Copyright/Trademark/Patent infringement

Marhault

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This is a topic that was brought up recently in the custom chip group buy thread and it was suggested to bring it outside that thread so we could hammer out some details. This is also something that I personally dealt with when it came to the Scrub Donkey group buy.

The question that is regularly brought up is what can you copy or mimic of others work either artistic work or things like logos and mascots?

I will explain it the same way it was explained to me by a real life lawyer one that works directly with this type of work, and another who works in tax law so take that for what you will.

I was told that entities outside the United States are not bound in anyway by US patents, trademarks, or copyrights unless those specific properties either physical or intellectual are registered in the specific country where they are being produced or copied.

Another caveat that they both made very specific remarks on was profit motive. They both were curious if this was a profitable endeavor. My specific situation was not with the scrub donkey chips. With that information I was told as long as it's for personal not public use recourse legally is very limited in scope for an owner of physical or intellectual property. It's also further limited if this property was delayed in registering for their patent, trademark or copyright. So if someone created something and waits years till someone else has copied their ideas before they decide to register those ideas or art it becomes very murky legally and much more difficult to prove. Not impossible mind you, just difficult.

Now, the other side of that coin. If you plan on selling, massively replicating or anything along those lines any kind of intellectual property you are very much in the wind legally. Those types of activities make it very easy to prove your motivation for copying the materials. It can also be problematic in a situation like with GPI where security is a concern. If they can prove your copied materials pose a threat to their security that is guaranteed to their clients that can for sure put you in a bad spot legally.

The other situation is if you copy or use their materials in a way that ruins the image or reputation of their company in anyway. This is somewhat covered under the above scenarios as well but this one they were more talking about deliberately using their materials in anyway detrimental to their company that could make large or lasting impacts on their brand or ultimately their profitability.

The specific topic that was brought up in the custom group buy was copying the "Boat Chips". I haven't spoken to anyone specifically about those chips but I honestly believe that because of the already messy situation these were produced in it has to make it very difficult to legally fight the replication of those chips. I'm not saying impossible but I think it could open up a whole can of worms for those involved.

I could be completely off base here. Obviously the lawyers I've spoken with one is not in this particular field, and one is but they both had very similar remarks. That and this is just 2 guys in a country full of thousands of lawyers.

For me personally, I wouldn't want to steal someone's art. A parody of it like we did with the SD chips I think is perfectly fine, and ultimately was legally proven to be fine, but we also were in no way trying to monetize it and I think that helped out a lot. I also feel like if there's no malicious intent behind a "tribute" of some type that it's fine.

At the end of the day I feel like the "Boat Chips" grounds in legality are very shaky at best, this is all my personal opinion so don't take it as correct or the gospel. I am curious about what others who have more of a legal or patent background might have to say.

@pltrgyst @Hornet
 

RudysNYC

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In my culture there's a thing called "chutzpah." Ignoring the pure legality of the situation, challenging a non-commercial/not-for-profit reproduction of already fraudulently and disrespectfully acquired chips would be a dictionary-entry for "chutzpah."

I don't really hold a stand, to be clear. I'd like to think the original designer would get tossed a few beans, but a fair use exception would most likely hold up in court in the case of "boat chips V2." Easiest out, imo? Slap the word "commemorative" on the chip and call it a f'n day. We've been doing that since time immemorial here.
 

Eloe2000

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I am a photographer and deal with this issue professionally. The concept of “fair use” and the Fair Use Doctrine are incredibly relevant here and is in essence much of what you are describing. The nature of the usage (personal non-commercial usage) and effect of the usage on the market for or potential value of the copyright related goods are two relevant factors here that would be used to determine if the usage of the copyrighted works would be deemed fair and legal.

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

Quite frankly, I would doubt someone would be able to successfully argue copyright and unfair usage against someone replicating an inlay design for use in their own poker chip design that was never used for commercial purposes in the first place. Plus the jurisdiction issues mentioned above.

But honestly, I think when we talk about this issue here in the “community” it is more of an issue of respecting the time and effort someone put into a project. So, it’s not a legal question, but a moral and ethical one.
 
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Marhault

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I am a photographer and deal with this issue professionally. The concept of “fair use” and the Fair Use Doctrine are incredibly relevant here and is in essence much of what you are describing.

