LoES > Bootlegs, knockoffs, and third-party products

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So, I suggested this week’s topic for The League of Extraordinary Bloggers, “Bootlegs, knockoffs, and third-party products.”

My original suggestion was “third-party toys, yay or nay,” and my main reason for even suggesting it was as a way to get me to finally write this editorial that’s been rattling around in my brain for a while.

My plan was simply to write an editorial providing my opinion on third-party toys, specifically third-party Transformers – both full transforming robot toys and add-ons. But despite how much I’ve thought about it, I’m having a difficult time deciding what my stance is.

The reasons against third-party Transformers are fairly obvious. It’s a theft of Hasbro’s intellectual property; these manufacturers are making a profit (however small that profit may be) off something owned by Hasbro. Even if they’re not directly stealing the toy itself (i.e., making bootlegs or knock-offs from the toys themselves), they’re stealing the character or design and making money from it.[1] Hasbro’s own staff have occasionally spoken ill of third-party toys (there was some sort of Twitter kerfuffle as I recall, but I wasn’t able to find it online). Last year Hasbro banned the sale of third-party toys at Botcon.

In terms of high-profile advocates of one side or the other: David Willis, the cartoonist behind Shortpacked and Web-ubiquitous Transformers fan, considers third-party TF toy creators thieves. On the other hand (maybe?), here’s what Phil Reed of Battlegrip, who produced the third-party Transformers photo book Transforming Collections, had to say about it in my interview with him last year:

I’m kinda torn on these. On the one hand, some of them are major copyright violations and I can’t see how Hasbro/Takara have allowed these to exist. But, on the other hand, there are some unofficial Transformers toys that are amazing works that are far superior to Hasbro’s work. I think the accessories, replacement heads, and sticker sets are all something we can think of like automotive after-market add-ons, but those complete robot toys are absolutely crossing lines every now and then.

The toys are also extremely expensive, and not always because of the quality. In fact, I’ve picked up some that were not very good, but the different companies producing these toys have rabid fans who defend the work regardless of the actual quality so there are times when my comments and reviews attract harsh attention from fans. I think in the end these help Hasbro/Takara, but I suspect that it’s only a matter of time until we see some of the companies brought down by legal action . . . some of the unofficial toys really do go too far in the “violate copyright” realm.

This third-party fan’s editorial is quite lengthy and ranges into a lot of interesting topics, but in the end it come down to this:

I think I feel morally comfortable with third-party TFs because I do not feel that they are stealing from Hasbro anymore than copying a CD is stealing from the artist or record company.

Well, copying a CD is stealing from both the artist and the record company, so all the writer is saying here is, “I think I feel morally comfortable with this particular level of stealing.”

Of course I copied CDs as a teenager, and may even occasionally do it now, although only in cases where I can’t easily get the songs online. But both then and now, I knew it wasn’t the “moral” thing to do. It didn’t bother me all that much then, but nowadays, on the rare occasions that I do it, I tend to feel bad about it – some of my relatives are musicians trying to make a living from it. If I copy a CD, it’s from an already-successful band. Again, this isn’t so much about “shades of gray” – there’s no moral ambiguity here – as it is degrees.

I asked my friend John about the third-party toy question recently, because while he’s not a toy collector, he has a business degree and always has an interesting perspective on this sort of thing. While he understood and agreed that the toys were illegal, he suggested that Hasbro may view them as free market research. The popularity of various third-party toys (or lack thereof) reveal to Hasbro what fans are most interested in, which can then use to guide their own creations.

I don’t know enough about Transformers to cite any obvious examples of this happening, but my hunch is that Hasbro’s recent focus on big gestalts and the giant Metroplex may have been partially inspired by third-party efforts. That said, I’m not keen to assume Hasbro views third-party toys as market research with some evidence to back up the idea.

So..I don’t know. Third-party Transformers based on existing characters – and maybe even the add-ons – are illegal. And so you might say, “Well then why hasn’t Hasbro sued them all out of existence?” It’s possible many of them are such small operations that Hasbro doesn’t even know where to find them[2]. It’s possible the production runs are so small, Hasbro doesn’t think it’s worth the effort. It’s possible Hasbro really does see them as free market research. Or maybe it’s as simple as Hasbro figuring the third-party manufacturers help keep the most demanding, vocal TF fans off their backs.

The longer this all goes on, though – and the more third-party Transformers that appear in the catalogs of major online retailers like BigBadToyStore – makes me wonder why Hasbro hasn’t started up the lawsuits.

Anyway, my final thought: selling third-party TFs based on Hasbro-owned characters is definitely illegal, and if you think it’s stealing and if you consider stealing immoral, it’s immoral as well. Of course, intellectual property itself is a weird, fairly recent concept that’s still being worked out in both the legal system and philosophically, so who knows where this will all come down in the future.

I hesitate to say I’d never buy a third-party toy, and who knows, maybe if I did I’d find a way to twist through some philosophical hoops to rationalize it as this writer did.  We humans really, really don’t like it when something we want to do – or especially, something we’ve already done – is judged “wrong” (either by others or by our own secret conscience), and so we rationalize everything from cheating on diets to ethnic cleansing.[3]

Nonetheless, in response to my original question, my conscience forces me – for now, anyway – to come down on the side of “nay.”

What do you think?

