Ferrari P4/5 all scale model

Believe me, I understand the point about trademark infringement to the point that before I decided to design my own model car patterns I contacted an attorney specifically for this very thing. And when in this business I worry someone will knock off one of my models and produce it and what my rights are in that regard.

The amount of cars I produce (single design models) and sell is not substancial enough to go beyond the art clause.

I also have no problem with getting permission from car makers such as Ferrari, Porsche, Chapparal and so forth who do grant permission to make models. But my runs are so small it just isn't worth it. I'm sure I do less volume than lets say BBR. If I knew I could do over 350 units I would certainly get a companies permission to be on the safe side and also know I would be able to make enough to cover a fair royalty. I retail models for over 50 different companies and most of the bigger ones have permision from Ferrari. Ferrari is fairly model friendly. I'll do it as a courtesy. But if a company wants a huge fee, it aint gonna happen simply because I know I do not need there permission.

The funny thing is when people who do not actually create there own model designs are telling me about something they didn't ever research for themselves. And then call me unethical. Besides most of the builts we would do are based on a company's model that is authorized like a Studio27 or MFH kit. And I have put out maybe 10 cars/versions of my own design in the last 4 years. I do have about a dozen in the works however. Maybe if I stop messing around on these message boards long enough I could get them done.

Plastic model companies and diecast companies have to get permission because they do very big volume.

By the way, does anyone know if I can sue someone for being called unethical in a public forum???? LOL!! Isn't that defamation of character or slander!! Maybe I will call my lawyer this weekend after all!!

Ed
From that model company

(sorry about the jokes guys, but its hard to take some people seriously)

 

Ed, I am saying this to you as someone in this field. I have spoken to ferrari on multipl occasions about licensing the designs. The way their legal department protects ferrari is that they own all right to their name, logo, and designs that they or a design house has created for them. In any size. The art clause works on small quantities and can go both ways in court if it gets there. But coming from someone that wants to do it correctly telling people you do not need permission is just wrong. You put a Ferrari logo on the models that you produce do you not. Ferrari does not allow any company to do that unless they license it. If we were talking about a smaller brand then possibly it wouldnt matter, but Ferrari cars a lot about their brand.

You do not DESIGN your own models you design them after an actual car. It is the same scenario that Michiel Vanderbrink is doing with the 599, he is creating a NEW design. Your models are of existing designs. Ferrari has even come on to this board to tell Ryalex to take their logo off of images that he created when designing a body kit. No one would be knocking off one of your models, since they were recreations of existing cars. If you make a couple of cars for your self it is one thing, but doing it as a commercial endeavor is another story. You are profiting from something Ferrari has created. If you or I or any one creates a brand new car and make a model of it great, but it is not the same scenario. I work very closely with BBR and they have issues with ferrari occasionally.

 

I don't see any problem with the basic little tag beneath your name..... If it were a hyperlink I could see one of the other mods raising an eyebrow. A quick look over your posts doesn't seem to show that you have been trying to sell stuff here. I dunno about the legal aspects of what you may be doing with the models but that is between you and the companies.

 

Thank you Mark,
But if you still want/need me to sponsor please let me know and I will do so immediately

Sincerely,
Ed

 

I was in the model car business for many years. In my OPINION, you are miniaturizing some else's design, and not creating your own. I am sure you can make a model for yourself, but far from certain how many models it takes to become a commercial venture. I would doubt it is as many as 500, but I am NOT a lawyer...

 

Rob Lay is the one to talk to about it..... It would certainly give you a lot more leeway in talking about models, etc that you might have for sale.

 

Ed,
Thank you for actually responding civily this time.

In fact, you might be incorrect in several areas as I have done research on this.

When I create a pattern I could be building something out of complete scratch such as starting with a foam block. When made into a car, any car, this is sculpture. And if someone copies that diectly without making at least 20% change in the shape, it is some form of infringement. Either trademark or copywrite not sure which, related to the sculpture, not the real car design itself. So, yes, I do worry about that. Besides it would be pointless to go after someone for it as the market I cater to is just too small to make a significant difference.

It is possible you can not use the Ferrari logo on a model, That is one question that does currently concern me, but you can sculp the shape and sell it. Even if you do not say its Ferrari. Some guys do just that. They will advertise as, F550 or just say 360 model. Also, I copld get the logo's from a company that DOES have permission such as MFH if it were really necessary.

Also, just because Ferrari does not want someone putting on a logo, does not make it law. It might in there eyes but that doesn't always make it so. Like I said I am no lawyer. And I have had these coversations a million times. And everyone knows lawyers can't agree sometimes when reading the same sentence. Im not suggesting one way or the other. Just that these things are not as clear cut as you would think. However, that seems more reasonable that it could be a problem concerning a logo but as far as I know its part of the art.

But I guess its almost like saying I can sell shirts with Ferrari logo's and claim it as art somehow which I would think has to be illegal.

I would be profiting from a miniature of a shape Ferrari created but the art is created by me or my company, etc. That becomes my property, to a point. I understand that to be 500 copies.