The nature of the usage (personal non-commercial usage) and effect of the usage on the market for or potential value of the copyrighted are two relevant factors here that would be used to determine if the usage of the copyrighted works would be deemed fair and legal.

https://www.copyright.gov/fair-use/more-info.html
Basically what I was told in a nutshell. Unless you're trying to sell it or hurt the original artists material or brand you're very likely safe. Personal use only essentially.
 

Perthmike

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Its just not all that cool to completely rip off a design. The legalities are largely irrelevant in this instance.

If you are doing a custom set, why not just adjust it and do an homage? And given the specific inlay in question, at least pick a source design that's interesting.
 

Marhault

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Its just not all that cool to completely rip off a design. The legalities are largely irrelevant.

If you are doing a custom set, why not just adjust it and do an homage? And given the specific inlay in question, at least pick a source design that's interesting.
I agree, and that's what most people do or are doing. This is more concerning the legitimacy of any possible real legal infringement.
 

Marhault

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Ah fair enough. I thought this was another boat argument lol
Not particularly that just happened to be the topic at hand. I just wanted to move it out here so it could be discussed and not muddy up the group buy thread. It was brought up about actual casino chips being copied as well I'm pretty sure.
 

Eloe2000

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Basically what I was told in a nutshell. Unless you're trying to sell it or hurt the original artists material or brand you're very likely safe. Personal use only essentially.

Yes, that is how it would boils down in this instance.

It does get slightly more complicated than that when looking outside of this context however. All of the fair use doctrine factors are taken in balance however. I don’t intend to bog down the thread, but you could still have a copyright claim even if you use copyrighted imagery for personal use. So for example, I own a wedding photography studio. If someone without rights to the photos I have taken uses them to create a wedding album I could still have a valid claim because their usage hurt my ability to sell that wedding album. I would have very clear and measurable economic damage that I could demonstrate in court. But then I would have the practical question of whether or not it was worth it to pursue a judgement and enforcement.
 
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DrStrange

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Too bad we don't have an explicit, detailed discussion about what the project actually is . . . .

Patents are not the same as copyrights and trademarks. A patent is far, FAR , F A R harder to obtain. It is expensive and time consuming. A patent conveys a significant package of rights and protections. If the claims were drawn broadly, knockoffs are going to be difficult. Best I can tell, nothing being considered in this project would be construed as patent infringement.

Copyrights and trademarks are easy to obtain. There might be some incidental costs, but an individual can copyright their intellectual property without the need for legal / professional assistance. We see this all the time regarding artwork for poker chip labels. You "can't" copy someone's art and the label vendors will not < or at least should not > make products without proper authorization.

The copyright holder has limited rights. And the enforcement of said rights isn't cheap, easy or fast. If someone knocks off three racks worth of chip art, there isn't much of a practical response. And the court costs are going to prove prohibitive. Often then best you can hope for is an agreement not to violate the copyright in the future.

Willful infringement isn't rare. Think about how often you see musicians complain about political organizations {mis}using their music, generally to no effect. Copyrights will offer some protection against on-going infringements. But the protection is more illusion than effective in most cases. You might not enjoy an infringement action from Microsoft, where as you would laugh at a threatened lawsuit from a random guy over a $250 bit of chip art.

Scale matters. Knocking off one T-shirt for your own use isn't going to be worth the effort to track down and stamp out. Well, if you are Disney, maybe it is worth it. On the other hand, making enough knock-offs to fill a supply chain will open up significant, practical remedies. Note I didn't say "cheap", "fast" nor "effective".

Minor changes in the work can effectively void the copyright. This is a can of worms though. You can't change a single word in a book and then republish it as your own. You can't change a note in a song and make it yours. Changing a single pixel doesn't make a new bit of art for a chip label. How much change is "enough"? That isn't always clear. And again we have to question the effectiveness of the copyright holder's legal options.

As for the "boat chips" in specific - - - The art on the chip is owned by someone. Maybe the artist(s), maybe by the people who paid for it. "paid" is an interesting question, the payor could be a lot of different people / entities. If this wasn't explicitly written down, there could be some dispute. Normally the art ownership resides with the artist unless agreed otherwise.

I doubt that it matters how the art was used in the past. Maybe there are legal issues about the production of the chips, but that isn't going to effect the legal rights of the artist(s).