Since the topic given to the League was more broad, most people aren’t writing about third-party Transformers but bootlegs and knock-offs. Obviously, that’s a lot more fun than my meandering treatise above. Here are a few examples:

http://fortuneandglorydays.blogspot.com/2013/08/league-of-extraordinay-bloggers.html

http://www.rediscoverthe80s.com/2013/08/when-street-hawk-was-member-of-gi-joe.html

http://ctupa.com/blog/?p=1910

Visit this link and check the comments for more entries.

[1] Obviously this doesn’t apply to original transforming characters or toys. While these may share obvious DNA with Transformers, if the design isn’t based on a pre-existing Hasbro-owned design, then there’s no moral or legal problems or ambiguities.

[2] Although their legal department seems to be pretty adept at tracking people down.

[3] I think my favorite breakdown of this tendency can be found on the Stuff White People Like blog: #93 Music Piracy. I was reading this aloud to a friend, and as I started reading it, he cut me off and started in on something about how musicians really make their money from touring. I then read the next sentence: “He will likely rattle off statistics about how most musicians don’t make any money from albums, it all comes from touring and merchandise.” This friend of mine buys entire albums for $2 off some Russian website. Pretty sure the artists never see a penny of that.

Comments now closed (41)

  • I find it interesting to listen to/read about people riling themselves up over 3rd party transformers. Perhaps because I customize (primarily for myself, but occasional commissions as well), my relationship to toys and IP is pretty loose. Customizing vs. mass-market (via BBTS, Robotkingdom, etc.) are different beasts, but at their heart – they're reinterpretations of (usually) existing characters, for the consumption/appreciation of fans.

    That, in a nutshell is the basis of why I find any hand-wringing/indignation about 3rd party manufacturers odd. At least in the case of Transformers – they drive continued interest in what amounts to a 30+ year old cartoon about robots. I realized some time ago that I felt very little love or connection to the original animated series (nor the films and their ugly aesthetic). Born in '84, I caught some Generation2 rebroadcasts in the 1990s, and found a few toys at Yard sales that I sold while in high school. I liked the original designs, but the original toys I found blocky, and unappealing.

    Years later, I came back to the Transformer brand – only due to increasingly articulated/quality items made by 3rd party manufacturers. From a personal standpoint, I wouldn't have / wouldn't be purchasing the Masterpiece-scale Transformers I do (interspersed with some War For/Fall of Cybertron figures) if 3rd party designers never came on the scene. I'd also be a few thousand dollars richer, but that's neither here or there.

    I believe that character designs put out by 3rd party Transformer producers actually inspired interest in Hasbro's current brand. Without FansProject, Maketoys, and a few other producers – I wouldn't visit sites like tfw2005.com. I wouldn't bother checking Walmart toy isles for new Hasbro offerings, or order them from BBTS. Without 3rd party 'fan' companies carrying the torch of interesting, (usually) well made toys, Transformers as a brand would fall into deep sleep.

    We've seen this happen with GI Joe, despite 2 films, and a scattering of TV Shows (The 'Sigma Six' era, Ellis' 1-hour 'Resolute' interpretation/1 season of Renegades). Beyond small scale customizers, and a few people making new weapons for 3 3/4 scale figures – there isn't a '3rd party' market for this brand. What the lack of activity on hisstank.com (compared to TFW2005 – it's sister site) tells me about each brand is this: that 3rd party producers catering to adult collectors with disposable income keeps a brand alive.

    This is why you don't see Disney-esk takedown notices when a new Predaking-esk prototype is revealed, or a few hundred units are sold through online retailers. When a 3rd party designers output conflicts with Takara/Hasbro's (the 3rd party Soundwave that was axed just as the MP-Soundwave was released), they take action, and rightly so. They don't want to split the market on a single design. However, when 3rd party designers fill the void between the current cartoon (TF: Prime/Beast Hunters) and what's come before, I believe it's good business acumen on the part of Hasbro/Takara to turn a blind eye.

    • I think there's a big difference to a legal department between a customizer (making one of a kind items, not always selling their work for profit) and the 3rd Party TF makers (mass-produced with a significant start-up budget, to make a profit) that are being discussed.

      Let's not forget here that a lot of these 3rd party items were originally based on the style of Hasbro's own Generations line. As for who carries the torch, TF has had some type of media consistently for well over a decade, and consistently had toys on the shelf the entire time, not to mention several huge movies. While you and I may pay attention to the 3rd market, we are very hardcore; the vast majority of fans have no idea they're even out there, they buy TFs becauyse of movies, tv, comics, etc. There is a 3rd market for GIJOE and 1:18 army collectibles but it is much more DIY, very small, one-man operations mostly, as fans tastes are wildly divergent.

      I also think you don't see the Disney-esque takedowns or lawsuits because the people doing these 3rd party TFs, they don't have any money, why tap a dry well; as well as being outside of the US. It costs thousands to set up an international lawsuit- why do all that if you won't get anything from the person?

    • You are just rationalizing theft. 3rd Party Manufacturers are profiting off of theft and fanboy's impatience at having to wait for actually licensed companies to make something.

      Hasbro owns Transformers. Mattel owns He-man. If they do not want to make something that is their right. It is not within fan's rights to then just mass produce bootleg products to fill their need. There is a big difference between mass manufacturing and a single customizer.

