Recently I had one of my designs (Darth Vader bust) disabled because of a request from Disney claiming copyright infringement.
How in the world would an original design, made from scratch or a remix of another free/original one, which is shared for free and under creative commons licence (Share Alike, Non Commercial), be considered as an infringement of intellectual property ?
I am not the only one in this case, amongst many other users, famous designer Flowalistik also had his Darth Vader figurine disabled. But strangely enough, his Stormtrooper figurine is still available.
It seems like Disney does not want to see Darth Vader stuff shared here.
What do you Thingiversians think ?
Do you believe Disney has the right to ask for the removal of our ORIGINAL designs like this ?
How about people selling fanarts based on Star Wars or other copyrighted stuff, is this legal ?
You do realize that it's not actually an original work? You copied the character they purchased when they bought Lucasfilm. So, sure, you may have done it all from scratch, but you copied their intellectual property. IANAL, but unless you were spoofing it like a caricature or something you probably don't have any standing under US copyright law.
I'm surprised there aren't more takedowns of characters, though I'm a little surprised that they did that since Star Wars has been far more generous to fans than other property owners. Also, if you were selling it on one of the printing sites, that may have irritated them. Or even if someone else copied your thing and tried to sell it on Shapeways or something and it led back to you. Or even if you used a still from Star Wars to show how good your character was. Who knows?
If you weren't blatantly annoying, like offering to sell it or something, maybe it was something in the derivatives.
Disney is a terrible company. They had friends in Washington essentially rewrite copyright laws since they were about to lose the copyright to mickey mouse under the original laws. Keeping things in copyright for perpetuity kills creativity. Using copyright laws to stop people from sharing art, music and original non profit projects is wrong. No two ways about it. Under the current laws Disney can actually come after you for carving a Darth Vader out of wood and placing it in your front yard. Despicable, especially considering that no normal person has the money to fight Disney over this abortion of a law.
IANAL, but fair use would probably let you create a copy of something and stick it in your front yard. Use that to attract people to your home business though...
I think the problem with copyright law is that they have to protect "Mickey Mouse." Clearly it would be "wrong" for unrelated amusement parks to open with Mickey's copied from Disney. Or to make new Mickey Mouse films with Disney's character. But to protect that our system only provides for protecting the things like movies, books, stories, etc. Which means that Disney keeps trying to get the time limits extended forever.
Disney has certainly extended copyright to unreasonable time limits, but is that the problem here?
Or did someone actually have the gall to model Darth Vader, a character made in living memory which Disney owns, post it in a public domain non-commercial license, and pretend it was an original thing they owned?
You can't just publish someone else's character under a public domain license to turn it into your property.
And no, selling someone else's copyrighted things isn't legal either.
Personally, I'll be happy to see people think twice about posting shrek head magnets and other such dollar store garbage. It was always vaguely wrong but like speed limits nobody cares until they start enforcing it.
Unfortunately trademark enforcement isn't exclusive to the dollar store garbage and thus the community also looses top quality fan art.
These top quality artists surely have better things to do than make shrek head magnets. In any case, if they put up someone else's copyrighted character under a license which says they own it ... What did they expect?
It is not because someone uploads a model made from scratch which looks a lot like a copyrighted character, and attaches a CC or PD license to it, that they claim all rights to the character itself. The license only applies to that specific model. This also works the other way round: if someone uploads something totally novel, and wants to have it protected, they cannot rely on merely a CC-non-commercial-no-derivatives license to protect the design itself, it will only protect the specific uploaded implementation. If the design needs to be protected, a patent should have been obtained first, otherwise there is no legal protection if someone else creates their own model from scratch based on the same design.
This doesn't mean that publishing a representation of a copyrighted character is legal, but you're making it seem as if uploading anything means claiming all rights to what it represents. If the upload is accompanied by clear messages that it is an unlicensed fan tribute only without any intent of making profit, then the copyright holder is only proving to be an inconsiderate prick by trying to take it down.
I'm not disputing the legal potion!
I'm merely pointing out, that despite your flippant remark about fridge magnets or what u think quality artists should be doing, the fact is a lot of them do create fan art, and sites like Thingiverse will be the poorer for loosing it.
