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Is making clay statues of Luke, Leia or Obi-Wan an actionable offense?

Posted on 2014-04-24
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Last Modified: 2014-04-29
Hi

I went to an artistic shop after my B-Day lunch.
She makes creations of all kinds, - Pottery, sculpting.
She offers classes on how to make the clay sculptures.

Her displays are of musicians, mostly. 1-2 foot high clay figures, musicians or pretty girls.
I am signing up to do classes on how to make them.

I'd like to consider doing something with this skill.
I know that I'd tend mostly towards pop-culture related art.
I'd probably want to do a sculpture of Obi-Wan and a Vader fighting each other! Or Luke fighting the Rancor (ambitious) Maybe Shrek. or Anakin and Dooku.

I'd frankly hate to sell it, but my mother is an artiste, and says that artists cant hoard their own art. How massive are copyright litigation issues? Would I have to call Vader v Obi-Wan, "Drama class confrontation." or "Intense dispute!" ? Maybe I can just sell the work in separate pieces that together make a nameless meaningful scene, and call the Luke clay piece "Blonde swordsman?" or Leia clay figure " Insane hairstyle bridesmaid?" and Jabba "Overweight giant slug on growth hormones!"

What should I know?

Thanks
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Question by:beavoid
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Expert Comment

by:Dave Baldwin
ID: 40021673
It's not just the words but the likenesses that are copyrighted.  On the other hand, I think it unlikely that you could sculpt fast enough to cause 'economic' damage to the movie studio.  But you should know that movie studios hire and retain more lawyers than you have ever seen in one place.  Besides maybe Congress.
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by:Anthony Russo
ID: 40021704
Making them will bring no wrath. Try to make a penny off them and the lawyers will swarm on you.
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Assisted Solution

by:☠ MASQ ☠
☠ MASQ ☠ earned 84 total points
ID: 40021897
The technical difference is you're creating representations of a licensed work.

You could sculpt Mark Hamill or Carrie Fisher and sell them as representations with no problem in the same way that if you took a photograph of them you have the rights to do what you like with that image (provided you weren't stalking them or trespassing at the time :)) .  Luke and Leia however are creations and the owner of the creative work needs to authorise their depiction.

Technically if a kindergarten kid made an R2D2 costume (rather than buying a licensed one) it would be a breach of the same intellectual rights.  Lawyers tend to (but by no means always) take a measured approach) & at worst it's likely you'd get a "cease and desist" from them pointing out the copyright & patents issues and that would be it.

They'll want their cut because they'll believe that however good your sculpting skills are it's the subject of your work that increases the market interest and so the price you might get paid - and that interest is because of their client's investment in marketing their creation.

In practical terms would you get into trouble? - Probably not, but if you read the local news stories every now and again lawyers will make an example of exactly the kind of thing you are describing in what seems a completely disproportionate way.  Are they right? Actually, yes they are - that's what Intellectual Property is all about.
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by:Rich Rumble
Rich Rumble earned 250 total points
ID: 40022362
Artists and others do this all the time, you have to change something and make it your own in such a way that it is not a direct copy. If you are copying two figures, say Luke and Obi-Wan, and yours are practically indistinguishable from the originals, then you get in trouble. If you copy them as well as you can, but do the features in a different style, you are still fine, you changed the scene or details into an interpretation:
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.
So if you only paint Yoda blue, but detail for detail he looks like another licensed work, then you are in violation. If you want to make a Yoda head only, and there are no other derivatives or licensed works like it, you are free to do so.
These are derivative works, and you can sell them:
https://www.google.com/search?q=warhol+pop-art&source=lnms&tbm=isch&sa=X&ei=Y0ZaU8auA-no2QXT1YDYAQ
Fair Use is another term that comes up, and you can see Fanfiction as one of the places where this is exercised most. People can write romance novels about Yoda and Duku if they want, it's fair use as long as they don't copy something verbatim or only change something trivial. The adventures of Yoda and Doku would not  be very steamy, but if you wanted to write something that was, you can, it would border on parody so you should have no troubles there.
This person created s felt/stitched version of c3po: http://www.pinterest.com/pin/265290234271800305/
These people make Starwars figures, but put "your" head on them:
http://comicbook.com/blog/2013/05/15/star-wars-action-figures-made-in-your-likeness-check/
If you create a scene that was never filmed, but was written, then you are certainly in the clear.
http://www.publicdomainsherpa.com/derivative-work.html
Don't just switch the color of their light saber's and expect to "get away with it".
-rich
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Author Comment

by:beavoid
ID: 40022558
Thanks,
So, if I basically make them just like the toy 2" replicas in Walmart, I'm in trouble,
But if I make them 12" clay-wire original experimental, weird art  that doesn't literally look like Luke on Endor, I should be okay? Similar colors?
At least according to the Wikipedia art copyright page? If Picasso did a big, weird painting of Dooku vs Anakin, or Padme kissing Anakin, like a blurred dream? He wouldn't be destroyed by Lucasfilm?
Thanks
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by:☠ MASQ ☠
ID: 40022666
Depends if he called it Dooku vs Anakin, or Padme kissing Anakin!

