An important notice about proxies

I received a notification from a lawyer representing Wizards of the Coast Friday. Here are some highlights

Re: Infringement of Wizards of the Coast, Inc.'s MAGIC THE GATHERING® Copyrights and Trademarks

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We are counsel for Wizards of the Coast, Inc. (“Wizards”), the owner of the copyrights and trademarks for the MAGIC: THE GATHERING® trading card game. We recently became aware that Mr. Dupuis is making, displaying, distributing and selling “ELD Proxies,” http://www.themanadrain.com/index.php?topic=36536.0, which are nothing more than derivative copies of genuine MAGIC: THE GATHERING® trading cards.

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Mr. Dupuis’ unauthorized copying of the MAGIC: THE GATHERING® trading cards constitutes copyright infringement in violation of 17 U.S.C. § 501. His unauthorized use of the MAGIC: THE GATHERING® Mana and Tap symbols and other MAGIC: THE GATHERING® trademarks, including the overall look and feel of the trading cards, violates the federal trademark laws, including 15 U.S.C. §§ 1114(1) and 1125(a), by creating a likelihood of confusion with respect to Wizards’ authorization or sponsorship of or association with Mr. Dupuis’ cards and tournament. This unauthorized use is also likely to dilute the distinctive qualities of Wizards’ MAGIC: THE GATHERING® marks in violation of 15 U.S.C. § 1125(c) and the anti-dilution laws of numerous states.

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On behalf of Wizards, we therefore demand that Mr. Dupuis immediately cease and desist from any further manufacture, display, distribution or sale of these “ELD Proxies,” destroy any existing ELD Proxies, remove them from themanadrain.com website and from wherever else they may appear, and assure us that Mr. Dupuis and themanadrain.com will make no future unauthorized use of Wizards’ intellectual property.

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I have since spoken with their lawyer, and we're working to determine exactly what Wizard's policy is in regards to proxy use and altering cards. It is of note that the lawyer said the only reason they even heard about these proxies was due to someone contacting them about it. I'd be interested if the person who contacted them wanted to express their motivation. It is my hope, with the understanding of the time that goes into them as well as the extremely limited quantity, that Wizards will allow me to continue making proxies to give away to the community. I'll keep the community posted as I get more info.

With this and the Magicalter thing it's becoming quite clear: wizards apparently doesn't mind if the altering/proxying unless it's done commercially on a large scale.

I don't want to turn this into a thread arguing about the necessities of copyright laws and such, but holy crap, that is some bullshit.

I really hope you come out on top of this and are allowed to continue to make your proxies.

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With this and the Magicalter thing it's becoming quite clear: wizards apparently doesn't mind if the altering/proxying unless it's done commercially on a large scale.

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That's just it, this isn't on a large scale. I'm making a handful of proxies a month to give away to people who attend tournaments.

The good news is, if you are forced to C&D, the price on your proxies goes up. So you could theoretically keep making them (on the low-key) and circulate them to make some cash.

Of course, you could probably get sued if you were caught, but that's the risk you run, amirite?

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Originally Posted by KillemallCFH

I don't want to turn this into a thread arguing about the necessities of copyright laws and such, but holy crap, that is some bullshit.

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Meh. It's their IP -- they can do what they want. The only way to do this lawfully is to negotiate with WOTC and enter into license agreement to produce derivative works, with WOTC owning all other rights.

Here's a decent license agreement you could modify if they're down with something like that:

http://www.isi.edu/licensed-sw/halogen/

(You'll obviously need to change the recitals ("Whereas..."), names of the parties, subject matter, governing law, etc., but that license is fairly benign as these things go. I can put something together for you if you need. PM me if you're interested).

Is it just me, or is the legal side of WoTC getting a lot more militant these days? It's been downhill ever since they sued Rancored_Elf over on MTGS.

Just out of curiosity, is it a copyright violation if I make my own proxies of things, but don't sell them? Technically I'm ripping off Wizards' intellectual property and diluting the brand or distinctive feel or whatever the fuck it is.

I'm just wondering because I made these awesome proxies of power that I was going to use for the local Vintage tournaments.

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Originally Posted by WotC

We recently became aware that Mr. Dupuis is making, displaying, distributing and selling “ELD Proxies”

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I think the bolded part is what got them calling the lawyers, they probablly are imagining this as a bigger operation than it is.

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Originally Posted by Aggro_zombies

Just out of curiosity, is it a copyright violation if I make my own proxies of things, but don't sell them? Technically I'm ripping off Wizards' intellectual property and diluting the brand or distinctive feel or whatever the fuck it is.

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As long as you're not selling the proxies and are using them for your own personal use, you could assert "fair use" under the US Copyright law if the copyright owner ordered you to cease & desist making proxies or filed some other menacing-sounding legal order.

