The Borderlands Episode: Commercial Recasting

(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.

In cosplay propmaking, raw casts are created and the finished individually- whether that simply be trimming and painting, electromechanical work, or even application of additional materials like leather wraps, straps, clear windows, etc. Each round of finishing work is done by hand by the artist, and is generally held to constitute each piece as a one-off piece of sculpture. The physical object may be more or less identical underneath since it’s a cast, but the finish is unique.

Creators mould and cast their work in order to sell it and recoup some costs- or even pay the bills. No one, for the most part, particularly worries about this system, since the margins are microscopic and the free marketing is nice. Of course, marketing departments tend not to talk much to licensing departments beyond the “we need runs of X to promote Y” high-level details.

What David Eddings- and presumably Glitch Gear and Gearbox by extension- is saying here is that despite this idea of “unique” finishing work, in this case, the paint jobs are more or less the same, the leather work is largely identical and most importantly the actual physical object is cast- and therefore identical by definition. Casting is a mass-production technique (even though silicone only lasts a certain number of casts, the master is usually archived in case of future re-moulding).

So if you took, say, ten or twenty of the masks that Steven’s sold and lined them up on a table, would a jury who looked at them- in all their red and off-white, leather strapped and LED-lit glory- consider them to be in essence the same object- and therefore “mass produced”? You may not like it, but I think it would be difficult for anyone to deny. Cosplay propmaking is the creation of “replica props”- the whole point is to make them as similar as possible by hand.

So while you can refrain from casting until after someone has hit the “buy” button, and finish each one just the slightest bit differently, I don’t think anyone selling a particular version of a particular object can genuinely hide behind the “commission” fallacy in front of a judge.

The Trademark Bit

There are two separate systems at play here which is muddying the waters slightly, and even multiple iterations of the same system which is causing further confusion. Honestly, I’m not even sure I can figure it out fully. But I’ll make a valiant effort at laying it out, anyway.

The trademarks in play here- “Borderlands”, “Psycho Mask” (maybe), etc- are unequivocally Gearbox’s (I think 2K Games come into play here somewhere too, but if you know who did what bits, replace company names as applicable. If not, the theory should still apply). If Steven’s selling a “Borderlands Mask”, then yeah, that’s trademark infringement. If you don’t rock the boat and draw attention to yourself like Steven just did, the big guy’s probably going to ignore you because the marketing department will happily claim that the free publicity is worth more than the cost of a recent law grad mailing you a C&D, and the licensing department can claim to a judge that they weren’t aware of your “underground activities”.  This may be part of David’s very public insistence that he was wholly unaware of Steven’s products, or maybe he genuinely didn’t know; doesn’t really matter at this point.

Why does it matter who knows what? Because of the fundamental difference between trademark and copyright. You are legally required to defend your trademarks, or a judge can strip you of them. Now that Gearbox licensing are officially publicly aware of Steven’s activities, they must either stomp on it or license it, and since Glitch Gear A) already have a license to produce the same thing, which B) may be an exclusive license, and C) actually generate revenue for Gearbox, that theoretically isn’t exactly a difficult decision.

(Pre-Publication Update: SKS is licensed, now, so someone somewhere clearly threw some weight around. No word on the terms, but I wouldn’t be surprised if it was “free plus royalty percentage” or similar, maybe with a sign-off of copyrights. In any case, good for Steven!)

Could Steven just call it a “Crazy Post-Apocalyptic Mask” and continue on his merry way? …Maybe. There is the possibility for a visual trademark, but it looks like the only trademarks Gearbox has applied for are the word “Borderlands” itself, and the Borderlands logo. Could they use the mask as a Borderlands visual identity and therefore trademark it? Possibly, if described in such a way as to eliminate any other possible mask-like images (trademark law is far better written and enforced than patent and copyright law), though then it would be relatively easy to circumvent, by using different colours or proportions, etc. Trademark requirements are very stringent.

The most obvious protection is good old-fashioned copyright.

The Copyright Bit

There’s a lot more going on here with copyright.

First, the mask itself is, of course, copyrighted to the 3D artist who first sculpted it in Z-Brush or whatever. That was presumably transferred to Gearbox under that artist’s employment contract, of course. So Gearbox own the copyrighted work that is the mask, whether they specifically filed for it or not, because it’s a “Work published only as reproduced in or on jewelry, toys, games, textiles, packaging material, and any useful article”. This covers the digital copies of the object as well as a physical reproduction of the object. To copyright, it’s all one and the same object, the same set of creative expressions, only in different media.

The “creative expression” is relevant here because it’s what makes something copyrightable. Its antithesis is “functional and useful”, which is not protected by copyright, but such an object may be eligible for patent or design patent protection.

Obviously, this means that creating the same object and calling it something non-Borderlands related isn’t a permittable course of action (see also: Evike and the totally-not “Halo Assault Rifle” airsoft gun). And yet, Steven clearly is an artist, sculpting this piece of work from scratch. He didn’t simply rip the 3D file from the game and print it. There is some element of his own creative expression, which seems like it might entitle him to some degree of copyright claim.

Here, I think, is where the term “interpretation” can come into play. It’s not just a pretentious conceptual artsy term, but also indicates where an artist is re-expressing a pre-existing work in their own way. Despite the fact that this is a replica sculpture and is therefore hewing as closely to the original work as possible, it seems clear that Steven’s hand-production of his original master was his physical interpretation of that digital asset.

So, it seems plausible that while the actual work itself- off-white filtration mask of this specific shape with red looping designs, leather straps and blue glowing eyes- is copyright to Gearbox, this specific interpretation of it- those two little clay rakes above the right side of the mouth, the shape and size, the type of leather used, the electronic design for the eyes, etc- could be copyright to Steven K Smith. In all likelihood, it requires far more distinct changes than these to legally establish an additional set of creative expressions, however. Things like colour changes, material changes, changes to the radial pattern in the air filter, additions like making it a full-head helmet or adding tactical equipment to it, etc. “Inspired by” is fine. “Copy of”, not so much. But that would be for a judge to establish.

This is where re-casting becomes an issue. You can’t technically do anything about it, because you’re legally duplicating a copyrighted work, and therefore receive no copyright protection whatsoever, but you’ve still created your interpretation. Hence why the cosplay community attacks re-casters. It’s the only recourse they have to protect the creative work in their replicas.

The reason a one-off item is an artwork but duplicates are copyright infringement is the US Copyright Office’s definition of “publication”. A one-off artwork isn’t “published” until copies are made of it for distribution (prints, casts, etc), and in fact is therefore ineligible for copyright protection. By the same token, if it remains unpublished, it cannot infringe. Theoretically this does mean that one-off versions of things can be made and put up on, say, Etsy, even of properties that are vigorously defended (say, anything owned by Disney). The costs of defending that right, however, may not be worth the revenue generated.

Conclusion, Or Lack Thereof

Since the original Twitterstorm is dealt with now, I don’t really have much of a conclusion, but it’s interesting to consider the ramifications of replica production, especially if you’re someone inspired by the likes of SKS Props and the rest of the “usual suspects”.

Personally I’m actually winding down my BR85 production and looking towards the next project. Currently I’m still thinking that’s probably going to be Fallout based, but, y’know, Star Wars is a thing now (Disney caveats notwithstanding). I’ve been feeling an internal pressure to refocus recently and remember why I got into props to begin with. It wasn’t to sell lots of plastic copies (though that is fun and I’m not eliminating it as a possibility), but to reinforce my photographic and filmmaking ambitions.

Time to get back on that.

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