People creating stuff based on trademarked maternal might not have a legal leg to stand. But i do sympathise with their position. The majority of them don't intend any harm and the legislation was not created to persecute fans. Its just unfortunate that this fan art finds itself on a slippery slope were trademark holders are compelled to show no leniency for fear of damaging their own rights.
When they conceived of "Fair use", they never considered the Internet :)
Lose. The word is lose. I don't think Thingiverse is worse off for losing it. I'd miss the original art - some of which has been lost due to artists removing them after someone else flippantly abuses their copyright just because they can.
Everybody here hates copyright until one of their own things is ripped off without attribution. Then suddenly they're all DMCA this, cease-and-desist that, report them to their ISP, gnash teeth, obscure your sources, crusade.
I don't know about here, but on YouTube I've had my (really mine) stuff copied. I reported it, but if they say "no, I really had permission", then YouTube wants me to take them (a Russian jerk) to district court, even though it's a blatant copy. Pretty sure if I was Disney a actual human would actually take a look and do the sane thing. The big companies always have an advantage over the little guy, regardless of which side of the claim one is on.
People don't bother doing attributions for fan art because it's taken for given that the subject is instantly recognised as being from a film, game, comic etc. That,s the point! The tittle and the likeness of the model itself should be all the attribution needed.
Which is quite different to someone republishing someone else's work as their own.
I think the difference between "fan art" and making a model which you then distribute, is that "fan art" is limited distribution. I draw something, and share it with friends and family, or my connections on-line. It's something I did, and people can enjoy it visually. It's not being used for profit, nor does it really have a diminishing effect on the original copyright holder's IP.
When you make a 3D bust of Darth Vader (perfect likeness or not), and distribute it via a system that prides itself in sharing 3D models with the world, for other people to print (freely), you ARE diminishing the original copyright holder's IP. Someone might go out and buy a $20 toy for their kid, or they may just print that same toy from a model for free. The original copyright holder sees none of the revenue from the $20 toy they would have sold, and, if someone takes your model and prints 1000 of them and sells them at $20 a pop, the original copyright holder sees 0% of that $20,000 gross profit.
So, whereas "fan art" is just art that doesn't take away from the original copyright holder's profits, 3D scanning, and even 3D "organic" modeling of a copywritten, trademarked piece of intellectual property DOES take away from the original IP holder's bottom line.
I hope that makes sense?
One example: 10 years ago a Volvo ad featuring a suicide bomber had people up in arms. It wasn't actually released by Volvo, but wasn't obviously a parody either, so it became their problem anyway. Volvo was flooded with complaints. A "parody" disclaimer, or just not using their copyrighted name at all, would have saved everyone a lot of trouble. So there's good reasons besides money to keep in control of your copyrighted properties.
"This model is uniquely handmade, therefore he can distribute copies for free if he pleases."
"This model is a perfect enough likeness of a copyrighted property that attribution isn't required."
Not only are the two contradictory, the latter isn't true either. You do need to attribute, especially when it's publicly known. If you get permission from them to use it, you attribute that, too! If you don't, you may be leaving the copyright owner liable for things you do, which isn't right. A lot of fan works contain disclaimers to this effect, "y is a property of x and this parody claims no ownership" etc etc.
If it's a parody, you'll want to say that it's a parody AND hope that you've done enough legal research to know the difference between parody (a perfectly protected form of free speech covered under the Fair Use doctrine), and copying (which is illegal and you can be sued for it).
But yes, if you are officially licensing from the copyright/trademark/IP holder, you'll say something to the effect of "HARRY POTTER characters, names and related indicia are © and ™ Warner Bros. Entertainment Inc. - Harry Potter Publishing Rights © JKR. - WB SHIELD: TM & © WBEI. (s16)".
That's from one of my officially licensed Harry Potter pins. If you don't license your swag, you'll get sued, often successfully, for FAR MORE than you made in profit. You can't say "I didn't make anything off of it!" Because the big company will swoop into court with their team of lawyers and prove that it was downloaded 100,000 times, and that they lost $1,000,000 in revenue because of that, plus court costs, plus pain and suffering you caused to Mickey Mouse, plus legal fees. And you will lose: your house, your car, your pet corgi is now a mascot for Disney.
