# Would my fake Maltese Falcon be legal? **URL:** \ **Category:** Factual Questions\ **Created:** [May 6, 2005, 5:13am UTC](https://boards.straightdope.com/t/would-my-fake-maltese-falcon-be-legal/302651 "2005-05-06T05:13:24Z")\ **Posts on this page:** 9\ **Page:** 2
**Author:** ![Gfactor](https://avatars.discourse-cdn.com/v4/letter/g/9de053/32.png) [@Gfactor](https://boards.straightdope.com/u/Gfactor)\ **Post date:** [May 8, 2005, 7:41pm UTC](https://boards.straightdope.com/t/would-my-fake-maltese-falcon-be-legal/302651/21 "2005-05-08T19:41:16Z")
> [@commasense](#): > > I’m still interested in getting some idea of how different is different enough, if there have been any precedents to establish that. The master [speaks](http://www.straightdope.com/classics/a990827.html), sort of. And here is a discussion of [substantial similarity](http://www.edwardsamuels.com/illustratedstory/isc7.htm) and other copyright issues. ---
**Author:** ![Walloon](https://avatars.discourse-cdn.com/v4/letter/w/fbc32d/32.png) [@Walloon](https://boards.straightdope.com/u/Walloon)\ **Post date:** [May 8, 2005, 8:12pm UTC](https://boards.straightdope.com/t/would-my-fake-maltese-falcon-be-legal/302651/22 "2005-05-08T20:12:00Z")
> [@commasense](#): > > Their black bird is not a terribly accurate copy of the original. Compare [theirs](http://www.hauntedstudios.com/) to [the real thing](http://www.hauntedstudios.com/) (the upper pictures). Your links go to the same page. > [@commasense](#): > > You’re contradicting **Chronos** ’ assertion that the dingus holds a separate copyright, but neither of you has provided a cite. That’s not what **Chronos** wrote. He said that the statuette _might_ have a separate copyright, if it was not created as a work for hire. As to the principle, here is the U.S. Copyright Office, [Copyright Registration for Motion Pictures](http://www.copyright.gov/circs/circ45.html): > [@](#): > > _Publication of a motion picture publishes all the components embodied in it including the music, the script, and the sounds._ Thus, if a motion picture made from a screenplay is published, the screenplay is published to the extent it is contained in the published work. If Haunted Studios has, as they claim, sold their bird _to_ Warner Bros. (which I’m not willing to accept at face value), it would suggest that the studio either doesn’t hold or claim a copyright on it, or they don’t consider the Haunted Studios bird to be a violation because it is sufficiently different. [/QUOTE] No such suggestion. Warner Bros. no longer owns the original statuette used in the 1941 motion picture; the prop disappeared years ago. That doesn’t mean they don’t own the copyright to its design. ---
**Author:** ![commasense](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/commasense/32/3017_2.png) [@commasense](https://boards.straightdope.com/u/commasense)\ **Post date:** [May 8, 2005, 11:17pm UTC](https://boards.straightdope.com/t/would-my-fake-maltese-falcon-be-legal/302651/23 "2005-05-08T23:17:54Z")
> [@Walloon](#): > > Your links go to the same page. :smack: Fixed links: Compare [theirs](http://www.hauntedstudios.com/) to the [real thing](http://www.thegoldenera.net/Falcon.html) (the upper pictures). Thanks for the cite on the inclusion of works within a larger work. > [@Walloon](#): > > > [@commasense](#): > > > > If Haunted Studios has, as they claim, sold their bird to Warner Bros. (which I’m not willing to accept at face value), it would suggest that the studio either doesn’t hold or claim a copyright on it, or they don’t consider the Haunted Studios bird to be a violation because it is sufficiently different. > > No such suggestion. Warner Bros. no longer owns the original statuette used in the 1941 motion picture; the prop disappeared years ago. That doesn’t mean they don’t own the copyright to its design. Hmm… First of all, you’re mistaken. The on-camera bird is in the Warner Museum ([cite](http://thefedoralounge.com/showthread.php?t=1276&)) and