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Discussion Starter #41
John O said:
If one were going to be completely and anally consistent, sure. But, I consider a certain amount of home adaptation and copying to fall under "fair use".
I agree. In the printed copyrighted arena the test at least used to be simple, "reproducing" small enough parts of a work that the sales of that work are not diminished is "fair use." Thus allowing people to quote extended passages legally, colleges to copy a chapter or two from a book for use in a course, etc.

In the case of those who create accuratizing kits, not only do they not diminish the number of kits sold, they undoubtedly increase the numbers of kits sold!
 

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John P said:
For one's own use, I figure anything is fine. You're not making a profit off of someone else's efforts.
This is absolutely true. It's the copyright "doctrine of first sale." It means that once you buy a particular authorized copy, you are free to do with it as you please, such as resell it, destroy it, paint pink polka dots on it, etc. You're even allowed to sell your defaced pink polka dot version. What you aren't allowed to do is then copy your modified version and distribute the copies. While the modifications are yours, you don't have the right to copy the elements retained of the original item.

(You might even make a profit off of someone else's efforts (combined with your own efforts) if, for example, you can sell your pink polka dot modified version for more than you paid for it. Good luck with that! :) )
 

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The perfesser poses some good and difficult questions.
As far as "is it okay," there are two interpretations: strictly legal and ethical. (Something can be legal but unethical or ethical but illegal.)


PerfesserCoffee said:
If someone has a part that is not quite accurate, is it okay to take the part, accurize it and then use it, the modified original kit part, to make castings without permission from the owner of the original kit part?
This is not legal but I consider it ethical IF (and only if) the accurized part is only usable with a licensed whole. If your part could only be used by licensed end users on licensed complete models, it would be extremely hard for the copyright holder to show any damages. You could look at this as subcontracting accurization of your licensed while, if you wish, as has been said here before.
Legally, the accurizer holds the copyright to any and all "original" changes made to the original but not to the original work. Thus, if your accurization adds to but does not duplicate a copyrighted item, it would be fine. Usually, though, you would copy elements of the original part along with your new elements when you make your mold and castings. However, even in the case of a strictly add-on component, no recasting of the kit parts, it's probably only strictly legal if the accurate component you are making is a miniature of a public domain item. If you are making even a scratch-built interpretation of a copyrighted work, your interpretation is a derived work.


PerfesserCoffee said:
Where does the ownership begin and end? Does the accurizer have to make the part up completely from scratch or can he use the kit part as a starting point for his modified part?
Again, legally, even from scratch might not put you in the clear (a from-scratch model of a copyrighted starship design is a derived work). However, I consider production of a scratch built or even heavily modified part to be ethical.

Since it is extremely unlikely that an individual casting parts for his own use (or even a few friends) is likely to show up on a copyright holder's "radar," the ethical question is perhaps more relevant than the legal one. If you plan to produce lots of for-profit parts, though, you should pay more heed to the legal issues.

(Disclaimer: I am not a lawyer, but I play one on HobbyTalk. :) )
 

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One other not-so-apples-to-oranges comparison.
I sell limited edition prints. When that print is sold out, I do not issue a "second edition". When someone bought my print from the original edition at the original price, there is the understanding that the limited number and availability should help to maintain, and hopefully increase the value of the print on the secondary market. If someone else wanted a copy of that image, they can try to purchase one on the secondary market. Under no circumstances can someone look at the situation and say "Hey, he's not making any more prints, I 'll copy one of the original prints and sell those..."
If It was an "open editon" (not limited) I (or whomever I sell reproduction rights to) have the right to print (or not print) images from my artwork.
 

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The provocateur in me has come up with a scenario applying a real-world kit and company that hopefully will generate a good discussion on the pro & con of aftermarket replacement parts.

Thomas, if you and/or Dave Metzner would like to chime in on this from the commercial kit designer/producer side, please do.

Okay,

Most of us own one or more of the PL 1/1000 1701 kit. Many of us have attempted to light it through various techniques. The major hull parts that contain the many viewports are shot in opaque plastic, with only the engine and sensor domes shot in clear styrene. To make it possible to light the many viewports, a modeler would normally have to drill out and file each and every viewport, or sections of hull that contain viewports, and insert clear material of choice that can be lit from an internal source. Very labor intensive.