Your best trick with the Derivative work is not to have it named.  No problem if someone comes to buy it and says "Could I have that one that looks like "Anakin Skywalker", but best you don't sell "Anakin Skywalker sculptures" :)

(also depends on whether it's worth pursuing you. -See also YouTube - not owned by Google and not worth a lawsuit & carrying lots of copyright material vs. YouTube now owned by Google)
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Assisted Solution

by:Rich Rumble
Rich Rumble earned 250 total points
ID: 40022746
There are tons of, forgive the expression, prior art in this vein.
Also copyrights and restrictions really took a foothold in 1978 in the US, if the work is previous to 1978 there are less enforceable rights. But you do have to think about the purpose of the sculpture, that is what needs to be transformative...
http://en.wikipedia.org/wiki/Transformativeness
If you re-made "the thinker" sculpture, you would have to transform or in some way change that sculpture. People have placed him on a toilet for instance, the thinker is from the 1800's so far less copyrightable than SW.
http://motherboard.vice.com/blog/george-lucas-is-a-copyright-lunatic
Perhaps if your sculpture had a dual-purpose: http://www.out-law.com/page-12118

Your best bet is probably to write to someone with legal training and better understandings: http://copyrightlitigation.blogspot.com/
-rich
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Author Comment

by:beavoid
ID: 40024133
Thanks rich

It looks like nothing can be done to escape the ruthless grip of George's legal people on humanity!  ?
So, what would I have to pay Lucasarts for a 1 foot, or 3 foot clay sculpture sold of Luke or Leia? -
What about a wire mesh Rancor or Yoda?
rights? Do they only do mega companies on giant unit counts?

Thanks
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by:Rich Rumble
ID: 40024394
I'd ask maybe someone on that log I liknked, also so works are transformitive enough that they don't warrant worrying about copyrights: http://www.bitrebels.com/wp-content/uploads/2010/10/predator1.jpg
But if you are depicting the scenes that took place in the movies, and aren't adding anything to them in a substantial way, I don't think you can make/sell them.
Try asking a copyright blog or lawyer first though.
-rich
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Author Comment

by:beavoid
ID: 40024492
That Predator thing is acceptable copyright wize, because it isn't humanoid, but a pumpkin like blob?

Thanks, If I had General grievous chiseled out of the back of an elephant, for example, that would be okay, but not Grievous v Obi-Wan?
What about a Grievous elephant and an Obi-Wan Elephant? or one an Elephant and another animal, a hippopotamus? How about one a rancor and the other a dew back lizard?

Thanks
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Assisted Solution

by:SunBow
SunBow earned 166 total points
ID: 40024716
They are supposed to be limited for financial support or originator then go public domain, generally meaning for a generation (for case of early death to permit limited inheritance), In real world this has been stretched so far that Walt Disney's remain in effect as do Three Stooges. The main difference from the latter is similar to electronic's 'look and feel' in the opposite direction. The protection means no deviate like adult situation between Snow White and Mickey Mouse. Pinocchio nose can be pointed up, not at. Deviations out of character protection.

The persona of holder can be important as well as type of distribution. I suspect that you would be ok given the combined comments above, but am unaware of specific examples, if there are they should be easily extracted through a google by anyone.

To distinguish 'holder', the Lucas characters are designed for reproductions for massive profit while Tolkien's were not. So there is something to motivation of holder. My recollection was that the Hobbit movie series achieved a rubber stamp approval for being true (enough) to represent the author creation, while monetary compensation was not issue - but that may not be case for new model casts from film star roles. I recall artist creations of Tolkien characters for a chess set, available as separate units, limited audience, not mass production, but that was prior to movies and I've not specific info on copyright issue for that. I think it went to the artist but don't recall well were permission granted.

For dangers on limited use, recall suits of high rewards for purported limited us of music by teens, 5-yr old, and grandparents 'for effect' as well as jail for little old ladies sewing circle. Producers of TV series succeeded in stopping a single showing at a bar for local fans. Clayton Moore was prohibited from donning mask (a 'Lone Ranger' likeness).

I suspect that these days your intentions would be successful. They could be viewed more as free advertising, to help generate attention and fervor that should increase marketability of greater sources of income, and there can be severe negative impact were they viewed as oppressors picking on the 'little guy' - see also twitter examples for changing world.

