There seems to be some confusion about Copyright, trademark and patents. So, let’s do a little case study. We will use Kadee couplers for this.
Kadee built and holds patents and copyrights on their couplers. They hold a trademark on the name and logo. Lets start with the trademark. Since they have a trademark filed for the name and logo nobody can use either one for their own use in any way that would be tied to scale sized model railroad couplers and accessories. Now, if someone were to open a restaurant and call it the Kadee Bar & Grill they would have no problem. They would have a problem though if they used the Kadee Logo. In fact a quick check on the internet found a Kadee’s Kafe (yes, spelled kafe) that is perfectly legal. Now if I was to open a business that caters to the model train industry and call it Kadee there is a problem.Kadee also has a copyright on the couplers, or to be more specific, on the “look” of the couplers. This copyright covers the shape, design, color and I am sure a few other things. They, however, do not have a copyright on the coupler itself just as Chooch cannot have a copyright on retaining walls. Chooch can, however, copyright their “shape” of a retaining wall just as Kadee has on the look of the couplers they make. If you look at the couplers that other manufacturers make you will see they are close in look but not an exact copy. What this means is, anybody can make the knuckle coupler as long as it is not an exact copy of what someone else has already made.
True, but if you need (or want) a bunch of items, it’s a lot cheaper than buying several of the items.
I’d like to cast those Atlas ford fairmonts for loads on autoracks. IMO. buying the casting materials and making duplicates for those open autoracks racks would be less than expensive filling the rack up with the originals. Thats just for the first one.
Aren’t CSX and UP Fallen flags also under their respective trademark banners?
“Aren’t CSX and UP Fallen flags also under their respective trademark banners?”
That very well may or may not be true being in cases where railroads had been absorbed by another to no make the existing company example Norfolk & Western and the Southern Railroad are now Norfolk Southern which has now merged with CSX and if you ever see any of their adds on TV etc. they incorporate both names. The rights to the name may or may not still be their property but thats a question for the REAL Lawyers and how the terms of the acquisition were written. If I had to guess I would say it would inhibit another “real railroad” from using one of the names of a company acquired but I doubt they would give a hoot about some company making model trains. I am sure companies like BLI, Atlas, Proto etc. have a few lawyers on staff or retainer to handel such use of name questions when they decide to build a model.
UP DOES own the rights to the SP and other prececessors’ names and graphics. They exercised this a few years ago with their Heritage Units. CSX in all probability does own the name and graphics for Western Maryland, B&O, and so on. BNSF owns the name and graphics for their predicessor railroads. UP does not charge any more but requires a license to use their graphics, including predecessor roads. CSX used to try and charge for the use of their logo, paint scheme, etc. on models. I haven’t heard anything about that recently. Both have strict standards on how their logos etc. can be used. Other railroads are more lienient on duplicating their graphics on models, but that is their choice.
The automobile companies have also become strict on licensing their products and designs for use in models and the like. Even older of vehicles made 60 or more years ago.
When Penn Central died, the rights to Pennsylvania and New York Central lapsed and were re-registered by a private party with the apparent intent of gaining a profit from license fees on them for model and railfan stuff. I don’t know what ever became of that, but you can see the problems that could happen when the rights aren’t used.
I also remember a model of a UPS delivery truck a few years ago. UPS would not allow duplication of their trademarks for the trucks so the manufacturer included a decal sheet where you could cut and combine things to make your own version of their logo and names. I’m frankly surprised that duplicating the distinctive shape of the UPS truck was allowed.
NBC Television rolled out a new logo about 20-30 years ago and paid good money to consultants to come up with it. Only problem was that Nebraska Public Television already used a very similar logo. To make a long story short, Nebraska Public
The moral answer is simply don’t do it. But then we don’t live in a very moral world in any sense of the word. People excuse themselves with the belief it’s ok for them to do what they do, but anyone else doing it must be punished. I have brass investment castings that I cannot purchase anymore, yet they were manufactured by firms still in business. I reason that if the manufacturer is no longer making the given piece, it’s ok for me to use the original piece to make all the pieces I want for my own use. Like so many others, it should be obvious that I am walking in a very gray area. I ignore it with the excuse that my casting efforts are very small and for my own use so I cannot impact the marketplace.
Where to draw the line is the issue. I can’t quite get to living in a completely black and white world. I’m no criminal in the legal sense, but I still speed and throw the occasional apple core out the window,doing the things I can excuse myself for doing. Honesty is absolute; but most of us fall short of perfection. Long live the home casting of personal use parts! Scratchbuilding lives on!
Steam contains a lot of hot air. Most modellers appear to like steam.
I’ve seen resin locomotive shells for sale on the web that were obvious kit bashes using Athearn or Proto shells as a starting point. I don’t want to get anyone in trouble, so I won’t use specifics.
I’ve thought about casting a couple of my major kit bashes to sell on Ebay, like the one in my Avatar for instance, but I doubt it’s legal, so I haven’t done so. Although I kind of doubt a manufacturer would waste their time on me.
One more thing. Lets say someone made a casting of a long out of production boiler from a brass steam engine, made by a company long out of business, and sold them as part of a kit to be used on an existing chassis. What would be the legalities behind that? Only reason I ask is I’ve seen someone contemplating doing just that in the past.
