WotC Accuses IP Violation?

[TorpidNinja]

Source member miro recently linked to a post on MTGSalvation which claimed altered art auctions posted on eBay had been taken down at the request of either WotC directly or their legal arm (http://forums.mtgsalvation.com/showthread.php?p=4437762&posted=1).

Excerpt from the posting:

"The rights owner or an agent authorized to act on behalf of the rights owner, Wizards of the Coast, Inc., notified eBay that this listing violates intellectual property rights. When eBay receives a report of this type of violation, we remove the listing to comply with the law.

It's against the law to sell fake or unauthorized copies of a brand-name product. It can also be misleading for buyers. So if the product you're selling bears the brand name or logo of a company, but it wasn't made or authorized by that company, you aren't allowed to list it on eBay."

Not a lawyer, but this doesn't make any sense from my understanding of fair use. Thoughts?

Additional info: http://forums.mtgsalvation.com/showthread.php?t=185014

[TheInfamousBearAssassin]

I'm struggling to think of an angle from which this benefits WotC. Altering real Magic cards doesn't cost them anything, it simply provides an additional secondary market of interest that, if anything, gets them more money.

[keys]

Source member miro recently linked to a post on MTGSalvation which claimed altered art auctions posted on eBay had been taken down at the request of either WotC directly or their legal arm (http://forums.mtgsalvation.com/showthread.php?p=4437762&posted=1).

Excerpt from the posting:

"The rights owner or an agent authorized to act on behalf of the rights owner, Wizards of the Coast, Inc., notified eBay that this listing violates intellectual property rights. When eBay receives a report of this type of violation, we remove the listing to comply with the law.

It's against the law to sell fake or unauthorized copies of a brand-name product. It can also be misleading for buyers. So if the product you're selling bears the brand name or logo of a company, but it wasn't made or authorized by that company, you aren't allowed to list it on eBay."

Not a lawyer, but this doesn't make any sense from my understanding of fair use. Thoughts?

Additional info: http://forums.mtgsalvation.com/showthread.php?t=185014

Alterations are effectively a substitution for the original product, and WotC could argue that it affects the marketplace value of the originals, which is understandable since the alterations generally command a higher price. If this is the case, it would not be safe under "fair use" laws.

There are four factors to consider when determining whether something is fair use:

1. the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes;

2. the nature of the copyrighted work;

3. the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and

4. the effect of the use upon the potential market for or value of the copyrighted work.

[TheInfamousBearAssassin]

In order to produce the alternates the artist first has to procure the originals. There's simply no damages. Card alteration doesn't hurt Wizards; if anything, it helps them.

[keys]

In order to produce the alternates the artist first has to procure the originals. There's simply no damages. Card alteration doesn't hurt Wizards; if anything, it helps them.

Well it could hurt the value of other promos. Wizards probably doesn't want to lose control of the premium market.

[Phoenix Ignition]

Wow... for some reason I keep getting the feeling that suddenly WotC is going to change the rules about being able to use altered art cards in tournaments because of some similar reason.

This is flat-out horrible.

[TorpidNinja]

1. the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes;

2. the nature of the copyrighted work;

3. the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and

4. the effect of the use upon the potential market for or value of the copyrighted work.

I should note that the additional link I added seems to put a lot of the blame for this issue on Ed Beard Jr. After checking out his website, he seems to put a lot of effort into this issue.

Despite this, while the artists are adding value to the cards (substantial in some cases) they should still remain perfectly fine. The amount of altered art out there, in comparison to the value of the original works should be inconsequential and the fourth factor shouldn't come into play. To clarify, I mean the original artwork of the artist, not the original card presenting the artwork.

Furthermore, the most pressing of the four factors (though, as I'm to understand, they're taken into account in totality) is #3. So, is there derivative liability? To me, this doesn't seem like the Lee vs A.R.T. co Case (http://www.altlaw.org/v1/cases/1081598) because there are any number of changes/enhancements/commentary/skill put into a number of these pieces.

I agree that the parties seeking action are using the #4 as their reasoning, but I don't buy it. And it's especially disappointing considering WotC's stated philosophy:

Of course, you could just ban all altered cards from your tournaments to limit the risks. But keep in mind that Magic is a game that has created a community around it. Most players just want to play with cards they like and have fun while playing. Altered cards are currently one of the ways to achieve this goal, just like foils and Japanese cards have been.