I think sometimes people forget that, when they make their own truly original pieces, and someone else repurposes or remixes that piece without attribution (or without following the terms of the CC/© license), that they'd go after the infringer as well.
I see plenty of original art being made out there, based on Disney's characters. Because it's generally parody or obvious fair use (based on the terms of copyright laws, and some of them are murky), those uses are okay. People make plenty of money off of unlicensed parody of Mickey Mouse, Darth Vader, and the like. There's a Homer Simpson Buddah that I love (and own):
It's an original piece of art, based on a character (Homer) made by Matt Groening and absolutely copywritten by Fox, or whomever owns it. The company who designed this art (Kidrobot) made a licensing agreement with the associated copyright owners prior to manufacturing and selling the resulting works. They even have a page dedicated to these collaborations:
The best way to make a bust of Darth Vader, or Mickey Mouse earrings, is to work directly with the IP holder and gain approval first. Yes, it will most likely cost you money up-front with most companies, and yes, they will have teams of lawyers create and review the terms of the collaboration, most of which you will have little or no control over. But with that official licensing deal, you'll be solid. No issues.
If you decide to take intellectual property that's protected under copyright or trademark law, from anywhere in the world, to anywhere in the world, and use it for your own gain without permission, you are likely to eventually find yourself up against an escalating legal situation that you will (most likely) lose. Worse, you designed it for free, posted it here for free, and you'll still get yourself sued for real money (i.e. you might lose your house, car, job), with literally nothing to show for it.
There's nothing original about taking a character (like Darth Vader), scanning it in, and calling it "fan art." It's just stealing IP.
Am I wrong in this respect? I haven't seen anyone give any moral or legal argument over why this is "okay" for folks to do, aside from "everyone else is doing it, so why has MY fan art been removed?" Or "Well, they took down my Darth Vader, but left up my Stormtrooper!" Those aren't valid reasons for why infringement is okay.
@Amarand couldn’t have explained it better, completely agree with you!
Aww, thank you @drato !
Scanned image? Easy come, easy go. Beautifully handmade vertex mesh with weeks spent in the making? That's a harder to lose. Of course, nobody forced him to spend weeks making a Darth Vader model.
Except he didn't lose it. Disney has no control over what he builds and keeps in the privacy of his home, he's just not allowed to distribute copyrighted things.
Which, incidentally, is another good reason not to trust cloud programs. You don't just lose control, you lose your legal rights. Disney absolutely can nullify a Vader made in Onshape or whatever. They just file the DMCA request with Onshape and they take down your object, leaving the editable originals gone forever.
But even a scanned image can cause the same amount of damage in court as a scanned or even "beautifully handmade vertex mesh" that took the author months to tweak to perfection. It's still copying a trademarked and/or copywritten likeness, which is against the law.
And that's correct, he didn't lose the file, but if he tries to distribute it elsewhere, he'll get another takedown, maybe a blocked account, and at some point, his ISP will get a letter from the lawyers, asking for his home address, phone number, and full legal name, from a court order, and now you have a cease and desist letter or, eventually, subpoena.
Of course, you could just make them and sell them on eBay, but they watch eBay too. So now, eBay gets a letter from Disney (or whomever) lawyers, as the original copyright/trademark holders, and now they have that same information as above (name, home address, phone number, date of birth, social security number), PLUS how many Darth Vader knock-offs you sold, to whom, and for how much. Cease and desist and/or subpoena.
It's not a smart road to go down, if you value the stuff you own (house, car, job, money from job, good credit, ability to obtain job/car/good housing) and don't enjoy court. If you enjoy court and losing all of your money...by all means, steal from Disney, Warner Brothers and the like.
Also, gosh I know I'm posting a lot on this thread, but I have a lot to say.
