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If You Duplicate That Virtual Sword In The Real World... Is It Copyright Infringement?

from the question,-questions,-questions... dept

Fri, Mar 6th 2009 11:34am — Mike Masnick

Three years ago, in trying to discuss some of the thorny copyright issues that arise in virtual worlds where any "good" is easily copied, we questioned whether copying a magic sword in a virtual world was copyright infringement. Perhaps we should have taken the question a bit further. Reader Cap'n Jack points us to the news that video game company Square-Enix has sued four retailers for $600,000, not for creating a digital replica of a magic sword, but a real world costume replica of a sword from within the game Final Fantasy. The retailers have agreed to stop selling any Final Fantasy gear, but it does raise some questions about whether creating such material is copyright infringement... and what that means for folks making Halloween costumes every year...

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Filed Under: copyright, magic swords, virtual worlds
Companies: square enix

23 Comments

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andgy dude, 6 Mar 2009 @ 11:56am

I'm sorry techdirt
Trolling message boards is the only thing that gives my life meaning. I am poor and lonely, acting out on this blog is the only human interaction I get.

I have a small penis, and my boyfriend just left me, so I am going through a tough time. I also spilled chocolate milk on my favorite dress and ruined the pink ruffles.

I am sorry that I call everyone names. I get so angry about being a complete failure that I can't help myself.

Please forgive me. Maybe we can be friends and get a beer together? I like to suck dicks, will you let me suck yours, Mike?
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- *angry dude*, 6 Mar 2009 @ 11:58am
  
  Re: I'm sorry techdirt
  Your code has become corrupted;
  you didn't even spell "angry dude" correctly.
  I guess I know who's getting a debug tonight.
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- Guy One, 6 Mar 2009 @ 12:32pm
  
  Re: I'm sorry techdirt
  WTF
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JGM, 6 Mar 2009 @ 11:57am

Hm. Do you really think this one is a controversial case? If I make a movie with the exact same characters, dialog, and plot of a comic book (say, "Watchmen"), am I not infringing the rights of the comic creator? I think the transfer of copyright from works in one medium to another is well established, and I don't see how this is any different.

And, any Halloween costume with recognizable (copyrighted) characters or other elements is going to be either licensed or subject to such a claim.
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- ChurchHatesTucker (profile), 6 Mar 2009 @ 12:39pm
  
  Re:
  "I think the transfer of copyright from works in one medium to another is well established, and I don't see how this is any different. "
  
  Well established? It's a relatively recent development. Used to be that using your art to create something derived from a different art (say, novel to play) was considered promoting the progress of useful arts.
  
  You know, the nominal point of copyright laws.
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  - ehrichweiss, 6 Mar 2009 @ 1:26pm
    
    Re: Re:
    Actually, you're missing something..
    
    There are tons of knitting books sold and in many of them there is a notice that you are granted the rights to make the patterns for your own personal use but commercial rights to any derivative of their pattern is strictly forbidden.
    
    This only came up when my wife was knitting a pattern that everyone seemed to like so I discussed selling them to which she said it was forbidden according to that notice. I questioned it and told her to ask if anyone had any experience with it. As luck would have it one of her friend's husband was a copyright attorney and he said that they actually can sue your pants off for making and selling a derivative work. The notice was granting rights to the buyer of the book while reserving rights for the artist. This stuff was decided years ago for these types of books and there apparently were plenty of citations to back it up.
    