I also suspect that for the original characters sufficient time has elapsed to provide a large history of artistic efforts such as you propose, so seek them out, learn lessons from prior examples.

There's also potential for deviation that can infer prior work to that of Lucas, much of his own work comes from earlier history, including his own interest in using adaptations  derived from history including westerns, Marx Brothers, Three Stooges, Abbot and Costello etc. Which way should we go - this way - oops form of comedy was far from being original. Princess' 'unique' hairdo attributed to earlier image of Hopi women prior century.

More recently

Example of a Sculpture
For similar review check out Weston-Super-Mare Sand Sculpture Festival 2013 such as here:

http://mentalfloss.com/article/31086/15-fantastic-geek-themed-sand-sculptures

"Yoda is sitting on Darth Vader’s lap and R2D2 is hanging out under his arm" ??? c'mon now, noticeable lack of copyright issues where there are thousands of copyrights on the Bible.

A typical lack of advise - get permission first and then "go where no man has gone before", trekkie (heh)

You seem to be a novice with potential to be entrepreneur. Yet who knows what interests you'll have  a year, or 5 years later on. So I recommend just exploring on your own, First do what you like for your own development, for personal use (or destruction).  Then if you find some further desire to continue this path, such as for wider distribution due to popular demand, then seek permission with direct personal contact with holder of copyright for what you develop. I do not mean face to face, document effort with email or paper mail or both. This may include two step process, where you initially get request for review of actual work, and there is no guarantee of response. You get CYA without cost of lawyer. Keep hardcopy record. Finally, I recommend embedding text as learned from a prior manager. Include text concerning their response or lack thereof, where you presume a lack of response is indicative of their agreement that you can proceed. No matter what, at some later date you may face a battery of high priced lawyers for even unpredictable reasons (more changes in law? Work represents revised definition of terrorist? Even where prior permission granted.), at best they would only be able to stop production, leaving existing work as-is where you CYA.

I sincerely applaud your intent to do something physical and going out where there are real people, as opposed to spending life on a couch watching TV like Jerry Springer, Jimmy Swaggert or playing games. While the latter may have value, they are not an end-all.
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Assisted Solution

by:SunBow
SunBow earned 166 total points
ID: 40024843
From the web:
http://en.wikipedia.org/wiki/Lucasfilm_Limited_v_Ainsworth --copyright case
So they can be aggressive, But Lucasfilm wins because the helmet is not a sculpture.
It was actually molded from the existing designs - not artful.
Lucasfilm argued it was a sculpture and lost argument but won case anyway. In UK.
In US Lucasfilm won, but that was not justified by law as it was uncontested.
This type also includes personal issue with reuse of actual molds from film (not anonymous 'little guy')

[note: there can also be a trademark issue and Disney execs now have influence on Lucasfilm]

Another concerning aggessiveness: Lucasfilm sent a cease-and-desist letter to a group of Star Wars fans who had organized a (free, not for profit) Star Wars movie marathon (all 13-hours) at a bar in Brooklyn, annoying fans

Canada is similar (note importance of your location for end of sale). Their (web) references emphasize difference if gaining profit from a few or several to those mass produced, translation being made by hand rather than mold.

References also indicate that the covering, such as paint, end color is not part of copyright. So anyone legally purchasing sculpture can repaint without fear of prison or fine.

Hand-made leaves lower quantity but higher value and uniqueness. I'd imagine that once you've settled on design, time for recreation would be dramatically reduced, and there could be potential for using clay mold, then tweaking it before firing. Tho' I do not claim to be experienced sculptor.

My personal recollection is that the chess pieces were all hand-made. "Unique". Hand engraved signature of artist, their own copyright, no indication on piece of what it represents. But sales literature did indicate what it represents, expanding interest in audience. So recommendation is to find path to retain your own form of uniqueness, and for any sales or ad literature, seek the permission to refer to film character, it may only lead to requirement to add reference to Lucasfilm copyright/trademark. And keep in mind that you may also develop talent for making characters, models, completely independent of any movie series. Also embed date - year, of creation with initials, Protection from potential future copycats.

Advertisement could also exclude SW reference, just containing pictures of your works.

Do proceed, for even worst case scenario could be producing heirlooms and gifts.
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Author Comment

by:beavoid
ID: 40024876
Thanks,
You are right.

