FR: Magic the Gathering Community
TO: Hasbro/Wizards of the Coast
CC: Ebay
SUB: NUTS! (Or, Your Recent Action Against Alterations)
Recently a Magic the Gathering player had his hand-painted alterations taken down for sale from Ebay for copyright violations, to wit:
"We understand that not all of our Magic: The Gathering® fans agree with all of our choices. We also understand that people sometimes alter our cards for their own reasons. Such alterations however, infringe Wizards’ intellectual property rights, including copyrights. As the legal owner of the copyrights in Magic™ cards, only Wizards has the right to copy, display, distribute and prepare derivative works of those cards.
One aspect of our games that many people enjoy is tournament-style Magic™ play. Since a player conceivably may attempt to play an altered art card during a Magic™ tournament, and since the nature and extent of alterations may vary, Wizards recognizes that tournament judges ultimately must determine when an altered art card should be disallowed from use in a tournament. This ability of tournament judges in no way affects Wizards’ copyrights, and should never be interpreted as permission for anyone to create or sell altered art cards."
This is so wrong that it's almost hilarious. First, no player needs the permission of either Wizards of the Coast or Hasbro to alter their own cards, as such actions are covered by the First Amendment's freedom of expression clause. Second, the rights of Hasbro or Wizards of the Coast to a physical card end where your relavent distribution contracts do; in other words, possession in 9/10 of the law and Hasbro/WotC no longer has it. Third, derivative works have been held by the Supreme Court to have Fair Use protection (see Campbell vs Acuff-Rose Music, inc) and the same applies to fan art (which card alterations arguably are).
To summarize, neither Hasbro nor Wizards of the Coast has any legal ground to stand on and were this to ever extend beyond two private corporations reaching their own agreements, into the purifying light of the legal system, we rather suspect Hasbro/WotC would lose the case. But, by all means, please continue courting a class action lawsuit.
PS: Hasbro and Wizards of the Coast might want to think upon the fact that their behavior is alarmingly fascistic.
I'll be delivering it tomorrow night, since I don't work weekends.
Private Mod Note
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Ah yes, I was wondering what would break first. Your spirit... Or your body.
FR: Magic the Gathering Community
TO: Hasbro/Wizards of the Coast
CC: Ebay
SUB: NUTS! (Or, Your Recent Action Against Alterations)
Recently a Magic the Gathering player had his hand-painted alterations taken down for sale from Ebay for copyright violations, to wit:
"We understand that not all of our Magic: The Gathering® fans agree with all of our choices. We also understand that people sometimes alter our cards for their own reasons. Such alterations however, infringe Wizards’ intellectual property rights, including copyrights. As the legal owner of the copyrights in Magic™ cards, only Wizards has the right to copy, display, distribute and prepare derivative works of those cards.
One aspect of our games that many people enjoy is tournament-style Magic™ play. Since a player conceivably may attempt to play an altered art card during a Magic™ tournament, and since the nature and extent of alterations may vary, Wizards recognizes that tournament judges ultimately must determine when an altered art card should be disallowed from use in a tournament. This ability of tournament judges in no way affects Wizards’ copyrights, and should never be interpreted as permission for anyone to create or sell altered art cards."
This is so wrong that it's almost hilarious. First, no player needs the permission of either Wizards of the Coast or Hasbro to alter their own cards, as such actions are covered by the First Amendment's freedom of expression clause. Second, the rights of Hasbro or Wizards of the Coast to a physical card end where your relavent distribution contracts do; in other words, possession in 9/10 of the law and Hasbro/WotC no longer has it. Third, derivative works have been held by the Supreme Court to have Fair Use protection (see Campbell vs Acuff-Rose Music, inc) and the same applies to fan art (which card alterations arguably are).
To summarize, neither Hasbro nor Wizards of the Coast has any legal ground to stand on and were this to ever extend beyond two private corporations reaching their own agreements, into the purifying light of the legal system, we rather suspect Hasbro/WotC would lose the case. But, by all means, please continue courting a class action lawsuit.
PS: Hasbro and Wizards of the Coast might want to think upon the fact that their behavior is alarmingly fascistic.
I'll be delivering it tomorrow night, since I don't work weekends.
I gotta be honest, it makes me feel pretty good seeing this. Fighting this by myself felt pretty hopeless.
As for an update of this ongoing saga...Ebay has lifted the 7 day restriction on my account. With that, they warned me not to relist the cards, or any new ones, without the expressed permission of Wizards, because if the claim is made again, I can lose my Ebay account for good. So...
I called WotC directly. A super nice guy named Dan assisted me, but he really couldn't tell me much. He stated they couldn't speak on it, but if this guy was speaking to Ebay on the matter, it is the opinion of WotC. I mentioned this thread, and that the community really does need an answer as to their position, and they can't give legal advice, and they can't give me a release.
At that point, I specifically asked for an official response from WotC, because if these are trademark-infringed cards, then they're making criminals out of anyone that uses them, sells them, makes them, and buys them. So, he escalated to someone else, I may hear something by email someday. No idea.
FR: Magic the Gathering Community
TO: Hasbro/Wizards of the Coast
CC: Ebay
SUB: NUTS! (Or, Your Recent Action Against Alterations)
Recently a Magic the Gathering player had his hand-painted alterations taken down for sale from Ebay for copyright violations, to wit:
"We understand that not all of our Magic: The Gathering® fans agree with all of our choices. We also understand that people sometimes alter our cards for their own reasons. Such alterations however, infringe Wizards’ intellectual property rights, including copyrights. As the legal owner of the copyrights in Magic™ cards, only Wizards has the right to copy, display, distribute and prepare derivative works of those cards.
One aspect of our games that many people enjoy is tournament-style Magic™ play. Since a player conceivably may attempt to play an altered art card during a Magic™ tournament, and since the nature and extent of alterations may vary, Wizards recognizes that tournament judges ultimately must determine when an altered art card should be disallowed from use in a tournament. This ability of tournament judges in no way affects Wizards’ copyrights, and should never be interpreted as permission for anyone to create or sell altered art cards."
This is so wrong that it's almost hilarious. First, no player needs the permission of either Wizards of the Coast or Hasbro to alter their own cards, as such actions are covered by the First Amendment's freedom of expression clause. Second, the rights of Hasbro or Wizards of the Coast to a physical card end where your relavent distribution contracts do; in other words, possession in 9/10 of the law and Hasbro/WotC no longer has it. Third, derivative works have been held by the Supreme Court to have Fair Use protection (see Campbell vs Acuff-Rose Music, inc) and the same applies to fan art (which card alterations arguably are).
To summarize, neither Hasbro nor Wizards of the Coast has any legal ground to stand on and were this to ever extend beyond two private corporations reaching their own agreements, into the purifying light of the legal system, we rather suspect Hasbro/WotC would lose the case. But, by all means, please continue courting a class action lawsuit.
PS: Hasbro and Wizards of the Coast might want to think upon the fact that their behavior is alarmingly fascistic.
I'll be delivering it tomorrow night, since I don't work weekends.
I hope you, the OP and everyone affected gets through and gets a real response. As you may notice, I also alter cards and thus have an interest in this as well. That said, I have some reservations about this letter.
