Not a light-hearted post, this one! From Rapido Trains Inc. Gentlemen, These guys - Big Dawg - have stolen our intellectual property by modifying our F40PH-2D shell and recasting it and selling it. We've made inquiries and the legal cost of going after Big Dawg is probably ten times their annual sales, so we're going to ignore them for now. However, if you buy these illegal goods, STOP CALLING US FOR HELP. We will not give you paint formulas. We will not sell you chassis. We will not send you detail parts. We will not help you complete your Big Dawg model that was ripped off from the Rapido model. You know, the Rapido model that took us years of hard work to develop and cost us hundreds of thousands of dollars. If you decide to buy the Big Dawg shell rather than wait for the Rapido rebuilt F40PH-2D currently in development, then you are ON YOUR OWN. We will NOT HELP YOU. Please feel free to pass this message on. -Jason __._,_.___ Rapido puts a lot of work into their high-quality locomotives, and I feel strongly about this. It's my understanding that the guy behind Big Dawg does the same with other manufacturers. Personally, I will not be buying any of Big Dawg's products. I suggest you do the same.
Thank you, I was thinking of buying a gp9u shell and now I will not because you rapido and INTERMOUTAIN are my 2 favorite manufactures
There was a brief discussion here, earlier this past year, about this situation. This sort of thing makes me sick.
I've bought a Rapido product - a CN GMD-1 in green and yellow paint - and having seen the quality of detail and hard work that has gone into this model, I strongly support Rapido in their cause. It's maddening to see another manufacturer rip off their work and sell it as their own. I also like Intermountain for their quality. I have a CN FP9 (1950s passenger scheme) of theirs and it's great. If quality needs to be copied, it should be through the same hard work that the originators have applied, not by carbon-copying the finished product of said hard work.
If anyone wants to see their "work", here's the link: http://www.bigdawgoriginals.com/ Looks to me like they've copied quite a bit of other people's stuff. Looking at some of the N scale locomotives, one can see Atlas and Kato bodies. -Mike
https://www.facebook.com/Big-Dawg-Originals-824079360978438/?fref=photo "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." Interesting. BTW, Bruce and Jeannie Gavins in Washington State.
This is where your problem is. A locomotive shell isn't covered by a patent, it's solely a copyright issue. And as a copyright, it doesn't need to be registered to be protected. Also, under copyright law, what you're producing are called a derivative works which can only be produced by the owner of the original work. That fact that you don't know these things, makes it clear you should cease producing these types of products because you don't understand what you are doing. Jason
Not really because the chance of anything happening is pretty low. The costs would be so great to Rapido that they'd couldn't possibly get it back in damages because for the most part that's based on how many infringements were sold. This is a good example of why registering a copyright can be a good idea. Registered copyright owner have a better path to also re-cooping attorney's fees from the defendant. Jason
Interesting to consider, especially with quotes provided of statements from both parties. We here are obviously (I would think) not going to adjudicate or decide the merits of the dispute, but it does provide everyone with some information on which to make individual decisions.
Oops sorry I missed the post I was responding to was from a Facebook page and not someone here. Jason
Which is why I put the FB post up. Not to defend or castigate either side, just to show there are more than one side to any story. Seen these kinds of discussions in Large Scale over the decades.