I am just preparing to start clay lessons and am curious about setting my goals. I felt Star Wars characters would be an obvious initial desire for me. But I am worried if George's ninjas will crash through the windows of the studio to stop me making a Stormtrooper.
So, that thing with Luke, Chewy, R2D2, Han and Leia was allowed? Threepio must have been defiant that day and declined to be in the scene.
I don't think Carrie Fisher would been pleased, nor the other two, prob, but art is art.
Did that get sold? That was allowed.
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Expert Comment

by:Rich Rumble
ID: 40024907
Sand sculptures are often for temporary display, and not often sold but done for contests, and they do not typically depict verbatim what's been done before. This is the best thing I've read on your Q yet:
http://www.sculpture.org/documents/scmag09/may_09/copy/copy.shtml
Don't remake this: http://ecx.images-amazon.com/images/I/41Y4TJ0T6ML._SY300_.jpg unless you can make it unique or new in some way. Let's say you make then the child versions of themselves, then you don't have to worry about infringement, it's 9yo DV and 18yo Obi dueling. That is a transformation that might work, there is no 9yo dv, he was aniken, not dressed in a black-dv outfit, but those rags from whatever planet that was.
Your work has to be transformation and not a COPY.
-rich
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Author Comment

by:beavoid
ID: 40024954
Interesting.

If I made a DV with a T-Rex face looking Helmet mask, and an Obi-Wan with a grey haired raptor face, or such ludicrous variants, I'd be okay for a clay sculpture? to sell, even?

Thanks
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by:Rich Rumble
ID: 40025126
I think so, that sounds more like caricature/spoof/parody than anything, but it still has to be different in other context as well. http://www.owe.com/resources/legalities/29-infringing-cartoon-characters/
Again I'd ask a REAL professional in legal matter, or perhaps other artists. Have a look at deviantart artists and maybe look around there.
http://about.deviantart.com/policy/copyright/
I think the blogs and links we've provided should give you good places to start asking the more detailed questions, frankly I'd ask them before some of us, maybe there is another topic area where other artists on EE may know more? I can barely write my name let alone sculpt, so all my knowledge is what I read researching your Q.
-rich
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by:SunBow
ID: 40027889
For heads of raptor, how does one identify any SW character? Light saber? For movie that would not be physical object, so copyright relevant to saber could only go to toy. I don't recall toys looking any more like film version than the examples from above. Apparently the color of saber is beyond copyright, and you could also spoof on that, such as a form of unicorn horn or tusk variety or magic wand for duel.

Since you are new to this, we don't know how well your version of a head would look like a raptor, or whether you'd even be pleased with result. So I recommend allocation of more time to exploring your own interest in creations, then revisit what any impact from copyright/trademark issues may apply. Do proceed and keep it fun.
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by:Rich Rumble
ID: 40028056
If you aren't selling them, you can make whatever you want. If you aren't displaying them in public you can do what you want. You can make exact copies if it helps with your craftsmanship, just don't try to profit/display them as yours. Pictures on the internet would be a copy even if it was a from scratch copy you made.
But you can still take iconic pieces and make them your own. You can in fact use copyrighted works in your own art, I believe there was some "shadow artist" that did that...
You could make the fight scene in shadow, if you use your imagination:
http://beautifuldecay.com/wp-content/uploads/2010/03/tim-noble-and-sue-webster-white-trash-with-gulls.jpg
http://www.hongkiat.com/blog/shadow-art/
Whatever you use to block the light, be it a yoda or a can of soup, those could be in your "light sculpture" you get the idea... that's transformation and unique. It should give you an idea anyway of what it means to transform.
-rich
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Author Comment

by:beavoid
ID: 40028150
Okay, speaking of transformative art,

If I were to make General Grievous out of springs and nails, nickels, pennies and quarters and carved wood bits,

Only people who appreciated the artistry would buy my version of Grievous? and Lucas could get upset, but I'd be okay? (If I don't sell it by name, just the art only)
But I suspect the Vader resemblance is somehow copyrighted?

Could I make a Christmas tree artistic resemblance of either?
Thanks
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Accepted Solution

by:
Rich Rumble earned 250 total points
ID: 40028221
That's the iffy bit, it could still infringe, they don't have to have a copyright/trademark on likeness, if they can prove it is recognizable enough. Springs I don't think will give you enough detail... again even if it did, probably can easily be written off a fan-art.
Search for more terms like fanart+copyright or fanart+trademark
http://www.plagiarismtoday.com/2010/05/13/the-messy-world-of-fan-art-and-copyright/
-rich
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Author Comment

by:beavoid
ID: 40028293
Thanks, Reading that, I don't think it's worth the hassle to get involved with copyrighted works.
How about the Monty Python Knight that says, "'Tis but a scratch?" when his limbs are cut off?
There isn't a site that has fair-game art to copy? is there?
Thanks
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by:Rich Rumble
ID: 40028342
Most anything over 75 years old esp if created before 1978, sometime 75 years after the artists death.
http://www.copyright.gov/title17/92chap3.html#302
-rich
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Author Closing Comment

by:beavoid
ID: 40030599
Thanks all!
I'm going to think a bit more.
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by:SunBow
ID: 40031237
Tx, good fortune
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