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Big Dawg Originals - Intellectual property theft Locked

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Posted by mlehman on Friday, December 11, 2015 10:15 AM

dknelson
Years ago the guy who owns MicroMark had an article in MR showing how he made a casting and copied an old Lionel girder bridge. He was not offering copies to others, it was for himself. But he certainly showed how the technology is there to make such exact and perfect duplicates.

Making copies for one's personal use is generally considered "fair use." For instance, it's OK to copy a CD and use the original as an archive copy because the CDs are rattling around in your dusty 4x4. It's the turning around and profiting from something like that is where the trouble starts.

Thus, the Unknown Canadian is OK if he makes a copy for his personal use. Forwarding that to the Dawg for him to copy leads into questionable territory, especially if he knew that the Dawg intended to produce and market copies.

Mike Lehman

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Posted by mlehman on Friday, December 11, 2015 10:19 AM

Catt
I find it rather interesting that Rapido is the only company in the world capable of doing a Canadian F-40 so there fore anyone else doing one is ripping them off.

Yes, Rapido is probably the only one that will do a Canadian loco like that.  I'm sure others could, but Rapido would be a tough act to follow. Getting that kind of quality isn't cheap -- unless you copy it, of course.

But if the Dawg actually built his own master or paid someone else to do it, that would NOT be a "rip-off." Look at how many F units are running around...

Mike Lehman

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Posted by dinwitty on Friday, December 11, 2015 10:29 AM
big dawg should (a) ask permission to do this, then its not a problem, but well....it sounds like they responded to a modeling need and just went for it. But Rapido is working on their own, that will put their own effort to sleeaze.
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Posted by mlehman on Friday, December 11, 2015 10:37 AM

dinwitty
big dawg should (a) ask permission to do this, then its not a problem, but well....it sounds like they responded to a modeling need and just went for it.

The way to meet this modeling need is to hack together and mold your own copies. No one has any problem with that.

Mike Lehman

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Posted by carl425 on Friday, December 11, 2015 10:55 AM

I am not a lawyer.  I don't even play one on TV, but I think I understand how this works.

The only copyright holder in this case could be EMD.  Rapido should have licensed the copyright from EMD when he produced his model.  If Rapido wanted protection from someone copying his model, he should have negotiated an exclusive license from EMD that included a provision where EMD would take legal action against any other producer. I believe this kind of arrangement is how people are able to produce stuff like Disney characters without fear of knock-off's.

This is all assuming that EMD bothered to copyright the design in the first place.

I have the right to remain silent.  By posting here I have given up that right and accept that anything I say can and will be used as evidence to critique me.

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Posted by Bernd on Friday, December 11, 2015 10:57 AM

Looks like some one in Canada is jealous of Jason's success as a model company. That's the way I see it. Just don't buy anything The Dawg makes. Hit him in his wallet. That's all it takes.

Bernd

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Posted by DAVID FORTNEY on Friday, December 11, 2015 11:24 AM

Unless Jason wants to spend the next 5 or 6 years in court  and paying lawyer fees he should just drop it now. Yes he was ripped off, yes he got screwed but in today's manufacturing in China and other places getting copied is nothing new. It happens to almost everybody from the biggest to the smallest and you have to just deal with it. 

It happened to the company I worked for at least a dozen times but yet we survived. You rarely get justice in the courts and the amount of money you have to spend to try to stop it is normally beyond any profit from the item you are fighting for. Bigger companies who have lawyers on staff have a better chance of winning. Sometimes it's best to move on.

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Posted by BRAKIE on Friday, December 11, 2015 11:25 AM

My thoughts.. I'll let the attoneys hash out the legal stuff.

Looking at those shells for $35.00 isn't a bad buy some may think.

However.

Think again.

Buy a locomotive for the drive,all of the required detail parts,paint,decals and the model will cost as more then the original model at street that already comes highly detailed and RTR..

No deal there..

 

 

Larry

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Posted by steemtrayn on Friday, December 11, 2015 11:26 AM

Just wondering where this letter came from, and to whom it was addressed. There's nothing on Rapido's website or Facebook page, and since Jason occasionally contributes to this forum, I figure he would've said something by now.

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Posted by wp8thsub on Friday, December 11, 2015 11:29 AM

carl425
The only copyright holder in this case could be EMD.  Rapido should have licensed the copyright from EMD when he produced his model.

That's not really how it works.  The intellectual property isn't the prototype locomotive, it's the expensive development work and tooling needed to make a model of that locomotive in HO scale.  

