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Windstone has a trade dress on their products, so both are potential problems. Here is a quote from Jennifer on the first page:
“Windstone has something called a Trade Dress on Windstone products. To put it simply- not only can Windstone protect itself from DIRECT fakes/copies, but anything that is close enough to have the look/style of a Windstone. This does include coloration to an extent too (e.g. a dragon painted with the same exact colors in the same places as a Windstone- EVEN IF the sculpture itself does not look like a Windstone).”
Here is a link that shows different views of the dragon so hopefully you can see what I’m talking about with similarities to the sculpture:
http://www.merflemunchies.com/StoreSelection/Products/hatchlinglargepic.jpg
I think that there *might* be a case for the rainbow and *maybe* emerald peacock. But, honestly, there are just so many ways you can do silver and gold. The concept of metallic-colored dragons isn’t new (the Pern series features gold and bronze), so it’s not surprising that there are metallic dragon sculptures other than Windstones.
So you think it might be worth a heads up to John just in case?
Yes, I think it’s best to just email it to him and let him make the decision. For me, it’s always difficult to tell how close is too close. This is one of the borderline cases to me.
I have no idea if this has been reported before, it’s very old and may have been done with Windstone/Melody’s permission (although neither are credited), but here goes:
OK, so maybe it’s just be, but I would like to submit this to the court of public opinion:
http://www.merflemunchies.com/StoreSelection/Products/hatchling.html
I don’t know this person, but I’ve watched her on DA for a while, and I’ve noticed a little bit of a…shall we say, trend, with her painting schemes. Down at the bottom of that page, she has hatchling sculpts painted in what looks very similar to Rainbow, Emerald Peacock, Gold, and Silver (the last two of which I know Windstone doesn’t have the market cornered on, but all the same).
What do you guys think? Coinkydink?
The first looks rather close to a rendering of a Male dragon to me. Yes I can see the differences but I am not a lawyer for how how much different one must be. This is of course my opinion.
The second one has a similar name, and some of the colors certainly come close, and the description is another close item, ceramic vs the gypsum, acrylic paint with a gloss finish, multi-colored stones for eye color…Again this is strange in my opinion. I am not an expert though.I think that there *might* be a case for the rainbow and *maybe* emerald peacock. But, honestly, there are just so many ways you can do silver and gold.
(Emphasis mine)
This is true. And, along these lines, I doubt Windstone would ever try to go ‘after’ anyone painting their dragons general metallic colors.
Just as they would not try to claim ownership of a natural animal markings (tiger, zebra, etc).The distinct patterning of other colors (such as EmPea or Black Gold or whatever) is an entirely different matter, especially if there are design similarities.
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My art: featherdust.comYeah, I wasn’t so much concerned with the gold and silver cuz…well, gold and silver.
But I think I’ll send something to John regarding the other two.
>.< those are terrible copies! X.X
4 things I'm looking for:
1. Mother Meerkat
2. production color Sitting Young Oriental dragons to be made in more colors besides VF, Brimstone would be awesome!
3. Female Griffin – Siamese with White
4. September Raffle Prize 2022 AHD Male Griffin*headscratch* This thread has me a bit concerned. Since Windstone can claim a copyright to ANY of the color schemes it produces, that would include all of the test paint and one of a kind pieces, correct? Which are being produced by the dozens, soon to be hundreds.
What happens, if you produce a scheme that closely resembles that of another artist? Say, me, for example. Inadvertantly. But then you come across my website at a later date, and decide that my artwork is too close to yours. Would that be persuable? I’m just little me, and you have all the lawyer power. 🙁
With all the paint jobs being done, eventually you are going to chance across something pretty much identical to one of mine. And it is very disheartening to think that I will someday be on the wrong side of a cease and desist. It’s bad enough my dragon types look a bit like a lap dragon (the horns are bang on, and the tail is similar, though all else is very different – to be fair, I made mine first!) And now that I think about it, there was an artist edition that made me say to hubby “that one looks exactly like Natta’s color!” (My dragons are few enough, each has a name). And yes, I plan to publish books someday, probably illustrated, so I will be making a profit off my designs even if I am not doing so right this minute.
I believe Windstone has already trademarked a species name I was going to use. But we don’t have the monies to officially put trademarks on eveything I come up with. *sad*
I was just looking at some of the previously pursued cases listed above, and I thought some of them were a bit far fetched on being ripoffs. In particular, I don’t think that the Merfle Munchies ones look anything like a windstone at all, sculpt wise, (except perhaps the rainbow scheme being similar).
But then I turn it around… Melody is working on a Lava color scheme? Merfle Munchies already has a Lava scheme… does that mean that artist could take action against Windstone? So it is really confusing…
I’ve loved Windstones since the flion was originally in stores, so I’ve been around a good long while. But the sheer… I dunno… aggressiveness of the company is a put-off. I know nobody likes to be copied, but really… it’s like a vampire hunt or something.
Sorry, it’s late, and I have probably said too much. *le sigh* Maybe I just need a bit of reassuring that it isn’t as bad for us little guys as it seems from the postings above.
I feel obligated to saw before jumping into an intellectual property discussion once again that I’m only offering information to be nice and banish the demon of misinformation, not to be a brat or start problems.
I don’t think it’s bad for the little guys as you put it at all. Have you ever received a cease and desist letter? Is it merely the specter of it that disturbs you? Cease and desist letters are not the end all of any matter. Here is an awesome site about what C&D letters really mean and your rights and options if you receive one. http://chillingeffects.org/
If you are concerned that your original art is similiar to Windstone original art, then know that if we both today create a giant mural of a monkey god crapping out jellybeans and wearing a variety of colorful, flowery hats, as long as we created the works independently from each other, each work is copyrighted and protected.
The only thing that makes me think a difficultly might occur is that you are very much aware of Windstone art. It’s harder to prove independent genesis of a creative work when one artist collects the art of another…what it would probably come down to is how similiar the art is. If it’s a derivative work, then you have to fall back on fair use protection.
That being said, I have no idea was a “trade dress” (that’s what the color sceheme is called, right?) is. You can’t copyright a color or a simple phrase or word, which is why retard Donald Trump could not copyright “you’re fired”. I would have assumed the colors are part of the art, the statue, and am not sure how multiple copyrights would work in that instance. It doesn’t sound like a patent, trademark, or trade secret, and those beside copyright are the only types of intellectual property recognized by U.S law.
Also, even though a lot of stuff is posted on this thread, and John is aware of it, I don’t think windstone sends their lawyers after every single case. 🙂
That being said, I have no idea was a “trade dress” (that’s what the color sceheme is called, right?) is. You can’t copyright a color or a simple phrase or word, which is why retard Donald Trump could not copyright “you’re fired”. I would have assumed the colors are part of the art, the statue, and am not sure how multiple copyrights would work in that instance. It doesn’t sound like a patent, trademark, or trade secret, and those beside copyright are the only types of intellectual property recognized by U.S law.
Trade Dress refers to the distinctive decoration, coloration and design features of a product line, display materials, costuming of sales people, storefronts, Etc. that makes a product memorable and recognizable and which the copying of may create confusion for a buyer or client. Businesses have rights to their established Trade Dress and, as I recall, it is a matter of un-fair competition as protected by law. I.e. the use of gold trim on dragon wings and scales and other distinctive features.
Please correct me if I am wrong but I believe that copyright protects the expression of an idea and, in artwork, it is the visual expression that comprises the decoration as well as the composition of form. An infringement would be judged as being substantially similar, in whole or in part.
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