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Maurizio D'Angelo
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 Posted: Sun 07 Mar, 2010 2:00 pm Post subject: exact replica |
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For works of art (paintings or statues) is a transgression of law to make an "exact replica", with the same proportions as the original. To do this requires procedures to be followed.
This limitation also exists for swords (exact replica)?
Does anyone know what the law say?
Ciao
Maurizio
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Artis Aboltins
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| Posted: Sun 07 Mar, 2010 2:13 pm Post subject: |
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A I recall you are not prohibited to make a replica as long as it is being clearly marketed as replica and not an original and as long as there is no copyright laws protecting it?
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James Head
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| Posted: Sun 07 Mar, 2010 2:19 pm Post subject: |
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What about an 'exact replica' of a modern day manufactured sword?
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Leo Todeschini
Industry Professional
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Lin Robinson
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| Posted: Sun 07 Mar, 2010 2:29 pm Post subject: |
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Copyrights are for intellectual property like books, motion pictures, photos, etc. They are renewable indefinitely and provide the owner of the work some protection from people who represent their work as their own, i.e. they plagarize the work of the original owner. Trademarks are another type of protection and cover the use of a name or symbol which is widely recognized and being used by a company to promote its product. Patents are protection giving the developer of a new product or process the right to exclusively sell the product he/she/they have developed for a set period of time, or to allow the developer to collect a fee for the use of their product or process during that time frame.
I do not think that any of these laws will cause a problem for someone making a replica sword, as long as it is represented as a replica and not represented as the product of someone who is well-known for making swords. For example, the use of the name Wilkinson on a sword which was not made by them would probably result in immediate legal action.
Lin Robinson
"The best thing in life is to crush your enemies, see them driven before you and hear the lamentation of their women." Conan the Barbarian, 1982
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Maurizio D'Angelo
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| Posted: Sun 07 Mar, 2010 2:39 pm Post subject: |
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With modern means you can replicate a picture of author as an original. This applies to all works of art. I know that pictures and statues can not be accurately reproduced. 3D measurements can be granted "only once" and for specific scientific purposes. The dimensions of the replica work must be different. This for picture and statues.
With a laser scanner or other means of 3D data acquisition can also copy the defects of the artwork. I have one, for example.
I ask if this also applies to swords.
I believe that copyright is the nation where the artwork resides, is invoked by the museum which exhibits the artwork.
Ciao
Maurizio
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Sander Marechal
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| Posted: Sun 07 Mar, 2010 3:45 pm Post subject: |
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First off, IANAL but I am an open source software developer. I run into IP discussions a lot.
| Lin Robinson wrote: | | Copyrights are for intellectual property like books, motion pictures, photos, etc. They are renewable indefinitely and provide the owner of the work some protection from people who represent their work as their own, i.e. they plagarize the work of the original owner. |
Not quite. Copyrights are not renewable anymore. They used to be a long time ago though. These days copyright lasts for the life of the author + 70 years. In cases when the copyright holder is not a natural person (i.e. it's a company) then it's 95 years from creation of the work (that is, until Mickey Mouse is in danger of becoming public domain again.... but that's not a rant for this forum).
I can think of no law that would prohibit recreating e.g. an Albion sword, as long as you don't refer to it or try to pass it off as an Albion. That would be trademark infringement.
The case with museums does not hold water. There's a nice article on Wikiversity about that. The works in the museum are public domain since the author usually has been dead for 70 years. Being the owner of a piece does not mean you can prevent other people from reproducing pictures of it (for example).
I see on your profile that you are from Italy. Italy has some special rules for museums that prevent you from reproducing museum pieces. But apparently that's a special law just for museums. It does not involve copyright or anything like that. And it only applies to Italy of course.
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Maurizio D'Angelo
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| Posted: Sun 07 Mar, 2010 4:44 pm Post subject: |
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I ordered some high resolution photos (one 130 MB). I wanted to publish an excerpt of the photo, was not visible even to the sword but only a small part of it, a very strong magnification. I asked the museum if I could post on the Italian forum, I had some questions on the detail. Here the answer:
Dear Mr. D'Angelo,
concerning your email I'll inform you that you can take the images in a resolution of max 70 dpi on the Italian forum with a link to our homepage.
Please let us know the web-adress.
Kunsthistorisches Museum mit MVK und ÖTM
Wissenschaftliche Anstalt öffentlichen Rechts
Wien, Burgring
Obviously in this case the copyrights refers to the photos. I don't think to sword.
But I just wondered to post a small snippet with a high magnification.
The copyright extends even though the work itself is not identifiable?