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Posted by mlehman on Friday, December 11, 2015 11:37 AM

BRAKIE
Looking at those shells for $35.00 isn't a bad buy some may think. However. Think again. Buy a locomotive for the drive,all of the required detail parts,paint,decals and the model will cost as more then the original model at street that already comes highly detailed and RTR.. No deal there..

Larry,

You're most certainly correct about the short term cost being rather higher to actaually have something that runs.

But that's inidvidual pain for the consumer.

In the long term, this sort of thing is just plain bad for our hobby, even if marginally legal (something I'm not convinced of.) Why should someone invest hundreds of thousnads of dollars in developing a model if someone else comes along and starts offering deep discount copies because they've not invested a dime in the original? Why should Rapido do what it does if that investment basically undewrites a low-ball competitor? That's not the way to ensure that there will be new models in the future. It'll sure hurt the Dawg's business model when there's nothing new to copy, but I suppose he'll be comfortably retired by then.

Mike Lehman

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Posted by mlehman on Friday, December 11, 2015 11:40 AM

wp8thsub
That's not really how it works. The intellectual property isn't the prototype locomotive, it's the expensive development work and tooling needed to make a model of that locomotive in HO scale.

Absolutely agree.

Now if Jason was building 1:1 EMD copies to pull his passenger car, then that might be a problem. But a model is a model, which is why our hobby thrives, BTW.

Mike Lehman

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Posted by Grand River Models on Friday, December 11, 2015 12:20 PM


I'm not a lawyer, but I deal with copyright issues every day at my job.  Here's a bit of information about copyright:

1.  Copyright means "the right to copy".

2.  Copyright laws vary by country.

3.  You do not need to register a copyright.  It's not necessary, but is probably a good idea.  All you need to do is prove that the work is yours, and you made it first.

4. Copyright spans the author's life plus 50 -100 years depending on the jurisdiction.  Once the term of a copyright has expired, the formerly copyrighted work enters the public domain and may be freely used or exploited by anyone.

5. Most jurisdictions have copyright limitations, allowing "fair use" exceptions and giving others certain rights.  Fair use can be determined based on four criteria regarding the usage.
    1.    the purpose and character of one's use
    2.    the nature of the copyrighted work
    3.    what amount and proportion of the whole work was taken, and
    4.    the effect of the use upon the potential market for or value of the copyrighted work.
    
6.  You cannot copy other people's work based on the rationale that "I'm not making a profit from it."

7. Just because you bought something, that does not give you the right to make more copies for your personal use or for the personal use of others.  Some owners will give you some slack on this.  For example, copying backup CDs is probably fine.  Making a mold of a resin structure and casting more copies creates some ethical issues.

8.  You cannot copyright an idea, a name or short phrase.

9.  Lawyers know when a situation infringes on copyright.  They also know the risk of litigation.  Sometimes copyright infringement happens because the guilty party knows that the risk of being sued is minimal.

10.  If you have infringed on someone's copyright and you get called out by the owner, the best thing to do is apologize and stop doing it right away.  Hopefully that's what Big Dawg Originals is going to find out very soon.

* Some of this was copied from Wikipedia.  Smile

 

Barry

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Posted by dknelson on Friday, December 11, 2015 12:29 PM

wp8thsub

 

 
carl425
The only copyright holder in this case could be EMD.  Rapido should have licensed the copyright from EMD when he produced his model.

 

That's not really how it works.  The intellectual property isn't the prototype locomotive, it's the expensive development work and tooling needed to make a model of that locomotive in HO scale.  

 

 
What you copyright is your "original work."  There would be original work in making even an exact replica of a prototype.  And in this instance the original work -- the things needed to make the replica the right size, and purchasable by model railroaders, exist in both versions, Rapido's and Big Dawg's.  
 
And yes the copy of the Lionel bridge that Tom Piccirillo made and wrote about in MR was entirely for himself and thus was presumably "fair use."  Although note that the record companies never agreed that making a copy of a CD or even making a cassette tape copy of an LP, came under "fair use" since you were copying the entire record.  But they were reluctant to lose a court case and thus were satisfied with making threats to get their way.  
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Posted by Graham Line on Friday, December 11, 2015 12:44 PM

Are we to assume that if I buy a Big Dawg shell, correct the errors or modify the details, then mold and sell the shells under my own brand (I like "Little Dawg" with a cute dachshund on the label) that BD will have no objection?

