Opinion on custom regular windstones pieces

This has been discussed numerous times, I’ll try to find the topics

I’ve quoted the juicy bits from several past threads for you. Warning, this is LONG!

(Just for those that don’t yet know, John is Melody’s husband and takes care of most of Windstone’s legal dealings)

OK, I was able to talk this over with our copyright attorney and he came to the same conclusion as I did. It is not illegal to repaint them or, probably, to sell them if they are correctly represented. It is also not a misuse of our trademark (Windstone) to use our name to describe them as Windstone sculpture as long as it is clear that they are repainted by the artist and not repainted by Windstone. But, he also agreed that if this gets out of hand it will one day create a headache when we can no longer tell if they are repainted Windstone pieces or painted knockoff castings. Or when someone else down the road misrepresents them. So, again, it is something we would never encourage.

No, it’s not OK to do that. If a piece is sold that looks like an authentic Windstone paint job it will surely create confusion and when you create confusion of origin because of the look or decoration of an item it is a violation of the Trade Dress of the company you have imitated, creates Unfair Competition and may also be a violation of their Trademarks. Bet you haven’t heard of Trade Dress before but it becomes a claim in almost every legal action when inforcing property rights against knockoffs, as do claims of Unfair Competition and Trademark violations.

Great question and just the type of thing we want people to ask. I knew going into this we would need to supply good information about Intellectual Property law and I have been trying to get our copyright attorney, Alan Harris (a very approachable and considerate fellow, by the way) to finish off the copyright law section of our site. We are all short of time.

Repaints of broken (or not I suppose) windstone sculptures – Last time I saw it discussed over on the LJ (which I know is not official,) it was not against the law, nor was it even discouraged. Has this position changed?

I want to make sure, because I’ve got two heavily banged up dragons living on my shelf that have been in line for a paint job…But I LOVE Melody and her sculptures and I don’t want to go against the wishes of her company (or lawyers! 😉 ) Is it alright to repaint them provided that it is an original color scheme? If it is, is it alright to sell them provided that we state over and over again that it is in fact a repaint of one M. Pena’s fantastic work?

This may have actually been stated somewhere in the thread…And I know the second post says that it is not something that is to be “encouraged”…But I’d like to know the official statement on this, in language less vague than that!

Restoration is difficult to do properly but the pieces belong to you and you can certianly give it a try.

While we can’t legaly keep you from repainting the pieces the problem is two fold for us. The first is that when the repainter sells the pieces they may be correctly represented, but what about when they are resold by someone else? We don’t really want to spend time and money having to police every sale on Ebay yet if we don’t there will, no doubt, be sales where someone is deceived.

The second problem comes into play when the sculpture is actually modified and creates confusion as to the copyright of the original piece. As much as we would like to see artists go crazy with all this, it really does create another headache for us. We came out with the Paint Your Own line because artists like yourself wanted Windstone pieces to paint and we would prefer that they be the outlet for your creativity.

Although this is all sort of a minor problem in the scheme of things, we would hate to see the resale market for Windstone pieces degenerate for any reason. It is also a very grey area of law, many facets of which have been rarely argued in court, and leaving not much to go on sometimes but the merits of the particular case at hand. Therefore, yes, you are getting some slightly vague answers and that can’t be helped.

And this last one is in regards to someone having a very hard time telling if their emperor dragon is a real Windstone or not:

Thanks for putting all of that in one place, Nam. 😀

I think that the main difference between Windstones and Model horses are the copyright and trade dress issues involved. A model horse is a model horse… there are many different artists and sometimes one can tell what artist produced which horse, but there is not a unique ‘look’ to them like there is with Windstones. A Windstone is unique in the world, there is nothing else that matches Melody’s work. And that in itself must be protected or Windstone can loose a lot of their legal protection. It is not an issue of beauty and creativity- it’s more of an issue of Windstone trying to protect itself in order to stay in business. That’s why the PYO line was released, to create an outlet for us artsy types! 😉

I know that Breyer does encourage customs, and they do well from it, but Windstone is an entirely different kind of company. I, too, think some of the repaints are beautiful and exciting, but I also recognize the company’s standpoint in this. In a perfect world we could have both, but sadly as long as there are dishonest people in the world and they will always create problems for the honest folks. 🙁

To put it in a nutshell: Breyer can’t really protect the ‘look’ of a realistic horse (and so is basically saying, ‘have a free for all!’)- but Windstone can protect the look of Melody’s specific work, and must in order to keep their legal protections strong. 🙂 This is why there is a distinct line just for painting (PYOs).

Yay, Mimi!!! You did it again!!! 😀

But just to play the devil’s advocate here…

Doesn’t having Nam paint production pieces promote the same sort of confusion? And isn’t it a little bit contradictory to say “we don’t encourage this” and then have Nam do exactly that?

Not that I’m complaining here, like I said earlier, I’m all for it.

Not sure, not being a lawyer, but since she is doing it under the auspices of Windstone, FOR windstone, it is the same as if Melody was painting a test piece, or a special offer piece. But I might be wrong 😀

You’ve raised a really good point. Even though there are a finite number of “official” LE and OOAK color schemes from Windstone, their existence does serve to complicate the issue, the same way that “custom painted” production Windstones do. I think a casual buyer who wasn’t a Windstone collector wouldn’t even be able to tell the difference between a “custom paint” scheme and an “official” LE/OOAK color scheme unless it was explicitly stated. Actually, a casual buyer might not even know that LE and OOAK color schemes were “official” — unless the seller had stated it explicitly, such a buyer might think that they were custom repaints or that they were fakes, since the colors are different from what’s available in stores.

Also, Melody mentioned a while back that even one of the production painters had confused peacock with peacock emerald. This goes to show that it’d probably be very difficult for casual buyers to differentiate between the different color schemes (now that there are so many), much less know whether they were “offical” color schemes, custom paints, or fakes.

So I agree with LIH that the existence of the LE’s/OOAK’s also seems to promote confusion — though I’m also glad that Windstone is offering them!