Over in this thread, I’ve asked about how to make my own replica of the Maltese Falcon statuette. I’m aware that if I were to actually do this, I might possibly be in violation of copyright or other laws.
Are there any IP lawyers who would care to offer an informed opinion on this question? Here are the issues as I see them:
If I do as I suggest in the other thread and actually scan frames from the film, I am making copies of a very small portion of a work copyrighted by Warner Bros. So technically that might be a violation, unless we can claim that we’re using such a tiny portion of the original (maybe a hundred frames out of a film that contains about 145,000 frames) that it falls under fair use.
Is there a legal basis for the potential claim by the studio that it holds a copyright not only on the film itself, but also on the props that appear in it? This seems far from clear to me. Are there any precedents for such a claim?
If not copyright, could Warner assert some other IP claim on reproductions of the dingus? AFAIK, there are no authorized official Falcons available at the studio store, so this wouldn’t be precisely analogous to making fake Gucci bags. And I haven’t heard about anyone going after these cheap knock-offs. Of course, that means nothing in and of itself, but their fairly widespread availability suggests to me that if they’re not 100% legal, at the very least Warner doesn’t seem terribly concerned about them. Would we have a laches argument, perhaps?
If we decided that scanning in actual frames might be a violation, would making a copy the old fashioned way, having a skilled artist sculpt his own version by eye, overcome some, most, or all of the other objections? “No, your honor, this is not the Maltese Falcon, but an original work of art that just coincidentally happens to bear a striking resemblance to the Falcon.”
Finally, I’m assuming that if, like the owner of this site, I limit myself to a relative handful of copies and don’t start mass producing them and selling them in Wal-Mart, even if they are technically illegal, I’m not likely to show up on WB’s radar and could probably get away with it. Right? (Hypothetically, I mean. I’m not asking anyone to condone illegal behavior.)