Copyright

[Michael2]

I have deleted my initial post as I essentially misread the decision as I skimmed through it the first time around.

On the related topic of whether creating a mesh representation of an aircraft violates any intellectual property rights of the aircraft manufacturer, I think it highly unlikely a court would find it so, although some manufacturers apparently assert such violations anyway.

It seems some manufacturers rely more on trademarks to try and take a cut. I have seen that some manufacturers register the names of their aircraft products in the category of flight simulation software, even though they do not sell such software.

 

[bobbyjack]

Here's two examples from real life. Not how I interpret the law or how I think things are.

Someone thake a photo of a landscape. They don't own the lanscape but they own the copyright on the photo. I want to make a painting based on that photo. I have to get the photographer's permission to do so. Even if I add original elements to the painting. I might add tress,change colors, etc., the owner of the photo can take me to court and win.

It goes further. I want to make a painting of a horse. I run down to the local stable and snap a few shots of my favorite horse. I do not own the copyright to my own photo. The onwer of the horse does.

Bob

 

[mgh]

jdhaenens

A photographer can't acquire any rights in the object photographed and so would have no rights in any model derived from it. The court quoted with approval:

“[a]s applied to a photograph of a pre-existing product, that bedrock principle [of originality] means that the photographer manifestly cannot claim to have originated the matter depicted therein . . . . The upshot is that the photographer is entitled to copyright solely based on lighting, angle, perspective, and the other ingredients that traditionally apply to that art-form. (page 13)”

rhumbaflappy

The court wasn't asked to rule on whether Toyota held the copyright so didn't, but it did say:

"Meshwerks had nothing to do with designing the appearance of Toyota’s vehicles, distinguishing them from any other cars, trucks, or vans in the world. That expressive creation took place before Meshwerks happened along, and was the result of work done by Toyota and its designers; indeed, at least six of the eight vehicles at issue are still covered by design patents belonging to Toyota and protecting the appearances of the objects for which they are issued. (page 16)"

Regarding manufactuers, It's been reported that Grumman has sent cease-and-desist letter to developers and hinted that others have objected. So it's not in the realms of fantasy.

http://forum.avsim.net/topic/289203-...20and desist

Michael2

Meshwerks case was that the production of the meshes wasn't mechanical and the court said:

"Meshwerks personnel fine-tuned or, as the company prefers it, “sculpted,” the lines on screen to resemble each vehicle as closely as possible. Approximately 90 percent of the data points contained in each final model, Meshwerks represents, were the result not of the first-step measurement process, but of the skill and effort its digital sculptors manually expended at the second step (page 3)....we do not for a moment seek to downplay the considerable amount of time, effort, and skill that went into making Meshwerks’ digital wire-frame models (page 20)

So I suggest the principles would apply to FS meshes.

My point is that copyright may give only very limited protection to FS add-ons. There are other means (design rights and patents) but these are impracticable for add-on developers.

 

[n4gix]

If possible, don't place yourself in the position of being crushed by a corporate giant. By all means avoid the court system and copyright battles. It is entirely possible to win and be financially ruined for life as a result. I care much less about legalities and the law, than I do about the well being of our forum members. Even if you are right, take into consideration the cost of being right. Be prudent and protect yourselves.

Dick

It is this ever present possibility that gives often unsupported power to the ubiquitous "Cease and Desist" letters that are almost always used as the first recourse of the plaintiff. They are a relatively inexpensive means of coercion, even when the plaintiff has no actual legal leg to stand on.

Which is precisely why after receiving one such C&D from General Dynamics (parent corporation of Gulfstream) I did in fact cease work on a G500. I simply could not afford to risk any litigation.

In the United States at least there does exist one possible recourse to which a recipient of a C&D might find some relief. That would be the filing of a counter-claim via a "Declaratory Judgement" (see: http://en.wikipedia.org/wiki/Declaratory_judgment). However, even this is not an especially attractive course of action, again because of the immense costs involved.

Does anyone remember the case of UBISOFT having to pull a commercial package a few years ago because of one specific manufacturer's threat of legal action?

The flap occurred over Northrop's insistence that they owned exclusive rights not only their own original aircraft, but to that of all aircraft they had acquired through mergers and acquisitions. Specifically the involved a/c was the Chance-Voight Corsair model UBISOFT had commissioned for their 1C product, if I remember correctly. Evidently, since their product was already post-production, UBISOFT caved in and paid the demanded fees, and deducted them from the Russian developer's percentage.