Now, say someone decided to market clear, hollow aftermarket replacement parts of those very same pieces (top and bottom saucer, left and right secondary hull) to make it easier for the modeler to light the viewports without the burden of extensive microsurgery. The clear replacement parts are made from molds taken directly from the original, opaque kit parts, without further modification, and would be sold with the intention that the modeler would still be required to purchase a licensed kit in order to have a complete, easily-lit model.

What are the possible legal and/or ethical issues with this scenario?


Since PL doesn't plan to offer an all-clear version of the kit, does that open the door freely for such aftermarket parts without violation?

Can a clear-cast part of a commercial kit opaque part be considered different enough to be an original work?

Would this effort be considered "recasting"?

If the resulting aftermarket parts would cause an increase in licensed kit sales, would the kit designer/kit producer be damaged in any way by this?


Note: I came up with this scenario because I face this lighting situation myself many times over with this kit and thought it would be a good topic of discussion.

Feel free to chime in with your opinions. :)
 

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Trek Ace said:

What are the possible legal and/or ethical issues with this scenario?


Since PL doesn't plan to offer an all-clear version of the kit, does that open the door freely for such aftermarket parts without violation?

Can a clear-cast part of a commercial kit opaque part be considered different enough to be an original work?

Would this effort be considered "recasting"?

If the resulting aftermarket parts would cause an increase in licensed kit sales, would the kit designer/kit producer be damaged in any way by this?


Note: I came up with this scenario because I face this lighting situation myself many times over with this kit and thought it would be a good topic of discussion.

Feel free to chime in with your opinions. :)
uss. columbia, back me up on this:
1. it's a violation of both paramount's and polars copyrights. you are duplicating both the ships image and polars parts. the purpose for doing so and the color of the part is irrelevant.
2. depends on what you mean... legally, no. ethically, i think polar might have a big argument with what you propose, so probably not.
3. no. all clear cast parts that duplicate the original kit parts are technically a violation, even just a section of them.
4 & 5. depends on who you ask.

you raise an excellent theroretical question, because its sort of a slippery slope thing. what youre proposing is such a huge chunk of the model in question, it makes you wonder where the borderline is. if its ok (ethically) to do a little piece of the ship, why not most of it? when is "altered" altered enough? again these are all ethical questions. legally, its all verboten.
 

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uss_columbia said:
The perfesser poses some good and difficult questions.
As far as "is it okay," there are two interpretations: strictly legal and ethical. (Something can be legal but unethical or ethical but illegal.)



This is not legal but I consider it ethical IF (and only if) the accurized part is only usable with a licensed whole. If your part could only be used by licensed end users on licensed complete models, it would be extremely hard for the copyright holder to show any damages. You could look at this as subcontracting accurization of your licensed while, if you wish, as has been said here before.
Legally, the accurizer holds the copyright to any and all "original" changes made to the original but not to the original work. Thus, if your accurization adds to but does not duplicate a copyrighted item, it would be fine. Usually, though, you would copy elements of the original part along with your new elements when you make your mold and castings. However, even in the case of a strictly add-on component, no recasting of the kit parts, it's probably only strictly legal if the accurate component you are making is a miniature of a public domain item. If you are making even a scratch-built interpretation of a copyrighted work, your interpretation is a derived work.



Again, legally, even from scratch might not put you in the clear (a from-scratch model of a copyrighted starship design is a derived work). However, I consider production of a scratch built or even heavily modified part to be ethical.

Since it is extremely unlikely that an individual casting parts for his own use (or even a few friends) is likely to show up on a copyright holder's "radar," the ethical question is perhaps more relevant than the legal one. If you plan to produce lots of for-profit parts, though, you should pay more heed to the legal issues.

