I am wanting to make replicas of certain film and video game items. I know of one item which appears in its respective video game and as marketed toys by the company. I have seen others do it on various sites and I feel that it does not at least directly obstruct their business.
I think you're going to have a number of potential issues here. Depending on the game, and the item in question, you may be duplicating trademarked or copyrighted content of the game company. Either could get you into trouble. It really depends just what it is you are trying to replicate, but another word for replicate is copy, and copying gets you into all sorts of trouble when there are copyrights involved, as there almost certainly will be here. If you are taking a particular item that is recognizable as coming from the video game you will have trademark issues even if you don't have copyright issues. You may also run into trouble with issues of a false implication of affiliation or sponsorship by the owner of the game.
Now, to answer your question, in what way would it be legal to sell replicas of such items? If you had permission from the owner, or if the items in question are not protected. If you want a more definitive answer you should probably consult with a local attorney who can review the details of just what it is you want to replicate and help you determine if doing so would violate the rights of the makers of the game.
You would almost definitely be infringing upon the copyrights of the various items you duplicate and very possibly associated trademarks as well. It does not matter if others have gotten away with it. They may have gotten permission or the copyright/trademark owners may not have gotten around to stopping them yet.
It woudn't be legal. "Replica" is another word for "counterfeit." You don't own the rights and can't make copies of these products.
Just because someone else is doing it doesn't mean they're not going to get sued. I just means they haven't been sued yet.
Avvo doesn't pay us for these responses, and I'm not your lawyer just because I answer this question or respond to any follow-up comments. If you want to hire me, please contact me. Otherwise, please don't expect a further response. We need an actual written agreement to form an attorney-client relationship. I'm only licensed in CA and you shouldn't rely on this answer, since each state has different laws, each situation is fact specific, and it's impossible to evaluate a legal problem without a comprehensive consultation and review of all the facts and documents at issue.
Just based on the little bit of information you provided here, I don't think there is a legal way to do what you describe. It sounds like straight copyright and probably trademark infringement as well.
Before you jump in, I suggest that you consult with a lawyer in private and discuss your objectives in more detail. You can start by calling around to several for a free phone consultation, get some insights then pick the best fit to work with.
DISCLAIMER: this is not intended to be specific legal advice and should not be relied upon as such. No attorney-client relationship is formed with the law firm of Natoli-Lapin, LLC on the basis of this posting.
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