Trademarks, copyrights and custom chips

Bluegrass Poker

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I’m sure this has been discussed before, I know I’ve seen it discussed tangentially in other threads. There seems to be varying opinions on exact copies of prior chips. Reasons given are it’s the intellectual property of the creator, it is trademarked, it is copyrighted, etc.

All those arguments are legitimate and valid in lots of circumstances.

We’ve seen tribute chips and commemorative chips, some exact copies of defunct casinos and almost exact copies of defunct casinos.

It seems to be frowned upon more if someone tries to do chips that are replicas of an existing (definite no-no) or defunct casinos (gray area) than other things that may be protected intellectual property or trademarked.

I’ve seen 2 sets/proposed sets recently that are taking directly from tv shows or movies. But I haven’t seen anyone tell them they might not want to do that. And I seriously doubt a one off set of chips is going to undermine the value of someone’s IP. But I’m pretty sure if someone did a Disney themed set and Disney found out they’d do a cease and desist letter since they are hyper vigilant about protecting their IP.

Where do you think the line is on what is and is not allowable?
Just curious as to what everyone else thinks.
 

Nex

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BGinGA

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I'll just drop this explosive gem here, go away, and come back later to view the carnage.

"If you didn't design it, it doesn't belong to you. Don't use it without permission."
 

LotsOfChips

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Regarding the casino replicas, I suspect that this would be difficult to accomplish with most North American vendors. China, probably a different story.

Regarding the TV/movie themes, "Fair Use" supposedly allows for some limited personal (non-commercial) applications, especially if there is a "tribute" or "parody" element involved (see the hundreds of fan websites using copyright material on the Interwebs, none of which seem to attract much attention from the legions of copyright lawyers hunting for violations). Also if the use is strictly personal, it is much less likely that the copyright holder would a) learn about it and b) come after an individual in a lawsuit for what is in essence a non-monetary use of their image (unless you somehow damage their brand) . However the moment you begin selling samples or advertising anything for sale, then that makes it commercial, and both a) and b) would likely no longer apply.

But I'm no lawyer, so don't rely on the above as a defense if they do come after you.
 

pltrgyst

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But what if it is in the public domain?
That's often difficult to determine since there is no "public domain" registry. ;)

And there are trademark and copyright agencies at both the national and (often overlooked) state levels, which greatly complicates matters.
 
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ekricket

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How do people feel about racks and trays? Like sending a Matsui rack to China and asking them to make copies of it to sale?
 

Bluegrass Poker

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That's often difficult to determine since there is no "public domain" registry. ;)

And there are trademark and copyright agencies at both the national and (often overlooked) state levels, which greatly complicates matters.
Well the smithsonian and MoMa both have large online collections of artwork that they label as public domain and usable by anyone.

So, let me rephrase the question, if you know, beyond a shadow of a doubt, that the artwork you want to use is in the public domain can you then use it without being the creator or getting permission from the creator as BGinGA suggested. (And I agree with his position for the most part.)
 

Eloe2000

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Are you asking what is legal or what we feel is morally/ethically acceptable?

I will pipe up... for myself, I do not feel morally conflicted about using artwork of a closed casino or a take on some other creative work where it is for personal use where it does not copy an existing product, create confusion, nor damage to the original IP.

So, I would not be conflicted finally doing a Taj Mahal set, a WTHC frac label, or even some loose take on a Star Wars assuming Disney isn’t doing poker sets.
 
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Taghkanic

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I look at it kind of like most cops now look at weed in my state.

If it’s a small amount strictly for personal use, you’re not likely to get in trouble.

If you try to become a producer or dealer, then the authorities start taking notice.
 

Eloe2000

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Well the smithsonian and MoMa both have large online collections of artwork that they label as public domain and usable by anyone.

So, let me rephrase the question, if you know, beyond a shadow of a doubt, that the artwork you want to use is in the public domain can you then use it without being the creator or getting permission from the creator as BGinGA suggested. (And I agree with his position for the most part.)

If it is in the public domain then no relevant copyright restrictions apply by definition AFAIK.
 
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Bluegrass Poker

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Are you asking what is legal or what we feel is morally/ethically acceptable?

I will pipe up... for myself, I do not feel morally conflicted about using artwork of a closed casino or a take on some other creative work where it is for personal use where it does not copy an existing product, create confusion, nor damage to the original IP.