(Disclaimer: I am not a lawyer, but I play one on HobbyTalk. :) )
Thanks for the info, uss_columbia, you point out some very relevant aspects as to the legality and ethics of the situation. :thumbsup:

I agree with you regarding the legal aspects -- ANY copying and selling is a technically legal violation at least of Paramount's copyrighted work. I tend to lean towards the ethical side of the equation since, as pointed out, the accurizing kits do enhance the value of the original kits. It's also nearly a case of silence being acquiescence. The makers of accurizing kits are doing the companies a favor by generating interest in and sales of their kits.

As to the legal aspects, while perfectly ethical IMHO, it would seem to me that even contracting with someone to make a duplicate completely of scratch of a copyrighted design to be a technically illegal act. To build one on your own, I would guess to be legal, but to then sell it to someone without paying licensing fees, etc. would seem to be technically illegal.

I can't imagine any company going to the extreme of prosecuting or attempting to take possession of the copied work in such singular cases but it would be possible at least. I remember reading of Barris calling the law and taking possession of an unauthorized copy of his copyrighted TV Batmobile back in the '60s. (Nowadays, there are 1/1 scale kits of the car available. I wonder if those are licensed.)
 

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Interesting, I had't considered that a recaster of a garage kit is also violating the original copywrite.
 

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Trek Ace said:
Since PL doesn't plan to offer an all-clear version of the kit, does that open the door freely for such aftermarket parts without violation?

Can a clear-cast part of a commercial kit opaque part be considered different enough to be an original work?


Would this effort be considered "recasting"?
I'm gonna say that a clear cast part based on an original opaque kit part is NOT recasting for the intent of violating a copyright or license. I think if you re-cast the entire kit, or more than say 30%, you're stepping on toes. But if you were to use the kit's edges, surfaces, or limited selection of small parts to create replacement plugs or add-ons which have significantly different characteristics than the kit's parts (IMHO, light transmission counts as significantly different), you're ethically okay as they still rely on your purchase of the source kit to produce a finished piece. I think this is pretty much DLM's approach.

John O.
 

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Trek Ace said:
Now, say someone decided to market clear, hollow aftermarket replacement parts of those very same pieces (top and bottom saucer, left and right secondary hull) to make it easier for the modeler to light the viewports without the burden of extensive microsurgery. The clear replacement parts are made from molds taken directly from the original, opaque kit parts, without further modification, and would be sold with the intention that the modeler would still be required to purchase a licensed kit in order to have a complete, easily-lit model.
razorwyre1 said:
it's a violation of both paramount's and polars copyrights.
Agreed.
The real concern here would be that casting the saucer and secondary hull would enable one to build complete starships without buying licensed kits. (Indeed the kit already comes with spare nacelles). However, the fact that the cast copies would be more expensive than the licensed article would lend credence to the argument that the copies would not be used as a market substitute for the licensed article.


John O said:
I think if you re-cast the entire kit, or more than say 30%, you're stepping on toes. But if you were to use the kit's edges, surfaces, or limited selection of small parts to create replacement plugs or add-ons which have significantly different characteristics than the kit's parts (IMHO, light transmission counts as significantly different), you're ethically okay as they still rely on your purchase of the source kit to produce a finished piece.
Clearly, you are infringing the copyright, and the owners are within their rights to stop you. However, if your parts are only for use with the licensed kit, I don't believe you are damaging them. In the case of copyright infringement, monetary damages are not required to get an injunction. Thus, you could be forced to stop. Your parts could likely be seized, too. They wouldn't be able to recover monetary damages for lost sales and such. They might be able to recover attorney's fees, though, which could be substantial. In any event, it's very unlikely for something like this to go all the way to trial. There'd be some kind of a settlement, most likely. If it's truly a win-win situtaion for the kit maker and the accurizer, there's not likely to be a problem.
 

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Holy Cow

Well I've just begun surfin' the sci-fi model boards having found them through the library PC. While I'm thrilled to see that there's a large community out there for something I used to love doing, I can see I've landed right in the middle of a whole lotta drama! Yikes!

As for aftermarket kits, it seems to me that anyone who produces an accessory or improvement kit is only helping to sell an existing model. Don't copy other guy's stuff though, if there's already one out there go do something else!
 