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Originally Posted by Bardo

As long as you're not selling the proxies and are using them for your own personal use, you could assert "fair use" under the US Copyright law if the copyright owner ordered you to cease & desist making proxies or filed some other menacing-sounding legal order.

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Ah, okay, thanks. Never really took any law-related classes since U.S. Government in high school, and we didn't cover copyright law there.

Just out of curiosity, what do pirated movies and mp3s fall under?

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Originally Posted by Aggro_zombies

Just out of curiosity, what do pirated movies and mp3s fall under?

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Depends on whether you're copying them for personal use or you're distributing them.

Hmm...that is the first time I have seen your thread about ELD proxies. I have to say that is very ingenious...create an artificial circumstance with you or some friendly entity so that cards that you print are worth money! My hat is off to you sir!

So why exactly would WoTC be pissed? I assume you know the actual reason but my conjecture is that you are making money (however little or much) by reprinting and then selling things that they have copyrighted.

So, while you may be small potatoes what about if Starcitygames says buy SCG proxies and they don't count towards your proxy limit at one of their big vintage events.

Honestly, let's take it to it's logical conclusion someone prints T2 chase rares and sells them for $5 apiece and allows them in a tournament...

Personally, I don't know how much you sell them for but if they are cheap then I think it is cooler than charging $1 per proxy beyond X but I think it's the principle that WoTC is fighting on.

As to why someone would report you...my conjecture is that there is a perception that you devalue power even more. There are people that think that proxy tournaments shouldn't even exist for Vintage, they are in the minority and suck it up or don't play. Add that group to those who would be pissed about you making money off of proxies (even if it is in fact the same as paying for more proxies) and I am sure someone would report you.

As to those people worried about making proxies for their own use...not speaking as a lawyer I doubt you have anything to worry about. Normally you are proxying P9 and everyone knows what that does so writing its name clearly on the back of a MTG card with a magic marker probably isn't going to piss anyone off.

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Originally Posted by Aggro_zombies

Just out of curiosity, what do pirated movies and mp3s fall under?

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In the U.S. it's copyright infrigement; i.e. someone owns the rights to a piece of intellectual property, you are using that property without their permission, as you may obtain from purchase, etc.

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Originally Posted by m03

Depends on whether you're copying them for personal use or you're distributing them.

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"Pirated" implies stolen or "wrongfully appropriated," so I don't think you could successfully argue "fair use," though I'm not sure.

Edit - I think case law makes that distinction (distribution vs. personal use), so nevermind.

As far as I know, music and other digital/televised/etc media is covered under a different set of rules.
That type of thing has its own code/policy.

As far as altered art cards and proxy cards go, that is an entirely different scenario.
Altering states that you have added to, or changed the card through some form of paint/marker/etc.
Proxying means making fake cards for use in place of real ones at specific tournaments.

Changing or adding to what is REAL, or creating what is FAKE and using it as real.
Both may not be totally legal, but the latter seems a lot worse from a company's standpoint.

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Originally Posted by yawg07

As far as I know, music and other digital/televised/etc media is covered under a different set of rules. That type of thing has its own code/policy.

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I'm pretty sure things like the No Electronic Theft and Digital Millennium Copyright Acts amended the Copyright Act.

Edit - Ah, here you go.

Actually, Smemmen is kinda needed here. He's an attorney, right ? ;p

This is interesting to me, because I used to use my access to high-end copiers at Kinkos to print foil P9 proxies for my friends to use at Vintage tourneys. Of course, I never charged money for them.

Also, I generally only printed cards in foil that couldn't actually have existed in foil (mostly older vintage staples like P9 and Mana Drain), and in the event that a card wasn't foil or could have existed in foil, I printed the face of the card upside down with respect to the back so that there was little chance that it would be confused for a real card.

Just my two cents.

How long until they go after people using MWS, or things like that?

Or is that relatively safe...for the time being?

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Originally Posted by Cabal-kun

How long until they go after people using MWS, or things like that?

Or is that relatively safe...for the time being?

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I wouldn't be surprised if they've gone after the software developer, fearing they were losing money that would have been spent on MODO. But as it's free-ware, they can probably just ignore the c&d order. I mean, someone is going to program new card sets as they're released. One thing is for sure, if MWS was making a lot of money and WOTC wasn't, they'd definitely send their lawyers after them. It'd be like printing Magic cards in your bedroom, wrapping them in cellophane and selling them on the street corner or wherever.

Rancored_Elf was another matter, since the depth of the MTGSal spoilers must have been insanely annoying to WOTC. It was also clear their playtesters were blatantly in breach of their non-disclosure agreements (NDAs).

ELD - For what it's worth, I think what WOTC is trying to pull with you is bullshit. It's not like you're making serious money doing whatever you're doing. It's love for the game.

I remember that Wizards actually had some sort of agreement with Apprentice back in the day to be officially endorsed by Wizards. This might have been before MODO, though, so things may be different now.