An important notice about proxies

[ELD]

I received a notification from a lawyer representing Wizards of the Coast Friday.  Here are some highlights

Re:     Infringement of Wizards of the Coast, Inc.'s MAGIC THE GATHERING® Copyrights and Trademarks

We are counsel for Wizards of the Coast, Inc. (“Wizards”), the owner of the copyrights and trademarks for the MAGIC: THE GATHERING® trading card game.  We recently became aware that Mr. Dupuis is making, displaying, distributing and selling “ELD Proxies,” http://www.themanadrain.com/index.php?topic=36536.0, which are nothing more than derivative copies of genuine MAGIC: THE GATHERING® trading cards. 

Mr. Dupuis’ unauthorized copying of the MAGIC: THE GATHERING® trading cards constitutes copyright infringement in violation of 17 U.S.C. § 501.  His unauthorized use of the MAGIC: THE GATHERING® Mana and Tap symbols and other MAGIC: THE GATHERING® trademarks, including the overall look and feel of the trading cards, violates the federal trademark laws, including 15 U.S.C. §§ 1114(1) and 1125(a), by creating a likelihood of confusion with respect to Wizards’ authorization or sponsorship of or association with Mr. Dupuis’ cards and tournament.  This unauthorized use is also likely to dilute the distinctive qualities of Wizards’ MAGIC: THE GATHERING® marks in violation of 15 U.S.C. § 1125(c) and the anti-dilution laws of numerous states.

On behalf of Wizards, we therefore demand that Mr. Dupuis immediately cease and desist from any further manufacture, display, distribution or sale of these “ELD Proxies,” destroy any existing ELD Proxies, remove them from themanadrain.com website and from wherever else they may appear, and assure us that Mr. Dupuis and themanadrain.com will make no future unauthorized use of Wizards’ intellectual property.

I have since spoken with their lawyer, and we're working to determine exactly what Wizard's policy is in regards to proxy use and altering cards.  It is of note that the lawyer said the only reason they even heard about these proxies was due to someone contacting them about it.  I'd be interested if the person who contacted them wanted to express their motivation.  It is my hope, with the understanding of the time that goes into them as well as the extremely limited quantity, that Wizards will allow me to continue making proxies to give away to the community.  I'll keep the community posted as I get more info. 

[Anusien]

I understand you also sell them (albeit at cost as far as I know).  I wonder if this entered into their decision, or if it's purely because they have to do this to protect their IP.

[ELD]

I understand you also sell them (albeit at cost as far as I know).  I wonder if this entered into their decision, or if it's purely because they have to do this to protect their IP.

The amount that I have sold is negligible, so we're going to see how it works out.  I have given away well over 90% of the proxies I have made, and anything in person I trade.  Overall, it has certainly been a venture that is non-profit.  I would think the key issue is that they are actual magic cards with hand drawn art on them.  Each piece of art is an homage to the iconic cards that the community proxies most often.  Honestly, however it works out, I'm fine with it.  I spend a ton of time each month making these proxies, just to give them away.  I'm certainly not going to fight Wizards on this issue, I just want clarity, and they seem to be happy to explain their policy once they iron it out. 

I will be interested to see what happens to the secondary market with the cards.  They were made in very limited batches, so there is potential that people will want to actually collect them if they become "banned" by Wizards. 

[mike_bergeron]

snip legal mumbo jumbo

Are they demanding you destroy the already made ELD proxies? I guess my question is, are you going to have to try to locate people who own them and ask for them back?

This seems a bit unreasonable.  I gotta be honest- I am dissapointed, not only does the company barely support vintage, but now they are coming after people who are keeping the older crowd playing the game? Jeez.

I really hope that their legal counsel is at least a normal person, and lets you continue to give away hand drawn cards at non sanctioned events....

Also, will this effect the status of proxies not counting against the limit? This would be a big blow to some people.  The only way I can play Ray's 5C workshop decks is with your proxies not counting, it helps so much.