The entire purpose of trademark law is to prevent Company B from selling its goods on the reputation of Company A. Does there breathe a soul on the planet who thinks, when buying a Revell model kit, or a flightsim addon that he's actually buying a Gulfstream, which will fly and perform as a real Gulfstream will? Of course not. This whole thing is garbage; it stinks on ice. It's the same kind of blackmail that personal injury lawyers indulge in. Forcing you to evaluate the cost of enduring litigation in the face of a false or seriously tenuous claim, versus the cost of just giving in...

Here is one prime example of the ultimate in gall:

Boeing's License Contract (see Post #20 with regards to plastic and resin models)

 

[dmaher]

Not a lawyer, but there are two properties in a model.
First is the subject (ie likeness) that is represented using the illusion of CG…
Second is the unique instruction set that generates the illusion (this can be pure code, pure data, or both).
The former may be an IP of the modeler or, more often than not, either a 2nd party or public.
The latter is the property of the modeler.
They are separate properties.

If this had been Toyota v Google I suspect the issues would have been explored in some detail.
Try using Goggle’s own CG meshes to provide a competing service and see how they respond.
I think this Utah decision better not be your defense

 

[Michael2]

jdhaenens

Michael2

Meshwerks case was that the production of the meshes wasn't mechanical and the court said:

"Meshwerks personnel fine-tuned or, as the company prefers it, “sculpted,” the lines on screen to resemble each vehicle as closely as possible. Approximately 90 percent of the data points contained in each final model, Meshwerks represents, were the result not of the first-step measurement process, but of the skill and effort its digital sculptors manually expended at the second step (page 3)....we do not for a moment seek to downplay the considerable amount of time, effort, and skill that went into making Meshwerks’ digital wire-frame models (page 20)

You're right -- I skimmed the decision too quickly and ended up misreading it. It could be applicable to flight sim meshes.

 

[hcornea]

.......
I’m not sure why the legal aspects of FS add-ons have become such a popular topic mgh.
FS dev’s are minnows in an ocean. There is no recourse for FS devs.
You’ll just have to accept that if you intend to invest a lot of your time.
If someone steals your work you take it. If someone asks you to stop you stop.
The only judgment in favor can be public opinion.

Indeed. There is undoubtedly more money in resin and die-cast models of aircraft than there is in FS developing.

If it were otherwise, the plane manufacturers would pursue this.

As it is, we are not worth worrying about, and indeed provide free publicity to their products.

I guess, that is, unless the flight model you create makes the aircraft seem unsafe to fly!!

What amazes me about legal topics is that when you "stand back" it seems pretty clear that Toyota commissioned an advertisement that required some intensive CGI and specialist knowledge ... then decided that they owned the models so they could use them at will for other things.

On the face of it, it stinks ... and when common-sense and decency seem at odds with the law (often) this erodes the relevancy and authority of the law in the public eye.

It almost seems inherent in the transcript that, although the court can understand the problem, to rule other than they did would undermine the basic principle of the current legislation (as it stands in one jurisdiction). It almost seems a tacet admission that the law is "limited"

... the interesting difference (and I am not sure how relevant it is) is that they were contracted (indirectly) to do this work for Toyota.

Perhaps they should have sought better legal advice when drawing up the contract. No doubt these things will be worded more carfeully in the future.

 

[dmaher]

Perhaps they should have sought better legal advice when drawing up the contract. No doubt these things will be worded more carfeully in the future.

That was my thought too, that Meshwerk's legal representation wasn't of a high standard here....before or after the dispute. To me it seems more about the contracting agreement - one-time use or not. They could agree to either. If Meshwerks didn't know to or couldn't afford to have a suitable contract they should have walked away and marked it as a lesson for next time. This happened back in 2003. Who knows who was promoting the idea they could win a suit against Toyota...no less an appeal.

... the interesting difference (and I am not sure how relevant it is) is that they were contracted (indirectly) to do this work for Toyota.

From the little I understand, it is the ad or production company that contracts this sort of work.
The way a general contractor might subcontract a plumber.

Modification of the materials or use of the materials for any other purpose is a violation of Meshwerks' copyright and other proprietary rights.

 

[n4gix]

Indeed. There is undoubtedly more money in resin and die-cast models of aircraft than there is in FS developing.

If it were otherwise, the plane manufacturers would pursue this.

It would have been nice had this remained the case. Textron has become much more proactive about this for the past few years. At least when they contacted Eaglesoft, they were extremely polite about it, yet quite firm in their resolve...

The net result is that Eaglesoft has to send off a quarterly payment to Textron so we can continue to sell our models.

It matters not one whit to Textron that their quarterly revenue doesn't even begin to cover their administrative expenses to maintain this licensing scheme...

 

[rhumbaflappy]

Of course, a disturbing aspect of this is that Meshworks has a fraction of the capital available that Toyota has. We would be naive to think judgements are not bought and sold to the highest bidders.