Writing a letter such as this would be more effective if it were professional, pithy, and precise. This letter fails to meet those standards, in my opinion (I have a law degree, have spent many hours doing legal research and writing, and have written legal correspondence in a professional setting). I am not trying to discourage you from voicing your position, just saying that you should work on this letter some more to give it a better chance of having the impact you desire. Some tips:
1) Basic spelling, capitalization, and punctuation: I saw at least 3 mistakes on my first read-through. While I have seen some awful writing come through from actual licensed attorneys, it is always better to have mistake-free writing.
2) Tone: At best, this letter sounds like an editorial from a school paper. At worst, you come across as the stereotypical petulant gamer. You are writing to a party who is making an attempt to protect their IP. Recognize that, and assert your rights without dismissing theirs so flippantly.
3) Legal argument: Are you an IP attorney? Do you understand the Fair Use Doctrine? It is not an easy or clear one. Are you aware that the first statutory factor would (probably) weigh against Fair Use protection with regard to selling card alters? I don't know you, and you may indeed have legal knowledge/training, but it doesn't come off as such in this letter. This makes the threats you make towards the end of your letter seem rather empty.
Anyway, hope that wasn't too harsh, just stating what I perceive to be areas that need improvement. Even if you have a great letter, you would really have to communicate through the proper channels. Not sure where you are sending this letter.
1) Basic spelling, capitalization, and punctuation: I saw at least 3 mistakes on my first read-through. While I have seen some awful writing come through from actual licensed attorneys, it is always better to have mistake-free writing.
I'm not sure where the errors are. If you could point them out, I'd be happy to make a change.
2) Tone: At best, this letter sounds like an editorial from a school paper. At worst, you come across as the stereotypical petulant gamer. You are writing to a party who is making an attempt to protect their IP. Recognize that, and assert your rights without dismissing theirs so flippantly.
Yeah, I could probably change that.
3) Legal argument: Are you an IP attorney? Do you understand the Fair Use Doctrine? It is not an easy or clear one. Are you aware that the first statutory factor would (probably) weigh against Fair Use protection with regard to selling card alters? I don't know you, and you may indeed have legal knowledge/training, but it doesn't come off as such in this letter. This makes the threats you make towards the end of your letter seem rather empty.
I'm not lawyer level or anything, but I do know more than the average layman. Using markers or pens to change the nature of the artwork is arguably transformative use, especially if the entire work is covered over and/or in the case of crossovers (Wolverine FoW, forex). Second, charging for time and materials is not the same thing as deriving commercial profit from an exact duplicate of a copyrighted work, which from my observation of the usual alter would be very hard to prove on the part of Hasbro.
Even if you have a great letter, you would really have to communicate through the proper channels. Not sure where you are sending this letter.
Taking it to them Martin Luther style, as a previous poster said. IOW, it's going directly on Hasbro's front door.
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Ah yes, I was wondering what would break first. Your spirit... Or your body.
This is somewhat distressing. I enjoy altered cards, and I understand Hasbro is an unhuman corporation, but this is pushing it too far. I really hope this is a misunderstanding and IP people there just mistook painted alters for copyright infringement.
FR: Magic the Gathering Community
TO: Hasbro/Wizards of the Coast
CC: Ebay
SUB: NUTS! (Or, Your Recent Action Against Alterations)
Recently a Magic the Gathering player had his hand-painted alterations taken down for sale from Ebay for copyright violations, to wit:
"We understand that not all of our Magic: The Gathering® fans agree with all of our choices. We also understand that people sometimes alter our cards for their own reasons. Such alterations however, infringe Wizards’ intellectual property rights, including copyrights. As the legal owner of the copyrights in Magic™ cards, only Wizards has the right to copy, display, distribute and prepare derivative works of those cards.
One aspect of our games that many people enjoy is tournament-style Magic™ play. Since a player conceivably may attempt to play an altered art card during a Magic™ tournament, and since the nature and extent of alterations may vary, Wizards recognizes that tournament judges ultimately must determine when an altered art card should be disallowed from use in a tournament. This ability of tournament judges in no way affects Wizards’ copyrights, and should never be interpreted as permission for anyone to create or sell altered art cards."
While Hasbro and its Wizards of the Coast subsidiary undoubtedly are in the right in the case of unscrupulous persons taking something such as a basic land card, erasing it, and then putting a sticker over the top that gives the impression that the card is a Force of Will (i.e. counterfeits); such activities are not the same thing as physically altering the card with markers or paints. First, such use of those images are arguably transformative in nature, such as with borderless and full cover alterations, and thus protected speech. Second, no person with working eyes is going to look at an altered, non-counterfeit card and confuse the quality of the work with an original straight from the presses; in fact, that is often the point. Third, in many cases alterations take on the form of crossover works (Wolverine on Force of Will, anime girls on basic lands, etc) and Hasbro/Wizards of the Coast could not claim IP violations without landing themselves in court for the same; such work is also considered transformative in nature and acts to protect all interested parties from endless and convoluted legal battles. Fourth, while Hasbro (and its subsidiaries) have a right as the originator of the product to distribute their products to other companies under a legally binding distribution contract, private citizens (not being a party to an express or implied distribution contract) have a right to do with as they please any legally obtained private property, to include Magic the Gathering card alterations for which they compensate other individuals for the time and materials expended.
As a final point, Hasbro's (and that of its subsidiary Wizards of the Coast) legal activities threaten to make criminals of a large group of Magic the Gathering players. We, as a community, to protect ourselves from civil or criminal penalties due to the shortsighted actions of Hasbro (and its subsidiaries) would be forced to launch a class action lawsuit to seek an injuction against such and financial relief thereof. It would perhaps be in the best interest of Hasbro and its relevant subsidiaries to think upon whether massive legal bills (from both your lawyers and ours), plus lost sales from a steep decline in the player base, is the sort of outcome that Hasbro and Wizards of the Coast seek in this blind lashing out.
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Ah yes, I was wondering what would break first. Your spirit... Or your body.
So, misguided and foolish attempt it might be, I am taking one last stab on contacting Mr. Durham at WotC, hoping he just made a mistake or something. Here's the letter I sent him. He hasn't replied to anything I've asked him, like what his position is at WotC, whether he is an attorney or not, etc..so, we'll see.
Mr. Durham,
In the time since we last spoke, I have not rested with just our conversation. I have tried (and continue to try) to fight this decision through ebay. Additionally, I posted a thread here:
Now up at over 1800 views since our conversation, the general consensus appears to be that you may have mistaken my cards as a direct-print, or some other form of alter, because there is no way a hand-painted card could possibly be considered derivative work under the law. If you take the time to read that thread, among them are several students of law that not only disagree with your position, but support the fact based on previous precedent in Supreme Court rulings under Transformative, Fair Use, and First Sale defenses. These are my own personal cards, which I own, which are being resold with whatever minor artistic flourish I might apply to the one, single copy of a card I never claimed to be my own original work, or inherit/claim any copyright to.
Ebay will not allow the release of my account without some statement from you, indicating that you, as the rights holder, are allowing me to continue with what I was doing and will not claim against me for hand-painted cards in the future. I am still requesting that of you, and here is why:
Ebay's policies are very strict. The proper channels I'm required to go through next requires I challenge (they call it a counter-notice), which would notify Wizards to either file an injuction against me, with intent to sue me, or allow the postings to go back up. Should that happen, it weakens your ability, as a Vero member, to be trusted going forward. Given that I love Magic: The Gathering, coupled with the fact that there are legitimate copyright violators that will post on Ebay, I do NOT want your ability to go after them impeded in any way.