I was given a BD GP30B shell. The long hood is the old Bachmann shell. The skyline casing is nicely done, but the short end has easily-remedied flaws, the steam generator details are a joke, and there are doors missing from the blanked out cab area.  Curiously, all of the flubbed details are available for copying.

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Posted by mlehman on Friday, December 11, 2015 12:50 PM

Graham Line
I was given a BD GP30B shell. The long hood is the old Bachmann shell. The skyline casing is nicely done, but the short end has easily-remedied flaws, the steam generator details are a joke, and there are doors missing from the blaned out cab area. Curiously, all of the flubbed details are available for copying.

Yeah, if you're OK with a model being only 84% correct, because the rest needed to be something else no matter how poorly executed, then the Dawg has a deal for you.

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Posted by Soo Line fan on Friday, December 11, 2015 12:57 PM

When P2k cloned Athearns drive train for its Gps nobody cared. Everyone  was to busy buying them up to cry about it.

Jim

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Posted by BRAKIE on Friday, December 11, 2015 1:17 PM

mlehman
 
BRAKIE
Looking at those shells for $35.00 isn't a bad buy some may think. However. Think again. Buy a locomotive for the drive,all of the required detail parts,paint,decals and the model will cost as more then the original model at street that already comes highly detailed and RTR.. No deal there..

 

Larry,

You're most certainly correct about the short term cost being rather higher to actaually have something that runs.

But that's inidvidual pain for the consumer.

In the long term, this sort of thing is just plain bad for our hobby, even if marginally legal (something I'm not convinced of.) Why should someone invest hundreds of thousnads of dollars in developing a model if someone else comes along and starts offering deep discount copies because they've not invested a dime in the original? Why should Rapido do what it does if that investment basically undewrites a low-ball competitor? That's not the way to ensure that there will be new models in the future. It'll sure hurt the Dawg's business model when there's nothing new to copy, but I suppose he'll be comfortably retired by then.

 

    

Mike,I agree.. There seems to be a lot of that going on.

Did you know the Bachmann 50' outside brace sliding door boxcar is very similar to Athearn's AFC 50' 'Railbox'  boxcar? Its hard to tell them apart.

Larry

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Summerset Ry.


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Posted by cv_acr on Friday, December 11, 2015 1:19 PM

Soo Line fan

When P2k cloned Athearns drive train for its Gps nobody cared. Everyone  was to busy buying them up to cry about it.

Not really the same either. BD didn't just copy a design concept, he literally made a mould of another manufacturer's body shell and cranked out copies.

It's not that he made an F40PH-2 when Rapido already makes one, or that he makes a GP9 when Walthers/Proto already makes one - he's actually using those manufacturers' shells as his master.

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Posted by Graham Line on Friday, December 11, 2015 1:33 PM

If two manufacturers set out to make highly accurate models of the same car or engine, you would expect there to be a large number of similarities. The question is whether they do their own research and tooling, or if they appropriate someone else's work to bring the product to market.

If BD was creating kits of resin parts using his own hand-made masters, no one would be raising an issue.

 

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Posted by Catt on Friday, December 11, 2015 3:21 PM

Funny how no one bothers to read the part of Dawg's posting on Facebook where he plainly states the shell was designed by a Canadian modeler who strangely enough lives in Canada.

Gee, I wonder where he got the information needed to clone that shell? I'll bet it was not from a unreleased (at that time) model of a upgraded Via rail F-40PH.

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Posted by betamax on Friday, December 11, 2015 5:45 PM

What is really annoying to Rapido is people calling for assistance for a product that isn't theirs, and was copied from one of their products.  Rapido was quite blunt about not sharing the paint formula, selling detail parts, or the power chassis to people who didn't buy the product from Rapido in the first place.

Why should they?

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Posted by Mark R. on Friday, December 11, 2015 6:33 PM

BD's Facebook reply ....

"I would like to respond to a post that Rapido, a Canadian company, posted today on a site that accuses Big Dawg Originals of stealing intellectual property from them. Rapido apparently does not know US law on patents, trademarks ,and copyrights. I have not stolen their company's design for an F40PH-3D shell. In fact, the master for this shell was not made by me -- a modeler in Canada made it and allowed me to mold and sell it. Basically, patent law states that as long as you change at least 15% of a design this constitutes a change in design. Rapido has not furnished me with patent information for this model after I requested it so I must assume they do not have any type of patent, copyright or trademark for it. My attorney tells me their post is slanderous and a gross defamation of my character. I am simply trying to fill a void in the hobby that I grew up with and do something in my retirement years that I enjoy. Shame on Rapido for their petty post."

Mark.

