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mgh

Major court decision affecting this community

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I just found this posted over at train-sim.com about a court decision involving digital models of real world objects, such as the aircraft created fr flight sim and other simulations. It has ruled that unadorned models of real world objects are not copyrightable, as they don't meet the creativity threshold, since their design is based on the real world object. Only original creative aspects, such as shading or lighting is protected. This essentially means the model repaint skin is protected, as far as individial touches such as lighting, shading etc... (Under this ruling the livery itself would probably not be protected, since it is and meant to be a replica of the real thing.) but not the model itself. This obviously has a major impact on the future of this commuity, as modelers, can no longer claim copyright protections for their replica models. This is a sad day fr this community if that is the case, as it calls into question what impact it not only has with 3rd party model designers, but also with MS/Aces themselves.http://www.ca10.uscourts.gov/opinions/06/06-4222.pdf

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Tom,I see it another way. The processes by which a modeler or painter used 'can' be copyrighted (even trademarked or patented) so long as they are unique and/or created by the author or licensed to the author. You run into another issue however if you use a program to create them by which you cannot claim rights to, such as Photoshop and 3DS to name a couple.The other thing, is that maybe now, American Airlines and Disneyland no longer have a leg to stand on so long as you don't use their livery as the primary purpose or means of advertising (if making for payware). That goes for any other livery or what not which a developer has not received a license for. Nothing's changed in that respect, IMHO, except maybe now those 2 companies can't come after you, and win. Nor, may they not have the right to ask for free renditions to be pulled from variuos libraries.Now, there are other things in those models which can be copyrighted, which are unique to the author(s).Anyways, just a few thoughts. This industry will still run out those who copy others work, even if some of it may now be legal.

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Actually this gives the likes of AA and Disney greater legs to stand on as while the copy is not copyrightable, but the original still is! The claim that (legally) creating replica's of a livery just got thrown out. Only the individual added touches such as lighting or weathering (or anything else that's not a copy of something) are protected according to this ruling. I do think a stronger claim would have been that the code that creates the model is protected, but as you say if a third party APP was used, that would depend on whether it's license gives you that right.

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The decision is, prima facie, alarming, but perhaps what is really at stake in the decision may not be so earth-shattering for sim modelers and the like.Meshworks, the modelers in question, wanted copyright protection for their 3D model replicas of a Toyota car they took precise measurements on. This was done with the assistance and consent of Toyota. Having made this model, Meshworks wanted to copyright the design (the base 3D topology) as original work. As a model, it is a replica of another original work. Further the 10th Circuit of the United States Court of Appeals found that the base model plus adornments CAN be copyrighted. Thus, if Meshworks had of "skinned" the models, they could have had standing.Think about what 3rd party developers do: they use the SDK to "adorn" the base model with additional accoutrements so that we can enjoy the model in an ENTERTAINMENT context. A similar judicial body in the EU ruled in favor of a modeler when a brand copyright infringement was brought before German courts on behalf of Opel.Timothy Pinto, Journal of Intellectual Property Law & Practice 2007 2(6):359-362.In this case, the model was not used fo compete with automobile sales and was clearly for entertainment purposes.While at first blush the 10th Circuit Court in the US doesn't seem to understand the issue, I believe they have left a good loophole for modelers of real things in entertainment software to use: ensure that you do original "adornments" such that your model is clearly for use SOLELY in entertainment software such as MS-TS or MS-TS. The rationale of the 10th Circuit seems to encourage modelers to seek to copyright the additional work put in to realize the subject in the digital medium and within the context of the entertainment software. Thus, the court is leaving the door open to fairly protect original work in digital modeling which goes beyond the replication of the subject such that the model is made useful within the entertainment context.The example of the court's reasoning, whereupon case law concerning photography is considered, is instructive. They say that you can't copyright the subject being photographed, but you CAN copyright the original work done to prepare and pose the subject to capture a unique shot.In the race-car world, some sims avoid this entirely by creating cars "in the style of" existing cars while keeping the cars entirely fictional (rFactor and Live For Speed come to mind). In this sense no reference to the originals is made and any resemblance is claimed to be coincidental.In the audio world, there are many programs and hardware which enjoy a substantial martket by offering models and emulations of famous equipment (microphones, guitars, amplifiers) and these companies avoid the copyright issue by giving them different names and claiming that they are just simulations and not intented to be the subject of modeling.All of these cases are different than the Meshworks vs. Toyota case being cited in this post, but the idea is to use the protective cover of emerging and extant case law coupled with a little obfuscation in order to CLEARLY DEMONSTRATE that a MS-FS or MS-TS model is totally for entertainment and that any resemblance to the original modeled subject is "coincidental." Even in light of this, steps taken to make this software work ONLY in an entertainment context will go a long way, according to what I am reading.In any case, I am certainly not a lawyer, so this is just my take. I think copyright and fair use will always be contentious and I believe the courts will allow for a niche for modelers. Plastic model kits have been around for quite a while and are still being made. In the case of ACES, I believe they work things out directly with the manufacturers of the aircraft they model. Others have also taken this route of engaging the true copyright holders directly in order to difuse any possible situation.It done right, these issues of copyrights and 3D models should provide boundaries within which everyone can operate.