There are two angles to come at this from:
1) If you weren't copying (you are but...let's just say you were parodying Darth), you might have a legal leg to stand on. The Simpsons (Family Guy, American Dad) all parody, and they also have teams of lawyers, just like Disney/Lucasfilm. They use Darth Vader's likeness semi-regularly. How do they get away with it? The show is parody. It's legally protected under fair use. You -could- fight this if it weren't such blatant copying. If I decided to do a Star Wars parody show, and I researched what parody was legally, I could absolutely get away with it, and there's little to nothing that Disney/Lucasfilm could do to me, aside from a nuisance suit, which they have enough money to perform at any time, just to annoy you. If Disney wanted you gone, they'd just sue you, and sue you, and sue you, until you literally had nothing left after court costs and legal fees.
2) If you want to make Darth Vader (or other infringing Things), just remember that more popular likenesses are going to become more popular downloads. A lot of times, large companies just do a "top 10" search of the most popular, and start from there. Disney probably just types in "Darth Vader" and "Star Wars" or whatever the keywords are that YOU (and other Thing makers) are using to make their Things stand out. We all want our Things to stand out, right? So Disney can easily find your next Darth Vader copy IF you use any of those keywords in your Thing. That's anywhere that's searchable by them, which means title, tags, and any text. They literally have nothing better to do than to watch your site and see what things you submit. You submit something infringing...BAT. They just keep hitting them down like a Whack-A-Mole. And they have a lot of arms with mallets.
So you CAN hide your infringing Things, don't tag them, use "secret" names like Varth Dader, or Sith Lord, or whatever. But trust me, if you want people to find your Things, you have to tag them appropriately. If you use the Varth Dader name/tag, because that's what everyone else is doing, Disney's lawyers will start searching for those tags. And, as mentioned, they will be watching you, and your account, very closely going forward. They just have a little piece of their AI watching for any changes to your Thingiverse URL. Any submissions you make can be easily, quickly, and visually inspected for infringement.
So going forward, even if you submit your bust of Darth Vader as an Imperial Flower Plant, nudge-nudge, wink-wink, the lawyers will see the Thing, the pictures, etc., and immediately flag that with Thingiverse too. They feel no remorse. They're just doing their job. And they get paid very well to do that job.
Eventually, infringe enough, and your account will be closed, your IP address banned/blocked, and you'll probably get a letter from one of Disney or Lucasfilm's attorney's asking you formally to stop doing what you're doing to avoid Consequences.
Not being a jerk. Just trying to tell you like it is.
Just so we're clear, I'm able to see the image of the "Sith Lord Bust" and, having been a Star Wars fan from the day it was released in the theaters in the 70's, I can tell you that this will be considered a 100% knock-off of Darth Vader likeness. There's not a "pixel" out of place. If you scanned something to arrive at this model, you're copying. No fair use for you. If you designed this from scratch from the ground up, wonderful! You're still copying an original source, and no fair use for you. (Although, mad props for having the ability to copy something so closely to the original.) The "Sith Lord Bust" is not original, whatsoever, and you're not making a parody of Darth, nor are you reviewing Darth, so...yeah. Sad as this sounds for you, you're absolutely infringing on the copyright owner's intellectual property rights, and the only way you'll be able to keep using that is if you get a lawyer and/or pay the owner for licensing rights - neither are cheap.
Just to be clear, Darth Vader is a fairly distinctive, registered trademark of Lucasfilm, Ltd.
If you make a truly original piece of art and don't use Darth's likeness, Disney won't have a leg to stand on.
If, however, you infringe on their copyright, they have a legal right (and, unfortunately, due to the way the law works, a legal obligation) to stop you from infringing use.
The only legal way to use any distinctive character that is a registered trademark - especially one that is owned by a company as perennially litigious as Disney/Lucasfilm, is to obtain their permission, in writing, which probably means licensing, which is almost always going to cost you money.
I just spent a couple of weeks in jury duty, and I can assure you that "everyone else is doing it" is not a sound legal argument. Also, with as many infringements as these companies and lawyers have to handle, the only reason why the Stormtrooper Thing has (most likely) not been served a DMCA takedown order and/or a cease and desist order, is that they simply haven't gotten around to it.
Or, as you say, it's also possible that they've been given a specific directive to remove Darth Vader, but it's more likely that you'll eventually see the Stormtrooper go away as well.