the maker of the MK Falcon went to see it in person for reference. Another original lead copy presumably belongs to the heirs of actor William Conrad. But I don’t get your point. Perhaps I didn’t make myself clear. The presence of (by my count) at least five or six different (and presumably) unlicensed versions of the Falcon suggests to me that Warner Bros. doesn’t know about them (unlikely IMO), or doesn’t care, or has no cause for action. The statement I made in the passage you quoted above was intended to support (weakly, I know) the last of those three possibilities. I don’t understand what the existence or non-existence of the original has to do with that. IOW, if the Haunted Studios bird is, as I strongly suspect, unauthorized, and they had sold one to the president of Warner, we would have to assume that Warner had no case: either the bird isn’t protected under copyright or is different enough not to be considered a violation. (Of course, for all we know they sold it to a Warner parking lot attendant, or to no one at Warners.) However, I think **Gfactor** ’s link on substantial similarity (of which I have only read a part) answers my question. If, in fact, the dingus is really covered under copyright (and I grant that it probably is, on the basis of **Walloon** ’s cite) then all of these copies are “substantially similar” and are in violation. So my final question: If I buy one of these copies, am I, as purchaser, in any way liable? (Legally, I mean. We’ll leave the ethics out of this for now.) Does my knowledge (or ignorance) about its being in violation make a difference? ---
**Author:** ![Gfactor](https://avatars.discourse-cdn.com/v4/letter/g/9de053/32.png) [@Gfactor](https://boards.straightdope.com/u/Gfactor)\ **Post date:** [May 9, 2005, 1:44am UTC](https://boards.straightdope.com/t/would-my-fake-maltese-falcon-be-legal/302651/24 "2005-05-09T01:44:21Z")
> [@commasense](#): > > So my final question: If I buy one of these copies, am I, as purchaser, in any way liable? (Legally, I mean. We’ll leave the ethics out of this for now.) Does my knowledge (or ignorance) about its being in violation make a difference? Not civilly liable. You’d only be liable for infringement. > **[17 U.S. Code § 501 - Infringement of copyright](https://www.law.cornell.edu/uscode/text/17/501)** > **[17 U.S. Code § 504 - Remedies for infringement: Damages and profits](https://www.law.cornell.edu/uscode/text/17/504)** But the copy could be seized and impounded. > **[17 U.S. Code § 503 - Remedies for infringement: Impounding and disposition...](https://www.law.cornell.edu/uscode/text/17/503)** > **[17 U.S. Code § 509 - Repealed. Pub. L. 110–403, title II, § 201(b)(1), Oct....](https://www.law.cornell.edu/uscode/text/17/509)** Again, you would probably not be criminally liable for infringement. > **[17 U.S. Code § 506 - Criminal offenses](https://www.law.cornell.edu/uscode/text/17/506)** OTOH, under some circumstances, you could be found guilty of conspiracy, complicity, or even [misprision](http://straylight.law.cornell.edu/uscode/html/uscode18/usc_sec_18_00000004----000-.html). ---
**Author:** ![commasense](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/commasense/32/3017_2.png) [@commasense](https://boards.straightdope.com/u/commasense)\ **Post date:** [May 9, 2005, 2:33am UTC](https://boards.straightdope.com/t/would-my-fake-maltese-falcon-be-legal/302651/25 "2005-05-09T02:33:41Z")
**Gfactor** : Did you miss this part: “If I **buy** one of these copies, am I, as **purchaser** , in any way liable?” I’m talking about buying one of the cheap knockoffs, not making my own. A buyer, even if he suspects the copy is a fake, isn’t an infringer, is he? ---
**Author:** ![Gfactor](https://avatars.discourse-cdn.com/v4/letter/g/9de053/32.png) [@Gfactor](https://boards.straightdope.com/u/Gfactor)\ **Post date:** [May 9, 2005, 2:37am UTC](https://boards.straightdope.com/t/would-my-fake-maltese-falcon-be-legal/302651/26 "2005-05-09T02:37:29Z")
> [@commasense](#): > > **Gfactor** : Did you miss this part: “If I **buy** one of these copies, am I, as **purchaser** , in any way liable?” > > I’m talking about buying one of the cheap knockoffs, not making my own. A buyer, even if he suspects the copy is a fake, isn’t an infringer, is he? No. A buyer would not be _civilly liable for infringement_, even if the buyer knew for a fact that the object was infringing. Sorry if I was not clear before. But remember, the phony would be subject to seizure. ---
