The CEO of Turbosquid got back to me today with some impressive decisions made all on their own. His entire email is above. The sum of things are this:
Turbosquid made $800 off my design. They decided, without my knowledge, to donate the money they earned from my IP to disaster relief. This is incredibly sleazy because: 1. If I complain about it I look like a complete jackass, and 2. they get to claim the donation on their taxes and effectively lose no profit.
Matt has decided that because Shank3D made his very own model of my design, I do not have any right to the profits. This is a very interesting decision that goes against anything I’ve ever read about copyright and IP.
Writing something or creating it yourself does not automatically mean that it is not a copyright infringement. For example, if you write a story based upon another book or take a photograph of a painting, even though you created a new work, it could be what is known as a derivative work and infringement.
Derivative works is a particularly messy area of copyright law and one that is still being settled. However, it is based upon whether an “ordinary observer” would find the works “substantially similar”.
This is a very tricky area but it should suffice to say that simply doing your own work does not protect you from copyright infringement so long as that work is based heavily upon the work of someone else.”
Answer: No. The sculpture would be a derivative work. In one famous case, artists Jeff Koons made a sculpture based on a photograph of a group of puppies and argued that the sculpture was a “fair use.” See Rogers v. Koons, 960 F.2d 301 (2d Cir 1992). The court found that the sculpture was not a fair use, in part because the sculpture damaged the photographer?s potential market for derivative works. The photographer might want to grant a license to another sculptor to make a new work based on the photograph. If so, the existence of Koons’ sculpture could reduce the potential market available to that licensee and thereby reduce the value of the photographer?s copyrights.”
I’d say the 10,000 people who responded to my original post are a good sign that there is nothing impressionably different about Shank3D’s derivative work.
The fact that his work is a “derivative work” and not “theft of work” doesn’t give anyone any more right to profit from my designs. If I did file a lawsuit, while I would not get more than the profit made due to the particulars of this matter, every penny profited from the selling of the work would go to me.
If you make a 3D model of Mickey Mouse and sell it, you don’t get to buy everyone pizza and cake to make up for it when you get caught.
On top of this, they have shown no interest in punishing the seller of the work any further than taking the model down. So in short:
- Shank3D gets to keep ~$800 he made by violating Turbosquid’s TOS in just about every way possible. He is also allowed to continue selling his other models on the site despite such flagrant infringement.
-Turbosquid gets to donate ~$800 of their money and decide it was the profit of this model, which is impossible to even prove — it’s abuse of coincidence. Of course there was no indication that it was donated in my name.
-I get to enjoy 0 dollars for my infringement, time taken to remove the infringement, and market confusion.
Pure sleaze. Please RT this (probably) final part of the story so everyone can see what Turbosquid’s idea of fixing the situation is.
Don’t try to call me again, Matt.