MB

[Webster]

Are they demanding you destroy the already made ELD proxies? I guess my question is, are you going to have to try to locate people who own them and ask for them back?

This seems a bit unreasonable.  I gotta be honest- I am dissapointed, not only does the company barely support vintage, but now they are coming after people who are keeping the older crowd playing the game? Jeez.

They aren't "coming after people who are keeping the older crowd playing the game". What they are doing is protecting and enforcing their trademarks and copyrights. If they don't, they could lose their rights to this Intellectual Property. The fact that they are going after Eric as opposed to some "bad person" is irrelevant.

[Norm4eva]

As a musician, I find there is an interesting parallel here between using altered cards as proxies and playing other people's songs.

I make money at shows.  Some of that money is made by playing cover songs.  Depending on the band we change the song in so many ways or not at all; we add extra chords to the chorus of Tool's Sober and play Tainted Love in 6/8 as opposed to 4/4.  In the same way, ELD pays respect to the original artists by drawing a similar Lotus, but changes the background to Hollywood or adds a Mox Monkey with a knife and fork.

Generally when Tsumi plays live tunes we don't split the difference with ASCAP; by the same token, we bought certain rights to Tainted Love (fun trivia fact: this song is NOT by Soft Cell, but was in fact written by Ed Cobb) so that we could include it on our studio disk.  We're entirely allowed to sell our version of Tainted Love.  In fact as I understand it, it wouldn't even be an issue worth taking up with Harry Fox, ASCAP or other parties until we sell copy #2,501 of our disk; by that I understand it's implied that until we've done that, there's no real money being taken away from any of the original artists so there's nothing worth pursuing.

I don't know how relevant this is in regard to your situation, but it's in the realm of intellectual property so I figured I'd throw my own experience out there.

[waywreth]

There's mention on other boards (MTG Salvation, Starcity) of WoTC sending cease and desist to other proxy creators as well such as Magic Alter.  Not sure what suddenly caused them to act, but it's not just you they're going after.

That said, I have always enjoyed your proxies as prizes for the Top 8 and otherwise.  Much like Mike mentioned earlier, there's definately decks I couldn't play without your proxies not counting in the proxy counts.

[mike_bergeron]

They aren't "coming after people who are keeping the older crowd playing the game". What they are doing is protecting and enforcing their trademarks and copyrights. If they don't, they could lose their rights to this Intellectual Property. The fact that they are going after Eric as opposed to some "bad person" is irrelevant.

I understand what you are getting at, but respectfully disagree that it is irrelevant.  Wizards does not sell any of the cards Eric has been making, and has not sold them for years, and has stated publicly through its reprinting policy that they will not make them anymore.  The only place to get those cards would be the secondary market, or proxy them for non sanctioned play.  They can ask him to stop giving away his proxies, but that would only hurt his efforts to running tournaments.  This, in my opinion, would be coming after people who are keeping other people in the game.  I agree with your points, and I understand why Wizards is doing it, and how they are trying to protect their property.  I just don't agree with how they are approaching this, since ELD is not trying to profit from this, and only doing this to get people interested in vintage.

Just my thoughts.

[Webster]

They aren't "coming after people who are keeping the older crowd playing the game". What they are doing is protecting and enforcing their trademarks and copyrights. If they don't, they could lose their rights to this Intellectual Property. The fact that they are going after Eric as opposed to some "bad person" is irrelevant.

I understand what you are getting at, but respectfully disagree that it is irrelevant.  Wizards does not sell any of the cards Eric has been making, and has not sold them for years, and has stated publicly through its reprinting policy that they will not make them anymore.  The only place to get those cards would be the secondary market, or proxy them for non sanctioned play.  They can ask him to stop giving away his proxies, but that would only hurt his efforts to running tournaments.  This, in my opinion, would be coming after people who are keeping other people in the game.  I agree with your points, and I understand why Wizards is doing it, and how they are trying to protect their property.  I just don't agree with how they are approaching this, since ELD is not trying to profit from this, and only doing this to get people interested in vintage.