Additionally, I have contacted WotC, following your channels, to seek permission for the sale of my own personal cards. I've also asked for a response from Wizards' PR department that your stance is the stance of Wizards of the Coast, which is not only a gross misunderstanding of copyright law, but by saying that I have committed a copyright violation in making these cards, you are also making a criminal out of anyone that alters, plays with alters, and buys or sells altered cards. From the previous link I already sent you, there are articles condoning, even celebrating their use on your own website. Tournament Floor rules have rules for artistically altered cards. It is a bold statement that you made to me, calling it derivative work not protected by fair use. I'm hoping you did not realize they were hand painted and simply made a mistake.
In summary, I am asking you for a statement that I can show Ebay to release my account and continue selling cards I own. If you cannot supply that, then, as I said in my last email, there are dozens of artists in the MTG altered-art community awaiting a reason why. If you could please respond with one or the other, I would greatly appreciate it. This process since you contacted Ebay has put me in quite a bind, I'm not just going away by refusing to reply.
Those are a couple of very reasonable letters. I like the specific request for some sort of action/response; they can't just continue to ignore people. As others have said, please keep us posted on any responses you guys get.
They've always been 50 shades of gray with this topic (oh la la). In all seriousness, I wish they would come out and say what was ok and what was not. But that loosens their control over something that really is just subjective to whomever is looking at it. My GF and I just altered my playset of lilianas (Sticker mind you, but with digital art made by us.) and id hate to see my money go down the drain because of that.
And this isnt completely new... They have been cracking down on fan art too. a ton of fan arters were getting C&D letters because of their work on tumblr.
So I actually went through the trouble of consulting an IP attorney:
1) you may sell USED mtg cards, all unsealed cards are covered by first-sale principle. You must indicate items as USED.
2) Painted alters EXTEND the original art, and are derivatives of the original art. this is similar to painting a beard on a Mona Lisa and reselling it.
2.5) You cannot draw your own version of Elspeth, this is considered fan-art and hence derivative. However, you can use random picture of a girl in armor, preferably created prior to the MTG art it replaces, it will be much harder to present it as a derivative this way.
3) Direct printing on top of a used MTG card is only acceptable if the content does not use MTG related information (mana symbol/texts). ie. putting a mana symbol on your print/printing a mana symbol is a direct violation of copyright and trademarks since mana symbols are trademarked.
4) You cannot modify existing WOTC card art by changing clothing/background, this is a direct derivative work and in violation of copyright law.
5) Wizards of the Coast owns trademarks in TRADING CARD GAME, and the MTG MANA SYMBOLS, they do not own associated trademarks on art.
6) If you sell a USED, foil sticker/non-foil sticker, in which the sticker does not display ANY of WOTC art or WOTC words, it is okay. This assumes that you are an agent of the original artist, are the original artist yourself, or have the copyright/distribution rights to the materials that you print on these stickers. This is equivalent to changing the aesthetics of the card without altering the function. eg. putting a sticker on your used skateboard and reselling it, or painting a funky pattern on your AUDI, and reselling it as a used AUDI. Approval or permission from WOTC in this regard is irrelevant.
6.5) Printing WOTC art as a sticker is a clear copyright violation regardless of what the art is, and what card you put the sticker on.
7) BRANDING your alteration with a signature, digital or otherwise, could be seen as a way of subverting MTG brand names. So the branding you see such as "destruction productions", or "alteredprints" should be avoided at all costs. eg. you cannot put the AUDI rings on your KIA and call it an AUDI car.
8) WOTC cannot prosecute you for creating a derivative work of their card if you do not change the function of the card. If you turn a Birds of Paradise into a Jace, the Mind sculptor, you are clearly counterfeiting. this also assumes you are not creating a derivative artwork in the card art. (see above)
9) WOTC has published articles on how to handle altered cards, as well as tournament rules relating to them, which is an indirect recognition that they exist in large quantities and indirectly legitimizes their existence. A outright ban would be more appropriate given their eBay transgressions.
10) If WOTC is unable to prove that you own the non-WOTC art, they cannot prosecute you for it.
11) WOTC may, under suspicion that you are undermining MTG and MTG art as a whole, prosecute sellers who sell altered cards by stating that somehow altered art defaces the MTG reputation. But this is arguable, and no solid ground exists.
12) threatening sellers with legal action without legal grounds qualifies for anti-SLAAP as individuals are often intimidated by corporations with large legal budgets.
13) "fair-use" applies to educational or satirical scenarios, and cannot be used to support a case where the seller is using original WOTC art as part of their alterations. ie hand painted alters showing ANY part of the original art (border-painting), or digital stickers with WOTC art.
14) please note that WOTC policy regarding counterfeits: "any card that is marked" is a counterfeit. which means all signed cards, all cards not in 10/10 mint condition are counterfeits under this definition. Although this definition is certainly far from objective, it would explain why they act the way they do. It could also be used against them as this definition on counterfeit cards is more or less a joke.
I am going to come right out and admit that I have spent time browsing the ebay listings for IP issues, and reporting them to ebay and wizards as I feel it is terrible that it goes under the radar. That said I have NEVER reported a person for selling hand-painted alters, though it's possible people I reported had a some they were also selling. The people I report are those that use art owned by MTG which they might slightly alter (often by zooming or removing clothing) then either print on blanked cards, or (more often) print onto some kind foil which they adhere to cards.
Please ensure that you are either well versed in IP law or have consulted a lawyer yourself on EACH case before reporting. Blind reporting as a result of personal preferences is irresponsible, and only causes more damage done by WOTC as WOTC is clearly not a "thinking" organization. If you cannot prove that a person does NOT own a piece of art, you should not persecute them as you are liable for damages as much as WOTC.
Martin Durham is just some dude from the D&D department, he is in legal now, and clearly does not understand law. WOTC copy and pastes replies to VERO takedowns and do not address them separately to relate to the violation/lack-thereof in each scenario. This is typical corporate sloppiness. Their VERO takedown requests also do not contain text, it's simply a "kill these item numbers" request. Their threats are general, and unthoughtful. You should consider the list above as a guide to legal issues and apply to yourself as necessary.
So I actually went through the trouble of consulting an IP attorney:
1) you may sell USED mtg cards, all unsealed cards are covered by first-sale principle. You must indicate items as USED.
2) Painted alters EXTEND the original art, and are derivatives of the original art. this is similar to painting a beard on a Mona Lisa and reselling it.
2.5) You cannot draw your own version of Elspeth, this is considered fan-art and hence derivative. However, you can use random picture of a girl in armor, preferably created prior to the MTG art it replaces, it will be much harder to present it as a derivative this way.
3) Direct printing on top of a used MTG card is only acceptable if the content does not use MTG related information (mana symbol/texts). ie. putting a mana symbol on your print/printing a mana symbol is a direct violation of copyright and trademarks since mana symbols are trademarked.
4) You cannot modify existing WOTC card art by changing clothing/background, this is a direct derivative work and in violation of copyright law.
5) Wizards of the Coast owns trademarks in TRADING CARD GAME, and the MTG MANA SYMBOLS, they do not own associated trademarks on art.
6) If you sell a USED, foil sticker/non-foil sticker, in which the sticker does not display ANY of WOTC art or WOTC words, it is okay. This assumes that you are an agent of the original artist, are the original artist yourself, or have the copyright/distribution rights to the materials that you print on these stickers. This is equivalent to changing the aesthetics of the card without altering the function. eg. putting a sticker on your used skateboard and reselling it, or painting a funky pattern on your AUDI, and reselling it as a used AUDI. Approval or permission from WOTC in this regard is irrelevant.