As Bill points out, it becomes a rational choice to give in to the Goliath, just because they will heavily outspend us in their quest for their 'rights'.

It seems that a genuine effort to stop the future sale and distribution of the 'offending' BGLs would satisfy them. But there is no guarantee that would be enough.

I preach self preservation and safety. But within limits. Seriously, just about any aircraft or scenery can be perceived as violating someone's rights. I think a developer needs to consider the financial risks of what they distribute, and act accordingly. It's not a criminal or ethical matter... it's primarily financial in nature.

If anyone were to develop and distribute a Grumman model, would you feel criminal or "bad" for doing so? Of course not. Nor should you. But at the first warning from the giant that he will smash you, it might be prudent to withdraw the creation.

I really don't give a hoot for copyrights or EULAs or conditions of use, compared to the concern I have for financial ruin of either myself or our forum members.

Incidentally, Meshworks DID give a condition of use in the contract they negotiated... and the court blithely ignored it... even though the parties all agreed to it, and money exchanged hands dependent on it. Goliath ( Toyota, in this case ) was able to invalidate that part of the contract. Why did the court ignore it? Toyota has more money and is therefore entitled to more justice.

The giant can agree to anything to get what it wants, and then can break the rules it agrees to anytime it wishes. And the courts will eventually agree. It may take many appeals and overturned appeals, but eventually they will win. I remember the famous case in Wisconsin of Pabst stealing it's workers retirements, as being a case in point. Judgements, appeals, counter-appeals, counter-counter-appeals... eventually, the retirees just ran out of money to pursue the matter.

We have less money. Don't ever expect justice.

Dick

 

[Michael2]

Incidentally, Meshworks DID give a condition of use in the contract they negotiated... and the court blithely ignored it... even though the parties all agreed to it, and money exchanged hands dependent on it. Goliath ( Toyota, in this case ) was able to invalidate that part of the contract. Why did the court ignore it? Toyota has more money and is therefore entitled to more justice.

Dick

Meshworks did not have a contract with Toyota; another company was hired by Toyota and it hired Meshworks.

 

[mgh]

The recent posts seem to support my view that copyright offers little effective protection to add-on developers, who are basically flying-under-the-radar and hoping not to be noticed.

Annoying though it may be, all owners of IP rights are entitled to enforce them. Surely add-on developers must agree with that?

Incidentally, Meshworks DID give a condition of use in the contract they negotiated... and the court blithely ignored it... even though the parties all agreed to it, and money exchanged hands dependent on it.

The courts didn't ignore it - it was never pleaded by Meshwerks because it was a totally separate matter. This case was about whether Meshwerks was entitled to copyright - not about what use Toyota could make of Meshwerks' models.

 

[dmaher]

Annoying though it may be, all owners of IP rights are entitled to enforce them. Surely add-on developers must agree with that?

They are not 'entitled' to...they are obliged to This is IP.
For me the Utah court went off the rails once they mentioned Toyota’s IP…

 

[mgh]

They are not 'entitled' to...they are obliged to This is IP.
For me the Utah court went off the rails once they mentioned Toyota’s IP…

Could you expand on your last point?

 

[dmaher]

no lol

 

[rhumbaflappy]

The case was not only against Toyota:

TOYOTA MOTOR SALES U.S.A.,
INC., a California corporation;
GRACE & WILD, a Michigan
corporation doing business as Division
X; 3D RECON, a Utah limited liability
company; SAATCHI & SAATCHI
NORTH AMERICA, a California
corporation,
Defendants - Appellees.

They were all named... but it is naive to believe it was not Toyota. The further use of the mesh was for Toyota's advertisements. Toyota supplied the muscle and the court bowed to it.

I do agree that copyright, or any other point of law is contestable, and he with the biggest wallet wins.

Dick

 

[mgh]

no lol

I suppose that's one way of discussion.

 

[Michael2]

Some posters are overlooking the fact that a summary judgment application was brought only on the copyright portion of the claims and the resulting decision is the subject of the appeal under discussion. Meshwork's claims for breach of contract were not decided in these decisions. Presumably the breach of contract claim is only against the party that hired Meshworks, but one would have to see the pleadings to be sure.

 

[mgh]

Exactly. And I suspect some posters would have a completely different opinion if it had been the case where a FS developer had contracted with a 3rd party to develop a mesh for it and the 3rd party then claimed it had copyright in the mesh.

 

[dmaher]

MS's Acceleration is an example.
As you know those models were developed by FS devs.
Were they licensed or bought outright?
No one has an issue with who owns the work as long as it’s in the terms.

I suppose that's one way of discussion.

You misunderstood...it's already discussed - post25