Just my thoughts.

I can't say that I know how WOTC is approaching the situation. In fact, I think that only WOTC et al exactly, and Eric mostly, knows what is being done. Whatever WOTC is threatening to do determines how they are approaching this mess. For all we know, they are going to let him off easy. Having said that, I wouldn't want to ask or speculate into the matter as it's not really my business.

[Norm4eva]

It should be noted that what you received, ELD, is commonly referred to as a 'hot rocket'.  As the individual you spoke to may or may not have divulged, its only purpose is to notify you that someone, somewhere would really like you to knock it off.  There's nothing binding in that note you received.  It's more or less a warning shot, it doesn't prevent or preclude you from doing a thing.  The legalese makes for an easy and cheap deterrent in many cases, hence the moniker.

A judge can give you a C & D order, but anyone can write a C & D letter.

Again, this is all firsthand knowledge from being wrapped up in similar shit.  Not over my band's music this time, but their old name.  It's a boring story really :P

Don't take this to mean I'm suggesting you carry on like nothing happened, but just so's you know.

[Smmenen]

If I were Eric, I would not have responded.   

[Tha Gunslinga]

If I were Eric, I would not have responded.   

And then maybe he gets sued?  Wouldn't it be a LOT smarter to open a dialogue and find out what's going on rather than potentially get hauled into court for infringing on their intellectual property?  Which he did do, incidentally.

[Smmenen]

If I were Eric, I would not have responded.   

And then maybe he gets sued?  Wouldn't it be a LOT smarter to open a dialogue and find out what's going on rather than potentially get hauled into court for infringing on their intellectual property?  Which he did do, incidentally.

I am a lawyer. 

[Eastman]

If I were Eric, I would not have responded.   

And then maybe he gets sued?  Wouldn't it be a LOT smarter to open a dialogue and find out what's going on rather than potentially get hauled into court for infringing on their intellectual property?  Which he did do, incidentally.

I am a lawyer. 

So let's have an argument.  Even judges have to back up their decisions.

Edit:  Eric I'm sorry to hear about this - I was a bit concerned myself that it might happen, but I was hoping it would fly under their radar.  It's annoying - I think your proxies are really awesome. 

[Smmenen]

I don't feel like discussing this on a public forum.  This isn't a strategy thread or a community issue pertaining to the Vintage format.   If Eric wants to PM me for legal advice, I'd be happy to help. 

[Eastman]

I don't feel like discussing this on a public forum.  This isn't a strategy thread or a community issue pertaining to the Vintage format.   If Eric wants to PM me for legal advice, I'd be happy to help. 

If I were Eric, I would not have responded.   

...

anyway, I'm glad Eric responded - I like the idea of having someone follow up and perhaps getting someone at the company thinking about vintage cards and the current situation in the format.  Plus worst-case we'll wind up with some more information about their current opinions on the matter.  I welcome hearing something in that regard.  The truth is, the work Eric does (which we all benefit from) also benefits WotC financially.

[Norm4eva]

I won't speak for Smmenen, but the point here is that a C & D isn't a summons, it's not a subpoena, it's not a court order... it's just the same as if somebody had tapped him on the shoulder and said "Hey, knock it off."  Literally any one of us could write a cease and desist.  It's not until you start seeing a legal action place that concern is warranted, because that's action with real consequence.  A C & D is at best a scare tactic; if they wanted money out of ELD they'd skip the formalities.

It's like he said, the only reason this is even an issue is because someone tipped off their lawyers.  I'm guessing that all it would take is one look at the proxies in question to realize that there is no fucking chance one would confuse an ELD proxy for a real Time Walk.  This isn't like Van Meegeren copying Vermeer here.

