muttering about the loss of time better spent slavishly copying down to the smallest detail that lump of coal... This isn't legal advice. This is legal opinion based on personal experience, knowledge, and work. After much discussion, often heated and always fun, with lawyers, judges, and a few other folks who, like me, spend a chunk of time going after folks who do cute things like trample someone's intellectual property laws, I've come up with some things that generally might be useful as guidance in the process of making decisions. Some of it is based on forward looking considerations based on cases pending currently, but the vast bulk of it is based on established rulings and laws governing the Untied States of America. The reason that these laws, in particular, are of import, is that they are laws of recourse to the folks who broker and purchase through most of the poser sites out there. It doesn't matter if you live in Italy or Brazil or Korea -- for many of the stores, they are based in, operate from, and state in their Terms of service that the laws of record are US based. I'm on record all over the place as saying that copyright doesn't cover likeness. And I will stand by that. Copyright Law, itself, does not. However, in the course of rulings on what many folks consider to be grey areas, the courts have, to some degree, relied on the intent of the laws, using concepts from one area of intellectual property law and applying it to another area in order to reach something we all love: justice. When it comes right down to it, you cannot base your actions entirely on what has gone before, as there are times when what has gone before might not be applicable. However it is still a good guide, and it is the manner in which the law works. I'm not trying to say what should and should not be sold, nor am I posting this out of an interest in influencing that. I'm posting it because, once again, I'm seeing people I like a lot being beaten up for stuff by what, in my crazed opinion, are essentially a bunch of lynch mobs. There are three critical concepts that apply in the issues that have been raised of late surrounding this stuff. These issues are: transformative use, Trade Dress, and Ethical Motives. I'll deal with the ugly one first. Every artist in our business who deals in any sort of work which is essentially an effort to duplicate a popular figure has to address the ethics of doing so themselves. It is not something that can be made, willy nilly, across the board. Profit shouldn't be considered in the process, nor should recognition. Let's face it -- we make this stuff because we think it's just as cool as everyone else. It does inspire us. It might be the challenge or the coolness or even the healthy glow "heh" -- whatever, its why we do it. Ethics aren't a consideration then. Its like a scientist in that respect -- doing something because it must be done. The maker of dynamite never realized what he'd done until someone used it to kill folks. That's why we have a prize named after him and supported by the profits from his work now. Because this is something that can only be made by each individual, there are going to be conflicts -- everyone will tend to feel differently about it. And it is that constant difference that leads to why we have the others; it is the role of what we call civil law to sorta even out the differences in a social sense (sociologically speaking, that is). In this specific case, we have a large, complicated body of law covering the concepts of intellectual property. The things that are most important to note within all of the discussions involved are those called transformative use (conversion of something from one format to another makes it a new creation under copyright) and Trade Dress and trademark in another. Trademark is a body of laws that deals in specifics. Details. But those details are considered -- for the most part -- in sum. Meaning, it is not just the bottle, and it is not just the shape and it is not just the color, but the sum total of all three applied together, as a single, distinctive element, which counts. But trademark goes beyond that, as well. A trade mark is, first and foremost, a mark of trade -- that is, it is a means by which a good or service can be recognized by the public at large. That's a critical distinction -- and trademark law is all about distinctions. In trademark, you can't just whip together a graphical image, call it a character, and then protect it under trademark. You can't. No matter how hard you try. What you have to do though, is give that character a function in which it indicates a source of goods and services. Which means, in simpler terms, that people identify it with what it does. Mr. Clean is an agent of soap. Superman represents the superman line of comics. The enterprise ships represent various shows in the star trek properties. It has to mean the thing it is representing. Given rulings, this gives the underlying nature of trademark law the purpose of preventing exact duplication of a character, or an imitation of the character where the likely result (that's important) is to cause public confusion, mistake, or deception with regard to the source of the goods/services that carry the mark. "Trademark rights may be used to prevent others from using a confusingly similar mark, but not to prevent others from making the same goods or from selling the same goods or services under a clearly different mark." A trademark is, essentially, the same thing as a "brand". While this hasn't always been the case, it has, especially today given rulings in recent years, become slowly the best example that I know of. Likelihood of confusion also doesn't require purchase, in much the same way that other IP theft doesn't require intent or profit. If the manner in which the goods or services are sold is such that it leads the buyer to believe that there may be some connection, or in a manner that might infringe on the rights' owners' ability to profit in the same way, then the line is crossed. So long as potential buyers believe: 1- it is associated with 2- it is sponsored by 3- it is approved by 4- it exploits the market of 5- it damages the reputation of 6- it risks the dissolution of a trademark, it is, essentially, destroying it. And if a trademark is destroyed, it is lost. In the specific cases raised of late, the concept that is causing the problem is related to one called "Trade Dress", which is a total commercial image of a product. It's the way a good or service is marketed. "When Trade Dress Is Protectable Trade dress is governed by the same set of laws that protects unregistered trademarks. Like a traditional trademark, trade dress is a form of commercial shorthand that provides a "source-associating cue" for the unthinking purchaser. However, unlike traditional trademark law that protects words or logos, trade dress law protects the total packaging and design of a product. To be protectable, trade dress must be inherently distinctive or possess "secondary meaning" (the public associates the packaging with a single source). Further, the trade dress must be non-functional. As a rule, for trade dress to be protected, it must be instantaneously identifiable in the mind of the purchaser. This is usually the function of strong sales over a long period, supported by consistent advertising, promotion and publicity. " {Copyright Permission & Libel Handbook (John Wiley & Sons), by Lloyd J. Jassin and Steven C. Schechter} Courts will do an awful lot of thinking when weighing trade dress issues. But, essentially, the key things they will look at are: 1- What would an "unthinking buyer" believe? (and yes, that's the definition -- someone who does not pay attention to details) 2- Does the overall look give said buyer the idea that they might come from the same source? 3- The distinctiveness of the trade dress (in this case the recognizability of the image) 4- The intent for personal gain on the reputation and recognizability of the mark It is these issues -- essentially, marketing issues -- which are at play. Now, Court rulings governing such trade dress issues are rather inconsistent at the appellate level, although under the current supreme level there has been a strong and somewhat rigid consistency in the cases they have decided to hear favoring the overall look. These things are made up of individual details, the sum of which is what is important, not the details themselves. Anyone can go out and copy the clothing worn by the cast always of Gilligans island for poser. They can sell those meshes -- which are a case of transformative use -- as much or as little as they please. But it is when they begin to sell those items in a manner that invokes, in the minds of the customers, the show itself, that they cross the line into profiting from someone else's intellectual property (in this case, Sherwood Schwartz, god love him). It's this habit -- which is rampant among us fanboys and fangirls of these cool shows -- that is creating the troubles that swirl around us. This cloud hovers constantly, and we are right to look at it and wonder when the rains will come. Because they will. Sooner or later some large media company is going to realize the potential profit to be made here. And when they do, they will come in and they will clean house. But that's my crazy opinion. And I'm often told I'm wrong. But I did say a republican would control the white house this year in 1978...

thou and I, my friend, can, in the most flunkey world, make, each of us, one non-flunkey, one hero, if we like: that will be two heroes to begin with. (Carlyle)