The Legality of 'character' Minimees

Well, coming from somebody who does actually own a Cloud Strife minimee, having one is not going to stop me from buying offical merchandise and figures, so it's not like Square-Enix is going to be loosing any money in that aspect. I think this can be said for a lot of other people who have minimees. You own them because you are a fan of that particular person or character, and I don't think having one is going to stop you from collecting offical stuff related to that person/character.

From a legal stand point, I have always wondered about how legal minimees actually are, but I have to agree with a lot of people here who have said that they aren't that much different to cosplay, fanfiction, fan art, etc. It is not like DIM are claiming the character as their own or mass producing the sculpts. If you ban minimees, then you might as well ban cosplay and the sue the costume makers while you're at it.

 

Creating minimees of characters isn't right, but of actual people, it's a bit different because you can't really copyright a person, can you?

 

I don't know if this has already been said, but I do seem to remember reading somewhere that a 'copy' is legal if there's 20% alteration?? So perhaps the maximum likeness of MNMs being "80%" makes them quite legal...

I think I don't get too worked up about copies unless one is copying some smalltime artist's work. For example, I really hate seeing all those obvious Unoa re-works (I won't name the company), even if they're "20%" different because Gentaro Araki is not exactly a huge multimedia conglomerate, he's a lone artist. Seeing an approximation of Cloud Strife doesn't bother me as much because I feel the company that made the character is making umpteen bajillion dollars on the games and other merchandise already, 10 or whatever "80%" Cloudies isn't too much of a dent?

Maybe that makes me something of a hypocrite but oh well! That's how I feel about it.
Raven

 

The 20% rule is often quoted, but it is purely fictional if you ever get taken to court for making use of it. As an art student, in high school I was told the 20% rule, and made use of it. Now, in college, we are blatantly told that the 20% rule is bull. If you take a Louis Vuitton bag and copy everything but the handles to give yourself that 20%, you have still copied an LV handbag and you can still be successfully sued for infringement if you sell it for profit, should LV&CO be so inclined to do so.

And therein lies a lovely little loophole: inclined to do so.

As has been stated before countless times in this thread, many companies or individuals who own a copyright overlook infractions on said copyright for a variety of reasons. It may not be financially viable to do so; they may have to spend more money fighting the infraction than they were losing from the infraction's occourrence. It may also be considered by the holder of the copyright to be a source of free promotional advertising; they may hope that allowing the production of infringing materials will help propagate sales of licensed merchandise, and create interest in the copyrighted materials themselves.

Some copyright holders do not see it either way, and steadfastly stop on any "grey area" that surrounds what they have copyrighted; Disney has been mentioned many times in this thread as a good example of this. Also, in the areas of fanfiction, Anne Rice has requested that no fanfiction be created using anything from her wide, successful library of works, and so no such fanfiction is legally allowed to exist because she will exercise the right to defend her copyright. I have also observed, generally of course, that if a popular author/artist/designer requests that the fanbase does not do something, the majority of that fanbase is not only happy to comply with the request, they are quick to point out any rule-breaking to the author/artist/designer so that it can be dealt with.

As for the original intention of the thread, what do I think of DIM making money from the original works of others? As someone who does not hold a copyright to any produced thus far, I am not personally affected by the creation of Minimee heads. While I will admit to not being personally inclined towards celebrity or fan-based Minimee heads, that is not to say that I believe they should not be produced. It may not be legal, but until the copyright is enforced by the holder, there is also nothing stopping DIM from offering the service as it stands now. While I am not certain it is something I would do personally, people enjoy having them, and copyright holders would possibly find their fan bases wounded by the barring of Minimee head production. It seems to be in the best interest of companies like SE, at least for now, to leave sleeping dogs lie; people enjoy their character heads, and people unaware of the Final Fantasy series (do you live under a rock?) may be persuaded by one to become a fan themselves.

Perhaps, in time, copyright holders will come forward and demand that DIM stop producing specific copyrighted characters; celebrities may come forward and request that DIM not create any heads based on their likeness to any percentage. At that time, I will only have a problem with the production of Minimees if DIM blatantly refuses to comply with those requests and continues to create likenesses of enforced copyrights, which I highly doubt they would do.