But you could make what is known in modeling circles as a transkit. A transkit ususally is a resin casting that converts a standard available model into a unique version of the model or a different new model. For example, there are transkits to convert a Monogram model of a IMSA mustang to a IMSA Merker Xr4ti. The transkit has a new body that fits the original model’s chassis. Similar kits exist to modifiy Tamiya Porshce 956/962 models to represent the various modifications made over the years by race teams.
John, for your gas electric in your avatar, if you made a resin kit that replace the cab of the Athearn or Proto model than all you’re selling a kit that a modeler uses to modify an existing model. I don’t believe there is anything to worry about there.
But are those resin shells made from scratch or are they modified from existing plastic car bodies and re-sold in resin? I dabbled in 1/25 scale models a while back, and it seemed to me that a lot of those resin bodies available were just modified from plastic shells.
IIRC a lot of the resin shells were from plastic car bodies—but the key was in the modifications done to the resin shells and/or the plastic “masters”. All you really need is about a 10% variation/modification to an original and the copyright issue is rendered moot. Scratchbuilding the master would be another probably more viable way to do the transkit versions as well.
Interesting! I always figured there had to be some kind of loop hole since I’ve see so much of it going on. So what your saying is I could technically produce castings of this model and not have to worry about it? I would of coarse omit any of the aftermarket details and have them be user applied. I’d say I’ve modified at least 10 percent of the shell.
I would say that if there is a little more than 10% then go for it. Most locomotives were at one time or another done either in brass or what have you. There are a lot of them no longer being made which does make for an easier time of it overall----someone may quibble but the overall thing here is one of what you are going after. Good luck with that project! [:)]
The 10% rule is a myth propogated from an old standard from the Fair Use act. There is, in reality, no such rule governing the use of anothers work. The best method to use, if you realy want to offer this as a resin shell, is to contact the manufacturer of the base component and explain to them what you are doing. since the sales of the shell you are going to produce will in no likelyhood have a negative impact on the sales of the base unit they might allow it. This would be the best avenue and is one I have taken a few times myself. In fact, I have an email out to a detail component manufacturer as we speak asking this very thing. As to the market for model car shells… I had a conversation with one of the resin casters several years ago about using the base model from, say, monogram. he had contacted them and they gave him their blessing. They were never going to produce that version and the modeler needed to purchase a kit to complete the car anyway as only the modified shell was available.
Let’s get real here…they sell rubber molds meant to be used over and over again, but some of you are telling me that if I push the back of a sheet of plastic retaining wall rock into some wet drywall mud, leaving the impression from the reverse side as rock, instead of using the retaining wall sheet itself and then going out and buying another sheet, that I am morally obligated to buy more original sheets of retaining wall because I’m depriving the company of sales?
I suppose you could argue that what I’m doing is somehow technically wrong, stealing another persons investment and work that went into making and retailing the retaining wall mold, but don’t we have to have some distinction between super-dooper over-the-top morality/legality and a little common sense?
Fer Christ’s sake, if they’re so worried about people stealing their design and losing sales to clever guys like me, why do they leave such a clear negative mold impression on the reverse side of the sheet?
One thing to remember, especially in the Ford to Mercury conversion kit, to sell it you technically have to go back to Ford and get the license for reproducing their product’s likeness commercially. Might be similar for railroads.
Let’s say you want to make a “Canadian” cab for GP’s and SD’s, sort of like Cannon, and sell it. You have to get permission from whoever owns the design for the cab, and it is a very specific design with lots of special details, to sell it. You do not have to get permission from Athearn to sell it for use on their shells.
If your build up kit also includes duplicating part of the Athearn shell, like a casting that includes their hood and frame, you have to also get permission from Athearn to copy the parts of their shell you are using.
While EMD and GE haven’t done it, Harley Davidson even has a registration (trademark?) on the sound of their motorcycles. You can’t design another motorcycle that sounds substantially like a Harley.
It gets really complicated. Luckily the locomotive and car manufacturers aren’t as picky about their designs as some other products.
Always an interesting and confusing topic. The piece about the 3 types of intellectual property protection, trademark, copyright, and patent, is important. Earlier in the thread, someone posted about the circle “R” – that means a registered trademark, and ONLY protects the company name and logo. Trademarks don’t have anything to do with the design.
A copyright only can apply to something which is “copyrightable subject matter.” Not too long ago, the Supreme Court ruled that the publisher of a phone directory couldn’t claim a copyright on the raw data. There has to be some creative input. Like, a photographer makes creative choices about angle, framing, shutter speed, etc., so everybody that posts images of their work in the Photo Fun thread has a copyright in that picture. And it doesn’t need a copyright notice or registration. It’s copyrighted when it’s created.
But, it’s not clear to me that a model which is simply a scaled-down reproduction of an existing product qualifies. (unlike a rock carving made from scratch). I suppose the maker can say there’s creativity in figuring selecting the details and working out the compromises to have a practical mold.
“fair use” is a different issue. The suggestion that it’s OK to borrow a CD from a library and burn a copy is wrong. The court decided it was OK for a home user to make an archive copy when they owned the original. That’s about as far as fair use will stretch when you’re talking about a copying an entire work.
P.S., I’m a lawyer but not a specialist in IP law.
I believe this is technically illegal, but it is difficult to enforce.
The argument with regard to library materials is that when a patron borrows a copy of a work, nobody but the borrower can use the copy of the work he has checked out. And if I recall correctly, in the case of video, libraries and rental stores often have to buy media at a price well above standard retail.