      • I feel the points mentioned by Kevin really need to be addressed. I've quoted them below in their entirety so everyone sees I'm not quoting him out of context here:
        ———————————————————————————————
        ~"You are just rationalizing theft. 3rd Party Manufacturers are profiting off of theft and fanboy's impatience at having to wait for actually licensed companies to make something.
        Hasbro owns Transformers. Mattel owns He-man. If they do not want to make something that is their right. It is not within fan's rights to then just mass produce bootleg products to fill their need. There is a big difference between mass manufacturing and a single customizer. "
        ~"You displaying Hasbro products with other military products like Corps is not at all equatable to you buying 3rd Party bootlegs. Those are two totally different circumstances. Just like you buying used real products at flea markets has nothing to do with 3rd Party bootlegs.
        You are just trying to justify your support of thieves. "
        ~"Your impatience with toy companies not releasing every thing fan's want when they want it does not all of a sudden make stealing ok. "
        ———————————————————————————————

        Kevin, your vehement insistence that 3rd party Transformers = theft is absurd. The intensity which you're throwing this concept around feels like you're a borderline shill – but I doubt Hasbro operates like that. Instead, I think you're a toy collector who's just very passionate about this point.
        What I don't appreciate is the strawman argument that buying 3rd party toys is theft. For anyone unfamiliar with the concept, Wikipedia has a decent summary of this approach. Essentially, various commenters have position X (3P = is beneficial (or not harmful to) Hasbro). Kevin disregards these points and instead presents the superficially similar position of Y (3P products = Bootleg copies, are illegal), which is equated with physical theft from Hasbro's pocket.

        The waters are further muddled by the articles author (Poe? Someone else? It's not listed) conflating Stealing Music Online with buying 3P products. These aren't the same thing, and reducing the argument to terms like this is misleading.

        * 3rd party products aren't bootlegs. A few companies started out in this fashion (and had connections to KOtoys.com – which Hasbro shut down). However, I don't support 3P products cast from existing Hasbro molds: Its cheap imitation, and directly harmful to Hasbro's bottom line. (^) Bootlegs are poor quality duplicates of an existing product that someone would buy instead of an official version. Bootlegs frequently lower the culture cache/worth of the original, and are damaging to the original brand.

        3rd Party toys – in this case Transforming robots – are completely re-engineered/designed toys that use a familiar likeness. 3P designs increase the notoriety/value of the Transformer brand. That point was covered in my 1st post here. 3P products aren't low quality (e.g: break easily) 'fakes' that damage Hasbro's IP, nor would a 3P figure be mistaken for a retail Hasbro product. (Both price per unit, and retail accessibility prevent that). Unlike a KO Transformer, 3P products wouldn't be purchased accidentally, or result in customers bearing misplaced ill-will toward Hasbro (or their brand) based on the assumption they were selling faulty products. 3P products are not bootlegs, and arguing that they are is misleading.

  • a full third party figure "mass-Produced" for sale is not good from a legal standpoint and that's one line I'll never cross (as of today… I don't know if Future me will).
    "Upgrade kits" like alternate head, hands, stickers, etc. for a less accurate toy to make it more accurate… That is a bit of a gray area where I'm a bit more lenient.

  • If a third-party designed a flat-out amazing Optimus knock-off; would they have any recourse if Hasbro stole it? Probably not a leg to stand on, eh? Maybe that's why they're still around.

    I'm not a big Transformers guy, but I asked myself, what if they were making third-party unlicensed Marvel or DCUC figures? Uh, yeah, if that got me a good ROM or Quasar figure, I'd be on that in a heartbeat, ethics be damned. And that's a need third-parties fill: if you want a bigger, fancier update of your favorite character that's been forgotten, they have you covered. Almost like a cover band, if that analogy fits.

  • I guess I’m of the mind that I would be ably to mentally justify purchasing one based on whether or not I suspected Hasbro would ever actually make the character. (As far as full figures go– as far as the head / sticker / parts add ons go; those only increase the likelihood of a fan purchasing a Hasbro product they might otherwise not be satisfied with enough to get.)

    I’ve torrented exactly one thing in the past decade or so– Men in Black: The Animated Series. Why? Because I couldn’t buy in legally anywhere (I haven’t looked as of writing this, but I’m betting I still can’t.) If a third party company was making a character Hasbro pretty clearly had no intention of taking a swing at, I imagine I’d be okay with with purchasing it. It ALMOST happened earlier this year actually with IGears Cosmos actually. At the last minute I decided to hold off until Botcon hoping to see some Cosmos love and to my delight the revealed a new one was coming.

    Of course, this is all semi-hypothetical because DEAR GOD I KNOW THEY’RE SMALL RUNS BUT 3RD PARTY TRANSFORMERS ARE EXPENSIVE! The only reason I even considered Cosmos is because, God damn it, he’s a portly little space saucer with self esteem issues and that means I love him, but the reason I hemmed and hawed the way I did is because he’s $40 (!) for a three inch figure!

    I honestly can’t even fathom spending $600-$700 on the 3rd party gestalts like some people do.

    But yeah, it’s totally intellectual property theft all the way around. That’s my my personal stance on it. Doesn’t make it right, but that’s what it is.

  • My biggest concern is that these third-party products encourage the sense of entitlement that defines too much of this hobby; "If Hasbro doesn't like it, they should make all the characters I want!"

      • Certainly a company wants to cater its product to the desires of the consumer base, but Hasbro's refusal or inability to make a new figure of Obscure Character X from 1986 doesn't justify someone else's theft of their design and concept.

