work... well, I would likely slit my wrists first - I loathe Drizzt.

 

Note that WotC has already allowed Fair Use in the form of parody for webcomics - from Order of the Stick to Rusty & Co..

 

Impact! does not have the funds to contest this in court - even if they won it would likely cost them as much as they made in the Kickstarter. It is very unlikely that the court would force WotC to assume court costs for the defense, as this is not a frivolous matter - just an unnecessary one.

 

While it is in their rights to challenge these miniatures it was not necessary to do so.

 

So - I am not going to buy WotC - largely because I do not like their product, adding a moral stance to my reasons effectively changes nothing. No sale is no sale, regardless of reason. I cannot buy less than nothing. (Two years since my last WotC purchase - a package of D&D Miniatures in order to get a Rhemoraz - I gave away all the human sized figures.)

 

I have not held WotC in high esteem since before 4e was even announced - the rigamarole with the PDFs, ending successful licenses, and the way they removed themselves from public fora. Then out came 4e, with the GSL...

 

Which is a shame - they had a great deal of good will, as far as I was concerned, but they squandered it.

 

The Auld Grump

[cmorse]

When a court looks at whether parody is fair use or not it goes way beyond "is it funny?" The first big thing they look for is mockery. Just making a D&D monster cute, while it might make you smile, is a punchline without a joke. Nothing is being mocked, its just being made cute. Another big thing is whether it something the company might do themselves or license to someone else. Making a character into a chibi? That is definitely in the realm of things WoTC might actually produce themselves.

[Corporea]

Conflict makes me sad. Please don't make the kitty cry. Although... now that I see the sad kitty eyes it makes me want to paint at least a few of these chibi minis that way...the Cthulhu perhaps?

[Pingo]

AuldGrump, I respect your opinions and generally find your posts helpful. And I certainly sympathize. However, the parody issue is more complex than you are making out.

 

There was a famous court case a few years back, Rogers vs. Koons, in which the famous pop artist Jeff Koons was found guilty of infringing the photography of Art Rogers. Koons had created sculptures of a couple holding a string of puppies, copied from a Rogers postcard. Koons directed (he did none of the actual art making) that the puppies be painted blue and given clown noses, and added flowers to the couples' hair.

 

Koons tried to claim a parody defense. The reasons why he failed are interesting. Lawyer Mary Ann Fergus goes into them at length.

 

"What is protected [under our copyright laws] is the original or unique way that an author expresses his ideas, concepts, principles or processes. In looking at the two works of art to determine whether they are substantially similar, focus must be on the similarity of expression of an idea or a fact, not on the similarity of the ideas or concepts themselves. ...

 

... the composition, the poses, and the expressions were all incorporated into the sculpture to the extent that, under the ordinary observer test, no reasonable jury could have differed on the issue of substantial similarity. For this reason, the Court held that Koons copied the original photograph in a manner that is substantially similar to the original. ...

 

...Koons' additions, such as flowers in the hair of the couple and the bulbous nose of the puppies, are insufficient in light of the overwhelming similarity to the protected expression of the original work. "

[Argentee]

Conflict makes me sad. Please don't make the kitty cry. Although... now that I see the sad kitty eyes it makes me want to paint at least a few of these chibi minis that way...the Cthulhu perhaps?

Aww. Sad kitty is sad.

 

Though you got me imagining chibi Cthulhu holding a bowl with a few scrawny humans at the bottom and asking "Please, sir, can I have some more?"

[TheAuldGrump]

AuldGrump, I respect your opinions and generally find your posts helpful. And I certainly sympathize. However, the parody issue is more complex than you are making out.

 

There was a famous court case a few years back, Rogers vs. Koons, in which the famous pop artist Jeff Koons was found guilty of infringing the photography of Art Rogers. Koons had created sculptures of a couple holding a string of puppies, copied from a Rogers postcard. Koons directed (he did none of the actual art making) that the puppies be painted blue and given clown noses, and added flowers to the couples' hair.

 

Koons tried to claim a parody defense. The reasons why he failed are interesting. Lawyer Mary Ann Fergus goes into them at length.

 

"What is protected [under our copyright laws] is the original or unique way that an author expresses his ideas, concepts, principles or processes. In looking at the two works of art to determine whether they are substantially similar, focus must be on the similarity of expression of an idea or a fact, not on the similarity of the ideas or concepts themselves. ...

 

... the composition, the poses, and the expressions were all incorporated into the sculpture to the extent that, under the ordinary observer test, no reasonable jury could have differed on the issue of substantial similarity. For this reason, the Court held that Koons copied the original photograph in a manner that is substantially similar to the original. ...

 

...Koons' additions, such as flowers in the hair of the couple and the bulbous nose of the puppies, are insufficient in light of the overwhelming similarity to the protected expression of the original work. "

And less complex than you are making it out to be - in Rogers v. Koons the original works were photographed, traced, and copied - and that was the grounds for the parody not being allowed as a defense - it was not original work based upon an existing work, but rather a direct copying followed by modification - there was insufficient original effort made by the defendant. The bulk of design had been made by the plaintiff.

 

In the case of the Chibi figures the models were based on an existing work, but not copied and then modified from that original work, while recognizable it is the same manner that Mad Magazine can take an actor and morph him into Alfred E. Newman.

 

So, not a great example to choose to support your argument. Impact! did not take a picture of Lord Soth, trace it, then add a clown nose.... (Yes, I am familiar with Rogers v. Koons....)

 

This is a case of corporate bullying. 'We gots da money, yous don't.'

 

It is worth noting that WotC has not gone against those capable of mounting a defense - which is a shame, I am certain that Jolly Blackburn was looking forward to it....

 

The Auld Grump, something to do with beckoning and saying 'C'mon, take your best shot'....

[Beagle]

Following my ding-dong on another kickstarter thread I come here for a bit of peace and what do I walk into.

[Pingo]

Auld Grump, I'm not a legal expert and I could easily be wrong. I kind of hope I am.

 

But I look at the contested chibis and think, how is that different from selling, say, bobbleheads of one's favorite TV show characters? Chibi figures are simply a style of distorted caricature. They do not seem by their simple existence to reach the level of protected parody to me.

 

I am not particularly happy with what (presumably) Hasbro has done. But those chibis really pushed things.

[Beagle]

I just hope they get made. The way things are going my expected mountain of 2013 minis are starting to look less and less like what I pledged for.

[ApesAmongUs]

I am not particularly happy with what (presumably) Hasbro has done. But those chibis really pushed things.

Have you seen the "parody" style adult movies recently? Long gone are the days where they starred BatGuy and WonderChick. These days, the actor walks out in a perfect copy costume, says "I am Bruce Wayne, the Batman, and this is my Batwang," and proceeds to try to do the voice an mannerisms and in all other ways act like the character should behave (with the one obvious exception.)

 

And they have gone to court and won. Repeatedly. So often that they aren't getting taken to court again no matter how well the next Avengers movie does. That's what happens when you have the money to resist. It only takes the flimsiest of defenses.

 

I have no clue what would happen if this went to court, but I do know enough to realize the result has more to do with the amount of cash the defense could throw at the case than it does with how much they look like the originals.