Epic threatens to curb stomp fan for Gears of War 'Munny' doll
by James Ransom-Wiley 
{ Mar 8th 2007 at 3:21PM }
Emilio Lopez's custom Gears of War doll certainly appears professionally made -- enough so that we expressed a desire to see it manufactured and sold at retail. The doll even came in a mock retail box when Emilio presented it to his cousin as a Christmas gift. But, like any other do-it-yourself Munny doll, Emilio's creation is merely a personal homage to Epic's game; not a mischievous business venture. Nevertheless, when Epic and its legal hounds caught wind of the doll, they issued a cease and desist order, claiming Emilio's creation is an unauthorized use of Epic's trademarks. Epic has requested that all trademarks be removed from the doll, packaging, and Emilio's website. Ironically, the logos Emilio used were apparently taken from a fansite pack that Epic had issued. C'mon Epic dudes, please, back off.
[Thanks, Hugbees]
Reader Comments (Page 1 of 2)
sketcher @ Mar 8th 2007 3:43PM
Wow, how fucking insane is that? It's a homage to their game and this is how they repay him??? It always makes me wonder how they get the info about the Munny Doll. Do they hire someone to surf the net and see if someone is trying to rip them off or what?
ill trooper @ Mar 8th 2007 3:32PM
'Fan art' takes another hit... When are these companies going to learn?
"Actionable' for 'unfair competition...' He only made ONE!
Epic ripped off Tom of Finland for the art direction on their 'manly men' anyway
Yes, EPIC, I was JOKING with that, don't SUE ME
pete @ Mar 8th 2007 3:33PM
c'mon cliffy b. i thought you where for the people, but i now see a corporate puppet when i see one. oh well!!
Chocolate Starfish @ Mar 8th 2007 4:03PM
Did he comply?
Agent MOO @ Mar 8th 2007 3:39PM
ZOMG someone missed the cole train!
Stick_Man @ Mar 8th 2007 3:39PM
They should be happy. Most typical game figures look like they were made in some sweat shop employing 5 year old chinese kids. Good luck getting a contract with a good figure manufacturer *cough* Mcfarlane toys *cough* Once Epic relises Ol'toddy boy won't make the figures for 3 cents each they will be begging this guy for his figures...
Yah probably not. Epic will most likely make a cheap ass toy.... for a cheap ass game.
Dave @ Mar 8th 2007 3:40PM
That's ridiculous. If they were smart, they'd hire the guy to make more and then sell them themselves. Morons.
Dolla Dolla @ Mar 8th 2007 3:44PM
Oh Lawyers, how I loathe thee. Let me count the ways.
1 ... billion *pinky to mouth*
Jake @ Mar 8th 2007 3:45PM
pete,
Cliffy B works at Epic. Epic isn't one dude. Cliffy didn't write the letter.
This is probably a misunderstanding on Epic's part. They probably thought for whatever reason that this thing was looking to become a product.
It is perfectly legal to make something for personal use that rips off a copyright or trademark. You basically just can't provide it to others.
CowboyGA @ Mar 8th 2007 3:49PM
A $25 blank chunk of vinyl? I'm more intrigued by the Munny itself than the "fan-art being stopped" angle. Excellent job recreating the character, though - very professional.
vidGuy @ Mar 8th 2007 3:51PM
Seems like a pretty cut and dry example of trademark infrigement. There's no problem with the guy making the doll and giving it to a friend, but posting it on the website was pretty stupid.
Considering the pics are still up on the website passed the requested date, I wouldn't be surprised if the guy gets sued.
Let the lesson be learned, if you are going to use the trademarks of a money-hungry company for your own, don't post evidence on the internet!
Vidikron @ Mar 8th 2007 3:52PM
Well, that's one way to turn positive publicity into negative publicity. Way to go Epic. I really like Epic, but I guess lawyers are assholes at all companies.
sheppy @ Mar 8th 2007 3:52PM
"This is probably a misunderstanding on Epic's part. They probably thought for whatever reason that this thing was looking to become a product.
