Is it against copyright for me to pick up used board games with wooden pieces, repaint the wood bits and then resell them?
(I’d enjoy it, and figure I could get a bit of money off it. And I’d totally love to own a colorful or calligraphic, say, scrabble game, if I actually played it.)
Copyright? Probably not. Unless you reproduced the instruction manual.
Trademark and/or patent? Yeah, probably so.
IANAL, but it seems to me that if you are using actual used games, you are not doing anything different than someone who restores or customizes an old car. Milton Bradley already got their money.
Now if you carve or print a new game, that’s a different story.
Doctrine of first sale would apply here.
And to specifically apply that to the OP’s question, Wikipedia says:
So, reselling a board game is fine… making material alterations and then selling it may not be.
Thanks, all. So what does “materially different” mean? Any change at all, or just change that alters the nature of the game? (Painting the letters on Scrabble pieces a different color vs. changing them to different letters entirely, for example.)
You’d be on safe ground, basically for the same reason as Andy Warhol was when he used soup cans in his artwork.
The courts ruled that Warhol was clearly intending to use that soup as a message to display his art, not as an advert.
The OP is going to take pieces and put his own art upon them. Thus he is in effect creating new art.
As one poster asked:
So what does “materially different” mean?
This is where all trademark and copyright issues come into play. This means different things to different people. There is no way to know for certain till your sued and go to court and either win or lose.
This is what I find so interesting about copyright and trademark issues. Two judges can take identical cases and decide different ways and BOTH will be valid.
Careful, there. Derivative works don’t get freedom from copyright. I can’t paint my own art over parts of copyrighted (to someone else) photographs and sell them, for example. Heck, I can’t even make a standalone painting of a photograph I don’t have the copyright to. I’m not sure it’s nearly this cut and dried.
Isn’t this exactly the issue at question in the case of the Barack Obama “Hope” poster created by Shepard Fairey and based, apparently, on a photo taken by a freelance photographer for the AP? Fairey is claiming that his creation was fair use of the photo, but I don’t think that the issue has been settled finally.
Hm. Well, do you guys think there’s enough leeway for me to try it and probably not get sued? Would the company that sells it be likely to actually answer me if I asked? Or is it so probably ok that I shouldn’t bother?
Thank you very much.
I’m inclined to think it’s perfectly fine, people sell their painted and/or modified wargame miniatures on eBay constantly and as near as I can tell that’s exactly the same thing from a legal standpoint. The only thing I can think of that could get you in trouble is if you make use of other copyrighted materials, say to make something like a Disney-themed Monopoly game, but other than that you should be in the clear.
I don’t think copyright and trademark issues are very different than any other issue. Many laws of all types are deliberately written in a vague manner for various reasons.
(One reason is that the various politicians can’t agree on how strict the law should be, and if the law was more explicit it wouldn’t pass, so they agree to phrase it in a manner that is so bland that none of them object strongly enough to oppose the new law. Another reason is the fear that some new situation may arise which the lawmakers didn’t think of, and if they phrase the law too carefully they’d be creating a loophole for the evildoers, but if they keep it vague the courts can decide what is included or not.)
Just one example would be pornography laws.
Modifying stuff has a long tradition in art circles. Charge enough to a rich friend, have him then donate it to a museum with a high tax valuation, and you can sell a dozen more to rich trinket groupies at Christie’s auction house.
Thanks, all! I’ll give it a go!
Me and a couple other Monopoly token collectors got together with a small metal working company and made our own set of pewter tokens that could be used with the game. We each ended up with 20 sets of tokens and we sold them on eBay and other places. We sold them as pewter tokens that work with Monopoly, not as Monopoly tokens. I personally never was contacted by Parker Brothers.
People restore old cars and resell them all the time. How is that any different than what OP is proposing?
He’s selling the original item that has been modified. Thats really different than some of the scenarios presented here, which have more to do with producing derivative works that are reproductions of the original, not modifications of the original. If I paint a corvette pink and resell it for a profit, then I probably wont get sued. If I start making a new car called the corvette then…
I dont see the argument against this. If I sell an old monopoly game on ebay, but I lost the houses and replaced them with lego houses, then I dont see why or how the original seller can demand I have to sell it with the original houses. This is essentially a first sale issue, not a copyright one, as he is not doing any reproductions.
I imagine your chances of getting sued from a small operation, like ebay sales, to be pretty slim.
And let’s be honest: you’ll get a cease-and-desist order first.
No, it really isn’t the same thing at all. The problem there was that Fairey never paid the AP in the first place. So the default assumption was that by using an AP photo he did not pay the license fee for, he infringed copyright. Then he invokes a fair use exception defense. Who knows who wins?
Here, someone paid for the boardgame. Hasbro got their money, and they aren’t entitled to control what you do with your purchase later (unless you separately contract to use it only in certain ways). They’re not entitled to double dip (the first sale principle, although technically I think that gets mentioned most often with patents, which aren’t really relevant to board games).
The only possible problem I can see would be potential violations of the Lanham Act, which proscribes false or misleading designations of source/origin. This would only arise if, say, I repackaged the game in a HuertaCo box and called it Huertaopoly, thereby making consumers think that HuertaCo was the genius behind the concept; or replaced the figures with Hitler, Goebbels, and Goering, giving the false impression that Hasbro sponsored Nazi-themed fun n’ games.
I was referring to the following post by Timewinder (not to the boardgame question). I was saying that Fairey did make a standalone painting of a photograph he didn’t have the copyright to, which is, I think, exactly the situation described by Timewinder.