Now, there is the whole "fair use" argument, but really, a bust of Darth Vader is never going to stand up to fair use law, unless you've changed it so much that it's different enough from the original. You probably haven't done this.
Then again, a lot of times, companies like Thingiverse will receive a DMCA takedown or cease and desist order from a Big Company, represented by an Expensive Lawyer, and just take the damned thing down, regardless of your rights.
If you think your fair use rights have been infringed upon, literally the only way to fight this is to lawyer up. Your lawyer will tell you (or case law will tell you, if you want to go at it on your own) whether or not you really have a case. You probably don't. But, I am not a lawyer.
Here's a good, small article on Fair Use:
It's a good read, and explains fairly well what you need to do in order to fall under Fair Use. (You most likely were full-on infringement, but I can't see the Thing right now, so I can't even offer my non-lawyer opinion.)
We should write a protest letter! Start a revolution! (But all that in a more rational way of course.) The letter would say that they should be trying to foster the Maker community and should be proud that people like designing their characters and so on...
They are in business to make money. If we print our own Vader whatevers, then they can't sell them to us.
Maybe Thingiverse should figure out how to take commissions for such things for the IP owners?
i had something similar to me happen. i made a model of a glock 17 from scratch an Glock removed it cause they said i infringed on intellectual property, i used no plans or any thing that is their’s i literally just looked at pictures of the gun and tried to match it as closely as possible
But DC hasn't made you remove your Batman design...
DC and Glock are two different companies, which two different processes, procedures and priorities for takedowns. Glock just happened to get to him first. Also, Glocks are EXTREMELY distinctive, and the likenesses of their weapons are absolutely registered trademarks. Regardless of how you "get to" your final design, if you look at a Glock, and you copy the likeness, you're infringing, unless you fall under Fair Use, which you probably don't fall under:
The whole "I noticed your other Batman/Joker/Extremely Popular [but infringing] Thing hasn't been taken down yet" is just like folks who drive over the speed limit, get pulled over, and complain that someone else was driving faster, or you were driving the same speed as everyone around you, and why did the police pull YOU over. It doesn't excuse you from the law. It also doesn't mean that other person wasn't pulled over yesterday, or that they won't be pulled over tomorrow.
Very good analogy on speed limits. Unequal enforcement doesn't mean laws don't exist.
I see the point of all your replies, but they are only doing this to one of their copyrighted items. They haven't taken down Mickey Mouse, Luke Skywalker, Rey, or any other trademarked items, despite the fact that Darth Vader makes more money. I think it is partly them being total jerks and partly them being a corporation.
It probably tripped some flag - maybe someone sent it to Shapeways or something. Clearly it'd take them about 10 minutes to file 100 cease and desists manually here if they really wanted to crack down, so something must've caught their attention in some way about this model.
How do you expect them to even find them all?
Actually, I would think that they have some computer finding these things...
More likely, underpaid interns.
Yup, and these days, it wouldn't even be an underpaid intern, it would be a search program (like TinEye or the countless other services that will search for stuff you plug into it, constantly, forever), and possibly an AI, which would generate reports and possibly even submit automated DMCA takedowns (they do that), and another report for the lawyers to review the merits of cease and desist letters and, eventually, lawsuits.
Only place I know of which does automated takedowns is youtube, and only because they built software to do that right into their services. It's not something anyone could possibly do from the outside, not without watching all of youtube. Imagine the bandwidth costs!
I regularly use Google Alerts to have it send me as-they-happen alerts on various keywords. If "Darth Vader" appears anywhere on any web-site, you know they'll know about it instantly.