I admit this could be a crazy circle once inside.

The info I was giving is what I was told as fact. Is it possible I'm wrong. yes. But its very hard to beleive I am when its coming from a respected attorney. Wether you agree or disagree is not the point. What is the point is what the law allows. Anyone can sell there sculpture of the shape they create.

Stuart.
I know you were involved in selling models. But did you ever do any research into making your own patterns? Its a completely different ballgame.

For example, if you think you can't steal someones miniature, ask BBR. Didn't they recently go after another company for taking there patterns and copying them. You can't take someone elses sculpture and copy it and then sell it (well, you can but you might get in trouble). Again, I was told 20% must change to make it your own work supposedly.

Ed

 

Design, in the aspect that you are speaking of is one thing. Yes, i can not take your mold recast it and call it my own. But if you were to make a 1/43 of a 612 K by Pininfarina, it doesnt matter that you sculpted it. If you are selling it as a sculpture then you can sell it. But you are selling a representation of a car. And usually branding it such. I am not a lawyer, but we are actually working on this matter, and for me to sleep better at night i want to know no one will come and sue me. I have done plenty of research in this realm as well. How well do you think you would sell models if you did not sell a FERRARI or a P3 or what not, you would sell vintage car resin sculpture. Then you would not be infringing. Well from my knowledge and the information given to me by our council.

 

I did not know you guys actually came up with your own model cars. It is important to treat them as art for this very reason. The word "represenation", "art" and "sculpture" would have to be distinguished if it came down to some form of litigation I'm sure. Which I hope never happens but if it does so be it.

I clearly am making a miniatures of a real, existing thing.

The problem with these entire discussions is all the exceptions to all the rules. And nobody really knowing for sure. For example, when I spoke about this with my attorney years ago I may or may not have mentioned the use of a logo on the side of a model. Could be any logo, Ferrari shield, Ford oval, whatever. That, in itself, could possible change what it is that being created. Who knows?

I swore I was never going to get involved in these types of discussions anymore and sure enough.........

The best way is to make sure you do all you can to follow the law. Everyone hates lawyers until they need one. But thats who can answer these questions best. I just play with toys and call it art.

At least the thread got a little lively for awhile, even had to get a moderator involved. I can't beleive its 1:40 am.........Bad enough boring other people but I'm starting to bore even myself now.....I'm going to bed.

Ed

 

Wow... this thread got way off track. Anyways, in response to an earlier request about the original topic of the thread

Translation:
(Basically...) I buy my 1/43 models in specialty shops or I buy them over the internet. I found some rare models of which very limited numbers were produced, such as Ferrari, Isdera Imperator & Commendator, Vector W2, W8, Avtech, Aston Martin Bulldog, Cizeta Moroder coupe & Spider.... all in 1/43.

 

Wow did you do all that work?

 

This is totally correct. Ferrari,Pininfarina,and I own ALL rights to Ferrari P 4/5 by Pininfarina. (Ferrari and Pininfarina to their logo's and badges and I to the design of the car) We are in the process of licencing this car to model makers but the ones posted here are not licenced and will be dealt with with the full weight of both civil and criminal law. If someone reproduces this design and or Ferrari's or Pininfarina's logo's without licence they are committing a criminal act.

 

Jim, I have no idea what you do for a living. If you are a trademark attorney please give the exact section of law. I am not a lawyer so I can't quote the section that was given to me. But as far as my attorney told me, models can be made in limited quantities. I will contact my attorney that gave me this info about the 'artform clause" and what it says about works of art concerning miniatures and how many are allowed to be produced without paying royalties or being in violation to the trademark holders.

I will give that info and post it here and where it can be found in the lawbooks for everyone to look up. Then everyone can go back to there own attorneys and make there own interpretation. I'm sure all the laws can probably be found on the web as well.

I have researched this about 5 years ago. Maybe something since then has changed. But I will find out and post it here.

Of course laws do change as they get challenged and taken to court I would presume for some sort of ruling.

But just to let you know, I am not making, nor do I intend on making models of this car in this thread, but I do make models in various scales of various cars that I carve myself. And I want to make sure I'm doing it legally. I checked years ago but it wouldn't hurt for me to double check again. This time, I will keep the section posted on my wall as I know this will come up again and again and again.

Ed

 

First, I am in no way trying to start an argument or challenge what's being said because I have no idea exactly what the laws state. I don't make my own models or draw/paint, etc... i'm not nearly that talented I just want to know out of curiosity, do paintings/drawings of the car with Ferrari/Pinin logos included in the image qualify as "reproducing the design"?
Chris

 

This also always comes up when discussing the model aspect.

You would think if you take a picture, the picture is yours. So what if you take a picture of a Ferrari? Can you sell that picture without getting permission for use of there logo? You took the picture. People seem to do it all the time. Does not mean its legal but you see it all the time.

Many times you will see books say, use of the term Ferrari, Porsche, etc, etc are for informational use only.