6.5) Printing WOTC art as a sticker is a clear copyright violation regardless of what the art is, and what card you put the sticker on.
7) BRANDING your alteration with a signature, digital or otherwise, could be seen as a way of subverting MTG brand names. So the branding you see such as "destruction productions", or "alteredprints" should be avoided at all costs. eg. you cannot put the AUDI rings on your KIA and call it an AUDI car.
8) WOTC cannot prosecute you for creating a derivative work of their card if you do not change the function of the card. If you turn a Birds of Paradise into a Jace, the Mind sculptor, you are clearly counterfeiting. this also assumes you are not creating a derivative artwork in the card art. (see above)
9) WOTC has published articles on how to handle altered cards, as well as tournament rules relating to them, which is an indirect recognition that they exist in large quantities and indirectly legitimizes their existence. A outright ban would be more appropriate given their eBay transgressions.
10) If WOTC is unable to prove that you own the non-WOTC art, they cannot prosecute you for it.
11) WOTC may, under suspicion that you are undermining MTG and MTG art as a whole, prosecute sellers who sell altered cards by stating that somehow altered art defaces the MTG reputation. But this is arguable, and no solid ground exists.
12) threatening sellers with legal action without legal grounds qualifies for anti-SLAAP as individuals are often intimidated by corporations with large legal budgets.
13) "fair-use" applies to educational or satirical scenarios, and cannot be used to support a case where the seller is using original WOTC art as part of their alterations. ie hand painted alters showing ANY part of the original art (border-painting), or digital stickers with WOTC art.
14) please note that WOTC policy regarding counterfeits: "any card that is marked" is a counterfeit. which means all signed cards, all cards not in 10/10 mint condition are counterfeits under this definition. Although this definition is certainly far from objective, it would explain why they act the way they do. It could also be used against them as this definition on counterfeit cards is more or less a joke.
Please ensure that you are either well versed in IP law or have consulted a lawyer yourself on EACH case before reporting. Blind reporting as a result of personal preferences is irresponsible, and only causes more damage done by WOTC as WOTC is clearly not a "thinking" organization. If you cannot prove that a person does NOT own a piece of art, you should not persecute them as you are liable for damages as much as WOTC.
Martin Durham is just some dude from the D&D department, he is in legal now, and clearly does not understand law. WOTC copy and pastes replies to VERO takedowns and do not address them separately to relate to the violation/lack-thereof in each scenario. This is typical corporate sloppiness. Their VERO takedown requests also do not contain text, it's simply a "kill these item numbers" request. Their threats are general, and unthoughtful. You should consider the list above as a guide to legal issues and apply to yourself as necessary.
Wow...that was thorough. I don't even know what to say.
So, taking all of the above into account, I would assume that WotC having floor rules for alters, booths for artists to alter for you, and their bizarre concept of counterfeit cards, they've actually undermined themselves by basically talking out of both sides of their mouth..?
Interesting. I'm still waiting for a response from their legal department.
With all that information, though, I'm still confused where we stand, as a community. Alters do exist, and WotC tolerates them, even allows booths at SCG events where people will alter your cards. So, they can't sue anyone for it...but they can just run rampant on ebay, making any seller have to put up with suspensions? I mean, if there's no recourse, then they're just using Ebay's policies to screw over anyone who extends a border, even when they could never outright stop the person from doing it, legally?
So I actually went through the trouble of consulting an IP attorney:
First, thanks for doing this, it is very interesting and a bit disheartening to read. I do have a few questions:
2) Painted alters EXTEND the original art, and are derivatives of the original art. this is similar to painting a beard on a Mona Lisa and reselling it.
So does the fact that these are derivative mean they are not legal to sell? ie does derivative = no go? You mention painting a beard on the Mona Lisa, but many artists will alter cards for players for a fee and sometimes players will sell them. Is this card, which was altered by Steve Argyle technically illegal?
8) WOTC cannot prosecute you for creating a derivative work of their card if you do not change the function of the card. If you turn a Birds of Paradise into a Jace, the Mind sculptor, you are clearly counterfeiting. this also assumes you are not creating a derivative artwork in the card art. (see above)
This sort of confuses me regarding point #2. So can Wizards prosecute a person for extending the art of a card and selling it?
Please ensure that you are either well versed in IP law or have consulted a lawyer yourself on EACH case before reporting. Blind reporting as a result of personal preferences is irresponsible, and only causes more damage done by WOTC as WOTC is clearly not a "thinking" organization. If you cannot prove that a person does NOT own a piece of art, you should not persecute them as you are liable for damages as much as WOTC.
The people that I reported were selling stickers printed using the actual art for the card just extended (or zoomed in), or with clothing removed, and stuck on to the actual card. There was no question as to whether they own the art. I also report people like this guy who claims that these are genuine magic cards, while they are clearly just printed on blanked cards.
Are you referring to the seller/owner of the ebay account?
I think what he means is that if people are selling sticker art stuck on to cards but keeping the functionality the same, and where the art is not WOTC art such as THIS (which I loathe, personally), but WOTC cannot prove that the printer does not have rights to the art (like maybe can't find the original artist named anywhere), then WOTC cannot prosecute.
First, thanks for doing this, it is very interesting and a bit disheartening to read. I do have a few questions:
So does the fact that these are derivative mean they are not legal to sell? ie does derivative = no go? You mention painting a beard on the Mona Lisa, but many artists will alter cards for players for a fee and sometimes players will sell them. Is this card, which was altered by Steve Argyle technically illegal?
This sort of confuses me regarding point #2. So can Wizards prosecute a person for extending the art of a card and selling it?
The people that I reported were selling stickers printed using the actual art for the card just extended (or zoomed in), or with clothing removed, and stuck on to the actual card. There was no question as to whether they own the art. I also report people like this guy who claims that these are genuine magic cards, while they are clearly just printed on blanked cards.
1) Steve argyle on his website FAQ section clearly states that he is not into collaborations with other ppl for alterations due to the litigenous nature of the clients (WOTC)
2) It really depends on what the WOTc contract looks like with their artists, some contracts allow artists to continue to distribute prints of their art for profit, in which case you can act as the "agent" of the artist... this gets complicated. --> again... I dont have a WOTC art contract so I cannot say.
3) this guy This is "Altered Prints", he changed his ebay name. There was an earlier post regarding him stealing art.
4) you cannot extend an art and sell it without permission from the art owner (WOTC), think of Harry potter, you cannot glue an alternate ending to the book and sell it. Your addition CANNOT depend on the original art OR the original text to function (ie, you cannot finish someone's art, you cannot finish a card's flavour text with your own).
5) Also, a lot has to do with what wizards "tolerates" and doesn't "tolerate" People sell proxy foil jaces and they dont get nailed lol. WOTC administration is mentally retarded (although I'm sure they will claim that they didn't see it...)
6) I know sometimes artists show up at tournaments and modify their own art or someone else's art. but they are selling a service, the card is not included. This is an aftermarket service.
This is a lot harder to do on eBay. You can try to make the card FREE, and claim to sell the service ONLY, but again... you run into issues where it would be obvious to assume otherwise. Clearly WOTC will blindly VERO auctions. so what are the chances they noticed that you followed the law??
First, thanks for doing this, it is very interesting and a bit disheartening to read. I do have a few questions:
So does the fact that these are derivative mean they are not legal to sell? ie does derivative = no go? You mention painting a beard on the Mona Lisa, but many artists will alter cards for players for a fee and sometimes players will sell them. Is this card, which was altered by Steve Argyle technically illegal?
