I've identified a problem with our model strategy that's going to require some creativity to solve. Fortunately, it's a problem that most anyone reading this can easily help the project with. All you need is some simple hobby skills and a little time. :)
So what's the problem?
Put simply, it's the use of other companies' models to illustrate our rules principles.
I had thought that we would be OK using GW/Mantic/Other miniatures to illustrate our rules, as in the pic above. They're legally purchased mass-market products, after all, and I thought that with the appropriate disclaimers posted in obvious places (such as a whole section in the introduction chapter), we would be fine using them. Especially since we're not producing any competing miniatures of our own, and our future corporation will be a non-profit entity. Whose rules will (at least for the digital versions) be completely free. The only money we would get is through donations, kickstarter, or something like our own members-only online store.
But after further research, I don't think that we're safe doing that. As it turns out, each company has rights over not only the direct copying (such as re-casting) of their IP, but also it's use (to various degrees) in other media. If I take a picture of a GW mini, the copyright on the picture (and the painting of the mini) is mine, but GW retains control over the design of the mini itself, and can object to it's portrayal in a published product. Which they surely would. There are precedents here for such issues regarding photographed cars, sculptures, or distinctive buildings/bridges.
For (non-profit) educational purposes, comparisons, news, and commentary, you don't need permission from the IP holder of a copyrighted (or trademarked) product to publish a picture of it. So everything we've done so far on the blog is completely legal in that context. We're commenting on various design principles and educating our readers on how a game like this is designed. Including dealing with copyright issues such as this. As such, it falls under Fair Use.
But if you're using someone else's IP in commerce (even indirectly), or aren't performing an obvious educational, news, or commentary function with your publication (as with a downloaded rules PDF), then you have to be much more careful. The test here is simply: "Does this use imply a relevant connection between the owner of the IP and the party using it? One which might harm the interests of the IP holder?".
If we publish a photograph in our rulebook that contains a Bic pen, some sculpting tools, or the cover of one of my wife's romance novels, then we're fine. As there's no obvious connection between our activities and the interests of the IP holders of those objects' designs. Nobody is going to mistake our rules for an official Bic publication. That wouldn't make sense.
But someone thumbing through our book who sees multiple photographs of GW, Mantic, or someone else's models could understandably get confused. They might reasonably miss all the disclaimers and assume, at first glance, that our game is either produced by one of those companies, or officially approved by them.
So the issue is context. We have to be clear that we're something different than what folks might assume we are. We have to make them stop, wonder what's going on, and then read the fine print to find out why they're not seeing what they expect to see.
So how do we solve this problem?
Solution 1: Get Their Permission
Why not just ask?
Well, we all know what GW's answer would be. Mantic, or another mini manufacturer might be more sympathetic and welcome another game that would help sell their models. But most mini manufacturers (even many garage-based ones) have their own games to sell. So even if they'd like to help us out of economic self-interest, it's going to be more prudent for them, in most cases, to just say no in order to protect their own games/IP. At least when dealing with a relatively unknown startup. One without an established player base.
As an aside, we'll also need to get permission to show other companies' terrain products in our rules. Which probably won't be an issue for any non-GW manufacturers. It would be in the best interest of a terrain-selling company to give us their permission.
Solution 2: Find A Willing Partner
There is probably a garage outfit somewhere who would be more than willing to help us out for the publicity. However, even this potential solution has problems. If we fill our book with rules illustrations using minis from CompanyX, then our rules will become associated with those minis. Any other minis that we show would then be also associated with that company. Even if all we're doing is showing an army made up of minis from multiple manufacturers, to illustrate the entire point of having independent rules. Which would be the type of image that we could otherwise get away with.
So if we want to be able to show other minis at all, and demonstrate who we are, it has to be in a context that clearly doesn't show an association between us and any particular manufacturer.
So...
Solution 3: We Make Our Own Minis
So, we need to accomplish 2 goals here.
First, we need to clearly demonstrate that we're manufacturer-agnostic. That means that we can't use someone else's miniature products for our detailed rules illustrations. Not even if they mail us a box full of free samples for this purpose.
Second, we need to be visually distinctive. In a way that sets us apart from the norm while someone is reading through the rules. That means that we can't make our own detailed Marines, Orks, Bugs, etc. Because that wouldn't be distinctive from the products of the 28mm miniature market as a whole.
So here's what we need:
We need generic soldier minis. With absolutely minimal detail. Miniatures so generic that they can't possibly be associated with any particular company. Ones so generic that they themselves wouldn't even be copyrightable.
These then, will be what we illustrate our rules with. So that 90+% of the miniature pics in the book will be these featureless, abstract figures. Figures that will look so unlike what players are used to seeing in a rulebook, that they'll wonder why we did it that way. They'll then read our section on this decision, and understand that we don't sell minis. Just rules.
Then, for the 5-10% of the pics in the rulebook that DO show copyrighted minis, our lack of association to those manufacturers will be quite clear. These will be shots of multiple models from different manufacturers (at least 4 per army) brought together as a unique take on what a wargame army could be. Showing a clear difference from the norm.
"See? Here's (a wide shot of) an army that you could make using our rules and miniatures from a variety of (appropriately credited) manufacturers."
We wouldn't zoom in. We wouldn't feature one mini or small groups of them. You might be able to tell that those are GW Space Marines over there, but you'd be hard pressed to tell exactly which models they are. Because we're not concerned with the details of those models. Only the unique collection of them into something more than what they were individually. A derivative work that's meaningfully different in expression or function. Which is protected under Fair Use.
So What Do We Need?
We need at least 29 generic models like those in the graphic above. Assembled, primed, sprayed a light gray, and... that's it!
Here's the breakdown:
- 22 Infantry Models on 20mm bases
- 3 Infantry Models on 40mm bases
- 4 Heavy Weapons teams on 60mm bases
These don't all have to come from one person, but if 2-3 of our readers get together and build these, it would save me a LOT of time that could better be spent writing rules and balancing the game. :)
If you believe in what we're doing, and would like to help out the project with $5-10 worth of plastic bits, some of your time, and the cost of shipping the final minis. Then I'd love to hear from you. Just send an email to:
m42projectdesign@goreham.com
And we'll work out the details. THANK YOU!
Other Needs
We're also going to need some minis from other manufacturers besides GW and Mantic for our final display armies. So if you'd be willing to buy a box of something and send it to us, go ahead and send me an email too. Maybe somebody reading this has some extra alternative minis lying around unused that they'd be willing to donate to a good cause.
We could also use people for painting up minis too. Send me an email and I'll be glad to list you as a resource.
Thoughts?
BTW: Anyone who helps out the project will get a credit in the game rulebook. :)
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