Models that look similar in design - how close is too close?

[ctsteel]

I received an email newsletter from CoolMiniOrNot just before, and in it I noticed this chap:

 

https://www.coolminiornot.com/shop/54mm-plus-category/industria-mechanika/adrian-smith-s-frankenstein-1.html

 

 

 

 

 

This seemed rather familiar: it is very (very) similar to Anvall the Thrice Damned from the Reaper store.

 

https://www.reapermini.com/OnlineStore/anvall/sku-down/01521

 

 

 

 

 

The sculptors are different, and the Frankenstein version claims it's a 3D printed design which was the winner of competition to realise a sketch by the artist - but it just seems so similar in style and pose, equipment everything.

 

 

There's also passing similarity to this one from Games Workshop:

 

http://www.games-workshop.com/en-AU/Nurgle-Chaos-Lord

 

 

 

 

 

So I guess I'm curious as to whether there are thoughts from others out there as to whether the variations are enough (ie the devil in the detail) or if there is a borderline IP issue for the artistic design?

Edited May 1, 2014 by ctsteel

[TGP]

Well that hideous thing of Nurgle is different enough that he could be safely eliminated from this discussion. You could edit him right out of your post. Go on. You know you want to.

[The Inner Geek]

I see them as completely different and for different audiences. Industria Mechanica supplies resin kits in low production numbers. The Frankenstein shown above is  1/8 scale. It's HUGE compared to a miniature. The original artist is a GW alumni and one of my favorites, Adrian Smith. The resin kit shows a large guy that has been put together from parts and, I'm pretty sure, has a no helmet option.

[ctsteel]

I've spoilerised them all to protect the vision of the innocent

 

I did notice the scale is different but that's more a basic physical element that I wouldn't have thought would be sufficient - as an example, say you made a complete perfect copy of someone else's IP but it was a different scale - surely that's not going to fly just because of the sizing change?  I was thinking more around the actual artistic pose/style/equipment etc that seems so similar in many ways that it looks like there's been some heavy inspiration if nothing else.  I thought I recognised Adrian Smith's name, and if it's from an original sketch of his then perhaps it's a case of he and the Anvall sculptor Bobby Jackson both having some other third inspiration source image that they both drew elements from (no pun intended). 

 

It just seemed too close for a pure co-incidence? 

[The Inner Geek]

Well, it doesn't help that it's a pretty iconic pose. Hulking barbarian/muscle guy with an axe looking sullen. I think I have three bones miniatures you could call similar to that. My point is the silhouette is the primary similarity. One is a barbarian, the other is a flesh gollum.  One is a garage kit, the other a miniature. One is $1.99 the other is $190.

 

While I see what you are talking about, I just don't think these two items compete in any way.

[Doug Sundseth]

The answer to "How close is too close" comes in two parts:

 

1. When the owner of the copyright to the first sculpture decides it's too close* and,

 

2. When jury agrees**.

 

 

* Copyright is civil, so there has to be a complaint.

 

** There is no hard and fast rule for what constitutes a "derivative work" and what is "transformative" enough to be afforded fair-use protection. How good are the lawyers?

[Pingo]

Big chunky guys in plain helms with big axes? The idea is not so original.

Copyright and trademark law actually deals with this in great detail. Visual copyright infringement has, to my mind, a much higher bar to pass than written copyright infringement. I don't think any of these would warrant a second glance by a copyright lawyer.

I'm not so familiar with trademark law, but even there none of these seem to pass the threshold.

A long time ago some friends and I read a book, "The Tree of Gnosis" by the brilliant, tragically short-lived theologian Ioan Couliano (also spelled Culianu), in which he proposed a method to determine whether an idea was recurrent or inherited.

That is, whether a piece of art or craft or story was a direct descendant of another or whether it was a coincidence, an unrelated creation based on similar thoughts and ideas.

After his death some students of his named the process the "Couliano Tree" in his honor.

