(The following issue was resolved shortly prior to publication, but if you’re interested in the legalities of replica propmaking, feel free to continue!)
Well, that escalated quickly. First from Abby Darkstar, then Harrison Krix (post deleted), and most recently at time of writing is Steven “SoloRoboto” Meissner sharing Steven K “SKS Props” Smith‘s Twitter spat last night with the BusDev and Licensing exec at Gearbox, David Eddings (no, not that one). It started over the image at the top of that back-and-forth, Glitch Gear’s PAX announcement of their “Psycho Mask prototype”, which SKS claims as a recast of his own. I can’t imagine it’s going to get better from here unless the Gearbox marketing department starts swinging, but all’s quiet on the western front, which indicates that emails are privately a-flying.
Naturally, “no recasting” being rule #1 in the cosplay community, everyone piled on Glitch Gear and David Eddings to defend their fellow maker. Is it as simple as that, though? Since I don’t identify specifically as a propmaker but more as a general physical and visual creative, I tried to think my way through the tangled web of our broken IP legal system as best I understand it, with the facts that I’m aware of. I haven’t played Borderlands (though I did rather like the 2003 Halo PC port) and don’t really know Steven in any meaningful way, so I don’t particularly have a horse in this race. The usual “I Am Not A Lawyer” caveats apply, as well as “I am not a long-time professional propmaker” and others. Feel free to disagree with my points.
For the sake of argument, I’m going to assume that the mask IS a recast, since if it’s not, and it’s simply an SLA print of a high-res asset (which would have been the logical way to do it) the entire argument is moot and Steven’s drawn some unwanted attention for naught.
1) The Commission System
Commissions are used in the cosplay community to legally mask the appearance of mass-production of unlicensed works. That may be an unpopular opinion, but as best I can tell it’s a fact. I may even be guilty of it myself, if a run of five- three kits and two builds- from silicone moulds would be judicially considered “mass production”. The idea is that commissions of popular IPs are individual artworks unencumbered by copyright and trademark law, since they’re built from scratch as one-offs by clients who are paying for the skilled labour, not the object. Big difference, legally.
Continue reading The Borderlands Episode: Commercial Recasting