Grumdril":2972eth1 said:
I'm not remotely a lawyer, so I'm interested in what ardyer's associate had to say, but it is a subject that interests me so my understanding of the situation hopefully isn't a million miles off.
Okay, back from vacation. I should preface this with the fact that I am a patent attorney, not a copyright attorney. That said, I went to law school for copyrights, it just turns out I am way better at patents. Also, this is a discussion of US law, but due to international treaties, most countries copyright law is similar. And finally, the standard legal disclaimer: I am not representing anyone with this information and do not act on it. Please consult a locally licensed attorney before doing anything and do not take my word that something is or is not allowed.
I’m not going to detail the exchange between the law professor and myself, but here is the substance of it. There are a couple of issues to the photographing of miniatures and copyright law that must be understood. The first is that of a derivative work. A derivative work exists when a person takes another copyrighted work and creates something new with it. The best example is with music: sampling a song to create a new song is a derivative work. If you create a derivative work, you are only entitled to a copyright in your creation if you have permission to use the original work. This leads to the next concept: licensing. We all probably know what a license is, but there are really two kinds. Express licenses are statements granting permission to use and that detail what rights come with it. For example, movie studios have written contracts for soundtrack songs detailing what songs they can use, how they can be used, what forms they can be distributed in, etc. The other type of license is an implied license. These are a bit trickier. You have to look at the totality of the facts and determine if the copyright holder implied that the user could use the work for the purpose it was used. This is also the type of test that can lead to different results amongst different people, even with the same facts.
So, with Miniature photographs (Science Fiction and Fantasy, historical stuff brings in another set of issues), we have a chain of three or four works that have to be examined. The first work is the miniature itself, the second work exists if the miniature is converted, the third is the painted model, and the final work is the photograph of the painted model. The second, third, and fourth works are all derivative works.
Clearly, Games Workshop (or whoever made the model) is entitled to a copyright in the miniature as a work of sculpture. I think it is unarguable that there exists an express license to paint the models, the back of the blister tells you about assembling and painting the model and the current boxes even tell you what colors to use. For the conversion, if the license isn’t explicit, it is so heavily implied that it isn’t really worth discussing either.
So this leaves us with photographing your painted miniature. This is a new work of art, as it is a photograph. But I don’t know that I’ve ever seen GW granting permission to photograph your miniatures. So at best you have an implicit license. But, what factors can we line up to prove that? About the only one I can think of is that GW knows we do it and doesn’t stop it. That, by itself, isn’t generally going to be enough to imply a license. I don’t recall any White Dwarf articles on miniature photography. The next best factor is that they have asked for submissions of people’s painted models, at least the US White Dwarf and web site have. However, that would only go so far as to grant permission to take a photograph and send it to them (if that), and not to take a photograph and post it to the internet. GW does encourage the display of your painted works (e.g., golden demons, local painting contests, etc), but this doesn’t per se extend to photography. So, in all honesty, it looks like photographing your painted miniatures is actually copyright infringement.
There are two caveats to this. The first is you might be able to squeeze around it if the photographs are for selling the model because you have the right to sell your models under the First Sale Doctrine. But even that is relying on the idea that it would be inequitable to not allow you to post a photo of something you’re trying to sell were the primary factor of the sale is how it looks.
The second caveat is that unless GW has registered the copyright in each and every miniature you post a photograph of, the most they can do is sue to have the corresponding photograph taken down. And I doubt they have because that usually requires you to send in copies to your country’s copyright bureau (the Library of Congress in the USA). That would be a lot of work for the number of models they produce each year.
And even if they could get damages, any sane judge would only give minimal damages because they're isn't any statutory minimum damage, as far as I know, for this type of infringement and there isn't really any actual damage to GW for the infringement.