This sort of confuses me regarding point #2. So can Wizards prosecute a person for extending the art of a card and selling it?
The people that I reported were selling stickers printed using the actual art for the card just extended (or zoomed in), or with clothing removed, and stuck on to the actual card. There was no question as to whether they own the art. I also report people like this guy who claims that these are genuine magic cards, while they are clearly just printed on blanked cards.
I think what he means is that if people are selling sticker art stuck on to cards but keeping the functionality the same, and where the art is not WOTC art such as THIS (which I loathe, personally), but WOTC cannot prove that the printer does not have rights to the art (like maybe can't find the original artist named anywhere), then WOTC cannot prosecute.
I dont think this is Wizards Art... hence it falls into the category of "might be illegal, might not be" you would have to prove otherwise, reporting him to WOTC would clearly be inappropriate, HOWEVER, you can ask for artist name, he should clearly have it if he claims permission is given, or if you see this art in a game or something, and you recognize it, you report it to the appropriate rights owner, but NOT WOTC as they do not own the rights on it.
Are you referring to the seller/owner of the ebay account?
WOTC cannot prosecute you for a violation they cannot prove. They can prove WOTC art belongs to WOTC, but not other art.
The seller of the item/owner of the eBay account (the owner of the account is clearly acting as an agent for the seller, if they are not the same person.)
Either way the owner of the eBay account is the person to contact since they are the one agreeing to ebay listing policy, if he is selling his friend's cocaine on ebay, it's still the ebay account owner's issue there. (obviously liability would apply to both entities... but you can only see one entity)
Flamming isn't allowed in our forums. Please, keep your comments civil. Infraction issued. Also, please don't double/triple post. -BBull
I dont think this is Wizards Art... hence it falls into the category of "might be illegal, might not be" you would have to prove otherwise, reporting him to WOTC would clearly be inappropriate, HOWEVER, you can ask for artist name, he should clearly have it if he claims permission is given, or if you see this art in a game or something, and you recognize it, you report it to the appropriate rights owner, but NOT WOTC as they do not own the rights on it.
Yea, that's what I said. I did not report that person, as much as I loathe what they are doing.
Wow...that was thorough. I don't even know what to say.
So, taking all of the above into account, I would assume that WotC having floor rules for alters, booths for artists to alter for you, and their bizarre concept of counterfeit cards, they've actually undermined themselves by basically talking out of both sides of their mouth..?
Interesting. I'm still waiting for a response from their legal department.
With all that information, though, I'm still confused where we stand, as a community. Alters do exist, and WotC tolerates them, even allows booths at SCG events where people will alter your cards. So, they can't sue anyone for it...but they can just run rampant on ebay, making any seller have to put up with suspensions? I mean, if there's no recourse, then they're just using Ebay's policies to screw over anyone who extends a border, even when they could never outright stop the person from doing it, legally?
yea... it would certainly be nice for WOTC to allow this for the sake of the community, but like I said above, Martin Durham is unlikely to produce anything specific for you. He believes that the entire product (the altered card) is a derivative work of WOTC cards. But this only holds if you were creating new WOTC cards, or creating another TCG using bits of WOTC cards and claiming it.
If WOTC has a double faced policy one allowing for altered cards with rules etc, and one undermining their own genuine cards, it's proof that you are not dealing with the brightest people. However this sort of thing is common in administration where the marketing end is trying to please the community and the legal department is trying to anger people. (in which case I encourage you to do more research on the issue, and write the letter instead to someone ABOVE BOTH departments, only upper administration can fix a disparity between the two)
You can do whatever you want to your cards. Then you can sell them, deface them, period. just don't rename or re-brand the card, dont add to existing art, just cover the original art completely.
1) Steve argyle on his website FAQ section clearly states that he is not into collaborations with other ppl for alterations due to the litigenous nature of the clients (WOTC)
I am not sure what you are trying to say here. I am not talking about collaborations.
6) I know sometimes artists show up at tournaments and modify their own art or someone else's art. but they are selling a service, the card is not included. This is an aftermarket service.
That is what I was referring to when I linked to the sale of the Argyle alter. I follow Steve's tumblr, and he scans all the ones he does on there, so I know that this was done for a person who gave him the card for him to alter. Now that person, for whatever reason, is selling the card that Steve altered on ebay. Argyle's alter seems to fall under the derivative category so this third party should not be able to sell it (no I am not asking so I can report them) legally for the same reason that the extensions can't.
Yea, that's what I said. I did not report that person, as much as I loathe what they are doing.
Yea I totally understand,
but as a "prospective customer", you are certainly within your rights to ask the seller to provide information on the artist and permission documentation (especially if they claim rights are given). If they dont have it... they dont respond, etc, then reporting to the appropriate source will be relevant, but unfortunately not WOTC as they are not relevant rights owners.
I am not sure what you are trying to say here. I am not talking about collaborations.
That is what I was referring to when I linked to the sale of the Argyle alter. I follow Steve's tumblr, and he scans all the ones he does on there, so I know that this was done for a person who gave him the card for him to alter. Now that person, for whatever reason, is selling the card that Steve altered on ebay. Argyle's alter seems to fall under the derivative category so this third party should not be able to sell it (no I am not asking so I can report them) legally for the same reason that the extensions can't.
"Altered prints" = now called "capncader" was in collaboration with steve argyle to do signed foil sticker liliana of the veil variations. however Steve Argyle has mentioned that he cannot do this anymore.
and again, I dont know what the WOTC contract looks like and I dont know how much rights the original artist retain. It's possible they are the only ones capable of generating derivative art.
"Altered prints" = now called "capncader" was in collaboration with steve argyle to do signed foil sticker liliana of the veil variations. however he has mentioned that he cannot do this anymore.
Yea, I remember that now. I respect Steve, and part of me was interested in them, but I really think he was pushing the boundaries of common sense with that venture.
and again, I dont know what the WOTC contract looks like and I dont know how much rights the original artist retain.
but we are not talking about what Steve is doing, we are talking about the third party selling a card that Steve altered. Steve provided a service, that is not in doubt, but the seller is still selling a work that extends the original art in that it changes her "costume". It seems to me that by the standards you provided they cannot sell the card legally, which is a shame.
but we are not talking about what Steve is doing, we are talking about the third party selling a card that Steve altered. Steve provided a service, that is not in doubt, but the seller is still selling a work that extends the original art in that it changes her "costume". It seems to me that by the standards you provided they cannot sell the card legally, which is a shame.
1) well, I dunno whether Steve could legally produce it in the first place. Assuming he could, then the seller could sell it.
2) If he couldn't legally alter the card in your example (clearly derivative), then the seller is selling an illegally produced item (despite first-sale rule), and in violation of eBay policy as a minimum.
3) if it was legal at one point, it may not be legal NOW (WOTC contracts may change over time). Like how China banned all production of "Tiger balm" (uses tiger bones as ingredient), existing stocks are all sold out, and further sales by a decreed date were considered illegal.
1) well, I dunno whether Steve could legally produce it in the first place. Assuming he could, then the seller could sell it.
2) If he couldn't legally alter the card in your example (clearly derivative), then the seller is selling an illegally produced item (despite first-sale rule), and in violation of eBay policy as a minimum.