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ChrisW said:
One other not-so-apples-to-oranges comparison.
I sell limited edition prints. When that print is sold out, I do not issue a "second edition". When someone bought my print from the original edition at the original price, there is the understanding that the limited number and availability should help to maintain, and hopefully increase the value of the print on the secondary market. If someone else wanted a copy of that image, they can try to purchase one on the secondary market. Under no circumstances can someone look at the situation and say "Hey, he's not making any more prints, I 'll copy one of the original prints and sell those..."
If It was an "open editon" (not limited) I (or whomever I sell reproduction rights to) have the right to print (or not print) images from my artwork.
I've got a question for you, Chris.

Let's say you've painted a canvas for someone on a commission basis, an original work of art that you've sold to him for a considerable sum. Does that person, as the owner of the original work of art, have the right to make prints of it and make a profit without giving you a portion? :confused:
 

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uss_columbia said:
Clearly, you are infringing the copyright, ...If it's truly a win-win situtaion for the kit maker and the accurizer, there's not likely to be a problem.
I disagree that it is clear infringement. When Don Matthys makes his replacement parts and bases them in some degree on the kit's parts, but ends up with something which behaves differently than the originally supplied kit part (ya know, it transmits light) I believe this does not take money out of anyone's pocket.

My experience with judges and the law is that were an infringement case of this sort to come before a real judge (Jim's Clear Enterprise Parts v. Polar Lights, LLC), and the judge were to see what exactly Jim's ledgers showed as his net profit, he'd wag his finger at Jim and tell him to stop making his parts and award no damages to PL - and everyone could go home with their legal bills in hand.

Win/win is the way to go. Military and car model companies accept and expect aftermarket mfgs to fill in the gap where their mfg limits prevent them from doing more.
 

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John O said:
I disagree that it is clear infringement. When Don Matthys makes his replacement parts and bases them in some degree on the kit's parts, but ends up with something which behaves differently than the originally supplied kit part (ya know, it transmits light) I believe this does not take money out of anyone's pocket.
Copyright isn't (just) about money. It's about right to copy and right to derive. Don is copying elements of Viacom's original art and of RC's derived work (the transformation into model kit). He is infringing both copyrights when he makes his derived work. He owns copyright in his modified parts, if there is sufficient originality (which is debatable for just casting in clear, less debatable if accurizing). (Nobody has the right to copy Don's copyrighted parts, regardless of whether he had permission to copy Viacom's or AMT's copyrighted material.) Don only has the right to reproduce and sell his own parts with Viacom's and AMT's permission. This is the law. Ethically, it may not be a problem, but legally, it is clearcut infringement.


See http://www.copyright.gov/circs/circ1.html#wci for copyright basics.
Viacom has the EXCLUSIVE right to reproduce, to create derived works, etc., of Star Trek art. Viacom has licensed RC (via AMT and PL) to produce model kits. RC has the EXCLUSIVE right to the transformation. I don't know whether Viacom's agreement with RC gives RC the right to sublicense the Viacom material; I would guess not. Thus, someone like Don would need a license from RC AND from Viacom to produce, for example, a clear-cast Star Trek part. There really is no legal question whatsoever. The question is one of damages and remedies. It can be argued that Don's practice does not damage Viacom or RC and even that it enhances RC (and therefore Viacom), in which case, no damages would be awarded. A permanent injunction, however, is all but guaranteed unless the parties reach a good settlement.

More likely, someone like Don would continue to remain "below the radar," especially if no damage is perceived by RC or Viacom bigwigs; so, we're not likely to ever see such a court case. (We do hear about the copyright owners sending cease-and-decist orders to garage model producers from time to time, though. These are usually honored for fear of ending up paying hefty legal fees even though it's unlikely any damages would be awarded in the end.)

Note: when determining whether an activity is infringement or fair use, several things are considered, including how big or significant the copied part is compared to the whole and whether it is done for profit. I'm quite confident that someone's casting of a few small parts of a large kit and passing of them to a few friends with no profit would be considered fair use. If he were to be recasting full hulls and selling them for profit, damages would likely be awarded. Stuff between is in the gray area legally.

Here's another interesting link: http://www.itaweb.it/jhyphen/toys/caveat.htm
It's mostly about prop replicas, but the concepts are the same for other scale models.
 