  • I just noticed the title of this article mentions Bootlegs and Knockoffs, as well as Third party products. However, the main article doesn't really touch on those first two aspects. Knockoffs – whether they're Nike shoes, Sony Televisions, or Classics Optimus Prime are exactly that – duplicates of varying quality. Third Party figures (typically) are unique pieces based on the overall appearance of a character. They're in completely different spheres, but the article seems to mention them with a 'guilt by association' model in mind.

    Traditional critique of Knockoffs (usually in reference to watches, clothing, electronics) as cheapening the brand/IP don't apply in the realm of 3rd party Transformers. The comparative cost alone rules out people mistaking 3rd party toys for retail offerings. Comparisons between buying a FansProject toy and burning CDs also fall flat to me. Hasbro isn't losing money – they're gaining/perpetuating customer interest in their brand without spending a dime. If a customer buys FansProject Bruticus, they certainly end up buying Hasbro's (admittedly weaker) Cybertronian Bruticus. I know I did.

    "My biggest concern is that these third-party products encourage the sense of entitlement that defines too much of this hobby; "If Hasbro doesn't like it, they should make all the characters I want!" "

    Monte, that pretty much defines this consumption-oriented hobby – but not in an entirely negative light. That entitlement you mentioned leads to consistent purchases, continued interest, and longevity of the IP it's self. Otherwise, it becomes something that falls by the wayside, and ceases to be profitable. Toys are a business, and companies do what makes fiscal sense for them. Look at the recent Mattel drama – specifically the DC related figures. I can't imagine Hasbro having to run a telethon-esk thermometer pole for any of their main brands. A part of that is distribution in Walmart/TRU chains – but given the amount of disposable income adult collectors have (and memories of grown men clearing out shelves of Transformers), I have to believe they play a role in ensuring things like Transformers are still produced. It's not a defining aspect of the hobby, but having seen the excitement/engagement 3rd party products generate with consumers – I firmly believe they benefit the brand.

    With that in mind, I would like to see 3rd party manufacturers licensing the likeness they use from Takara/Hasbro – or even bringing some of the more talented developers into the fold. It would be nice to see the high quality designs of Maketoys, Fansproject, and Mastermind benefit from wider distribution channels – and perhaps lower prices.

  • To me, third party transformers fill gaps that exist in my collection of established Hasbro toys. I also buy loose toys from conventions and flea markets. Obviously Hasbro isn’t going to see a penny of that, yet they still fill gaps in my collection. I’ve got my GI Joes displayed around a The Corps! helicopter… It’s the same principle- if they release something that fits into my collection, Ill buy that first, but it won’t stop me buying third party accessories.

    • You displaying Hasbro products with other military products like Corps is not at all equatable to you buying 3rd Party bootlegs. Those are two totally different circumstances. Just like you buying used real products at flea markets has nothing to do with 3rd Party bootlegs.

      You are just trying to justify your support of thieves.

  • I've often been tempted by the Masterpiece scale (or close to it) versions of Animated Arcee.

    I've wanted an Animated Arcee since I was a child watching the animated TV series and especially the animated movie. It never made sense to me that I had Optimus Prime, Bumblebee, Grimlock, Galvatron, Soundwave, etc but no Arcee. So, I guess to the extent third parties are making characters or versions which Hasbro has no apparent intention of ever making, then I'm personally not opposed to that. If they were direct reproductions of existing characters or even slight paint differences, then I'm less supportive.

  • To me the 3rd party market is filling a gap that Hasbro won't (or can't). Fans asked for them to expand the Generations line, make all the characters from G1, and after a couple of years of asking with no response, the 3rd parties came in, and started doing just that. They wouldn't be such a big thing in the fandom now if Hasbro and Takara made the figures the fans initially wanted (and asked for repeatedly for.)

    It's different than music (I'm a musician) in that with music piracy, often there is no money transacted, so we tend to view it as "radio"- no money for us, money for the provider, gets the word out there so the public may buy records. And for all but the upper tier of earners, the records are more a labor of love than a source of income…

    With this, it's closer to the bootleg industry of the late 1970's. You have the officially released records that you make (Hasbro's Transformers) and then you have someone else taping your live shows, pressing them on vinyl, and then selling them to record stores at $10+ a pop (The 3rd Party guys) and they look and sound legit as well.

    Every dollar you spend on a Fansproject piece, in a sense, is another dollar Hasbro doesn't get, from one viewpoint. But another way: most of the people who buy 3rd party are hardcore and have gotten all the official releases- they wouldn't be spending that money on Hasbro stuff anyway.

    This is why I'm in-between as a fan. On one hand, they're making the stuff that fan's want. On the other, they're totally taking what isn't theirs to sell, manufacturing it, and it's competing against the actual owner's items. They've gotten too big to be ignored by the big H at this point, and when the hammer comes down it could scare people from doing all the cool customs, Shapeways, and third party pieces like this. Hopefully they see that these are the types of items fans want.

      • I highly doubt anyone is buying new cars or popping bottles of champagne off of the profits of any of the 3rd party toys, Kevin.

      • I needed to split my original comment to your post Kevin into two parts, hence my reply to your other post here.