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Jeff,IANAL either, however, seems to be the very large loophole the court left modelers is that this ruling seems to be applicable only in the case of exact copies of unadorned real world objects."Exact copy" being the operative words.As long as you don't make an exact unadorned copy of the original, and some part of your computer model comes from your artistic hand, then your model would most likely enjoy copyright protection even if this ruling is upheld on appeal.It probably doesn't much matter how much of the model has to come "from your hand" either. As long as some of it does, and it's not a visual depiction of the fact of the original.So, the solution seems clear: Don't make an exact replica ... make it close, but include some part of your own design, however unobtrusively small and unnoticeable to those unfamiliar with the intricacies of the original.Voila ... now it's not a copy. Now it's an original work of art.Problem solved.

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What is interesting is that Meshworks DID have to apply artistic impression and interpretation to do the last 10-20% of the model as the dimensions and specifications data didn't quite cut it. Thus, using their artistic skills, they eyeballed the last bit. I think this decision left room for modelers in entertainment situations. Advertising, which is the domain in question, is probably a different affair.

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'unadorned models of real world objects are not copyrightable' is rather vague.Where is the threshold of 'unadorned'? lol

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Have to agree somewhat with Jeff and Kevin below.This appears to be a judgement in a specific case based on those specific merits and cannot, at this point, be used as "blanket judgement" for the entire 3D modeling industry.

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So selling an FS model of a Gulfstream is legal without the permission of General Dynamics and/or Gulfstream Aerospace Corp. And no more of the silly arguments about supposedly needing permission from Boeing to build a WW II B-29 model. Cool. Debate over.Bob ScottATP IMEL Gulfstream II-III-IV-VColorado Springs, CO

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>So selling an FS model of a Gulfstream is legal without the>permission of General Dynamics and/or Gulfstream Aerospace>Corp. And no more of the silly arguments about supposedly>needing permission from Boeing to build a WW II B-29 model. >>Cool. Debate over.>>Bob Scott>ATP IMEL Gulfstream II-III-IV-V>Colorado Springs, CONo this decision says the copy is not copyrightable, the original design is. The augument up to now that the 3D model replicas we use, (and I guess this would apply to physical models too.) were protected as a form of art, just got thrown out as I read it. This leaves it open for the original designers like Boeing to assert their rights if they choose to! I think though that we really need a real lawyers interpretation of this decision, as all we're doing is speculating one way or the other, but I do think it's an issue of concern.

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This is a whole lot of fun for a real life lawyer to read, because you're all so naturally good at exposing the stuff that isn't being considered or mentioned, and in teasing out the nuances of the language of the decision. It is precisely the kind, tone and tenor of debate that occurs in law school, and in front of an appellate panel of judges. Bravo.All appellate decisions are limited to the precise facts presented in the specific case. The art of arguing precedential value is in showing how similar or dissimilar the facts of the next case are to the one already decided.Whatever may be the enduring value of this decision, it applies only in the states comprising the Tenth Circuit, the West Coast states. Until the Supreme Court reaches a decision on the issue, it is not yet the law of the land. Meshworks may choose not to ask the Supreme Court to review the decision. If they do, the Supreme Court may decline the job. This case may never be tested further in its precise form. I would not even try to base permanent conclusions about the state of the law in this area on one decision alone.As I followed along with the court's reasoning, I also was struck by how they failed to give any weight to the refinements Meshworks had to perform to make more faithful the representation in those areas in which the mechanical measuring process left gaps. They seemed mesmerized by the intent element, intent to duplicate, ignoring that a computerized depiction is anything but a duplicate. It's an electronic drawing, not a car.To get well grounded, turn the word copyright around. It is concerned with the right to copy. The constitutional protection applies to creative expression. Only the first creator of that expression has the right to copy it. That is subject to some exceptions when someone is hired to create a specific creative expression, a far more torturous discussion than I am prepared to engage in now. In this case, as the court accurately noted, the creative expression is inherent in the appearance of the vehicle. Courts don't suffer cuteness happily, by the way, and changing one tiny element would not be a new expression if everything else were the same.I don't think this panel's reasoning regarding photography was very well researched or expressed, let alone applied here. To capture in a new medium the appearance of a physical object is by that very act a new creation. The early decisions did have a hard time refining the law, just as these ones will. But a photograph is just a photograph, not a car. If you want to copy a car's appearance, you have to build one that looks just like it.The early decisions on photographing things had an almost shaman-like undercurrent, that photographing something was capturing its soul. As time went on, it became clear that photographing an object didn't steal the creative expression inherent in the object because the created form was intrinsic to and not severable from the object itself.As much as we would like to find hard and fast, bright line, demarcations in the law, there really are none. Photograph a page of a book. Copyright violation? Shoot five random pages of that 250 page book. Violation? Shoot all 250 pages and sell copies in binder. Violation? You betcha, red rider, on that last one, but not the first two. It wasn't quite a book, but it was so close in form and function, tangible and readable, that it was as though it were a book. The violation doesn't lie in photographing the pages, but in offering a compilation of them just like a book that amounts to a verbatim copy.While were on authored writings, note that a translation isn't a copyright violation because it isn't a copy. It's entirely different words in an entirely different language, even if it is meant to be a true translation.I think all Meshworks did was translate the expressive elements of the shape and form of the vehicle into a new medium. But I'm not on the court, so it doesn't much matter what I think. :( Back to where I started - You all have performed wonderfully in probing the nooks and crannies of this decision. It's been a delight to observe.:-beerchug -Doug