Until then, I take the stance that I have no opinion.​

Quoted for emphasis.​

 

I honestly don't see it as being a huge problem for larger companies like SquareEnix and such. [or even for smaller companies, since it'd be more publicity] Since Square isn't making BJDs, this isn't taking away from their business. If anything, it promotes that character to people who are unfamiliar with it. Now, if the MNM heads were horribly done or mocking/making the character/show/creator/ect. look bad OR claiming that a head that was IDENTICAL to Cloud was, in fact, not Cloud and their own character, then there would be more of an issue. Some artists feel that fan art is a form of flatering, others see it as theft or mocking. We're not talking about a person taking a work of art and tracing the lines, coloring it differently, and calling it their own unique character, and selling it while claiming all of the ideas were their own. We're talking about someone liking someone else's art so much, they want to have it for themselves in a way they would otherwise never be able to have it. If Square was planning on making BJDs, then I could see this being a huge issue. But from my knowledge, they're not. I would have no problem if someone made a MNM of one of the characters I had drawn in my manga, as long as it wasn't done to slander my name/character/story or I wasn't making BJDs myself. I would see it as flattering that someone would love my character so much they would want a doll of it.

In short; As far as MNM and this topic are concerned, yeah, it's probably illegal IF the original creator were to try and fight it in court BUT I don't see there being a need to.

 

It's just facial features. A little bit of bone structure. It's not 20% different, it's more like 95% different. You could take any of those heads and turn them into something totally unlike the character or actor. I think it would be kind of sickening if people started getting all worked up over "stealing" bone structure. D: That's just way too paranoid and protective IMO. There has to be some flow of ideas allowed, that's just how art works. >A<;;

 

Personally, I think there's a difference, and I think the difference is media. If DIM were to be prosecuted for their minimees of video game characters, let's say for example Kingdom Hearts, then that means that EVERY artist who sells drawings of Kingdom Hearts characters would have to be prosecuted as well. Because companies don't make BJD merchandise for these characters, I think it's fine. If, however, the original companies made BJD merchandise of these characters I'd say it's totally illegal and they should be fined. However, as it stands, I'm okay with it. Though personally I don't see the appeal of having a video game/anime/etc character BJD, so I'd not buy one personally, that doesn't really have anything to do with this debate.

 

No idea if it's been said before but just wanted to say that it shouldn't really matter with celebrities in this case since people make a living out of pretending to be celebrities...

As for the dolls being of anime characters or game characters I don't agree with since it's taking profits from something that wasn't initally your design/sculpt.

 

What do you think about the fact DIM are making money from other people's original works?
Well... at first I thought it was a cool idea, but a little iffy Trademark-wise. However... the laws are a bit more complex than the ethics or morality of it.

First off, likenesses aren't really covered by COPYRIGHT. Copyright is for whole images--photos and artwork and for written works, etc. Likenesses and characters are usually protected under trademarks. It works a bit the same way, though, but it's best to be more accurate than not when talking about complex issues!

Secondly, one usually only pursues copyright infringement when you can prove a loss of income (and you have to own the copyright, of course). With the minimees, it can be said that no one is being hurt monetarily because no one (with the license or TM) is trying to sell resin heads of whomever, so DIM isn't taking away business/money... And if we are thinking of trademarks, this can work similarly, but usually it more like if you're using someone else's Image to see your own items or in a manner that could hurt the Image of the company who has it Trademarked-- as in using Mickey Mouse in your logo or having it on your wall--which can be confused with an endorsement by Disney or a comparison with Disney or can reflect badly on Disney, which has Mickey trademarked (the name and the image). You can see that this is also hard to apply to the minimees--or might be hard if you consider my last point--

Lastly, the heads are only a percentage to begin with, but are totally bald and unpainted with no eyes and a standard body (if any), so you can't really say it looks all that much like anyone or anything when it isn't even painted or have eyes, etc. Bone structure isn't going to be enough to prove a likeness, really. We all know how much changing wigs and eyes and faceups can change the total look of a sculpt!!! So without all that, it can be made into something that looks very much like a character or it can be made into something that isn't the character at all--and that is by the OWNERS, not by DIM, you see. So if and owner makes it look like a character, that's the owner's doing, not DIM.