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Discussion Starter #55 (Edited)
Trek Ace said:
The provocateur in me has come up with a scenario applying a real-world kit and company that hopefully will generate a good discussion on the pro & con of aftermarket replacement parts.

Thomas, if you and/or Dave Metzner would like to chime in on this from the commercial kit designer/producer side, please do.

Okay,

Most of us own one or more of the PL 1/1000 1701 kit. Many of us have attempted to light it through various techniques. The major hull parts that contain the many viewports are shot in opaque plastic, with only the engine and sensor domes shot in clear styrene. To make it possible to light the many viewports, a modeler would normally have to drill out and file each and every viewport, or sections of hull that contain viewports, and insert clear material of choice that can be lit from an internal source. Very labor intensive.

Now, say someone decided to market clear, hollow aftermarket replacement parts of those very same pieces (top and bottom saucer, left and right secondary hull) to make it easier for the modeler to light the viewports without the burden of extensive microsurgery. The clear replacement parts are made from molds taken directly from the original, opaque kit parts, without further modification, and would be sold with the intention that the modeler would still be required to purchase a licensed kit in order to have a complete, easily-lit model.

What are the possible legal and/or ethical issues with this scenario?

Since PL doesn't plan to offer an all-clear version of the kit, does that open the door freely for such aftermarket parts without violation?

Can a clear-cast part of a commercial kit opaque part be considered different enough to be an original work?

Would this effort be considered "recasting"?

If the resulting aftermarket parts would cause an increase in licensed kit sales, would the kit designer/kit producer be damaged in any way by this?


Note: I came up with this scenario because I face this lighting situation myself many times over with this kit and thought it would be a good topic of discussion.

Feel free to chime in with your opinions. :)
I'd love to see just such an accuritizing kit as well, Trek Ace!

PL has sometimes in the past made reference to expecting that there would be aftermarket "accuratizing" manufacturers to fill certain niches, such as adding a hanger bay to the NX-01 kit.

I don't see any way such kits could damage sales, and though they have never said "go buy an accuratizing kit" the implication seemed to be that at the least they would not be that worried about that sort of thing. Those kinds of kits increase rather then decrease sales.

Just look at how many different ships John P has built based around the 1/1000th TOS E!!! :)

Since Thomas is contracted by PL for specific pieces, and they are under new management, I don't think the guy will probably be able to comment on such a thing officially. Wouldn't want to see him get in trouble with the new bosses!

There's still a few Trek kits left we'd all like to see get finished! :)

Technically though, the question isn't only whether or not accuratizers are hurting the kit manufacturer. By the letter of the law the accuratizer would have to have their own license from Paramount to sell their parts for it to be totally legal.

But personally I couldn't care less. Paramount has seemed to recognize lately that intentionally pissing off fans for no particular reason doesn't improve their profits. And while accuratizing part manufacturers may not have licenses they make popular products that help their licensees make more money, as well as allow the Trek universe to be more diverse and popular, and therefore profitable.

So personally I don't see them going after too many accuratizing kit manufacturers.
No point to it and no profit in it, even though they probably could do so if they wanted to.

Here is another scenario, though...

Someone who makes accuratizing parts could PROBABLY be hired to assemble a kit that he made his own accuratizing parts for. So that way the only thing you are really paying for is materials, the original manufacturers kit, and the SERVICE of having it fully or partially assembled.

Don't think that could be construed as a violation, but hey, I'm no lawyer...
 

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Discussion Starter #56 (Edited)
uss_columbia said:
Copyright isn't (just) about money. It's about right to copy and right to derive. Don is copying elements of Viacom's original art and of RC's derived work (the transformation into model kit). He is infringing both copyrights when he makes his derived work. He owns copyright in his modified parts, if there is sufficient originality (which is debatable for just casting in clear, less debatable if accurizing). (Nobody has the right to copy Don's copyrighted parts, regardless of whether he had permission to copy Viacom's or AMT's copyrighted material.)
Actually, printing the word copyright on pages included with pieces doesn't legally copyright anything.