I think we would need to know the nitty gritty details of the art ownership to assess the grounds for a copyright infringement claim. I certainly would not take the word of an individual that they own the art. And let's be practical here, the only effective remedy would be to approach the proposed manufacturer of the chips, complain and hope they give up the order rather than risk a fight. Legal action against the group buying the chips seems like a waste of time, money and energy.

I would have to wonder why anyone would bother -=- DrStrange

PS There is a whole another discussion to be had about counterfeiting a line of casino chips. That could be a BIG deal worthy of prison time. Don't do it..
 

RudysNYC

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Its just not all that cool to completely rip off a design. The legalities are largely irrelevant.

If you are doing a custom set, why not just adjust it and do an homage? And given the specific inlay in question, at least pick a source design that's interesting.
I come at this with no pre-formed opinion, but what constitutes "ripping off a design?" I've seen a lot of direct-copies of closed casinos, half of which don't include the word "commemorative." Granted, I get that the design was made my scratch, which is what would make this particular example scummy, but I doubt the artist has been paid a "royalty" of sorts for each use of the artwork--I've seen the various boat designs across a variety of cut cards and buttons and what have you, so it would be hard for the artist to demonstrate measurable financial damage. Years of reproduction didn't put a dent but this all of a sudden does?

I could still have a valid claim because their usage hurt my ability to sell that wedding album. I would have very clear and measurable economic damage that I could demonstrate in court. But then I would have the practical question of whether or not it was worth it to pursue a judgement and enforcement.
I think the last point is critical. You'd basically be suing for the cost of the wedding album plus minimal extra damages and would be lucky to recoup court costs. It sucks but as a matter of practical legal matters, it's largely unenforcable in a situation like this. Plus, not to mention, CHUTZPAH! lol
 

Marhault

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Yes, that is how it would boils down in this instance.

It does get slightly more complicated than that when looking outside of this context however. All of the fair use doctrine factors are taken in balance however. I don’t intend to bog down the thread, but you could still have a copyright claim even if you use copyrighted imagery for personal use. So for example, I own a wedding photography studio. If someone without rights to the photos I have taken uses them to create a wedding album I could still have a valid claim because their usage hurt my ability to sell that wedding album. I would have very clear and measurable economic damage that I could demonstrate in court. But then I would have the practical question of whether or not it was worth it to pursue a judgement and enforcement.
Very good example. Its interesting to see things from the artists perspective.
 

Himewad

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There was a very specific design that I wanted to use for my ceramic cards mold group buy chip set. The originals were done on CPCs. I wanted the exact same design, so I reached out to the owner of these chips. After much thought, they decided they would rather I did not use their designs. So I went a completely different direction.

I have also used the logo of the University of Iowa Hawkeyes for a couple of different chip sets. In each instance, I reached out to the university's licensing department and received permission to use their logo. They even provided me with an artwork-ready logo because I was only using it for my personal use.
 

RudysNYC

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There is a whole another discussion to be had about counterfeiting a line of casino chips. That could be a BIG deal worthy of prison time. Don't do it.
Without going into crazy specifics, my broad profession is fraud detection and this is critically important advice. I will never forget my reaction when I saw almost direct copies of Bellagio chips on ceramics, I almost shit myself. The last people you want on your ass are the Nevada Gaming Control Board.

Again, without going into crazy specifics, in the history of my practice, the most enthusiastically paying clients have been casinos and regulatory agencies. Merv Griffin and the Crosby family before him paid my family's rent for a couple years.
 

RudysNYC

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There was a very specific design that I wanted to use for my ceramic cards mold group buy chip set. The originals were done on CPCs. I wanted the exact same design, so I reached out to the owner of these chips. After much thought, they decided they would rather I did not use their designs. So I went a completely different direction.

I have also used the logo of the University of Iowa Hawkeyes for a couple of different chip sets. In each instance, I reached out to the university's licensing department and received permission to use their logo. They even provided me with an artwork-ready logo because I was only using it for my personal use.
AITA for thinking there's a pretty big difference between the boat chip designs and someone's personal, inherently one-of-a-kind personal set? Way I see it, there's no inherent beef with a single person and his totally custom set like there was with boat chips, and that specific design hasn't been coopted across the site. And with the Hawkeyes logo, that's trademarked/copyrighted/protected up and down lol very smart move beyond an ethical one

Again, for the record, I hold no true opinion on this I am just willing to entertain most intellectual exercises and this one fascinates me.
 