        * Equating theft of music/film/physical objects with purchasing a 3P toy is an absurd comparison.
        From the article:
        ———————————————————————————————
        "This third-party fan’s editorial is quite lengthy and ranges into a lot of interesting topics, but in the end it come down to this: / '' I think I feel morally comfortable with third-party TFs because I do not feel that they are stealing from Hasbro anymore than copying a CD is stealing from the artist or record company.'' / Well, copying a CD is stealing from both the artist and the record company, so all the writer is saying here is, “I think I feel morally comfortable with this particular level of stealing.”
        ———————————————————————————————
        Another strawman argument: presenting someone who defends a position poorly as "the" defender, then refuting that person’s argument – giving the impression that every upholder of the pro-3P stance is defeated.

        Of course bootlegging a CD is theft as it directly deprives the artist of funds. My parents are both recorded musicians, and have keenly felt that sting. I purchase music directly from the artists via Bandcamp, and make a point of buying a CD or LP from them at live events if I can.

        Comparing the imitation of an establish aesthetic to physical theft is a poor argument. In the case of music, there are numerous artists who imitate the chord structure, vocal style, and even band appearance of establish artists. The 'Peter Murphy' vocals, or entire tracks sounding exactly like an existing Smith song are things I've encountered many times in my years seeing live music, or listened to in clubs/online. People enjoy more of the same, and continue to ape the style and appearance of what's popular.

        Is it derivative, and unoriginal to create art (toys, visual art, music, film) like this? Of course. Is it stealing? Not unless the IP’s copyright holder decides to pursue it. Based on how unlicensed covers and derivative works function in the music world, if Hasbro wanted a legal injunction against any 3P company for a share of their profits, they would be legally entitled. It’s relevant to note that Hasbro hasn't done this. There are competing theories as to why, and I (and others) have mentioned them in other postings.

        Fervent claims of theft /wrong doing / being a bad fan by purchasing 3P products based on the bootleg toy/music theft arguments are poor misrepresentations of the situation. Strawmanning to help justify either side of the argument feels like a moot point.

        To date Hasbro has only taken legal action against bootleg (molded copies) retailers, and 3P companies releasing a product which would compete directly with one of their own. Further legal (and moral) decision rests with Hasbro/Takara over the derivative use of familiar robots, regardless of the motives fans have for purchasing 3rd party products.

        (^) I've noticed 3rd Party designer Ariel (Fakebuster83)’s Shapeways products (hands, weapons, heads, kits, etc,) being bootlegged/recast by companies like UFO. Recently, his original design for Frenzy/Rumble look-a-likes suffered the same fate. Fans on Facebook (and retailer BBTS) recognized these items as not originating from the designer, and took steps to block or limit their sale/release. I feel this supports my point: fans support 3P products that are unique or original creations, and shun bootlegs. Conflating the two product categories is at best a misunderstanding, and at worst, a conscious misrepresentation.

  • I'm really dubious on the "Hasbro sees third parties as free market research" theory.

    Most third party Transformers tend to be characters from 1984-1987 or so. Hasbro *has* to be well aware that there are collectors who will buy just about anything from this era. The fact that a relatively small number of them will spend $80 or so on an imported "unofficial" release doesn't really tell them anything new (especially when there's no guarantee that the collectors who buy the third-party version would still want to buy a Hasbro version that has to make sacrifices to comply with safety laws and fit a certain price point).

    Hasbro has made obscure characters like Straxus, Thunderwing, and Impactor in the Generations line — are people really claiming that they had no idea there was a market for Springer or the Constructicons until some other company made their versions?

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  • Third part products are odd. Accessories are one thing but when it comes to making full on figures, it's basically theft and they have no right making them.

  • Hi [Commentor's Name]. 'Basically theft' and actual theft are two very different things. If a third party company took Hasbro molds and created their own figure, that would be 'actual theft'. In situations where a figure is a derivative work – any 3rd Party toy that isn't a direct recast of a Hasbro or Takara figure – work is protectable to the extent that it embodies original expression. (Paraphrased from http://en.wikipedia.org/wiki/Derivative_work)

    Compare Maketoys Green Giant or TFC's Hercules to the G1 Original Devastator, or the Energon Constructions.
    It can be argued that the 3rd Party robots designs contain significant original expression, even if they are derriviative of Hasbro's intellectual property. The fact that people are even debating this now, rather than having a definitive answer one way or the other from Hasbro legal action speaks volumes.

    Third Party figures have a legal right to produce derivative work just as much as this clothing company – http://louiscoutermash.wix.com/royalloyalty#!

    – has the right to create a derivative work based on a skull/gasmask logo I MADE in 2007 for Dark-Ware Events in Peterborough, Ontario: https://www.facebook.com/darkware.events

    "Royal Loyalty" clothing created an unlicensed derivative work, but it does contain original expression. My opinion of this derivative work is that it's of poor quality and design, but that's just an opinion. So it goes. I'm not seeing a penny of any shirt sales, and any legal action I could take could either result in a net loss (legal fees vs. what I'd actually earn), or be ruled as protected.

    As it currently exists, 'Royal Loyalty' clothing has the right to create derivative works based on my original IP. Personally, I feel he's within his rights to create a derivative work from my own original design. However, if he duplicated ('knocked off' without 'original expression') a copy of any product I made – I would sue him. Hasbro's hands-off approach to date with 3rd Party Transformers appears to follow the same reasoning.

    Frankly, I'm disappointed that so many people mistake gut reactions (e.g: 'I don't like that') with statement of fact (e.g: 'It's stealing, they have no right'). At this point, I've just resigning myself to the fact the internet is full of people who make general statements based on their feelings instead of having a real discussion on the matter.