So, I would not be conflicted finally doing a Taj Mahal set, a WTHC frac label, or even some loose take on a Star Wars assuming Disney isn’t doing poker sets.
Both but more on the moral/ethical side I suppose.
 

Colquhoun

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Artwork that is in the public domain (say, a classic painting from the 1800s) can still be protected in some ways. The legal issues are murky. The family (or other legal entity) of the artist may own a copyright to the name and signature, making any use using either a problem.
As far as using something like Star Wars or a Disney character, while you wouldn’t likely ever have trouble if you printed labels for a personal set on your home printer, don’t be surprised when a vendor is unwilling to produce any materials depicting the same known copyrighted material.
 

pltrgyst

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I know but pltrgyst wanted to get picky so I rephrased my question.
I'm not getting "picky". I simply pointed out that it is not trivially easy to determine if something is in the public domain.

I agree with most of what's been said here -- basically that unless you're producing chips, etc. for commercial sale, no one's likely to care.

That is, unless some a**hole with a hard-on for you writes a letter to the copyright or trademark holder bitching about your chips... which is not entirely out of the realm of possibility. :cool
 

Colquhoun

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Actually, you can figure out quite easily if something is considered “public domain” for art and books. Most countries agree that a work becomes public domain 70 years after the creator’s death.
HOWEVER, not all countries recognize this, and as mentioned earlier, another entity may still hold some rights to the work/name.
Bottom line, even if it is in the public domain, proceed with caution....or avoid it altogether.
I had a similar issue arise recently. A client wanted me to produce a video for social media, and we decided on a classical piece that was recorded far enough back the it was in the public domain...in the U.S.
Facebook and Instagram both flagged as an infringement because since they are worldwide, the piece is not recognized in all counties the same.
 
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Bluegrass Poker

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I'm not getting "picky". I simply pointed out that it is not trivially easy to determine if something is in the public domain.

I agree with most of what's been said here -- basically that unless you're producing chips, etc. for commercial sale, no one's likely to care.

That is, unless some a**hole with a hard-on for you writes a letter to the copyright or trademark holder bitching about your chips... which is not entirely out of the realm of possibility. :cool
Well I’m not going to get into a pissing match with someone who does IP law for a living. At least now I know if I ever get a cease and desist letter from someone I will know who told the USPTO about any chips I may decide to make.:D
 

pltrgyst

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Well I’m not going to get into a pissing match with someone who does IP law for a living. At least now I know if I ever get a cease and desist letter from someone I will know who told the USPTO about any chips I may decide to make.:D
Can't be me -- I play mediocre tennis for what passes for pandemic living. We don't use the "w" word (*ork) in our house.

C&D letters are the equivalent of legal light petting anyway... :cool
 

Taghkanic

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Just to make this even murkier (but note, I am not a lawyer, just someone who has done writing and graphic work for hire) ...

When a graphic designer creates an inlay for a casino, presumably his/her contract confers all rights to the image over to the casino.

I’d be really surprised if any big gambling corporation is going to let the designer retain those rights — whether the designer is in-house, independent, or someone who works for the chip manufacturer. The casino likely would have some clause saying that it owns the use of the image in all media, and throughout the known universe. (Work-for-hire contract language can get pretty excessive.)

Now, say the casino goes out of business. I’d tend to expect that kills 99.8% of potential copyright claims, since the entity that owned those rights no longer exists. At least, it greatly lessens the likelihood that anyone is going to care. Maybe not if some creditors have some claim to its assets.

Even more muddy — if the casino gets bought by another casino, presumably it purchases its assets, including the designs to the old chips. But if they rebrand the venue, and totally change the chips, do they really care if someone makes faux versions of their discontinued chips? Yeah, probably. But are they really going to sue you for making (say) faux Jacks? What kind of damages could they realistically claim?

From what I understand (again, as a layman contractor, not a lawyer), once you make significant modifications, or if you can reasonably say that it is some sort of parody, such claims become less cut and dried, and a company is not likely to pursue it when it only involves (say) 100 or even 2,500 chips for personal use. It would cost way more to litigate than they could ever collect, and also make them look petty.

As far as pure ethics... I see the point that it is not your work, so ideally you shouldn’t copy it. But if the design is clearly out of use, and the company owning it is defunct, that seems more harmless to me.
 
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