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Well, I am not a lawyer but I certainly would not be able to withstand the litigation costs if for any reason one of the Giants decided to come after me if I were a small payware developer.I have not yet seen Aces use any real world skins if I remember correctly. I wonder if in the future, they willBob

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Thanks for weighing in on the subject, it makes me feel a lot better about it. Wouldn't a stronger claim for copyright from Meshworks been the underline code that made up the model, rather the the model itself?Thanks!!

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I'm not any better than the rest of you at thinking about this, I just have a little better inside information to start with. These are really common sense concepts, but their application is more subtle and sophisticated. We're all - including the judges - on even footing here.Honestly, I don't know enough to be able to comment even intelligently, let alone authoritatively, on the distinction you ask about.My first impression is that the final product produced by Meshworks embodied a whole lot of artistic interpretation of the imperfect copy that was generated by the mechanical probing of the actual vehicle. It seems to me that the final code was a combination of the product code and those embellishments. That's what produced the representation in a new medium. It was the appearance of a perfect copy. Therein lies the art.To me, it doesn't matter that a perfect copy was the intended result, because the technique was to create an entirely new expression that tricked the eye into believing it was perceiving a perfect copy. To me, that is creative art.It doesn't take a genius to see that measuring the car's shape to be able to go out and build a perfect copy in the real world and sell it - think perfect Toyota body and Yugo mechanicals - is stealing the copyrightable appearance and deceiving the consumer.We protect the creative expression not to maintain purity, but to reward the creator with the exclusive fruits of the creative labor - revenues. No harm to revenues, no harm to creative expression.Regarding an airplane's distinctive shape, the question first to ask is whether it is a creative expression in the First Amendment sense of expression. If not, then it is functional. Functional creations are subject to patents, not copyrights. You can copy the appearance all you want, as long as you don't copy the implementation of the function. Saying it in that way obviously means you can't exactly copy the appearance in an actual aircraft, else you have automatically copied the function. But copying the appearance in another medium entirely doesn't relate in any way to copying the real world function, because no real airplane is involved. It's just an abstraction.To the extent manufacturers contend they hold a copyright for the mere appearance of an aircraft, in whatever medium portrayed, they confess that the appearance elements they claim to be protected actually perform no unique purpose and are mere marketing tools, solely expressive, not functional. Kind of undercuts their patent portfolio, huh? That's the choice they face. I know which choice I'd make. Patents have broader protection, protection against near approximations, than do copyrights which protect only against nearly exact actual duplication. It helps to know that thoughts, ideas, aren't protected. Only the implementation of thoughts in a useful way are protected, and that is the realm of patent law.I know that appearance can be both patentable and trademarkable. I know it can be both copyrightable and trademarkable. Think: our useful function is our very brand, and our distinctive appearance is our very brand. But I can not conceive of something that is both patentable and copyrightable - Our creative expression in words or appearance is a unique and functional technique or tool never before thought of. Naahh. It's either pretty or it's a tool.Suppose: You have a thought about what an airplane should look like to make it move really well through the air. Tough. Not protected. You design an airplane's hull or wing shape to incorporate that thought. Good. Protected by patent law, assuming a properly filed and granted patent. You have an idea about what an airplane's shape should be in order to persuade customers that it is fast and extremely fuel efficient, even if you know it has no such benefits. Good. Protected. No one can make an airplane look like that shape once you do because you have the copyright. But anyone can make something other than a real airplane look like that, because it has no effect on your marketing of a real airplane with that appearance. You design a livery that distinctively marks your fleet of actual airplanes. Good. Protected. No one else can use that livery on real airplanes because it would confuse consumers. That's a trademark. Whoops, what about the creative appearance? Yup, that's protected too under copyright law. But there's no economic harm in translating that appearance into a new medium in which the new representation is but an approximation of the real thing. New medium means no consumer is confused. Nobody is diverted from flying on the real airline. Nobody is diverted from purchasing the real airplane. But courts might grant an injunction to prevent the reproducer from making money, even in a market for which the original work was not intended, if it copies the creative work.So we end up full circle again, asking ourselves what is that constitutes a copy? The law doesn't say. We have to decide what the law should mean. What's the purpose of anti-copying? What's reasonable? My own judgment is that protection should be limited for copyrights to the purposes for which the creator implemented the original work; for patents, the same plus reasonably foreseeable minor extensions and adaptations in the real world; and for trademarks to specific original uses.So, to answer your question, I can't say I know that a stronger claim for Meshworks would have been to assert a copyright in the underlying code rather than to have asserted one in the model itself. I lean more in favor of the opposite because the model itself incorporated their artistic, creative refinements that sought to trick the eye into believing it was perceiving a true copy, albeit in a new medium. The appeals court thought copying was an automatic sin, forestalling further and deeper examination, and I think that it required artistic translation that was protectable as an original creation, to the extent of the creative elements embellished onto the original somewhat crude measurements of the form of the vehicle.In short, in my mind, they did not copy a vehicle. They created something entirely new, based on the shape of the vehicle. That's protectable. That's creative. That's expressive. That's art.I think this decision is as wrong in its context as were the early photography decisions, primarily for failure to recognize that an expression in a new medium cannot be, by its very nature, a copy.But - remember that there's a branch of copyright law they didn't even address and that is the branch dealing with whether the commissioner of a work or the artist who makes it owns the copyright. Over the last few decades, the answer has been that the buyer, not the worker, owns the copyright. I'm truly puzzled why this wasn't mentioned at all.-Doug

