Copyright on created model base on real world ones

Hello,
I am making guns model at the moment that I would like to sell. They are base on real world models. Does any one know if its forbidden to do so?
A lot of game uses them.
If anyone have real facts on this topic I be grateful if you could let me know through this thread.

If by “base on real world models” means selling exact brand one too one 3D replica/s of an existing weapon? then legally the answer is no, you will be in breach of copyright/IP law.

(a ton of relevant info posted on this discussion - https://polycount.com/discussion/196893/q-legal-issues-selling-3d-weapon-models)

To be safe, create your own content.

Thanks for answer that helped :slight_smile:

Further Copyright information covering:

Side note:
I specialize in modeling WW2 era German armored vehicles and after some thought/research there may still be an option to sell 3D models of an existing weapon, namely the StG 44 (Sturmgewehr 44) currently employed by both Government and Opposition forces during the drawn out Syrian civil war, although legal advice would be prudent if indeed a possibility.

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There are quite a large number of WW1 and WW2 games out there using historic models. Do you think they pay a royalty or do they modify the models to avoid that. Also weapons like the Kalashnikov (AK-47) or the Magnum 44 is used in so many games, I wander how they do it?

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Extremely difficult topic. You’ll find literally any opinion under the sun on the matter and each business will have it’s own way of dealing with the subject at hand, regardless of legality. People are not likely to gonna fight through the courts even if they are right and corporate lawyers know that very well.
Anyways, I personally would stay clear of selling cause making it commercial is often a red line for a legal department.
If you try it though be always explicit (to the point of insanity, actually) that you don’t own the copyright, are not affiliated and never do something that could even remotely shine a bad light on the company, like using a death-head skin on a rifle butt.
Also avoid (especially more recent) design objects, like Mac rifles lol, I know every business/inventor will claim originality but in the end most weapons are quite generic in their looks and it’s rather more important how a judge would see it.
Worst that should happen to you is getting a cease and desist letter and your work time is lost.

They were pretty reluctant to do so though and alas this does not really compare to your situation. Similar to books games have a valid cultural cause telling interactive stories which they couldn’t do without letting the user use the tools simply available in any given era. Imagine any business suing for use of its products from the garbage bin over washing machines to road signs. Everything has copyright and there would be no story left to tell and businesses have to live with that (still keeping in mind the points above).
But in your case it’s not about games and culture, it’s simply about making money focused on particular products and here’s where your problems might arise. You have no cause, neither educational nor entertainment.

I made a little ebook about German armored vehicles with stereoscopic 3D models and I never found anything indicating there’s still copyright on WW2 era stuff or maybe more important that it’s been enforced.

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A good rule of thumb.

If the creative work you are doing, is built on the hard creative work and labor of another artist, (under hire by another company or not). And all meaningful creative work is hard and laborious. In the case of gun design probably we are talking about a designer who has likely dedicated the better part of their life, just getting to the design table, to have the privilege to ply his/her craft. After which probably months of labor were expended to come up with the final working design. If your work, is only possible because this occurred at another person’s expense, labor or money, or both, then you need to compensate that person and get their agreement to use their work.

It really is just that simple.

Now this is balanced by the idea that copyright is not intended to be used to stop the free flow of ideas in society.

A few examples.

In a movie. All movies are filled with designs protected by copyright. It is impractical to require filmmakers to design everything they point the camera at. This would effectively stop the free flow of ideas in the society by thwarting media communication and the outlet of stories into society.

And it is for this reason that games kind of fall in this grey area. They are after all entertainment and stories. Not really any different than movies. But in order to do this, they have to build everything from scratch. It is a tricky subject.

On the other hard, if you are looking to copy directly a design in order to distribute that design, for profit or not, you are directly in violation of the right to copy. Which is make a copy of an intellectual property and distribute it. Or just make a copy of it at all.

It is vastly different than telling a story about life in which the designs of things all around us (and that we use and may even be up close in view) fit into that story.

Trademark is completely different. And this has to do with a product and commerce. This is why showing a product on camera is completely different. And there is an entire subject of law and practice around this called “Product Placement”, in the film industry. And if you know how to play this well, you can get a lot of free stuff when making an indie movie. It is also the source of a lot of money, in Hollywood films. And this is the reason when a product label is shown, this is intentional and usually paid for (by the trademark owner) . And definitely permission granted. If not, the hand is always covering the beverage label if you notice.

If the equipment is derived from Axis pact ordinance i.e. Germany, Japan, Italy or Romania, then as far as I know their individual patent/copyright/trademark has lapsed or expired:

Duration of copyright

The duration of copyright may vary from country to country according to the type of work (and the particular right in question). Although Berne sets a minimum duration of a copyright in a literary work equal to the life of the author plus 50 years, in most cases and countries today, the general rule is that copyright in literary, dramatic, musical or artistic works lasts for the life of the author and then until 31 December of the year 70 years after his or her death (usually referred to as “life plus 70”).