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Posted by mlehman on Friday, December 11, 2015 7:02 PM

Catt
Funny how no one bothers to read the part of Dawg's posting on Facebook where he plainly states the shell was designed by a Canadian modeler who strangely enough lives in Canada.

If he's citing the protection of US patent law, I'm not sure revealing a potential cross-border conspiracy involving a Canadian is a very well thought through strategy.

Unless being Canadian gives you immunity from commerical law or something???

[just kidding, all my Canadian friendsWink ]

Mike Lehman

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Posted by Doughless on Friday, December 11, 2015 8:06 PM

Graham Line

Are we to assume that if I buy a Big Dawg shell, correct the errors or modify the details, then mold and sell the shells under my own brand (I like "Little Dawg" with a cute dachshund on the label) that BD will have no objection?

I would say yes, because the modifications YOU made that contibuted to your final product are YOUR intelletual property.  And, apparently, if your final product is at least 16% different from BDs, it is considered to be a different product and not a copy of BDs

- Douglas

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Posted by Doughless on Friday, December 11, 2015 8:34 PM

mlehman

In the long term, this sort of thing is just plain bad for our hobby, even if marginally legal (something I'm not convinced of.) Why should someone invest hundreds of thousands of dollars in developing a model if someone else comes along and starts offering deep discount copies because they've not invested a dime in the original? Why should Rapido do what it does if that investment basically undewrites a low-ball competitor? That's not the way to ensure that there will be new models in the future. It'll sure hurt the Dawg's business model when there's nothing new to copy, but I suppose he'll be comfortably retired by then.

I mentioned this in another post.  This is the risk a company like Rapido, and many others, takes when it chooses to earn its living making highly detailed protospecific models, instead of more generic and universial "blue box" type of model that nobody would really want to copy.  Apparently, as long as the copier changes 16% of the original's work, it is not considered to be a copy under copywright laws.

The problem for Rapido is that they made a model that people will want to copy.  Unlike Irv Athearn who feasted on models that nobody really bothered to copy.  I'm not sure that the business model that some of our manufacturers choose to take is necessarily consistent with copyright laws, which is something they probably need to know before they make an investment into tooling a highly detailed model.

I suspect that BD is legally infringing upon Rapido's property if they took a Rapido shell and used it as a casting for their model (or the guy in Canada).  But since Rapido never acknowledged it was copyrighted upon BDs request, I assume nothing criminal could be proven.

 

 

 

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Posted by riogrande5761 on Friday, December 11, 2015 9:02 PM

Shame on Rapido for their petty post.

I find it amusing, no rather ironic, that BD is claming a sort of moral high ground when they are trying to profit some someone elses hard work and intellectual property.  Hmm  Petty?  I'm not buying it, any way you look at it.

It doesn't look like most people are buying it either.  So far from what I'm reading in multiple forums, public opinion seems to be falling on the right side of ethics. Rapido is a class act and thats a fact.

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Posted by rrebell on Friday, December 11, 2015 9:32 PM

wp8thsub

 

 
carl425
The only copyright holder in this case could be EMD.  Rapido should have licensed the copyright from EMD when he produced his model.

 

That's not really how it works.  The intellectual property isn't the prototype locomotive, it's the expensive development work and tooling needed to make a model of that locomotive in HO scale.  

 

You know you could just scan the loco, 3d print and do molds or feed the info into a cnc machine for the masters.

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Posted by Uncle_Bob on Friday, December 11, 2015 9:57 PM

I haven't read every word in this thread, so I may have missed this, but US and Canadian trademark and patent laws differ, and just because something is patented or trademarked in the U.S., it's not necessarily trademarked or patented in Canada or any other country.  Also, as someone mentioned, it's almost impossible to keep illegal copies of any consumer item out of the marketplace because so many business produce knockoffs.  This isn't just Chinese factories undercutting businesses with similar but unequal products -- it's also true of car body shops that use knockoff fenders when repairing accident damage, and pocketing the difference as extra profit.

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Posted by big daydreamer on Friday, December 11, 2015 10:00 PM

rrebell

 

 
wp8thsub

 

 
carl425
The only copyright holder in this case could be EMD.  Rapido should have licensed the copyright from EMD when he produced his model.

 

That's not really how it works.  The intellectual property isn't the prototype locomotive, it's the expensive development work and tooling needed to make a model of that locomotive in HO scale.  

 

 

 

You know you could just scan the loco, 3d print and do molds or feed the info into a cnc machine for the masters.

If it is really that trivial then I don't think this discussion would exist. 

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