Okay, here is where I am having trouble swallowing it. I own a card, and I should be able to do with it whatever I want because it is my property even if it is derivative. Where the law comes in should be the sale of such item*. Steve altering and creating the derivative work is just him performing a doodle service so there should be no issue under the logic that I can do what I want with my property. It is the sale of such an item that I can see having legal issues.
3) if it was legal at one point, it may not be legal NOW (WOTC contracts may change over time). Like how China banned all production of "Tiger balm" (uses tiger bones as ingredient), existing stocks are all sold out, and further sales by a decreed date were considered illegal.
Wow, I had no idea that Tiger Balm had that in it, and I knew a lot of hippy-chicks that adored the stuff. LOL.
*I want to make it clear that I do not think that extending and creating derivative works on cards by hand should be prosecutable, but the information given seems to say it is. My questions are working under that assumption and are not advocating it.
Yeah take it to them Martin Luther style!
Do it, take a picture to show us. That'd be hilarious.
FR: Magic the Gathering Community
TO: Hasbro/Wizards of the Coast
CC: Ebay
SUB: NUTS! (Or, Your Recent Action Against Alterations)
Recently a Magic the Gathering player had his hand-painted alterations taken down for sale from Ebay for copyright violations, to wit:
"We understand that not all of our Magic: The Gathering® fans agree with all of our choices. We also understand that people sometimes alter our cards for their own reasons. Such alterations however, infringe Wizards’ intellectual property rights, including copyrights. As the legal owner of the copyrights in Magic™ cards, only Wizards has the right to copy, display, distribute and prepare derivative works of those cards.
One aspect of our games that many people enjoy is tournament-style Magic™ play. Since a player conceivably may attempt to play an altered art card during a Magic™ tournament, and since the nature and extent of alterations may vary, Wizards recognizes that tournament judges ultimately must determine when an altered art card should be disallowed from use in a tournament. This ability of tournament judges in no way affects Wizards’ copyrights, and should never be interpreted as permission for anyone to create or sell altered art cards."
This is so wrong that it's almost hilarious. First, no player needs the permission of either Wizards of the Coast or Hasbro to alter their own cards, as such actions are covered by the First Amendment's freedom of expression clause. Second, the rights of Hasbro or Wizards of the Coast to a physical card end where your relavent distribution contracts do; in other words, possession in 9/10 of the law and Hasbro/WotC no longer has it. Third, derivative works have been held by the Supreme Court to have Fair Use protection (see Campbell vs Acuff-Rose Music, inc) and the same applies to fan art (which card alterations arguably are).
To summarize, neither Hasbro nor Wizards of the Coast has any legal ground to stand on and were this to ever extend beyond two private corporations reaching their own agreements, into the purifying light of the legal system, we rather suspect Hasbro/WotC would lose the case. But, by all means, please continue courting a class action lawsuit.
PS: Hasbro and Wizards of the Coast might want to think upon the fact that their behavior is alarmingly fascistic.
I'll be delivering it tomorrow night, since I don't work weekends.
I gotta be honest, it makes me feel pretty good seeing this. Fighting this by myself felt pretty hopeless.
As for an update of this ongoing saga...Ebay has lifted the 7 day restriction on my account. With that, they warned me not to relist the cards, or any new ones, without the expressed permission of Wizards, because if the claim is made again, I can lose my Ebay account for good. So...
I called WotC directly. A super nice guy named Dan assisted me, but he really couldn't tell me much. He stated they couldn't speak on it, but if this guy was speaking to Ebay on the matter, it is the opinion of WotC. I mentioned this thread, and that the community really does need an answer as to their position, and they can't give legal advice, and they can't give me a release.
At that point, I specifically asked for an official response from WotC, because if these are trademark-infringed cards, then they're making criminals out of anyone that uses them, sells them, makes them, and buys them. So, he escalated to someone else, I may hear something by email someday. No idea.
So, some progress, but not much.
I hope you, the OP and everyone affected gets through and gets a real response. As you may notice, I also alter cards and thus have an interest in this as well. That said, I have some reservations about this letter.
Writing a letter such as this would be more effective if it were professional, pithy, and precise. This letter fails to meet those standards, in my opinion (I have a law degree, have spent many hours doing legal research and writing, and have written legal correspondence in a professional setting). I am not trying to discourage you from voicing your position, just saying that you should work on this letter some more to give it a better chance of having the impact you desire. Some tips:
1) Basic spelling, capitalization, and punctuation: I saw at least 3 mistakes on my first read-through. While I have seen some awful writing come through from actual licensed attorneys, it is always better to have mistake-free writing.
2) Tone: At best, this letter sounds like an editorial from a school paper. At worst, you come across as the stereotypical petulant gamer. You are writing to a party who is making an attempt to protect their IP. Recognize that, and assert your rights without dismissing theirs so flippantly.
3) Legal argument: Are you an IP attorney? Do you understand the Fair Use Doctrine? It is not an easy or clear one. Are you aware that the first statutory factor would (probably) weigh against Fair Use protection with regard to selling card alters? I don't know you, and you may indeed have legal knowledge/training, but it doesn't come off as such in this letter. This makes the threats you make towards the end of your letter seem rather empty.
Anyway, hope that wasn't too harsh, just stating what I perceive to be areas that need improvement. Even if you have a great letter, you would really have to communicate through the proper channels. Not sure where you are sending this letter.
Check out my Blog: CommanderAlters
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Sale: Magic Collection and Heroclix
I'm not sure where the errors are. If you could point them out, I'd be happy to make a change.
Yeah, I could probably change that.
I'm not lawyer level or anything, but I do know more than the average layman. Using markers or pens to change the nature of the artwork is arguably transformative use, especially if the entire work is covered over and/or in the case of crossovers (Wolverine FoW, forex). Second, charging for time and materials is not the same thing as deriving commercial profit from an exact duplicate of a copyrighted work, which from my observation of the usual alter would be very hard to prove on the part of Hasbro.
Taking it to them Martin Luther style, as a previous poster said. IOW, it's going directly on Hasbro's front door.
FR: Magic the Gathering Community
TO: Hasbro/Wizards of the Coast
CC: Ebay
SUB: NUTS! (Or, Your Recent Action Against Alterations)
Recently a Magic the Gathering player had his hand-painted alterations taken down for sale from Ebay for copyright violations, to wit:
"We understand that not all of our Magic: The Gathering® fans agree with all of our choices. We also understand that people sometimes alter our cards for their own reasons. Such alterations however, infringe Wizards’ intellectual property rights, including copyrights. As the legal owner of the copyrights in Magic™ cards, only Wizards has the right to copy, display, distribute and prepare derivative works of those cards.
One aspect of our games that many people enjoy is tournament-style Magic™ play. Since a player conceivably may attempt to play an altered art card during a Magic™ tournament, and since the nature and extent of alterations may vary, Wizards recognizes that tournament judges ultimately must determine when an altered art card should be disallowed from use in a tournament. This ability of tournament judges in no way affects Wizards’ copyrights, and should never be interpreted as permission for anyone to create or sell altered art cards."
