Custom Toys and Action Figures by Blayne

Sunday, August 18, 2013

3rd Party Transforming Toy Debate: Bootleg & Theft vs. Derivative, Legitimate Product

I recently read an article posted at Poe Ghostal's site about 3rd party Transforming toys.

For anyone who doesn't know about this particular niche market, the term '3rd party' (abbreviated to 3P) encompass numerous companies that create everything from add-on kits (new parts/accessories for existing toys), to completely new figures. While some are original characters, most use an established color scheme and design cues to mimic TRANSFORMERS created by Hasbro over the years.

It's a sub-genre of toy collecting that's even spawned a book called 'Transforming Collections' by Philip Reed of Battlegrip.com. It's also considered a contentious topic by some toy collectors.



From observing internet debates, and articles like the one posted at Poe Ghostals' site, there's a tendency among some Transformer toy collectors to consider 'Third party' the same as 'Knock off'. However, this doesn't take into account the concept of Derivative Works.

If a third party company took Hasbro molds and created their own figure, that would be 'actual theft' / KO.  However, in situations where a figure is a derivative work - any 3rd Party toy that isn't a direct recast of a Hasbro or Takara figure - that work is protectable to the extent that it embodies original expression. (Paraphrased from http://en.wikipedia.org/wiki/Derivative_work)

What constitutes 'original expression' is however debatable. Third party toy designers certainly aren't being original by aping existing character designs, but they do have some protection under derivative works copyright law. The limits of Derivative Works, and where that line is drawn is up to courts to decide. The fact that we don't have a definitive answer based on Hasbro suing any 3rd party manufacturers (I believe) speaks volumes.

I'd hope future articles on the topics (and comments by readers) could avoid personal attacks, appeal to moral authority, ('You're stealing by buying third party!'),  or straw man arguments ('Buying non-official Transforming toys is the same as bootlegging a CD!'). Those just muddle discussion and upset people unnecessarily. At the end of the day, it's still a debate about robot toys based on a 30 year old cartoon. :)

The final word will come down from Hasbro's legal department one day. Until then, we carry on.