    So yeah, the case is pretty open and shut at this point.
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Anonymous Coward, 6 Mar 2009 @ 12:30pm

Perhaps not copyright....
One might view this as -trademark- infringement as opposed to copyright infringement. By putting the Final Fantasy name on the product, it may appear to be officially licensed, blah, blah, blah. The merits of this may be debated as well, but I think it's slightly more logical than copyright infringement.
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Matt Bennett, 6 Mar 2009 @ 1:01pm

So, as a fan of Cloud's "buster" sword.......that would be awesome.
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Cloud, 6 Mar 2009 @ 1:21pm

Here's the sword in action
Someone using it IRL.

http://www.youtube.com/watch?v=VmdCbywFBGw
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- ehrichweiss, 6 Mar 2009 @ 1:29pm
  
  Re: Here's the sword in action
  I'm a fan of failblog but that fail was not as EPIC as I was hoping.
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klei, 6 Mar 2009 @ 2:00pm

doh
People would pay big bucks for this junk regardless of the craftsmanship involved, i.e. when you make Cloud's sword and sell it, people will buy it not coz it's big and swordy, they'll buy it coz it's the freaking SWORD OF THE GODDAMN CLOUD. And if you are not the company that made Cloud popular in the first place, come up with something else that's also cool, you lazy bummer. That way maybe we'll even have games with names not ending in 7+ :/
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- nasch, 10 Mar 2009 @ 1:16pm
  
  Re: doh
  And if you are not the company that made Cloud popular in the first place, come up with something else that's also cool, you lazy bummer.
  
  Or you could think of it another way. If you made Cloud popular and now don't want to give fans the products they want, get out of the way and let someone else do it.
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Ranzear, 6 Mar 2009 @ 2:04pm

It would seem that their lawsuit was legitimate, unlike what might be suggested by making a Techdirt article out of it.

At any rate, the 'virtual' sword is a piece of design. It being copied into a product of any type and sold for profit is precisely what trademark and copyright law is supposed to prevent.

Its not like they can get it wrong all of the time.
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Weird Harold, 6 Mar 2009 @ 2:18pm

"If You Duplicate That Virtual Sword In The Real World... Is It Copyright Infringement?"

Possibly yes, but more than likely TRADEMARK infringement. Mike, you really need to learn the difference. I know you are trying to SEO copyright infringement into your site, but it isn't the right term, at least from what I can see in the story.
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Cap'n Jack (profile), 7 Mar 2009 @ 9:54pm

I think you're all missing the point, anyway. How does this harm Square Enix? I don't see THEM making gigantic swords. This can only result in MORE MONEY for them, because it will either appease fans, or get newcomers interested. I'm sure the site sells plenty of swords, and a sword that massive would only bring attention to Square Enix.

The site wasn't passing this off as their own unique conception and there was no trademark confusion here. I don't see how it's Trademark infringement if you're not actually causing consumers to get confused about Trademarks.

The more I read Techdirt, the more I realize that copyright and trademark laws are not made to protect artists or inventors - they're made so that major corporations can monopolize on content made by such artists/inventors. It's frightening how much power we're giving to these companies... I think it's time for people to wake up.
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Disgusted, 8 Mar 2009 @ 7:01am

Idiots
Square needs to go screw itself. If they don't produce the goods, someone else will. They should just go boo-hoo in the corner like the small fish they are. God this makes me want to pirate something Final Fantasy.
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John (profile), 9 Mar 2009 @ 1:13pm

Content and such
Like the above poster said, the only reason this big sword is popular in the real world is because it's being marketed and sold with the "Final Fantasy" name and logo. Would a huge sword *without* this information sell as well? Probably not.

This is what kills the argument of "make one yourself"- the company may very well have made their own sword, but it won't sell nearly as well as a replica of the one from the game.
The difference in products is: one is a "big generic sword" and the other is "replica/ based on the design of the sword used by character X to kill bad guy Y and free the world, in the Final Fantasy game".

Basically, this is a case of the sword company using the Final Fantasy name to boost sales of their own products... whether for right or wrong. Yes, Square Enix isn't "hurt", but do customers get the impression that Square Enix has licensed or approved the sword? If people think the sword is shoddy, will they complain to Square Enix for using that sword company to make the sword?

And the argument of "Square Enix wasn't going to make a real sword anyway" doesn't hold any water either. If I make a "Jar-Jar Binks with lightsaber" action figure, am I allowed to sell and market it, and then defend myself by saying Lucas wasn't going to make one?
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