Eloe2000

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Very good example. Its interesting to see things from the artists perspective.

I have to change my opinions of the legalities here given an issue @DrStrange brought up that actually puts it squarely in line with my wedding album scenario. My initial thoughts where based on the presumption that the designs were created by individuals. I was thinking of my own circumstances designing inlays etc. where my design services have no commercial context. However, in the instances where the designs were created by another party professionally, such as if J5 was paid to professionally design an inlay and where J5 retains copyright, then J5 would have standing and have a potentially valid copyright claim even in the instance of personal usage because he could very clearly demonstrate economic and commercial damage. He would still face the very pragmatic question if it were worthwhile to determine jurisdiction and pursue such a claim over the artwork fee (although copyright damages can be tripled in the US).
 

Darson

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A lot of the policing is done by vendors. Many reputable vendors will not reproduce or copy designs irrespective of whether there is actually a legal restriction through copyright etc.
 

Marhault

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I have to change my opinions of the legalities here given an issue @DrStrange brought up that actually puts it squarely in line with my wedding album scenario. My initial thoughts where based on the presumption that the designs were created by individuals. I was thinking of my own circumstances designing inlays etc. where my design services have no commercial context. However, in the instances where the designs were created by another party professionally, such as if J5 was paid to professionally design an inlay and where J5 retains copyright, then J5 would have standing and have a potentially valid copyright claim even in the instance of personal usage because he could very clearly demonstrate economic and commercial damage. He would still face the very pragmatic question if it were worthwhile to determine jurisdiction and pursue such a claim over the artwork fee (although copyright damages can be tripled in the US).
So just curious if this is all only if the individual actually copyrighted the material?
 

Eloe2000

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So just curious if this is all only if the individual actually copyrighted the material?

Again, it depends, but generally copyright is born when the work is created. There are additional forms of registered copyrights however.

I have never resgietered copyrights for my photos, but I get paid considerable sums of money for those unregistered copyrights none the less. I just mean to say unregistered copyrights can have considerable value.
 
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pltrgyst

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In reference to the OP: patents and trademarks are not only issued by particular countries. There are also international patents and trademarks, issued by the World International Property Organization, an arm of the UN.

Patents are not the same as copyrights and trademarks. A patent is far, FAR , F A R harder to obtain.... Copyrights and trademarks are easy to obtain. There might be some incidental costs, but an individual can copyright their intellectual property without the need for legal / professional assistance....

Under current US law, copyright is inherent in the act of creation. But in order to be able to sue for actual damages, the creator must register his copyright, which is not overly difficult.

Trademarks, OTOH, while not as generally difficult as patents, are difficult and expensive to obtain. One of the specific steps in obtaining a trademark is the Trademark Office "publishing for opposition" and then adjudicating any notices of opposition that result. The standard for issuance of a trademark is the "likelihood of confusion".

The copyright holder has limited rights. And the enforcement of said rights isn't cheap, easy or fast. If someone knocks off three racks worth of chip art, there isn't much of a practical response. And the court costs are going to prove prohibitive. Often then best you can hope for is an agreement not to violate the copyright in the future

Agreed. Unless the copyright has been registered, enforcement is essentially limited to "cease and desist" letters. There is no way to obtain damages.

Minor changes in the work can effectively void the copyright. This is a can of worms though.... How much change is "enough"? That isn't always clear. And again we have to question the effectiveness of the copyright holder's legal options.

Again, the legal standard is the "likelihood of confusion", as applied to ordinary people in the likely market.

As for the "boat chips" in specific....I would have to wonder why anyone would bother.

Agreed. I think this is the main point. Do something original, not something so obviously stupid.
 