**Author:** ![Acsenray](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/acsenray/32/4519_2.png) [@Acsenray](https://boards.straightdope.com/u/Acsenray)\ **Post date:** [May 9, 2005, 2:30pm UTC](https://boards.straightdope.com/t/would-my-fake-maltese-falcon-be-legal/302651/27 "2005-05-09T14:30:00Z")
> [@Walloon](#): > > > [@Commasense](#): > > > > And if the act of copying requires virtually as much creativity as making the original (unlike the purely mechanical process of copying recordings, books, or other copyrighted works) is it a violation? That is, if I don’t use the high-tech methods my other post contemplates (which, it turns out, are impractical) but sculpt it by hand using the pictures of the original as a model, have I violated copyright? > > Yes, you have. That’s known as a “sweat of the brow” argument, and the U.S. Supreme Court has specifically rejected it as a defense in copyright infringement. It has nothing to do with sweat of the brow. The point is that you have had access to the original copyrighted work. So long as you have seen the original work and what you have created yourself is substantially similar to that work, then you have copied the work. How you went about doing it is irrelevant. ---
**Author:** ![Acsenray](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/acsenray/32/4519_2.png) [@Acsenray](https://boards.straightdope.com/u/Acsenray)\ **Post date:** [May 9, 2005, 2:33pm UTC](https://boards.straightdope.com/t/would-my-fake-maltese-falcon-be-legal/302651/28 "2005-05-09T14:33:16Z")
> [@commasense](#): > > The presence of (by my count) at least five or six different (and presumably) unlicensed versions of the Falcon suggests to me that Warner Bros. doesn’t know about them (unlikely IMO), or doesn’t care, or has no cause for action. > … > IOW, if the Haunted Studios bird is, as I strongly suspect, unauthorized, and they had sold one to the president of Warner, we would have to assume that Warner had no case: either the bird isn’t protected under copyright or is different enough not to be considered a violation. (Of course, for all we know they sold it to a Warner parking lot attendant, or to no one at Warners.) This is something like what I was trying to suggest with my first post – there is a possibility that Warner Bros. either has no copyright interest to assert or has chosen not to, but that isn’t something you can count on and your further comments illustrate how unlikely it is. > [@](#): > > So my final question: If I buy one of these copies, am I, as purchaser, in any way liable? (Legally, I mean. We’ll leave the ethics out of this for now.) Does my knowledge (or ignorance) about its being in violation make a difference? A purchaser of an infringing copy is not liable. ---
**Author:** ![Walloon](https://avatars.discourse-cdn.com/v4/letter/w/fbc32d/32.png) [@Walloon](https://boards.straightdope.com/u/Walloon)\ **Post date:** [May 9, 2005, 9:45pm UTC](https://boards.straightdope.com/t/would-my-fake-maltese-falcon-be-legal/302651/29 "2005-05-09T21:45:37Z")
> [@acsenray](#): > > It has nothing to do with sweat of the brow. I think you’re misunderstanding what I wrote. You and I are in agreement. As I said, the Supreme Court has _rejected_ a “sweat of the brow” defense in copyright infringement cases. It declared that defense to be irrelevant. [Previous page](https://boards.straightdope.com/t/would-my-fake-maltese-falcon-be-legal/302651.md?page=1)