It is perfectly legal to make something for personal use that rips off a copyright or trademark. You basically just can't provide it to others. "
Wow, I can totally understand how Epic could be confused. After all, the website merely stated what it was, that there was only one, and that it was intended solely as a fanart gift. Obviously there was nefarious deeding going on and Epic is completely within their rights to ignore all text on the site and release the hounds.
Todd @ Mar 8th 2007 3:53PM
I would tell Epic to blow me.
Ryuukuro @ Mar 8th 2007 3:55PM
Epic doesn't seem to have a case here. If the artist sticks to his guns then someone at Epic will make the lawyers back down.
Do lawyers for big companies do these types of things on their own? If so then Epic and others ought to have them notify company bigwigs first before firing C&Ds. A little examination of the site clearly shows that this isn't a copyright threat.
That said, this is also the fault of bad laws that force IP owners to act like rabid dogs lest they lose their properties.
Adam Sutherland @ Mar 8th 2007 3:55PM
Wouldn't Epic have to prove that he either received or intended to receive monetary compensation for the doll? Any legal eagles out there? That seems pretty difficult to prove. This whole thing is pretty stupid.
flymolo @ Mar 8th 2007 3:56PM
Epic doesn't have a case against him. he could probably counter sue if wanted for emotional damage.
This was a piece of artwork, nothing wrong with that.
sketcher @ Mar 8th 2007 3:58PM
People need to stop being so damn uptight. He drew/sculpted a character his cousin liked and gave it to him for christmas. Then he showed it off like you're suppose to do after you make something really good. It's not like he's trying to benefit from it.
flymolo @ Mar 8th 2007 3:58PM
man, just think of the lawsuits they could bring on Ben Heck.
baby sea tuna @ Mar 8th 2007 4:02PM
#10
So by the same token, Lucasarts should totally have sued the shit out of those clowns who dress up in homemade Stormtrooper costumes at comicons, instead of giving them props by putting them in one of their games, huh? I mean, they may have been in the legal right to do so, but they wisely realized that the ____ Brigade (I forget what they're called) weren't doing anything to hurt or profit from the Star Wars brand, and left them alone.
Man, I can't believe I just sided with George Lucas on something...
Tony @ Mar 8th 2007 4:06PM
Unlike copyrights and patents, trademarks must be consistently enforced or you risk losing them. You can't selectively enforce them. So, Epic doesn't really have much choice when they see something like this.
If they didn't enforce their trademark rights in this case, they would weaken their ability to contest future trademark violations which might be more serious.
Yes, that sucks. But it's the law.
sketcher @ Mar 8th 2007 4:09PM
No, he just added a note that reads: "Emilio Lopez is in no way associated with Epic Games, the publishers of Gears of War for the XBOX360."
Here's a link to more pics of the Munny and discussion about it.
http://forums.kidrobot.com/viewtopic.php?p=720144#720144
baby sea tuna @ Mar 8th 2007 4:11PM
Oh man, they should go after that #1 fan kid that got the Gears logo tattoo and cease and desist his forearm!
vidGuy @ Mar 8th 2007 4:11PM
@19,
Did these "homemade Stormtrooper costumes" have the word LucasArts on them? Did they have George Lucas's signature on them? Do you understand what a trademark is?
#21, Tony, is right about trademark enforcement. Emilio obviously doesn't own the right to display the Gears of War logo on his doll and post it up on the net.
Even if Epic sues, I agree they don't have much of a case. There was no monetary exchange and there's little chance of confusion (the main component of a trademark violation case) between this doll and site and official Gears of War merchandise.
mike @ Mar 8th 2007 4:12PM
thats not the law. Epic has no legal action here. What damages are they going to be suing for? He only made one and gave it to his friend.
If I was that guy, I would tell epic to blow me and try and sue. Most likely its just some guy living with his parents anyway, and does not actually own anything.