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Doug, well put. In addition there are legal arguments with regard to licensing which seems to have been totally ignored by those who fear the end of the 3D modeling industry as we all know and currently enjoy.On its face, this specific decision does not appear to be/have a sound basis for setting legal precedent across an entire industry.Interesting arguement on the subject of copyright ownership as well:-)

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Surely the unlying question is do third parties have any rights to use either aircraft designs or real-life liveries in their work without the permission of the aircraft manufacturer or airline? I suspect the answer is that they don't, but that the companies concerned can't be bothered to enforce their rights. I think this would be particularly important for using airline liveries. Airlines are concerned about their image and would, for example, be very unhappy if their liveries were used in a game in which the aircraft crashed. My understanding (open to correction) is that Microsoft chose not to represent real airlines because of the consequences of needing licences."My own judgment is that protection should be limited for copyrights to the purposes for which the creator implemented the original work; for patents, the same plus reasonably foreseeable minor extensions and adaptations in the real world; and for trademarks to specific original uses."I disagree. You have not thought about mechandising. This often uses copyright protected material for totally different purposes. As an example, at Dublin Airport there is a Guiness shop. This doesn't sell Guiness, but sells almost everything else - drinking glasses, clothing, hats etc etc all bearing the Guiness logo and all licenced by Guiness. By your interpretation anyone could use the Guiness logo provided it wasn't for a drink. A company's brand image is an important and valuable asset. Quite rightly, they are not going to let anyone else cash in on that and the law protects them against it.Incidentally, if you do want a Guiness at Dublin Airport you can still buy one at the bar!

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It is possible you are actually referring to the trademark, protected by trademark law. As a design, it has some elements in common with things that can be copyrighted, but the most sweeping form of protection is granted by trademark law. In short, no one else can use it. Then there is the sub-branch, called Trade Dress, that refers to logo-like design elements or particular sequences and combinations of specific colors.Anyway, it is what protects merchandising rights for using the marketing logo. I'm sorry we can't cover all the law in just two posts, and you were absolutely correct to note that there was something that had not yet been discussed. Good work.-Doug .... and speaking of beer :-beerchug

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I agree. This whole point is much wider than a simple matter of copyright law alone.

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