Its a good question

This is one more reason why use of trademark/intellectual property/copyright is not as clear as you might think. It protects only certain aspects.

 

Agreed. Whether the logo is sculted onto a model or drawn on picture or included in a photograph. Technically, it's all the same thing, is it not? Artistic representation... If I understand previous posts in this thread correctly, anyone who draws a picture of a Ferrari with the logo, is subject to the same laws as someone who creates a model without "permission". I've never seen a problem in the threads where people post paintings and drawings... Why are they not being sued for using the Ferrari image for profit?

 

If you built the model for you and you only, with no intention of selling it to anybody then they don't have a case becuase you are not profiting off their logo, image, name etc. Just like a photograph taken for a personal collection.

I would think as soon as a price is put on the object, and there is an amount of the product available to buy for profit, then you are profiting off another companies/persons design and idea.

 

That is my position. If it's for yourself, no problem. There is no profit for you. There is however profit lost for the company who did not receive your business because you built your own model, but I doubt an individual who creates a single model for his own collection would be dealt with by Ferrari.
What I was alluding to in my comment about drawings/paintings, is that the market for them (as far as I know) is much smaller than the scale model market. So there is more money to be lost/made from models. It seems unfortunate that someone who draws a Ferrari without liscensing is praised and even offered a price for his work here on the board. But someone who creates a model is automatically labeled a criminal. Double standard?

 

That would be the concern.

Well, I just got off the phone with another lawyer friend of mine and it gets VERY interesting.

I will get more on this during the week as where it can be found in the lawbooks but here it goes as per the coversation.

If I create sculpture, of anything, that scupture is mine by intellectual property and has copyright the moment of creation. I can then go on to make copies of my art and make it look anyway I wish. Lets say its a Ferrari. Ferrari owns the right to there trademarks, patents and so forth, but I now own that peice of work and can sell them. They do not own the right to my sculture or have the right to prevent me from making it or profting from my work. The logo on the model might be a problem, not sure on that one. If I had to guess I woukd think that would be the problem. Finding out in that as it relates to this.

However, you can not make a copy of there functional real car. As that is obvious. You can, amazingly, actually make a sculture, non functioning, in full size of there car and design. But the moment it fuctions you would be in violation. This is so because they are not losing profit from this. They are also not being injured financially. They have to prove they are. In other words they would have to prove people would buy the sculpture instead of there real car. They losts sales because of the sculpture. That would be very difficult for them to prove. Even more so with the models.

He said the miniatures come up many times with Disney characters which people make models of and sell. Disney will send a C&D (Cease and desist) letter and they usually stop because the big corps scare them, but they can still make them if they wanted to go through the hassle of court, which of course nobody really wants to do.

Interestingly, I can not make a sculture of a 2 dimensional item like a photograph into 3D sculpture and sell it???? That one got confusing and I got lost.

There are some things on both sides of the law that seem to contradict each other.

Interesting.

 

Alright, so Ferrari owns the right to the functioning automobile as a company that manufactures working models. Now lets say HotWheels (example) owned the right to the non functioning automobile. Could you then me sued by the model company instead of Ferrari? The model company could obviously prove financial losses. That is their business. I hope i'm making sense...

 

To me this seems like some one is confusing propertyrights with copyrights. According to dutch law in this particular case there is no question you owning the model, but there also would be no question you are violating Ferrari's and Pininfarina's copyrights both in terms of copying their design and using their logo's with creating it.

 

If this were to be correct, why would Mattel spend (undoubtedly) spend millions of dollars on Ferrari-franchise in order to have the exclusive rights to design, built and sell Ferrari-miniatures, when in fact, anyone can. A miniature is a non-functioning object, representing the functioning car, isn't?

I still say both can sue. Hotwheels has the exclusive right, Ferrari still has the copyright, since the didn't franchise it to this particular builder. For this builder, he still violates copyrights. If he wants to built without having the risk of getting sued, he will have to pay.

 

I'm not a copyright expert, but have had some exposure to it; however this discussion touches on an area I haven't reviewed/considered before which I find interesting.

If a Ferrari (or other branded car) is in a public place and someone takes a photograph of it; its appearance, design and logos will be captured on the photograph. As far as I know, the photographer now owns a copyright on that image and has rights to sell that image if they choose, even though the subject belongs to someone else and the designs and logos belong to the original manufacturer.

Sculpture and painting are artforms like photography. So by analogy, I can see the argument that a sculptor has the right to produce a sculpture/model that resembles an object owned by someone else (even including logos) and that this does not infringe legally as the photograph (which could also have logos present) doesn't infringe either.

Now why do companies like Hotwheels pay licensing fees? I'm still speculating here, but if the above argument is valid, then it must be for one of two reasons, either or both of: 1) there is a quantity limit written into the law (which needs to be confirmed) that takes it from artwork to commercial infringement if a license is not obtained, or 2) to gain permission to use the names, brands, logos in marketing the model in advertisements and packaging.