Shadow @ Mar 8th 2007 4:23PM
''C'mon Epic dudes, please, back off.'' Huh? No, Epic has to do this or there company will be shut down, if anyone uses a trademark of a company then the company has to do stuff like send a Cease and desist letter or their trademark will be fair-use to anybody. Thats how it works, epic did the right thing to save itself.
Black Velvet Elvis @ Mar 8th 2007 4:20PM
Epic is winning hearts and minds with this move.
sheppy @ Mar 8th 2007 4:22PM
"Most likely its just some guy living with his parents anyway, and does not actually own anything."
He's a professional artist who has done work for Marvel Comics. He's also done colorwork for several animated shows. Which is probably why he's fighting this. After all, if this isn't allowed, suddenly all of fandom takes a huge hit and do you even realize how many artist got inspired and emulated other characters? Nobody starts their art education with "This is Draco, the Immortal." It's always "This is Batman/Wolverine/Spawn."
RudyHuxtable @ Mar 8th 2007 4:33PM
I love how they come down like a ton of bricks on a DOLL, but don't make an effort to fix the game they broke. I hope the doll can GLITCH, too.
RudyHuxxxtable @ Mar 8th 2007 4:31PM
I love how they come down like a ton of bricks on a DOLL, but don't make an effort to fix the game they broke. I hope the doll can GLITCH, too.
AoE @ Mar 8th 2007 4:31PM
@vidGuy,
I'm not a lawyer, but I'm pretty sure everything he's done falls under the "fair use" rules we have here in the US, which describe the conditions under which copyrighted material can be used without the copyright holder's permission. Posting pics on the internet doesn't violate these laws; he's not trying to sell anything, he doesn't even have adsense or any other kind of advertisement on the site, so really throwing those pics online is only costing him money. Please explain, how he's not fully protected by fair use? And please brush up on the fair use laws before replying, I just did ;)
Author X @ Mar 8th 2007 4:31PM
Oh-NOES! That guys cousin could totally have mistaken that christmas gift for official GoW merchandise, thereby completely voiding all claims Epic has to the trademark, opening the door to countless unchecked knock-offs and completely ruining a potentially lasting new franchise!
Why, for these lawers aren't just doing their job. They're veritable HEROES, standing up to the tyranny of some artist trying to give his cousin a personalized gift.
CowboyGA @ Mar 8th 2007 4:32PM
What the crap is wrong with you guys? Don't you have a modicum of rational when it comes to basic legal actions?
READ #21 BY TONY!
It's the only post so far that shows comprehension.
No one is trying to sue anyone! This is a standard C&D that has to go out for everyday protection. The lawyer is not clueless, there is no intention of follow-through. There is also no reason to be angry at Epic for having to do their job - If they don't make an appearance to protect the trademark in this case, it could cost them in an actual case of trademark infringement.
For Christ's sake, people, think. It's not that difficult.
/rant
AoE @ Mar 8th 2007 4:32PM
@vidGuy,
I'm not a lawyer, but I'm pretty sure everything he's done falls under the "fair use" rules we have here in the US, which describe the conditions under which copyrighted material can be used without the copyright holder's permission. Posting pics on the internet doesn't violate these laws; he's not trying to sell anything, he doesn't even have adsense or any other kind of advertisement on the site, so really throwing those pics online is only costing him money. Please explain, how he's not fully protected by fair use? And please brush up on the fair use laws before replying, I just did ;)
Tony @ Mar 8th 2007 4:34PM
@25 You are confused, it really is the law. Yes, there is little in the way of actual damage in this case. That's not the point. The point is that Epic have to show that they did something to prevent infringement of their trademark once it was brought to their attention.
In trademark law, if I own a trademark but I don't enforce infringement of it, even in minor cases, then I can lose the right to enforce it later on. A more serious violator might be able to argue in court that because I didn't act on earlier violations I have abandoned my trademark or it has become generic. That's not a certainty, and a court might rule in my favor anyway, but any good lawyer would advise me that it's prudent to avoid it becoming an issue in the first place.