IANAL, so this is just me mulling this over in my head, academically speaking... This is an interesting problem... and as far as I can tell from Googling some reputable sources*, the law isn't entirely clear... which means the only thing a lawsuit would do is kill both companies and enrich some lawyers. wcfn100 is correct that this is a question of Copyright, not of Patent law, so the 15% rule (if that's even a thing, I'm not sure) doesn't really apply. There certainly doesn't seem to be any mention of such a rule in the documents on derivative works that I perused. It appears that if Big Dawg (or the "some Canadian guy") really did cast the Rapido shell and add details, that would appear to be a "derivative work", and would seem to be a clear infringement without Rapido's license, unless he changed it so much it would be unrecognizable as the same model loco. What's not clear is (a) what if the "some Canadian guy" did his own shell design that just happens to closely resemble the Rapido one, but was created of "whole cloth" -- not sure if this is a derivative or not. It would appear that it would be. For example, in one scholarly article, a sculptor saw a photo of two people holding a bunch of puppies, and made a sculpture that pretty much looks exactly like the photo, except he (for example) put flowers in the woman's hair and put blue coats on the dogs, and the faces of the people are somewhat caricatures of the real people's faces. And of course for the fact that it is a 3D bronze statue, and not a photograph. He was found to have infringed because any reasonable person would look at the sculpture and see it as a copy of the photo -- even though he made some fairly obvious changes. Based on this, the guy might have infringed even if the Canadian dude made his design out of whole cloth. On the other hand, since both locos are models of a prototype loco, intended to be (relatively) faithful reproductions, and not unique, original works of art, it's not entirely clear how much Copyright Rapido actually holds on the design. I mean, if you put both companies in separate sealed boxes with no access to each other, but with the same sets of blueprints from GE, they are likely to come up with designs that are substantially similar enough that they might appear derivative of each other, when in fact they are both derivative of the prototype. In which case, it appears that neither of them may have Copyright to the design, except to the extent that it is different from the prototype. I guess the law would probably hinge on what the Canadian dude did. If he really did copy the Rapido shell, then Big Dawg would be infringing. If he really did come up with a similar design out of whole cloth, without reference to the Rapido design, well, then it's not nearly so clear, but it might still be an infringement. Or it might not. As I said, the only thing for sure is that a lawsuit would be very expensive for both parties, and really do no good at all to either. As for what we customers should do... I'll refrain from venturing an opinion without more evidence of what really happened. *I restricted myself to Copyright.gov, papers published by law schools, layperson papers that appeared to be based on scholarly research (or at least did not contradict the legal sources), and advice columns published by art societies.
In my mind, the interesting part will be on the inside of the shell, not exterior. As pointed out, since these are supposedly faithful representations of the prototype, there really isn't anything copyright-able about the exterior (unless there is a deliberate trap-street like addition). But, the insides of shells are designed to fit very specific mechanisms and frames. Here, there very well may be something that can legitimately be copyrighted, or even patented (if there is some special attachment mechanism, etc -- not saying there is).
But making something to fit a specific...chassis, in this case, is not an issue. Cary would have been in a world of hurt decades ago if it were. In 3-rail, there is the MTH lawsuit against Lionel. Caused Lionel to seek bankruptcy protection until a sane judge figured out a faithful model of any specific locomotive should look awful close if not exactly the same as another model of the same loco by another manufacturer. There are boxcars in LS that other than the screws to hold the roof on (one slot, one Phillips) and the cast-in grabs replaced by separately applied grabs...and you remove the roof of one, it not only fits the other but the same screws fit through the same four holes (one per side, one per end) and it all works. Something the courts would have to make a determination on, and cost would be prohibitive in all aspects for all parties. Just an interesting thing to ponder. I don't care, nor do I have a dawg in this fight, since I stopped buying anything new over 10 years ago, and gave away all my Nano Scale stuff...and the Half-Zero I have, newest is about 60 years old, I think.
My $0.02: Stepping back a few paces, I see someone is making locomotive shells that are going to, at some point, require a chassis & trucks and perhaps a powertrain. But first a thought on an actual precident: The biggest perfectly-legal-but-dumb mistake ever made in model railroading was Uncle Pete's assertion of their legal ownership of the "trade dress" and other terms that nobody but lawyers care about. When manufacturers responded by adding a "surcharge" to UP models to pay for the licensing fees, the "real" people in UP management had a forehead-smacking moment and realized that they were ripping off their biggest fans. http://www.redorbit.com/news/business/727287/up_drops_model_train_royalty_fees/ Back to those locomotive shells, since I'm thinking they are a good fit for a Rapido chassis aren't they actually going to generate some sales for Rapido? Yeah, Rapidio, you have a legal argument but that doesn't mean it's the right thing to do.
Well, I think I'm going to scramble up some eggs and make a cheese and egg sandwich. There are so many legal begal issues out there within the world of copyrights and definitions as well as court rulings on an unlimited amount of cases, that anyone's hopes of settling any issue are pretty slim. After all this was designed by lawyers who depend on lawsuits for their income. Think on that while I eat my scrambled egg and cheese sandwich. In the meantime I won't be buying anything new as it's been priced a far reach from my monthly budget.
"Yeah, Rapidio, you have a legal argument but that doesn't mean it's the right thing to do." The way I understand it, Rapido is not pursuing legal action because it is the right thing to do, it is because it is the fiancially expedient thing to do. Sadly, may parties get off Scott Free from prosecution of illegal activities because the cost of litigation is so high.
