Help me, internet, you're my only hope

December 16, 2008 7:09 PM

Can I buy a copyrighted product (i.e., a toy), modify it for other uses, and then re-sell it?

I have some household items I've made out of Star Wars toys, and I'd like to make more of them and sell them on the internet. I'm afraid George Lucas and an entire legion of his best lawyers await me.

My sense of justice says that since I paid for the toy the first time, I should be able to do what I want with it. Somehow, I get the feeling it's not that simple. What are the laws pertaining to this?

posted by Jon_Evil to law & government (14 comments total)

I am not a lawyer. First sale doctrine says you're OK, generally. It's never that easy, but generally because your use in consumptive (adds to an original to make something new) it will likely not be found to be an infringing derivative work in the federal circuits that have adopted the most sensible test for this sort of question. Ask an attorney you trust.
posted by Inspector.Gadget at 7:18 PM on December 16, 2008

Oh wait...if you're manufacturing clones of the originals that you would modify later, then it's probably not OK because you'd be violating the copyright holder's reproductive right under Section 106. If you merely buy a bunch of authorized Chewbacca figures and paint masks on them before sale, then see above.
posted by Inspector.Gadget at 7:20 PM on December 16, 2008

re: inspector gadget - Thanks for pointing me in the direction of First Sale Doctrine, its a start, but the wikipedia article says specifically that the law only covers the resale of un-altered items. But yes, I am buying the original product, not manufacturing clones. I'd need Jango Fett dolls for that.
posted by Jon_Evil at 7:46 PM on December 16, 2008 [1 favorite]

It seems to me you're not copying anything... so you don't need a right to copy. IANAL etc etc etc
posted by pompomtom at 7:52 PM on December 16, 2008

The statutory "first sale doctrine" is a codified subset of the common-law first sale doctrine, so as an existing equitable defense it may be available to you in cases where what you're doing isn't a derivative work. In either case, being proactive about this as you're doing is a good idea and you should really seek to clarify whether you can get away with a consumptive use in areas where a would-be plaintiff could get personal jurisdiction over you. As you might imagine, this touches on many different and often annoying legal doctrines. I am not a lawyer, so I won't oiffer any further advice for fear of treading somewhere I know nothing about, but I think seeking the advice of counsel might help you avoid an injunction under MercExchange at the least and at best would give you a very solid footing on which to proceed.
posted by Inspector.Gadget at 7:55 PM on December 16, 2008 [1 favorite]

I believe toys would fall under patent law, not copyright law, because a toy is not an original work of authorship. I would look closely at trademark and patent law, the other two branches of intellectual property. For example, trademark law would come into effect if people could mistake your items for actual licensed Star Wars merchandise. Be careful about that.
posted by kidbritish at 9:19 PM on December 16, 2008

This website deals with very similar issues (they're using licensed fabric) and is very informative, especially re: first sale doctrine. Ugly, but informative.
posted by katemonster at 9:20 PM on December 16, 2008

I'm pretty sure this kind of question has come up here before, although I'm not finding it.

This really has nothing to do with patent law, since A) Jon_Evil is not copying the toys, and B) the toys probably aren't patentable unless there's something mechanically novel about them.

The depictions of the characters would be covered by copyright law, though I don't think that can be used to prevent what he's talking about here.

IANAL, YMMV.
posted by adamrice at 9:47 PM on December 16, 2008

IANAL. Inspector.Gadget, MercExchange is a patent case, not a copyright case, and makes it less, not more, likely that an injunction would be awarded in an infringement action. Just so we're clear.

Patent law isn't really relevant to what you're doing; copyright and trademark law are. If you're serious about this, get advice from a lawyer. These are thorny issues.
posted by sinfony at 10:15 PM on December 16, 2008

It is going to come down to a trademark issue, as others have said. If you are selling Luke Skywalker cigarette holders then Lucas will have a case, even if you are not actually selling them using the word "Skywalker", since the character itself is trademarked. If the toys are modified into a completely different unrecognizable figure then you should be OK.
IANAL
posted by AndrewStephens at 11:15 PM on December 16, 2008

If you're selling them so that they look like Star Wars products, then you're going to run into copyright and trademark issues. Trademark if there are any "Star Wars" logos or designs involved, and copyright because they own the characters.

sinfony is right - if you want to do this, get advice from a specialist lawyer. Lucas will enforce their rights, so don't go into this half-arsed.

IANYAL (2 months until admission!)
posted by robcorr at 1:57 AM on December 17, 2008

Inspector.Gadget, MercExchange is a patent case, not a copyright case, and makes it less, not more, likely that an injunction would be awarded in an infringement action. Just so we're clear.

MercExchange defines the SCOTUS' most recent take on the traditional equity formula for awarding injunctions. The fact that it dealt with patent law is irrelevant as it is now the controlling restatement of equitable considerations for any injunction. It in fact makes it less likely that an injunction will issue because both the Federal Circuit (in patent cases) and the other circuits (in copyright cases) had a history of granting automatic injunctions without properly considering the traditional equitable formula applied in other situations where injunctive relief was sought.
posted by Inspector.Gadget at 7:26 AM on December 17, 2008

How would this apply to buying an Xbox (classic) and hacking the firmware and loading Xbox Media Center (XBMC) onto the device and attempting to resell it? I have seen such devices for sale on eBay, but that clearly does not legitimize the practice. XBMC is free, open source software. The "hack" basically loads a different operating system on the device, it does not change the physical nature in any way.

Just curious.
posted by nmabry at 8:24 AM on December 17, 2008

Again, copyright and trademark issues. Not a lawyer and all that, nor an engineer, but I believe putting XBMC on an actual Xbox is arguably a violation of the DMCA, which is a particularly hefty enforcement regime within the copyright title. The trademark issues are a bit more indirect. There's probably also a violation of the terms of use, but that's comparatively minor. In short, I wouldn't try selling such a thing.
posted by sinfony at 5:29 PM on December 17, 2008