That's all that's happening here. I'm sure their motivation isn't to squash the little guy, and you rightly point out that there's little in the way of actual damages to go after here, but they have to take prudent steps to protect their property for the future.
Joshua @ Mar 8th 2007 4:35PM
If you want to email the VP here's his email. mrein@epicgames.com. If enough people send a little note of disapproval, maybe they'll back off. Lawyers attacking harmless fans is always wrong.
AoE @ Mar 8th 2007 4:37PM
I stand corrected.... just did some reading on fair use of trademarks... and it looks like vidGuy et al are right... pics of the box are what did it:
http://www.publaw.com/fairusetrade.html
Omegadot @ Mar 9th 2007 6:47PM
The point of the fan art packs are for fan art work. I doubt any law suit would go anywhere. It just looks so amazing that misunderstood.
omega @ Mar 8th 2007 4:44PM
it looks like a lego character wait are they gonna make a lego gears of war
John @ Mar 8th 2007 4:52PM
Dear Epic,
Thanks your tight assedness I won't be buying unreal III
me
vidGuy @ Mar 8th 2007 4:45PM
@AoE, I'm actually currently writing a 15 page research paper on digital fair use for a 400 level Computer Science course at my college. I've got the rules right here:
Four Factors to Determine Fair Use
1) the purpose and character of the use
2) the nature of the copyrighted work
3) the amount and ‘substantiality of the portion used in relation to the copyrighted work as a whole’
4) the effects on the potential market for the copyrighted work
However, this is TRADEMARK law, not copyright. The picture of the box and the pictures of the doll with the "Gears of War" logo in the bottom is the actionable violation, not the doll itself.
BTW, I take the Law School Admissions Test in a few months. ;)
tty01 @ Mar 8th 2007 4:50PM
@23
the guy who made this toy is the cousin to the #1 fanboy who got that tattoo on his arm....i know him in real life and i was there when he got his tattoo....the guy is freakin loony!....adam if you're reading this....YOU ARE ONE FREAKIN LOONY BASTARD
Myke @ Mar 8th 2007 4:50PM
Hey Vidguy, we have wikipedia too...
"Those factors are:
the purpose and character of your use
the nature of the copyrighted work
what amount and proportion of the whole work was taken, and
the effect of the use upon the potential market for or value of the copyrighted work."
Thanks for playing...
paralipsis @ Mar 8th 2007 4:52PM
I seem to remember the use of trademarks in art.
Hmmm...
Maybe it was...
http://www.warholprints.com/portfolio/Campbell.Soup.I.html
vidGuy @ Mar 8th 2007 4:54PM
Hahah, yeah, Myke I'm sure the rules are pretty easy to get ahold of. I copied the text from my paper, but no big deal if you don't believe me, the point is still made. Emilio MIGHT be protected if this was a copyright issue, but it isn't.
Vidikron @ Mar 8th 2007 5:01PM
So anyone actually have an example of a company losing a trademark because they didn't protect it over something like this? I have serious doubts that there are any.
vidGuy @ Mar 8th 2007 5:05PM
Xerox, Kleenex, Aspirin... there are plenty of trademarks that have fallen into the public domain because of constant inappropriate use.
"I need to make a xerox copy" - even if it's not a Xerox machine
"Grab me a kleenex" - maybe it's a generic tissue?
This is standard trademark law stuff.
Vidikron @ Mar 8th 2007 5:11PM
@46
That's more a result of people calling everything of the same type by that name. This is a totally different situation. I want to see an example where an homage/fanart resulted in a lost trademark
Vidikron @ Mar 8th 2007 5:19PM
@46
Here's what you are talking about:
http://en.wikipedia.org/wiki/Genericized_trademark
This doll would have the exact opposite effect as it doesn't make it generic at all. It's not being applied to a different game.
Poisoned Al @ Mar 8th 2007 5:25PM
Ah, thanks for reminding me why I consider lawyers to be about as pleasant as something between intestinal parasites, and dog shit embedded into the tread of your shoes.