“It’s a bit of fun” – Unlap *would* be able to claim that, *if* the merchandise wasn’t being sold for profit. But it is.
“Other teams/companies have had to back down before” – not because they were in the wrong, though. If Lucas Arts backed down on that particular toy, they didn’t on hundreds of others that got taken to court/slapped with cease and desist.
“No logos used” – the helmet designs, car designs, and logos are the team’s exact layouts with some text missing. That’s nowhere near enough to claim differentiation. Jenson’s helmet in particular is very distinctive, and easily recognisable as a copy in Unlap’s version.
“artistic style” – this is how typefaces are copyrighted, and designs in general. It’s a greyer area of copyright than literary plagiarism, but it’s still there.
For comparison, there was a guy who posted a link in the forum here to his “F1 aggregator” website recently which would have loaded F1 Fanatic articles inside a webpage he surrounded with ads. Now, this guy was not plagiarising anything, nor was he stealing the articles and reposting them. Through a bit of technological jiggery pokery, he was harvesting ad revenue off the back of Keith’s (and others’) work and not giving them a cut of it. Nobody agreed with him that this was all ok, and the links were removed. Indeed, someone mentioned that similar sites had been successfully sued in the past. In both cases, some third party is making money based on work that someone else (or a team of someone elses) spent years building up to the point of widespread recognition.
The way I see this situation is like a conversation:
Unlap: “Check out my really cute Jenson and Lewis figures! Aren’t they great, and they’re really authentic to the real thing! And some McLaren cars, they’re soooo cool, you’ll love them if you’re an F1 fan! Buy some now!”
Lawyer: “Errr are you ripping off our designs?”
Unlap: “No way! This is Nothing like your designs. Leave me alone, big meanie!”
Lawyer: “I totally overheard you talking to that Steph chick”
Unlap’s Lawyer friend: “This would be an appropriate moment to remove all that from sale”
Unlap: “Boooo McLaren”
Unlap’s Lawyer friend, tomorrow: “And not say anything that could be construed as derogatary unless you plan to stand up in court”
Equally, someone else will have paid McLaren for the rights to produce merchandise based on their designs, driver likenesses, logos, cars, colour schemes etc. Why should they be disadvantaged by someone else who is doing exactly the same thing, but hasn’t paid for a license and isn’t sharing the revenue with the IP owner. It’s easy to see the Big Corporation as the bad guy here, but in this case McLaren did all the design work, did all the years of building a publicly recognisable brand, which has a lot of intrinsic value, and someone else is jumping on the back of that, making money out of it, and hasn’t actually done much (see my “originality” point above) to earn it.