Italians will be too jealous, but some is beyond us. 
Ciao
Maurizio
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Lin Robinson
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| Posted: Sun 07 Mar, 2010 7:02 pm Post subject: |
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| Sander Marechal wrote: |
Not quite. Copyrights are not renewable anymore. They used to be a long time ago though. These days copyright lasts for the life of the author + 70 years. In cases when the copyright holder is not a natural person (i.e. it's a company) then it's 95 years from creation of the work (that is, until Mickey Mouse is in danger of becoming public domain again.... but that's not a rant for this forum).
I can think of no law that would prohibit recreating e.g. an Albion sword, as long as you don't refer to it or try to pass it off as an Albion. That would be trademark infringement.
The case with museums does not hold water. There's a nice article on Wikiversity about that. The works in the museum are public domain since the author usually has been dead for 70 years. Being the owner of a piece does not mean you can prevent other people from reproducing pictures of it (for example).
I see on your profile that you are from Italy. Italy has some special rules for museums that prevent you from reproducing museum pieces. But apparently that's a special law just for museums. It does not involve copyright or anything like that. And it only applies to Italy of course. |
Thanks for the update on that. It is nice to know that I no longer have to remember to change the copyright date on my work every 14 years.
Lin Robinson
"The best thing in life is to crush your enemies, see them driven before you and hear the lamentation of their women." Conan the Barbarian, 1982
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Michael B.
Industry Professional
Location: Seattle, WA Joined: 18 Oct 2007
Posts: 367
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| Posted: Sun 07 Mar, 2010 7:13 pm Post subject: |
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I've been curious about this.
Recently I've had some email exchanges with the Wallace Collection about a certain dagger in the collection. I was curious to know if they had more images for purchase and in passing mentioned it was for a possible recreation. The wanted to charge me (and rightly so) for the high rez photos of the piece, and another $100 for the right to reproduce it. Is this common? Or is there a UK law protecting the design of the weapons? I have no problem actually paying the fee, just wondering.
www.facebook.com/bearmountainforge2
Michael Bergstrom
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Nathan Beal
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| Posted: Sun 07 Mar, 2010 7:26 pm Post subject: |
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| Maurizio D'Angelo wrote: | I ordered some high resolution photos (one 130 MB). I wanted to publish an excerpt of the photo, was not visible even to the sword but only a small part of it, a very strong magnification. I asked the museum if I could post on the Italian forum, I had some questions on the detail. Here the answer:
Dear Mr. D'Angelo,
concerning your email I'll inform you that you can take the images in a resolution of max 70 dpi on the Italian forum with a link to our homepage.
Please let us know the web-adress.
Kunsthistorisches Museum mit MVK und ÖTM
Wissenschaftliche Anstalt öffentlichen Rechts
Wien, Burgring
Obviously in this case the copyrights refers to the photos. I don't think to sword.
But I just wondered to post a small snippet with a high magnification.
The copyright extends even though the work itself is not identifiable?
Italians will be too jealous, but some is beyond us. |
Contrary to what many museums seem to claim they do not hold copy-write for the items in their collection. Also afaik there is no such thing as international copywrite law (though treaties do exist between most governments that are enforceable cross border). It should be noted that Legislation in different countries is different.
What museums do have however is the right to restrict photography as part of their admission process. Most museums (that do so) indicate that whilst they permit photography for personal use only that they assert that the copywrite of any images taken within their premises belongs to the institution.
An image supplied to you by a museum is covered by copywrite legislation, the producer of the image (or person/organisation granted copywrite by the producer) will fall under copywrite. In supplying it to you they can pretty much restrict your ability to re-use the item. You _might_ be able to create a derived work based on this that woudl stand in it's own stead, but merely zooming would not meet the 'creativity' requirements (see http://en.wikipedia.org/wiki/Derivative_work)
HTH
N.
Beware of dragons, for you are crunchy and good with ketchup.
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Dan Howard
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| Posted: Sun 07 Mar, 2010 10:54 pm Post subject: |
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Some museums have argued that they own copyright to the layout of the items in the display rather than the items themselves. If you take a photo of any object that has been arranged and displayed by the museum then it violates their artistic copyright. If you move the item and take a photo of it in a new position then copyright no longer applies (not that you'll ever get close enough to be able to do this without their permission).