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LeGold

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Agreed. Unless the copyright has been registered, enforcement is essentially limited to "cease and desist" letters. There is no way to obtain damages.
I think this is only valid for the US. In Europe, AFAIK, if you own the copyright (and you do if you indeed created the artwork), you do not need to register it anywhere in order to be able to pursue your rights and obtain damages.
 

krafticus

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So where is the line between copying for your own chip design, and doing an inlay replacement having labels printed with that same “artwork” ?

customs are one thing, and I get it. Let’s say I wanted WTHC or NPS 25k chip. That’s not my art (in believe J5 worked on one of those). I’ve seen them, but I bet the original artist wasn’t contacted. Labels are made (most likely for a profit) and applied Not saying it is wrong or right, but where is the line? What’s the difference?

I’ve had labels made. I’m not innocent

I also remember how huge a deal this was when Jerkwagon on CT made caesers, Bellagio, dunes, etc labels for his chips, and EVERYONE piled on (including me). How dare he copy art for his personal chips. Now, we all do it. We have people doing this all of the time like it’s nothing.
 

Eloe2000

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So where is the line between copying for your own chip design, and doing an inlay replacement having labels printed with that same “artwork” ?

customs are one thing, and I get it. Let’s say I wanted WTHC or NPS 25k chip. That’s not my art (in believe J5 worked on one of those). I’ve seen them, but I bet the original artist wasn’t contacted. Labels are made (most likely for a profit) and applied Not saying it is wrong or right, but where is the line? What’s the difference?

I’ve had labels made. I’m not innocent

I also remember how huge a deal this was when Jerkwagon on CT made caesers, Bellagio, dunes, etc labels for his chips, and EVERYONE piled on (including me). How dare he copy art for his personal chips. Now, we all do it. We have people doing this all of the time like it’s nothing.

Like I said earlier in thread, honestly I think what we are dealing with here in the community more of moral and ethical questions than a legal one.

I have done fracs for my WTHC set. If they were available for sale I would buy them. If I could pay a fee to the artist I would. I am using them for personal use. I don’t feel as though I have violated some ethical or moral boundaries.
 
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slisk250

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So where is the line between copying for your own chip design, and doing an inlay replacement having labels printed with that same “artwork” ?

customs are one thing, and I get it. Let’s say I wanted WTHC or NPS 25k chip. That’s not my art (in believe J5 worked on one of those). I’ve seen them, but I bet the original artist wasn’t contacted. Labels are made (most likely for a profit) and applied Not saying it is wrong or right, but where is the line? What’s the difference?

I’ve had labels made. I’m not innocent

I also remember how huge a deal this was when Jerkwagon on CT made caesers, Bellagio, dunes, etc labels for his chips, and EVERYONE piled on (including me). How dare he copy art for his personal chips. Now, we all do it. We have people doing this all of the time like it’s nothing.

if you use @Johnny5 he is clear about what he will do. If you don’t own it and don’t have permission, he will most likely create something close from scratch In place of just copying someone’s art. I have chips that used the likeness of South Park characters that were reworked. We changed the Mapes inlay, I brought him an image for the latest Rosies chips and with @72o help we recreated it. He also reworked an image from Holland into my own.

I trust John knows what can and can’t be done and stay on the right side of the law.
 

Josh Kifer

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if you use @Johnny5 he is clear about what he will do. If you don’t own it and don’t have permission, he will most likely create something close from scratch In place of just copying someone’s art. I have chips that used the likeness of South Park characters that were reworked. We changed the Mapes inlay, I brought him an image for the latest Rosies chips and with @72o help we recreated it. He also reworked an image from Holland into my own.

I trust John knows what can and can’t be done and stay on the right side of the law.
I adore @Johnny5. He's one of the good guys!
 

BGinGA

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there's a pretty big difference between the boat chip designs and someone's personal, inherently one-of-a-kind personal set? Way I see it, there's no inherent beef with a single person and his totally custom set like there was with boat chips, and that specific design hasn't been coopted across the site.
The copyright ownership of the original Star chip artwork (inlay designs, hot-stamp design, and dealer button design) resides with the artist that created them. Any usage should be done with the artist's permission, same any any artwork produced by that (or any other) artist.

I've seen the various boat designs across a variety of cut cards and buttons and what have you, so it would be hard for the artist to demonstrate measurable financial damage. Years of reproduction didn't put a dent but this all of a sudden does?
All of those subsequent Star chip designs you reference above -- dealer buttons, cut cards, playing cards, alternate denomination or otherwise altered labels, etc. -- were only produced with permission from the artist who owns the copyrights for the images.
 
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