While Hasbro and its Wizards of the Coast subsidiary undoubtedly are in the right in the case of unscrupulous persons taking something such as a basic land card, erasing it, and then putting a sticker over the top that gives the impression that the card is a Force of Will (i.e. counterfeits); such activities are not the same thing as physically altering the card with markers or paints. First, such use of those images are arguably transformative in nature, such as with borderless and full cover alterations, and thus protected speech. Second, no person with working eyes is going to look at an altered, non-counterfeit card and confuse the quality of the work with an original straight from the presses; in fact, that is often the point. Third, in many cases alterations take on the form of crossover works (Wolverine on Force of Will, anime girls on basic lands, etc) and Hasbro/Wizards of the Coast could not claim IP violations without landing themselves in court for the same; such work is also considered transformative in nature and acts to protect all interested parties from endless and convoluted legal battles. Fourth, while Hasbro (and its subsidiaries) have a right as the originator of the product to distribute their products to other companies under a legally binding distribution contract, private citizens (not being a party to an express or implied distribution contract) have a right to do with as they please any legally obtained private property, to include Magic the Gathering card alterations for which they compensate other individuals for the time and materials expended.
As a final point, Hasbro's (and that of its subsidiary Wizards of the Coast) legal activities threaten to make criminals of a large group of Magic the Gathering players. We, as a community, to protect ourselves from civil or criminal penalties due to the shortsighted actions of Hasbro (and its subsidiaries) would be forced to launch a class action lawsuit to seek an injuction against such and financial relief thereof. It would perhaps be in the best interest of Hasbro and its relevant subsidiaries to think upon whether massive legal bills (from both your lawyers and ours), plus lost sales from a steep decline in the player base, is the sort of outcome that Hasbro and Wizards of the Coast seek in this blind lashing out.
Mr. Durham,
In the time since we last spoke, I have not rested with just our conversation. I have tried (and continue to try) to fight this decision through ebay. Additionally, I posted a thread here:
http://forums.mtgsalvation.com/showthread.php?t=538446
Now up at over 1800 views since our conversation, the general consensus appears to be that you may have mistaken my cards as a direct-print, or some other form of alter, because there is no way a hand-painted card could possibly be considered derivative work under the law. If you take the time to read that thread, among them are several students of law that not only disagree with your position, but support the fact based on previous precedent in Supreme Court rulings under Transformative, Fair Use, and First Sale defenses. These are my own personal cards, which I own, which are being resold with whatever minor artistic flourish I might apply to the one, single copy of a card I never claimed to be my own original work, or inherit/claim any copyright to.
Ebay will not allow the release of my account without some statement from you, indicating that you, as the rights holder, are allowing me to continue with what I was doing and will not claim against me for hand-painted cards in the future. I am still requesting that of you, and here is why:
Ebay's policies are very strict. The proper channels I'm required to go through next requires I challenge (they call it a counter-notice), which would notify Wizards to either file an injuction against me, with intent to sue me, or allow the postings to go back up. Should that happen, it weakens your ability, as a Vero member, to be trusted going forward. Given that I love Magic: The Gathering, coupled with the fact that there are legitimate copyright violators that will post on Ebay, I do NOT want your ability to go after them impeded in any way.
Additionally, I have contacted WotC, following your channels, to seek permission for the sale of my own personal cards. I've also asked for a response from Wizards' PR department that your stance is the stance of Wizards of the Coast, which is not only a gross misunderstanding of copyright law, but by saying that I have committed a copyright violation in making these cards, you are also making a criminal out of anyone that alters, plays with alters, and buys or sells altered cards. From the previous link I already sent you, there are articles condoning, even celebrating their use on your own website. Tournament Floor rules have rules for artistically altered cards. It is a bold statement that you made to me, calling it derivative work not protected by fair use. I'm hoping you did not realize they were hand painted and simply made a mistake.
In summary, I am asking you for a statement that I can show Ebay to release my account and continue selling cards I own. If you cannot supply that, then, as I said in my last email, there are dozens of artists in the MTG altered-art community awaiting a reason why. If you could please respond with one or the other, I would greatly appreciate it. This process since you contacted Ebay has put me in quite a bind, I'm not just going away by refusing to reply.
Dan Fergerson
Check out my Blog: CommanderAlters
Visit me on Facebook
See my available alters Here
Sale: Magic Collection and Heroclix
And this isnt completely new... They have been cracking down on fan art too. a ton of fan arters were getting C&D letters because of their work on tumblr.
1) you may sell USED mtg cards, all unsealed cards are covered by first-sale principle. You must indicate items as USED.
2) Painted alters EXTEND the original art, and are derivatives of the original art. this is similar to painting a beard on a Mona Lisa and reselling it.
2.5) You cannot draw your own version of Elspeth, this is considered fan-art and hence derivative. However, you can use random picture of a girl in armor, preferably created prior to the MTG art it replaces, it will be much harder to present it as a derivative this way.
3) Direct printing on top of a used MTG card is only acceptable if the content does not use MTG related information (mana symbol/texts). ie. putting a mana symbol on your print/printing a mana symbol is a direct violation of copyright and trademarks since mana symbols are trademarked.
4) You cannot modify existing WOTC card art by changing clothing/background, this is a direct derivative work and in violation of copyright law.
5) Wizards of the Coast owns trademarks in TRADING CARD GAME, and the MTG MANA SYMBOLS, they do not own associated trademarks on art.
6) If you sell a USED, foil sticker/non-foil sticker, in which the sticker does not display ANY of WOTC art or WOTC words, it is okay. This assumes that you are an agent of the original artist, are the original artist yourself, or have the copyright/distribution rights to the materials that you print on these stickers. This is equivalent to changing the aesthetics of the card without altering the function. eg. putting a sticker on your used skateboard and reselling it, or painting a funky pattern on your AUDI, and reselling it as a used AUDI. Approval or permission from WOTC in this regard is irrelevant.
6.5) Printing WOTC art as a sticker is a clear copyright violation regardless of what the art is, and what card you put the sticker on.
7) BRANDING your alteration with a signature, digital or otherwise, could be seen as a way of subverting MTG brand names. So the branding you see such as "destruction productions", or "alteredprints" should be avoided at all costs. eg. you cannot put the AUDI rings on your KIA and call it an AUDI car.
8) WOTC cannot prosecute you for creating a derivative work of their card if you do not change the function of the card. If you turn a Birds of Paradise into a Jace, the Mind sculptor, you are clearly counterfeiting. this also assumes you are not creating a derivative artwork in the card art. (see above)
9) WOTC has published articles on how to handle altered cards, as well as tournament rules relating to them, which is an indirect recognition that they exist in large quantities and indirectly legitimizes their existence. A outright ban would be more appropriate given their eBay transgressions.
10) If WOTC is unable to prove that you own the non-WOTC art, they cannot prosecute you for it.
11) WOTC may, under suspicion that you are undermining MTG and MTG art as a whole, prosecute sellers who sell altered cards by stating that somehow altered art defaces the MTG reputation. But this is arguable, and no solid ground exists.
12) threatening sellers with legal action without legal grounds qualifies for anti-SLAAP as individuals are often intimidated by corporations with large legal budgets.
13) "fair-use" applies to educational or satirical scenarios, and cannot be used to support a case where the seller is using original WOTC art as part of their alterations. ie hand painted alters showing ANY part of the original art (border-painting), or digital stickers with WOTC art.
14) please note that WOTC policy regarding counterfeits: "any card that is marked" is a counterfeit. which means all signed cards, all cards not in 10/10 mint condition are counterfeits under this definition. Although this definition is certainly far from objective, it would explain why they act the way they do. It could also be used against them as this definition on counterfeit cards is more or less a joke.
Please ensure that you are either well versed in IP law or have consulted a lawyer yourself on EACH case before reporting. Blind reporting as a result of personal preferences is irresponsible, and only causes more damage done by WOTC as WOTC is clearly not a "thinking" organization. If you cannot prove that a person does NOT own a piece of art, you should not persecute them as you are liable for damages as much as WOTC.