Also, going back to the money-making thing, if an owner had DIM create heads and made a number of completed dolls that were obviously the character and then sold them, the copyright owners would have more of a case. But creating a doll for yourself, that's usually not actionable. Selling one doll usually won't get a copyright owner after you, also. And many copyright owners of characters don't really care about such things and won't go after people... not unless it's a bigger business and really making more of big deal out of it... and usually they'll do that only because they need to defend their copyrights or trademarks or risk losing them. But fans and such small-time activities will usually be tolerated.

Legally speaking there is no law that states something must be a certain % different from the original to not be considered a copy if it's clearly based on something, so does DIMs practice of only doing up an 80% likeness excuse the breech of copyright?
See above. It's not actually Copyright. And even if it's trademarked, it isn't really actionable (for various reasons partially covered in my last answer), although it does skirt the line quite a bit. Really, most blank heads don't look like the characters. They can easily be made into other characters or be made to look nothing like the characters. It's only when the owner puts it all together that it is truly recognizable. Having a head that COULD be a character doesn't really count.

Also--DIM are sculpting these from scratch, really, not making copies (and they have to be casting an existing sculpt for that) of other sculpts, so that's another "out" for them. And they aren't selling gobs of them under any trademarked name. They are only making small amounts that can possibly be turned into characters, but blank heads really can't count as characters... Rather, they are heads that have similar features... but there are lots of characters that have similar facial features... it takes the completed dolls with faceups and wigs and eyes and costume to really copy a character.

And if a head's referred too as 'So-and-So from whatever' wouldn't that make it pretty obvious in the eyes of the law that that's whom it's supposed to be regardless of if it's a 20% or 80% likeness?
Well, it's the people who are asking for the dolls who are calling them "Whatever"--not DIM! If they were using the names as a selling point themselves ("hey folks, here's our Cloud head #7! All FF fans, come and buy it!"), then they might be in trouble--but even then, probably not.

Finally--it's up to the copyright and/or trademark holder to pursue infringements, legally. If it bothers some buyers morally and ethically, then they can just not buy the heads, but otherwise, it's up to the various creators or companies. And many don't really mind if fans make a few dolls that may or may not look like their characters. And it's the fans making them look like the characters, not DIM, remember.

Plenty of people go in on the GO for character heads and never intend to make them into the character at all! Or they will TRY and make it look like the character, but will do it their own way, which won't really look so much like the character to other people.

Oh, and about the "making money off of" some image... it doesn't quite work that way. You usually have to prove loss of income under copyright, as in, you have to be selling a similar product and DIM or whomever is cutting into your sales. Or TM-wise, you have to prove that someone's use of the Image is damaging your Brand (and thereby losing income). It's not simply "making money."

I think it would be fair to say that if DIM where basing their sculpts off existing dolls there would be a lot of outcry here on DoA but Minimee's of copyrighted characters are happily tolerated. Could this be considered hypocritical on our part?
There could be an outcry, but most of those people don't know what they're talking about. A company would need to be taking an existing doll and actually using reproducing it exactly by re-casting it and making doll parts that way. If they are sculpting something from scratch, they are allowed, really. If it's close to what another doll looks like, people may kick up a fuss, but there are only so many ways a doll can look, so no one can claim they have the right to all El-shaped eyes or Madoka-shaped heads or whatever. That isn't fair to sculptors who come up with something that just happens to have similar eyes or head-shapes! Even if someone is WAY too much influenced by how a certain doll looks, if they sculpt the head themselves, they are pretty much allowed to call it their own work.

Re-casting a Volks doll and selling it rightly is complained about, since it is a direct copy and can also deceive buyers into thinking they are buying a Volks. It's like making art forgeries. And it can hurt monetarily because someone may be tempted to buy a cheap copy rather than the one made by the company that created it. And it can hurt Image/Brand by putting out poorer quality items that might be confused with the real doll... or make people afraid to buy the real doll because of fears it might be a copy, etc.

So it's not hypocritical. It's not even copyright infringement!




Anyway, because of all these reasons, I'm not so worried about Minimees now. And I really AM sensitive to legal issues and intellectual property, since I'm a creator myself and definitely need to protect my own creations! So I'm not trying to give DIM any slack. I actually think they are in a grey area ethically, but aren't really doing anything legally wrong... Nor do I think they are harming any companies, Image-wise or Monetarily, by what they are doing...