Don would have to have filed for copyright and provided proof that he had a license from Paramount AND whatever model company and only then would the government give him a copyright. Considering the expense of a Paramount Trek license, I doubt that has happened. But I could be wrong.

If that hasn't been done he doesn't have one, originality or no originality. The word copyright can't be used unless he has permission to produce the parts from the owners of the intellectual property. No matter how many bells and whistles he slaps on the piece.

Paramount could, for example, say "Don, we don't like your parts. We think they could potentially reduce the value of our property so you can't make any."

Or, of course, they might be convinced and sell him a license.
But without a license, a derivative work can't be copyrighted - originality or no originality.

You can not copyright something that is illegally produced without a license.

So Don and whoever copies Don's parts are both violating the rights unless they have a license.

The statement that "(Nobody has the right to copy Don's copyrighted parts, regardless of whether he had permission to copy Viacom's or AMT's copyrighted material.)" is not at all accurate.

Someone who produces something illegally has no legal recourse. You can't sue in court if someone makes copies of an unauthorized part without your permission. If you tried, you would just get yourself in as much trouble as the other person.

Having said that let me say that I HAVE BOUGHT two of Don's accuratizing kits. They are fantastic, legal or not!

And while someone like Don might have no legal recourse if someone ripped him off by copying his pieces, let me say that such people should simply be exposed and people should avoid buying from them.

If not, people who take the time to create such kits for us will simply stop making them and we will all be screwed.

The fact that no one could do anything about it legally has nothing to do with the fact that it's just plain wrong to rip off someone who is helping the Trek modeling community. People who rip off accuratizers may make a few quick bucks today, but in the long run buying from them will make us all suffer.
 

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Discussion Starter #58
Darth Bill said:
Are ya'll a bunch of hobbyists or amateur copyright attorneys???
This subject has been beaten to death a bit.
But no harm done.
Once every possible angle has been discussed it will be dropped by most people.
Great thing about Cyberspace, if you get bored there are a thousand other things to see. I predict that most of us will soon move on as far as this subject is concerned...
 

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This is a great discussion. Causes me to have a LOT of questions

Did you know that even though a Model Master maybe completely fabricated from ‘scratch’ by the artist, the production and sale of that item fall under the ‘Intellectual Property’ category and can therefore be designated illegal?

Intellectual Property is something that can be identified with or as a copyrighted item. i.e. if it looks like Star Trek and a large enough portion of the general public identify it as belonging to Start Trek even though it isn’t, it’s considered Intellectual Property.

I find it very odd that each and every one of us states how wrong recasting is and how it hurts the original part maker and/or a company like Polar Lights who obtains a license. Yet each and everyone of us will rush right out and buy garage kits which are illegal to produce seeing as the manufacturers of said kits have not obtained the proper permission and licensing to produce said kit. As Mr. Spock would say, “Fascinating”.

Why is it that we say no to recasts because it steals from the pattern/garage kit makers, but buy the kits and aftermarket parts which is technically stealing from a Large Corporation like Paramount, Lucas Films, 20th Century Fox, to name a few?

If it’s okay to steal from Large Corporations, does that mean that it’s now okay to steal from Polar Lights since they are owned by RC2 – a Large Corporation?

Why is one way okay, yet the other not?

Why is it perfectly okay for a Person A to complain about Person B stealing his work (recasting), yet when that same Person A gets caught recasting Person C’s work nothing is said? Oh the hypocrisy!

It’s my understanding that if you change something by 10% it can be considered a NEW item. So that would make accurizing parts legal if they meet the 10% change requirement except that (here it comes) they fall under the “Intellectual Property” category.

Face the facts. All garage kits, aftermarket parts, accurizing kits etc are technically illegal. You can look at the aftermarket auto parts if you want but it’s the same there. What happens is that the industry as a whole overlooks it to avoid bad press and or (in the case of auto parts) the same manufacturer makes the part and sells to both the auto industry and the aftermarket products. The manufacturer has the copyright so there’s no problem. Doesn’t pay to sue yourself. If they are a separate company altogether, you can bet there is some sort of license agreement in play. If there isn’t, then they are probably not as greedy as the entertainment industry.
 
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