[Nihil Credo]

It's against the law to sell fake or unauthorized copies of a brand-name product. [...] So if the product you're selling bears the brand name or logo of a company, but it wasn't made or authorized by that company, you aren't allowed to list it on eBay

Is it possible that whatever low-level WotC grunt is tasked with scouring auction sites thought that those were fake cards (perhaps imagining that the alteration was done to both increase the value and help disguise that they were fakes)?

[tivadar]

This is what I was wondering too at first, but the thing is, they didn't just pull *those* cards, they pulled a bunch of other altered art cards on the ebays as well. This makes me think that the issue isn't the authenticity, but rather the fact that they're altered.

This also makes me sad. I'm fairly convinced that legally WotC can get away with this if they want to. I'm just hoping that they don't actually want to... Perhaps there was a misunderstanding of sorts. Has any comment come from Wizards?

[TorpidNinja]

This also makes me sad. I'm fairly convinced that legally WotC can get away with this if they want to.

Oh, they can totally get away with it if they want to, provided the distribution sources fold as easily as eBay has so far. It reminds me of the Ralph Lauren thing I saw on BoingBoing recently (http://boingboing.net/2009/10/06/the-criticism-that-r.html). The attorneys sent take-down notices citing infringement and ISPs that didn't want to risk a costly fight (because they didn't know the law) scooped while BoingBoing's ISP laughed it off.

So, yeah, legally they can pretty much do this all day long if they want because eBay's not going to laugh it off. Sucks for a site like www.cardkitty.com though.

[Phoenix Ignition]

Your boingboing link doesn't work.

[HdH_Cthulhu]

Hmmm im not an expert in the IP laws but there must be a legal way to paint somthing on a card and sell it!

[Koby]

Hmmm im not an expert in the IP laws but there must be a legal way to paint somthing on a card and sell it!

That's pretty much why it's not legal. Altering your owns cards is kosher. Buying non-altered cards is legal.

But once you alter the card and sell for profit it becomes the domain of something other than fair use. You are in fact extracting revenue from a product that is copyrighted (WotC) and adding your own credits to it. This isn't kosher.

[TorpidNinja]

That's pretty much why it's not legal. Altering your owns cards is kosher. Buying non-altered cards is legal.

But once you alter the card and sell for profit it becomes the domain of something other than fair use. You are in fact extracting revenue from a product that is copyrighted (WotC) and adding your own credits to it. This isn't kosher.

From what I've read, you can sell fair use derivative work provided there is sufficient transformativeness (http://en.wikipedia.org/wiki/Transformativeness).

I don't see how that doesn't apply in this case.

[Bluemagex2517]

That's pretty much why it's not legal. Altering your owns cards is kosher. Buying non-altered cards is legal.

But once you alter the card and sell for profit it becomes the domain of something other than fair use. You are in fact extracting revenue from a product that is copyrighted (WotC) and adding your own credits to it. This isn't kosher.

You can always get in contact with wizards and get a written contract to be able to do so. Of course they'll want like 50% or more of all proceeds so you'll never make any money at it. TMs are dumb, libertarians can suck it.

[socialite]

Fucks with full art promos WotC seems so fond of lately.

Artists get pissed.

[emidln]

You can always get in contact with wizards and get a written contract to be able to do so.

I'm not a lawyer, but this seems like a fairly clear case involving First Sale Doctrine.

[gravemind123]

To quote Wikipedia on the first sale doctrine "Such protection to the reseller extends to the point where said goods have not been altered so as to be materially different from those originating from the trademark owner." I guess these can be considered materially different, so they aren't protected by this.

Although it seems that eBay allows you to sell cars in their motors section that have been modified with body kits, which to me seems like the same thing as this. Someone took a product of a company, modified it with some new materials and resold it. I guess both of these things could be illegal, but I don't really know much about IP law.

I guess my opinion is if I buy something I should have every right to modify it and to sell it if I want to, but that is not the law.

[santeria]

Fucks with full art promos WotC seems so fond of lately.

Artists get pissed.


the original artists also do alterations on the side. I dont think they can get that pissed over something they do too.

[Bardo]

Wow... for some reason I keep getting the feeling that suddenly WotC is going to change the rules about being able to use altered art cards in tournaments because of some similar reason.

You can modify cards and use them in tournaments -- the shit happens when you want to turn a profit from them.

@ the OP - Wizards can issue C&D orders until they turn purple (these are not C&Ds ordered by a judge). The recipient can always choose to slug it out in court (beware, Hasbro has deep pockets).


I'm struggling to think of an angle from which this benefits WotC. Altering real Magic cards doesn't cost them anything, it simply provides an additional secondary market of interest that, if anything, gets them more money.

I assume it's either a policy of theirs or a knee-jerk response to protect their IP.