      • I understand what you are saying but they are still taking Hasbro's designs and characters though, so regardless of their intentions I still think it's wrong….as an artist I would not stand for people doing it to my work.
        However the really sad thing is that the third party companies are producing better figures and accessories than Hasbro / Takara.

    • I'm not really sure what you're trying to say when I read all three posts (It's very confusingly worded even on your blog and I'm not sure who you're directing this all at as you're playing a bit of "fill in the blank" ;) )

      But the gist I can gather is, from looking at these posts here and your site, that you're saying it's OK in your eyes as a customizer to people to do customs, or these 3rd party toys for them to do semi-original G1 designs just a bit changed (as they currently do), but you take issue with the comparisons to music industry or people calling it "stealing." You also seem to take a lot of issue with people stealing your own work.

      It seems while you make the analogy of a clothing company taking your design, to the Not-Devasator toys, it's a little "straw" itself.

      While yes, you can see on your Facebook page that you did the skull/gasmask logo, people have been doing very similar stuff to it since the 70's, and there are even designs with skulls and gasmasks that go back to the 1910s. It's obvious that they took your work and put it on their shirts to sell. You can see how they altered it just slightly. But then the design in itself is a bit derivitive of past works… much like how the Not-Devastators are. I don't see any "original expression" in those toys you mentioned, they're so similar, to each other and the G1 design, that argument is very straw. I also don't see any "original expression" in the shirts, so.

      Also you can't buy anything from that company- it won't let you put anything in your cart, or even steer you in a direction where I could buy any of those shirts. So no one is selling your design and making money that I could tell. It also looks like you didn't copyright your design in any way, or put any notices until after someone took the design. So who could blame the "thief"- if he took and altered your design a bit, threw it on a shirt and called it his own, how different is that than the 3rd party makers, calling their toy "green giant"? ;)

      Look I think there are no clear answers here, much like with music downloads online. I feel like rather than litigate each other to death (in which the only people who win are lawyers) or point fingers, or apply blanket statements, it's best to take things case by case basis. Like with music, is it wrong for a 15 year old to put a song she loves on YouTube to share with her friends, where no money is changed? Is it wrong for a club to tape your live show, ask you to sign a release at 4am when you're not paying attention, then sell it for $5 on iTunes, and you the artist get nothing? Is it ok for, as in Poe's example, a Russian site to download your work, and use their countries laws to sell it for dirt cheap, and you the content creator get nothing? All three of these things can be put into the "stealing" category, but is that really true? Is that the "right" thing to do? I think everyone should make up their own minds as to what they think is right or wrong on this issue, and give people a chance to decide what they think is "stealing" or not.

      • Hey _RZ_, thanks for your reply.

        "I'm not really sure what you're trying to say when I read all three posts[…]"

        I'm pretty verbose when I write – a side effect of writing too many university papers I think. Apologies if anything came across as unclear. There's no author clearly identified in the article, so I didn't know if I should directly my comments at Poe, or one of his contributors. I chose to write my thoughts with the same voice I use on my Synthwave music blog: to anyone who happens to come across it.

        "But the gist I can gather is, […] that you're saying it's OK in your eyes as a customizer to people to do customs, or these 3rd party toys for them to do semi-original G1 designs just a bit changed (as they currently do), […]"

        Yes, I feel it's OK for customizers to make customs as long as they're clearly represented as such (not passing them off as a factory figure, or 'long lost prototype'). Yes, I do believe that 3rd party manufacturers, when mindful of international copyright laws 'original expression' requirements can make a robot that looks like another persons robot, and sell this. It's a grey area though, as the debates here and elsewhere online illustrate.

        Where things get fuzzy is this: are people arguing against the *morality* of making robots that look like other robots, or the *legal* right to do so? They're very different things.

        I feel that I've argued for both cases. Morally, I believe 3rd party figures benefit the Transformer IP/brand without depriving Hasbro of revenue.

        Legally, I've argued that there's legal precedent there related to original expression. It's an area – like you pointed out – that's subjective. I measure original expression based on criteria that's different from yours (with Green Giant / Hercules – they were designed in CAD, sharing no physical shape with Hasbro renditions of Devastator). However, others might not view that aspect as not relevant, and would likely point to the those toys all being green construction vehicles that combine together with a similar silhouette. That's a valid criticism.

        However, it comes down to a (yet to occur) legal action to decide that. I took issue with poster Kevin & Mark's (and by extension, similarly shared views I've read elsewhere) stance that believing 3rd party products were immoral ('stealing') automatically made them illegal. 3rd party exists in a grey area, and conflating feelings with what's legal/illegal leads to some muddled discussion.

        • […]you take issue with the comparisons to music industry or people calling it "stealing."

          Yes, that's correct. Comparing the imitation of an establish aesthetic to physical theft is a poor argument. Adding the term "stealing" into the discussion feels like a shortcut for stirring up emotions about the topic: Suddenly, anyone who buys a 3rd party figure is "stealing" money from Hasbro by association, and 3P companies are "stealing" designs from Hasbro. It steeps the discussion in moral judgments, leading people to set themselves above others because they do/don't support third party products.

          "You also seem to take a lot of issue with people stealing your own work."