In some countries, specific rules may apply that alter or add to the general rule of life plus 70 years (for example, granting extensions for the period of World War II). In addition, some countries had different copyright terms that were in effect before adoption of the general rule. For example, the United States did not adopt a “life plus” copyright duration until 1978. These differences in national laws imply the fact that in some cases a specific work can still be in copyright in some countries but out of copyright (that is, in the public domain) in others.
https://www.rightsdirect.com/international-copyright-basics/#duration

But again, I’m not an IP lawyer to either render a ‘for’ or ‘against’ opinion on the matter in regard too re-publishing manufactured WW2 content for profit.

I am thinking the main distinction is in the realm of fair use more than it is in copyright expiration. These laws are vastly different from country. I looked up the US law.

Here are some highlights:

“Fair use is a legal doctrine that promotes freedom of expression by permitting the unlicensed use of copyright-protected works in certain circumstances.”

Purpose and character of the use, including whether the use is of a commercial nature or is for nonprofit educational purposes : Courts look at how the party claiming fair use is using the copyrighted work, and are more likely to find that nonprofit educational and noncommercial uses are fair.”

Nature of the copyrighted work : This factor analyzes the degree to which the work that was used relates to copyright’s purpose of encouraging creative expression.”

Effect of the use upon the potential market for or value of the copyrighted work : Here, courts review whether, and to what extent, the unlicensed use harms the existing or future market for the copyright owner’s original work. In assessing this factor, courts consider whether the use is hurting the current market for the original work (for example, by displacing sales of the original) and/or whether the use could cause substantial harm if it were to become widespread."

Now if you think about all of the original IP that could exist in a publication such as a movie or game does nothing more than promote the original work, than it does to infringe on it. And stopping people from using explicit designs for things like props, machinery, cars equipment and so on, would be too much of a tax on creative expression.

However, if you are taking the design and specifically profiting from the design by selling virtual copies of it you are directly infringing on the right of the owner to hire an artist to create their own virtual guns and market them. Even if they aren’t doing it now. They could be. I am not saying my comment here is the final word. But I think you can make a fair distinction looking at these basic guides.

Is your work using another IP as a part of a larger expression? Or is it actually trying to copy and distribute in some way a replica of the IP. Basically a copy.

So simply:

Using props in your game that you made yourself or hired someone to make that copy other IP, that you use only in your game or other literary work as a part of a larger expression. Probably OK.

The guy you hired to make the guns, saying he has the right to sell them as a part of his online market? Probably not OK.

Making guns or other IP and copying the designs directly and selling them on a marketplace. Definitely not OK.

So, in short. Seeing a gun appear in a game does not make it OK to make them and sell them on the market.

At the end of the day, the courts would decide. But play safe and follow some logical guides.

It is a very complex subject and there is a lot written about it here:

https://www.copyright.gov/fair-use/more-info.html

If the company still exists that means they still have lawyers.
I’ve heard Lockheed Martin and Gruman have been putting the screws to several model companies over WWII designs.
If you built an original model of an M1 garand and used historical photos you should be ok.
If you built it using reference from a video game not so much.
Not to mention they may have gotten things wrong or changed them anyway.

Of course. As they should.

In a way it is kind of silly that these companies don’t simply create their own IP replication divisions and/or proactively work to license the designs.

There is a lot of money to be made on the model market. And the game market too.

Here is a studio idea for anyone. Go and approach some of these manufactures and get exclusive rights to make these models and sell them. And then you call their lawyers to get them to fend off all of the pirates who are your competition now on the various model markets…lol

And your studio emerges as the only source… ha ha ha

Use it to your advantage!

Ah, actually the difference at least to my untutored legal mind, relates too OEM military ordinance no longer in production on top of defunct licencing protection manufactured by companies that have long ceased too exist engaged on the losing side (Germany) during World War Two.

So I think when viewed in that context it’s then entirely reasonable to assume enforcement will not manifest through either cease and desist correspondence or for that matter judicial, as well, if for example an ingame asset of a StG 44 assault rifle, was uploaded for sale.

Haha! Funny thing is they didn’t start enforcing it until the late 80’s or 90’s I think.
Form the 1950’s to 70’s Nobody cared and model companies barley made a profit anyway. And they were just “toys” for kids.
Then a whole new breed of corporate lawyers showed up looking for money under every rock and started screaming “There’s Gold in them Thar Toys!!” And a whole wave of lawsuits started.
And your idea has already been done, The rights to build Star Wars models has been a hot mess. Bandai had the rights to build models, but they were prohibited from selling figure models outside of Japan. You could get model figures that were smuggled out of Japan but the cost was almost $50 to $60 a model. Disney finally relented and the price came down to $20 to $25.

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