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Sander Marechal
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| Posted: Mon 08 Mar, 2010 3:27 am Post subject: |
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| Maurizio D'Angelo wrote: | | I ordered some high resolution photos (one 130 MB). I wanted to publish an excerpt of the photo, was not visible even to the sword but only a small part of it, a very strong magnification. I asked the museum if I could post on the Italian forum, I had some questions on the detail. |
| Michael B. wrote: | | Recently I've had some email exchanges with the Wallace Collection about a certain dagger in the collection. I was curious to know if they had more images for purchase and in passing mentioned it was for a possible recreation. The wanted to charge me (and rightly so) for the high rez photos of the piece, and another $100 for the right to reproduce it. Is this common? |
Ah, but the trick here is that you ordered a photo from the museum. When you take a photo of an object, then that photo is a new work of art and copyright applies. The museum took the photo so the museum owns the copyright on it. The museum does not own the copyright on the work itself. So: take your own photos if you can The Wikiversity article I linked above is filled with tips on how to get good quality photos in a museum and what to do when the museum complains.
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Maurizio D'Angelo
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| Posted: Mon 08 Mar, 2010 6:03 am Post subject: |
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Sander,
thanks for your information. I'll shall officially my personal lawyer. 
I spoke with a museum director. I confirm that Italian law prohibits the reproduction of paintings by the author, in the same size as the originals. Does not know if this applies to swords.
I think, but it's just my opinion, that for the paintings, the law seeks to avoid scams. We could see the Mona Lisa sold on e-bay. 
Mona Lisa is obviously impossible, even a chicken sees that it is not possible.
But some minor works, could be mistaken for originals. If you are the same size should be clearly written the replica, a bit like going for some advertising money.
Ciao
Maurizio
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Vincent Le Chevalier
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| Posted: Mon 08 Mar, 2010 6:17 am Post subject: |
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To be honest, I've heard that some French curators share a similar scam concern about the reproduction of weapons. I can understand that: some of the top smith today can probably build something that would not be easy to distinguish from the real thing, at least not without destructive expertise which would not be attempted on something having a chance to be original. Curators have a big fear of fakes creeping into museums, and this is probably easier to do with weapons and armour (there are far fewer specialists). It's down to the point that some would restrict study of originals to make sure good reproductions do not eventually end up in there displays...
Most sword reproductions today are not reproductions but recreations with the missing parts filled in, and are in a better state than the original. In that sense it makes no sense to claim copyright infringement about them: it's not the even the same thing anyway, there is no confusion possible... No whether the actual laws make any sense in this case is another question
Reproductions of another maker's design is something else, but even that I'm not sure would be obvious in a court of law. Very few makers would make a blatant copy (or even be able to make an accurate copy), and since everything is based on originals it would be fairly easy to argue that you were just trying to recreate the same original...
Regards,
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Vincent
Ensis Sub Caelo
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David Lohnes
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| Posted: Mon 08 Mar, 2010 7:36 am Post subject: |
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| Leo Todeschini wrote: | James Head wrote | Quote: | | What about an 'exact replica' of a modern day manufactured sword? |
Infringement of copyright - pure and simple
Tod |
Actually, this isn't necessarily the case, at least in the US.
There are several things in play (all quotations taken from the US copyright code).
1) Functional recreation swords and all the parts of such swords are "useful articles." According to the US copyright code, "a 'useful article' is an article having an intrinsic utilitarian function that is not merely to portray the appearance of the article or to convey information. An article that is normally a part of a useful article is considered a 'useful article'." One could make the case that decorative wall hangers are not themselves useful articles but are designed "merely to portray the appearance of" useful article (US Code 17.1.101).
2) As a result, copyright protections are limited to the normal copyright protections afforded to desks, file cabinets, and other useful articles. Copyright law "does not afford, to the owner of copyright in a work that portrays a useful article as such, any greater or lesser rights with respect to the making, distribution, or display of the useful article so portrayed than those afforded to such works under the law" (17.1.113.b)
3) Even in useful articles, specifically artistic embellishments that do not have a utilitarian function might be afforded copyright protection. According to copyright law, "scupltural works" includes "works of artistic craftsmanship insofar as their form but not their mechanical or utilitarian aspects are concerned; the design of a useful article, as defined in this section, shall be considered a pictorial, graphic, or sculptural work only if, and only to the extent that, such design incorporates pictorial, graphic, or sculptural features that can be identified separately from, and are capable of existing independently of, the utilitarian aspects of the article" (17.1.101).
4) Except that such protection for non-utilitarian, artistic embellishments would be limited depending on how much it was based on prior examples. Swords (and all their parts) are derivative works "based upon one or more preexisting works", and copyright protections are limited accordingly. "The copyright in a compilation or derivative work extends only to the material contributed by the author of such work, as distinguished from the preexisting material employed in the work, and does not imply any exclusive right in the preexisting material" (17.1.103.b).