          No, actually. Try a Google-image search for that skull-gasmask stencil of mine, and you'll see it's spread far and wide across the internet in terms of usage – mostly on blogs, and even an app or two. I embrace that. It's nice to see people like the image enough to propagate it's usage. If they 'remixed' it by adding in what would constitute 'original expression', I believe legally they could sell that. If it was worthwhile, I would consider seeking a settlement based on a percentage of the profits, or proper licensing of it. Unless it was a 'bootleg' duplicate of my own design, I wouldn't seek to have them shut down.

          I'm surprised you feel my comparison to the Royal Loyalty clothing situation was a strawman argument. The example I presented wasn't a distorted/flawed version of the actual position (how derivative works based on an existing design). I felt it addressed the argument quite clearly. I could have used the example on the Derivative Works Wikipedia page (it actually mentions toy examples), but thought it was easier to illustrate with the skull logos.

          "Also you can't buy anything from that company- it won't let you put anything in your cart, or even steer you in a direction where I could buy any of those shirts. So no one is selling your design and making money that I could tell."

          The shirts were posted for sale for 6 months. The owner 'Wil' has since disabled the checkout function. If you'd prefer a different example: http://youtu.be/VV5VyU1kumg

          "EK Decay", a Scottish Punk band used a verbatium copy of my logo as their band logo. A friend found out they were selling shirts, (the comparison I'd make to the toy industry would be a 'bootleg'), so I spoke with the manager. He was willing to provide three copies of the shirt in lieu of payment, and I agreed. This is the kind of situation I'd like to happen with 3rd party figures and Hasbro: work out a mutually beneficial deal.

          "I think everyone should make up their own minds as to what they think is right or wrong on this issue, and give people a chance to decide what they think is "stealing" or not."

          Indeed. The final word will come down from Hasbro's legal department one day. Until then, we carry on.

        • …I guess my point Blayne is that the image you created is pretty generic, please, no offense to you, as I mentioned above- but there's decades of very very similar type of images dating back almost one hundred years… There's actually more talk by you of these others stealing it, than actual use of the image as far as I can see- so it might be difficult to prove anything that would actually get you anything beyond the three shirts you've already gotten.

          I'm not sure exactly how Canadian law would work, but in the US, you'd get an amount which is very much tied into how much you were paid for the logo to begin with, and a huge amount of other factors. You'd first have a hard time arguing that you did a 100% original design in the first place, they made a profit in its use, you made a profit in its use, etc. Again it wouldn't be worth it to you to spend thousands to get tens of dollars; it also isn't always worth it for Hasbro to spend thousands to go after people which may be only breaking even, there's no profit, they're not going to chase after it. ;)

          It's very different situation than, say, the G1 Seeker design, or your example of the Devastator toys- they're instantly identifiable to those who know the G1 series, and sold as such… I'm sure these people found your image from a Google search or some such method, and did not re-draw your image and intentionally attempt to sell a versiof your design to your fans in Canada. Anyway it's way off the topic at this point to discuss further here, but good luck in your endeavors, and thanks for the thoughtful anaylsis…

        • Heh, the point of my examples was more to illustrate the concept of Derivative works in copyright, than to launch an analysis of my work. :) I'll just leave this here:

          From: http://en.wikipedia.org/wiki/Derivative_work

          When does derivative-work copyright apply?

          For copyright protection to attach to a later, allegedly derivative work, it must display some originality of its own. It cannot be a rote, uncreative variation on the earlier, underlying work. The latter work must contain sufficient new expression, over and above that embodied in the earlier work for the latter work to satisfy copyright law’s requirement of originality.

          […]
          In the subsequent Durham case, the court applied the same principle in a suit between two different Disney toy licensees in which one licensee claimed that the other had pirated his Mickey Mouse, Donald Duck and Pluto. Durham conceded that in making these toys it used Tomy's Disney figures as models. That was not determinative. The court said that "the only aspects of Tomy's Disney figures entitled to copyright protection are the non-trivial, original features, if any, contributed by the author or creator of these derivative works." But Tomy's toys reflected "no independent creation, no distinguishable variation from preexisting works, nothing recognizably the author's own contribution that sets Tomy's figures apart from the prototypical Mickey, Donald, and Pluto, authored by Disney and subsequently represented by Disney or its licensees in a seemingly limitless variety of forms and media." Because the court considered that "it is clear that the originality requirement imposed by the Constitution and the Copyright Act has particular significance in the case of derivative works based on copyrighted preexisting works," it denied relief and dismissed the claim. Thus the law is clear that a derivative work is protectable only to the extent that it embodies original expression. Its non-original aspects are not copyright-protectable (what is loosely called "uncopyrightable").

          […] the defendants were held not to be liable for copyright infringement, even though they presumably copied a considerable amount from the plaintiff's work. They were not liable because the plaintiff did not enjoy copyright protection. The plaintiffs' works lacked enough originality to acquire copyright protection of their own. They were too close to the original works on which they were based.

        • No offense ment here Blayne, but you brought your own work to the table. I would have had no idea you were a graphic artist if you didn't provide the links. I'm sorry if it comes across as knocking it, but it can be tough to talk about art and legality and what is "original" or not. What we artists think of original and what judges deem original are two completely different things. If you don't want to have people criticize your work, then maybe bringing it up as an example isn't the best idea? It is a little difficult to sympathize with someone who says in essence "It's ok if I do it with my own art, but not if others do it to me." One shouldn't attack others lest they themselves be attacked, if that makes any sense… and I hope it's all not taken the wrong way.