[Yare]

I personally see this as a slap in the face of the Vintage format. I also suspect that the lawyer who sent this letter doesn't realize what he has done in terms of its implications for Vintage.

[Vegeta2711]

I personally see this as a slap in the face of the Vintage format. I also suspect that the lawyer who sent this letter doesn't realize what he has done in terms of its implications for Vintage.

A. Why?

B. lolwut? There are no implications for vintage. They aren't going to come after you because you wrote 'AR MAN, AR' on a land or if you just alter art for personal use.

[Yare]

I personally see this as a slap in the face of the Vintage format. I also suspect that the lawyer who sent this letter doesn't realize what he has done in terms of its implications for Vintage.

A. Why?

B. lolwut? There are no implications for vintage. They aren't going to come after you because you wrote 'AR MAN, AR' on a land or if you just alter art for personal use.

A. Because it shows disrespect for the current state of the format.

B. Fair enough, but, again, I think it shows a lack of support.

I don't want to hijack this thread, so let me say that I don't think this will have a major impact (if any) on the format. I just wanted to express my disapproval of this move by WotC, that's all. I hope that ELD is able to get this thing handled.

[Tha Gunslinga]

I personally see this as a slap in the face of the Vintage format. I also suspect that the lawyer who sent this letter doesn't realize what he has done in terms of its implications for Vintage.

Do you think the lawyer even has any clue what Magic: The Gathering is?

[Suicideking]

its hasbro so it might be an on staff lawyer, at least someone who works with a gaming company regularly.  But no im sure the lawyer doesnt care what affects it will have on vintage.

[crovax]

I personally see this as a slap in the face of the Vintage format. I also suspect that the lawyer who sent this letter doesn't realize what he has done in terms of its implications for Vintage.

I don't think this has anything to do with Vintage. Yeah the reason we use proxies is because the cards can be hard to find and are expensive, but this issue is about WotC IP and only about the IP.

On that note I do hope that someone at WotC sees this issue and Vintage gets more attention as a result.

[ELD]

Dear Mr. Dupuis:
 
Thank you for your emails and telephone calls regarding this matter.  I have now had a chance to speak with our client regarding your request for permission to make limited quantities of MAGIC: THE GATHERING® proxies to give away as door prizes at tournaments.  Unfortunately, Wizards cannot allow this.  As I stated previously, however, Wizards does not have a problem with you making proxies for your own personal use.
 
Thank you again for contacting us so promptly, removing the proxy images from the web, and for ceasing your distribution and sale of MAGIC: THE GATHERING® proxies.  Based on the foregoing, Wizards considers the matter closed.
 
Sincerely yours,
 
Carin Reynolds

And so it ends.  I had a great time making proxies for the Vintage Community.  I will miss all the positive reactions and excitement the proxies created, but I will also no longer be spending so many hours making proxies each month.  Thank you to everyone who was a part of this project. 

[The Atog Lord]

Eric,

Thank you for making such nice proxies for us. It was an extraordinary effort for which you were not compensated, and it has given us some very high quality proxies to enjoy.

[Meddling Mike]

Wow, that's a shame. I was sort of hoping that Eric's proxies were made on a small enough scale to avoid this kind of attention from Wizards.

I'm not a lawyer or anything, but I did take a course that focused extensively on copyright and TM laws and from what I understand companies have to be very defensive of them or they risk losing them and I'm glad to see that Wizards and ELD were able to come to an amicable resolution on the matter.

Thanks for making us such great proxies, I'll be sure to cherish the few that I own.

[Godder]

It was hardly a solution in any meaningful sense of the word - there was no compromise, just ELD doing what he was told (I can't say I blame him, however).

[brianpk80]

Sincerest regards.  Your proxies were great. 

[LotusHead]

Did ELD find out who complained/contacted wizards about his clearly small scale proxy thing?

[Webster]

Did ELD find out who complained/contacted wizards about his clearly small scale proxy thing?

There's zero chance it'd be from wotc's mouth.