Which is a long way of saying, wide guy with big armor on left shoulder, big axe in right hand, helmet barely thick enough to cover head, big platey bottom half armor -- meh, it's practically a trope.

Edited May 1, 2014 by Pingo

[joshuaslater]

Too close is when someone recasts your product without your permission and knowledge.

[SamuraiJack]

Yeah this look is used a lot for evil minions.. helmet and one shoulder or arm covered in armor

[Slendertroll]

I dunno, that guy's really close looking. The helmet's the exact same shape, the axe is very similar (even got the little spike on the end and the two spike-covered rings), the hip plates are nearly the exact same, they both have that "more spikes than entirely necessary" motif... Every area of skin is the same, every bit of armor is in the same place. It really does look like they just scaled him up, changed a few minor details, and added an obtrusive crotch-piece. And aside from the scale, they're in pretty similar categories. Both were originally limited-run resin minis. The fact that Anval is now exclusively in Bones doesn't change that. There's no way these aren't at least based on the same source material within a few levels. (Maybe each based on separate concept art "inspired by" the same work?) Probably not close enough to claim copyright infringement or anything, but they definitely share inspiration.

Edited May 1, 2014 by Slendertroll

[Hymn]

I dunno, that guy's really close looking. The helmet's the exact same shape, the axe is very similar (even got the little spike on the end and the two spike-covered rings), the hip plates are nearly the exact same, they both have that "more spikes than entirely necessary" motif... Every area of skin is the same, every bit of armor is in the same place. It really does look like they just scaled him up, changed a few minor details, and added an obtrusive crotch-piece. And aside from the scale, they're in pretty similar categories. Both were originally limited-run resin minis. The fact that Anval is now exclusively in Bones doesn't change that. There's no way these aren't at least based on the same source material within a few levels. (Maybe each based on separate concept art "inspired by" the same work?) Probably not close enough to claim copyright infringement or anything, but they definitely share inspiration.

 

I've seen cases of a certain large mini company suing small publishers for less than this. I'm not sure what the results were, but I certainly hope the cases were dropped.

[Pingo]

 

I dunno, that guy's really close looking. The helmet's the exact same shape, the axe is very similar (even got the little spike on the end and the two spike-covered rings), the hip plates are nearly the exact same, they both have that "more spikes than entirely necessary" motif... Every area of skin is the same, every bit of armor is in the same place. It really does look like they just scaled him up, changed a few minor details, and added an obtrusive crotch-piece. And aside from the scale, they're in pretty similar categories. Both were originally limited-run resin minis. The fact that Anval is now exclusively in Bones doesn't change that. There's no way these aren't at least based on the same source material within a few levels. (Maybe each based on separate concept art "inspired by" the same work?) Probably not close enough to claim copyright infringement or anything, but they definitely share inspiration.

 

 

I've seen cases of a certain large mini company suing small publishers for less than this. I'm not sure what the results were, but I certainly hope the cases were dropped.

In this particular case the large mini company lost significantly: http://www.lounge.belloflostsouls.net/showthread.php?33351-LEGALWATCH-Games-Workshop-vs-Chapterhouse-Verdict

 

I can dig up the court transcripts if you like. As I recall it the judge seemed incredulous at the legal team's definition of common law trademark, and was thoroughly unimpressed that the large mini company in question deliberately reposed and painted the small company's products to resemble its own as evidence.

[Hymn]

 

In this particular case the large mini company lost significantly: http://www.lounge.belloflostsouls.net/showthread.php?33351-LEGALWATCH-Games-Workshop-vs-Chapterhouse-Verdict

 

I can dig up the court transcripts if you like. As I recall it the judge seemed incredulous at the legal team's definition of common law trademark, and was thoroughly unimpressed that the large mini company in question deliberately reposed and painted the small company's products to resemble its own as evidence.

 

 

Fascinating. Thanks for the expertise, Pingo.