          I had a long reply to this, but honestly I felt it wasn't really worth it. You're comparing situations that are very different, for a variety of reasons… and I think we're kind of on the same page in general anyway. It's a topic you obviously care more about than me.

          Maybe my time is better spent hunting the internet for the most toxic, illegal, rights-stealing, swiping, poorly done bootlegs I can. If I'm luckly I'll find one that will melt into my skin with first touch, with a toxic pink dustcloud around it- the sign of quality ;) Good luck with your endeavors, and keep making awesome customs.

        • _RZ_, I honestly don't mind critique of any art I made – it's a process that leads to better art. I do wish the discussion about the merit of a derivative works argument re Transformers wouldn't be derailed by a tangent though.

          I'm not hurt because you didn't think my work was original, and therefore a poor example. :) If you dislike the argument about derivative works – then commenting on the merit of the argument its self would be more productive, rather than the one example used to illustrate it.

          I felt using the skull/mask logo as an example to explain derivative artwork law was a good idea vs. the dense nature of legal examples on Wikipedia or elsewhere. http://en.wikipedia.org/wiki/Derivative_work

          "It is a little difficult to sympathize with someone who says in essence "It's ok if I do it with my own art, but not if others do it to me.""

          Honestly, I don't see where you're getting this from. I clearly support the idea that Hasbro can litigate if they choose to, and would have the right to proceeds of 3rd party toy sales. I also argue that 3rd party figures can have some protection under derivative works copyright law – and it's up to courts to decide. It's really not a clear cut situation. This is the same argument I made using the skull/mask logo examples: if there's sufficient "original expression" in a new version, then that designer is protected under the law. If not, and if the original designer chose to sue, they would be entitled to do so.

          I do think we're on the same page on most topics _RZ_. Thanks for the good wishes RE: making customs.

  • Harmony Gold are currently suing Hasbro due to Hasbro releasing a G.I. Joe Skystriker painted with G1 Jetfire's decals due to it looking A LOT like their Veritech from their Robotech line, which was also scaled for 3.75" figures.
    In this case it is a completely different toy than the old Harmony Gold toy, but due to the resemblance HG decided to take legal action.
    Regardless of it being based on G1 Jetfire, Hasbro / Takara (they purchased the mould from Takatoku's Macross line) lost all rights to that design when it was purchased by HG.
    In the case of 3rd party figures what they are doing with Hasbro/Takara's designs is no different.

    • With third-party items, the intention is for these toys to be used as actual representations of Transformers characters. TFC Hercules is clearly manufactured so people would recognize it as Devastator. The SDCC Jetfire was made to be recognized as Hetfire, not a Veritech/Valkyrie or whatever. And I'm pretty sure Jetfire's color scheme doesn't actually resemble the original Macross/Robotech mech, anyway.

      • It does. I suggest you look at the G1 Jetfire toy and the original Takatoku VF-1S Hikaru Valkyrie toy.

        • I've seen the G1 Jetfire and Takatoku Valkyrie. But that's not at issue here considering Hasbro hasn't sold that since their licensed to use it expired. What's at issue is the repainted Skystriker only resembles either of those in that it's a genericized jet fighter that vaguely looks like an F14 with a booster pack and maybe similar color layout. If this was in any way illegal, Hasbro would be able to sue someone for making a red and blue truck carrying a boxy grey trailer. Or a white truck with a red and blue car carrier trailer with missiles attached, etc.

          As for the box art thing, looking at the lawsuit, ( http://www.courthousenews.com/2013/07/23/Transfor… ) there's mention of a box, but only as a container for the toy. I didn't find any specific mention of package art:

          Without Harmony Gold's authorization or consent, Defendants have sold and distributed and continued to sell and distribute in the United States a toy in a box labeled "G.I. Joe and the Transformers… The Epic Conclusion" (the "Hasbro Toy") which infringes on harmony Gold's copyrights in the Copyrighted Works.

          Anyway, this is hardly anything like third-party items considering this set banks on the idea of a Joe-scale Jetfire, not OMG a Valkyrie with no robot mode in the way TFC Hercules is a new G1/Classics-looking Devastator.

        • There is a mention about HG's right to produce artwork and such based on Macross, but it's in the section(s) about Macross-related legal information instead of the "what Hasbro did" section.

        • The fact is though that the SDCC Jetfire looks like the 3.75" Veritech HG released which is a design Hasbro no longer owns the rights to. Even in the 80's when they owned the toy mould they still didn't have the legal right to use the design in the animated cartoon or comic.
          Like the third-party companies using designs / likenesses which does not belong to them.

      • Jetfire's color scheme is really pretty close to Hikaru's in Macross: Do You Believe in Love? Anime- even though Jetfire was made before the movie… I think they've sued over it before. It's pretty much a reversal of the colors in the movie (black/red vs. red/black)

        HG is well known to be over the top with its lawsuits on the Macross matter. But if what I've read is right, the legal issues have little to do with the Skystriker toy like they say in the brief; it seems to be all about the box art and the way Hasbro treated HG when they brought up the matter. The back of the box has "tech specs" filecards, and Jetfire uses an image of the vintage Bandai toy on the back. If the rumors are right, and they rarely are, they confronted Hasbro at SDCC about it and Hasbro was incredibly dismissive, hense, lawsuit.

        • But the layout / design of the paint application belonged to the Macross TV series and Takatoku toyline before Jetfire appeared in the Transformers toyline.

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