So:
For a modern swordsmith to claim copyright protection for a fully fuctional sword, he would have to show that:
1) His sword or sword parts contained "sculputral features that can be identified separately from, and are capable of existing independently of, the utilitarian aspects of the article."
2) That those sculptural features could be "distinguished from the preexisting material employed in the work."
Otherwise, swords, semiautomatic .45 pistols, sport water bottles, luggage, lawn chairs, and drinking glasses all fall into the same category. I don't see any lawsuits over all the .223 black rifle copycats or lookalike Nalgene water bottles, etc.
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Sander Marechal
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| Posted: Mon 08 Mar, 2010 7:41 am Post subject: |
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| Maurizio D'Angelo wrote: | Sander,
thanks for your information. I'll shall officially my personal lawyer. ;) |
As I said in my previous posts, I am not a lawyer. Don't rely on my statements, especially in Italy where there are some strange laws about reproductions.
| Quote: | | I spoke with a museum director. I confirm that Italian law prohibits the reproduction of paintings by the author, in the same size as the originals. Does not know if this applies to swords. |
Can you find the law in question? Preferably in English because I cannot read Italian. All I know is that it is not part of Italian copyright law but that it is a separate law.
| Quote: | | Most sword reproductions today are not reproductions but recreations with the missing parts filled in |
Good point. There's no way a brand new Albion would be confused for a 700 year old sword.
| Quote: | | Reproductions of another maker's design is something else, but even that I'm not sure would be obvious in a court of law. |
The problem is that copyright only applies to copying, not to independent recreation. Even if a sword design is copyrightable (which is debatable) then e.g. Ablion would have to prove in court that you copied an Albion sword and not that you copied the same original that Albion studied for their design. I think that proving this would be incredibly hard. Then there is the added problem that you can only copy creative works. If there are only a few possible ways to do something then you can't copyright it.
I don't know how the above points tie into designs, but they have proven problematic in software development (which is where I my knowledge mostly comes from). For example, in the big lawsuits between IBM, SCO and Novel over Linux, SCO had to prove that certain source code bits were copied from their version of Unix and not from someone other version of Unix. They lost because (a) they could not prove this and (b) the bits of code were deemed "not creative", so not copyrightable.
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Sander Marechal
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| Posted: Mon 08 Mar, 2010 7:48 am Post subject: |
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| David Lohnes wrote: |
For a modern swordsmith to claim copyright protection for a fully fuctional sword, he would have to show that:
1) His sword or sword parts contained "sculputral features that can be identified separately from, and are capable of existing independently of, the utilitarian aspects of the article."
2) That those sculptural features could be "distinguished from the preexisting material employed in the work." |
Fantastic post David. I didn't know these sections of copyright law yet. But my knowledge comes from software development which by definition is never a useful article for the purpose of that law.
The second point is very interesting for sword makers I think, since most of them strive to recreate swords that look, feel and handle like the originals. If I read this right then they could, for example, claim copyright on e.g. etching on a blade or a design on a scabbard, but only if those were original designs and not recreated from extant pieces.
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Maurizio D'Angelo
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| Posted: Mon 08 Mar, 2010 8:09 am Post subject: |
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| Sander Marechal wrote: |
As I said in my previous posts, I am not a lawyer. Don't rely on my statements, especially in Italy where there are some strange laws about reproductions. |
Was an Italian humor ...  but I realized that you're not a lawyer ...
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Can you find the law in question? Preferably in English because I cannot read Italian. All I know is that it is not part of Italian copyright law but that it is a separate law |
Seeking the law, in Italian, I found something, in English no, but I'm trying again.
Ciao
Maurizio
Last edited by Maurizio D'Angelo on Mon 08 Mar, 2010 8:17 am; edited 2 times in total
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Vincent Le Chevalier
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| Posted: Mon 08 Mar, 2010 8:10 am Post subject: |
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| Sander Marechal wrote: | | The second point is very interesting for sword makers I think, since most of them strive to recreate swords that look, feel and handle like the originals. If I read this right then they could, for example, claim copyright on e.g. etching on a blade or a design on a scabbard, but only if those were original designs and not recreated from extant pieces. |
Yep that would drastically reduce what you can copyright on a sword... To the point that historical accuracy and copyright seem to be in contradiction. Which seems fair enough to me, actually.
On the other hand I'm not sure how relevant all of this is, because I seriously doubt there would be a swordsmith willing to go through the trouble of suing another for copyright infringement. In a niche market like this one, there is not much money to make this way anyway (if it succeeds at all, which seems less than certain).
Regards,
--
Vincent
Ensis Sub Caelo
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