Martin Durham is just some dude from the D&D department, he is in legal now, and clearly does not understand law. WOTC copy and pastes replies to VERO takedowns and do not address them separately to relate to the violation/lack-thereof in each scenario. This is typical corporate sloppiness. Their VERO takedown requests also do not contain text, it's simply a "kill these item numbers" request. Their threats are general, and unthoughtful. You should consider the list above as a guide to legal issues and apply to yourself as necessary.
Wow...that was thorough. I don't even know what to say.
So, taking all of the above into account, I would assume that WotC having floor rules for alters, booths for artists to alter for you, and their bizarre concept of counterfeit cards, they've actually undermined themselves by basically talking out of both sides of their mouth..?
Interesting. I'm still waiting for a response from their legal department.
With all that information, though, I'm still confused where we stand, as a community. Alters do exist, and WotC tolerates them, even allows booths at SCG events where people will alter your cards. So, they can't sue anyone for it...but they can just run rampant on ebay, making any seller have to put up with suspensions? I mean, if there's no recourse, then they're just using Ebay's policies to screw over anyone who extends a border, even when they could never outright stop the person from doing it, legally?
So does the fact that these are derivative mean they are not legal to sell? ie does derivative = no go? You mention painting a beard on the Mona Lisa, but many artists will alter cards for players for a fee and sometimes players will sell them. Is this card, which was altered by Steve Argyle technically illegal?
This sort of confuses me regarding point #2. So can Wizards prosecute a person for extending the art of a card and selling it?
The people that I reported were selling stickers printed using the actual art for the card just extended (or zoomed in), or with clothing removed, and stuck on to the actual card. There was no question as to whether they own the art. I also report people like this guy who claims that these are genuine magic cards, while they are clearly just printed on blanked cards.
Reprint Opt for Modern!!
FREE DIG THOROUGH TIME!
PLAY MORE ROUGE DECKS!
Could you clarify this point:
Are you referring to the seller/owner of the ebay account?
Reprint Opt for Modern!!
FREE DIG THOROUGH TIME!
PLAY MORE ROUGE DECKS!
1) Steve argyle on his website FAQ section clearly states that he is not into collaborations with other ppl for alterations due to the litigenous nature of the clients (WOTC)
2) It really depends on what the WOTc contract looks like with their artists, some contracts allow artists to continue to distribute prints of their art for profit, in which case you can act as the "agent" of the artist... this gets complicated. --> again... I dont have a WOTC art contract so I cannot say.
3) this guy This is "Altered Prints", he changed his ebay name. There was an earlier post regarding him stealing art.
4) you cannot extend an art and sell it without permission from the art owner (WOTC), think of Harry potter, you cannot glue an alternate ending to the book and sell it. Your addition CANNOT depend on the original art OR the original text to function (ie, you cannot finish someone's art, you cannot finish a card's flavour text with your own).
5) Also, a lot has to do with what wizards "tolerates" and doesn't "tolerate" People sell proxy foil jaces and they dont get nailed lol. WOTC administration is mentally retarded (although I'm sure they will claim that they didn't see it...)
6) I know sometimes artists show up at tournaments and modify their own art or someone else's art. but they are selling a service, the card is not included. This is an aftermarket service.
This is a lot harder to do on eBay. You can try to make the card FREE, and claim to sell the service ONLY, but again... you run into issues where it would be obvious to assume otherwise. Clearly WOTC will blindly VERO auctions. so what are the chances they noticed that you followed the law??
I dont think this is Wizards Art... hence it falls into the category of "might be illegal, might not be" you would have to prove otherwise, reporting him to WOTC would clearly be inappropriate, HOWEVER, you can ask for artist name, he should clearly have it if he claims permission is given, or if you see this art in a game or something, and you recognize it, you report it to the appropriate rights owner, but NOT WOTC as they do not own the rights on it.
WOTC cannot prosecute you for a violation they cannot prove. They can prove WOTC art belongs to WOTC, but not other art.
The seller of the item/owner of the eBay account (the owner of the account is clearly acting as an agent for the seller, if they are not the same person.)
Either way the owner of the eBay account is the person to contact since they are the one agreeing to ebay listing policy, if he is selling his friend's cocaine on ebay, it's still the ebay account owner's issue there. (obviously liability would apply to both entities... but you can only see one entity)
Flamming isn't allowed in our forums. Please, keep your comments civil. Infraction issued. Also, please don't double/triple post. -BBull
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yea... it would certainly be nice for WOTC to allow this for the sake of the community, but like I said above, Martin Durham is unlikely to produce anything specific for you. He believes that the entire product (the altered card) is a derivative work of WOTC cards. But this only holds if you were creating new WOTC cards, or creating another TCG using bits of WOTC cards and claiming it.
If WOTC has a double faced policy one allowing for altered cards with rules etc, and one undermining their own genuine cards, it's proof that you are not dealing with the brightest people. However this sort of thing is common in administration where the marketing end is trying to please the community and the legal department is trying to anger people. (in which case I encourage you to do more research on the issue, and write the letter instead to someone ABOVE BOTH departments, only upper administration can fix a disparity between the two)
You can do whatever you want to your cards. Then you can sell them, deface them, period. just don't rename or re-brand the card, dont add to existing art, just cover the original art completely.
That is what I was referring to when I linked to the sale of the Argyle alter. I follow Steve's tumblr, and he scans all the ones he does on there, so I know that this was done for a person who gave him the card for him to alter. Now that person, for whatever reason, is selling the card that Steve altered on ebay. Argyle's alter seems to fall under the derivative category so this third party should not be able to sell it (no I am not asking so I can report them) legally for the same reason that the extensions can't.
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Yea I totally understand,
but as a "prospective customer", you are certainly within your rights to ask the seller to provide information on the artist and permission documentation (especially if they claim rights are given). If they dont have it... they dont respond, etc, then reporting to the appropriate source will be relevant, but unfortunately not WOTC as they are not relevant rights owners.
"Altered prints" = now called "capncader" was in collaboration with steve argyle to do signed foil sticker liliana of the veil variations. however Steve Argyle has mentioned that he cannot do this anymore.
and again, I dont know what the WOTC contract looks like and I dont know how much rights the original artist retain. It's possible they are the only ones capable of generating derivative art.
Please, don't double post. Thanks. -BBull
but we are not talking about what Steve is doing, we are talking about the third party selling a card that Steve altered. Steve provided a service, that is not in doubt, but the seller is still selling a work that extends the original art in that it changes her "costume". It seems to me that by the standards you provided they cannot sell the card legally, which is a shame.
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1) well, I dunno whether Steve could legally produce it in the first place. Assuming he could, then the seller could sell it.
2) If he couldn't legally alter the card in your example (clearly derivative), then the seller is selling an illegally produced item (despite first-sale rule), and in violation of eBay policy as a minimum.
3) if it was legal at one point, it may not be legal NOW (WOTC contracts may change over time). Like how China banned all production of "Tiger balm" (uses tiger bones as ingredient), existing stocks are all sold out, and further sales by a decreed date were considered illegal.
Wow, I had no idea that Tiger Balm had that in it, and I knew a lot of hippy-chicks that adored the stuff. LOL.
*I want to make it clear that I do not think that extending and creating derivative works on cards by hand should be prosecutable, but the information given seems to say it is. My questions are working under that assumption and are not advocating it.
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