With lawyers and a large caseload, these guys work in teams. They have hundreds of lawyers, and sometimes it just comes down to the MILLIONS of infringements they deal with on a daily basis. They first have to look at each infringement and make sure it doesn't fall under Fair Use (parody, like The Simpsons, or review, like in a magazine where they are reviewing a product), and then they have to sort them by priority, lowest hanging fruit. It's possible that "the other infringing items" may just be lower on a list, prioritized by IP address, the name of the character, etc. Maybe you just pissed off the Darth Vader lawyer today, but he has a lighter caseload? The Stormtrooper, Mickey Mouse, Luke Skywalker and Rey lawyers have more infringements to go through, and are working through services in alphabetical order, or maybe their caseload spits out via AI in a computer, and they have literally no control over what infringements they handle that day/week/ever? You just don't know their process. But be certain that all major corporations, like Disney, have a fairly well-established process in place to takedown, cease and desist, and/or sue folks in violation of their intellectual property. You put something up, it might last a day, a week, a month...but they'll get to it eventually, and you'll most likely have to eventually take it down, or have it taken down for you. If you make any money off the infringement, you'll have to pay Disney probably 5x what you made in order to avoid going to jail (or losing all of your property). It sucks. But it's the way the IP laws are in America (and the world, really).
IANAL, but pretty sure that no models posted here fall under "fair use". You can't "fair use" something by giving it away to thousands or potentially millions of people. It isn't going to take a lot of lawyer work to do searches for your IP terms in Thingiverse and then send takedown notices.
As the others have said, it is probably more about protecting the brand name than trying to scrape a few extra cents of profit from extra sales of official items. If the model merely looks similar to something copyrighted but is otherwise not labeled as such, there is much less legal ground to claim infringement, except maybe if it would be an accurate 3D scan of an official toy. For the same reason, one of the best Millennium Falcon models on this site has a funky name, which I also found overkill the first time I saw it, but now it is obvious why the author did it. A while ago there were also a bunch of takedowns of models with ‘Kururin’ in their name, not because they looked like the copyrighted product, but because the Thing name contained the word ‘Kururin’.
To still allow people to find your model easily, I don't think there is a problem if you tag it with “Darth Vader”, or mention in the description that it was inspired by Darth Vader, just don't use the name in the model name itself.
I think you are refering to "fillenium malcon"
I get the idea, I'm going to do the same as of now.
Thank you for your contribution :)
"Fillenium Malcon" didn't fool Disney. They just don't care about that one for whatever reason. First of all, there are plenty of remixes with the right words to let them find that model in about 2 seconds.
It's possible Disney aren't doing this just to be dicks. I'm no expert but i think you can loos trademarks if u fail to enforce them.
So as cnorth allude to, its probably more about retaining ownership of the trademarked name "Darth Vader" than it is about stopping people creating models of his likeness.
I heard Xerox were at one point, so concerned about their name becoming synonym within the vernacular for "copy / duplicate" that thy had an advertising campaign requesting people not to use their company name in this way, for fear they would loos ownership of it.
All that said, Disney is a corporation and corporations are all about making money! So if any money is is being made (even indirectly) off the back of something that belongs to them it is always possible they'll take an interest.
My (totally wild) guess is that the full-scaleness and completeness got too close for them. Maybe scared Avonos or something?
Sure, I believe their move is legitimate and I understand that they wouldn't want the name of a product or character associated with anything else than thei company or studio.
Yup, got it about the money aspects ;)
Well brands are trademarked, and even derivatives are tightly regulated. What you can do is name it something else like say "Evil scifi bad guy". If Darth Vader was in the name that would have been a big no no right there. And make sure the figurine is at least original and different enough that they can't say you're copying/usurping their stuff. It's a slippery slope.
Yeah, it would suck to have an item taken down. I kinda use a non-standard naming convention like cnorth mentioned.
To avoid Funtendo coming down on me, I named some items 'Plumber Brothers' instead.
Hi cnorth and thank you for your feedback
Yes, Darth Vader was in the name of the thing.
I will rename it differently
Thank you for your suggestion
Also, be extra special careful going forward with your current account. Once the lawyers find an infringement on one account, they watch that account fairly closely for changes. So if they remove your Darth Vader today, and find out that you uploaded a similar/identical Varth Dader tomorrow, they will escalate. Their next step will be a cease and desist to you personally, most likely followed by a lawsuit in, say, California. Unless you live in California, you'll have to GO to California, to defend yourself. If you don't, they'll get default judgement (meaning, you lose) and they WILL be suing you for a multiplier of whatever damage they suspect you made - could be a million dollars after court costs and legal fees which YOU will pay. Again, be careful. Know the law.
Yea, once you've got their attention it's pretty hard to say "gee, I didn't mean anything by it!"