IP infringement

"You underestimate me, Hasbro."

The many and varied facets of the Transformers brand are the intellectual property (IP) of Hasbro and TakaraTomy, and their ownership of these ideas and designs is protected by law. Alas, some rascally elements have, over the years, decided they'd like a slice of that pie, which has led to the creation of what have been described as IP infringing items by employees of former Hasbro licensee Fun Publications.

Kinds of IP infringement

Technically, any use of Hasbro and Takara's Transformers names, characters, and concepts without obtaining a license could be considered IP infringement. Things such as fan art and fan fiction, however, are rarely considered problematic, being as they are not intended to generate profit or are otherwise one-off works. In fact, in the past Hasbro has laid out guidelines to fan-artists and similar creators wishing to make and sell art and crafts based on Transformers, which basically boiled down to being careful how one "branded" it (or, in practice, didn't brand it by just avoiding the use of brand names and some minor semantics).

When things get dicey —and the license-holders get tetchy— is when IP infringement occurs on a grander, and more organized scale.

Knockoffs

Automatons in Concealment

Main article: Knockoff

In the context of Transformers, knockoff is often used to describe both low-budget/quality toys, the kind of off-color, oversized/undersized thing that one might come across in a "dollar store" cranked out by the bajillions from China, and higher-quality toys that actually attempt to pass themselves off as genuine Hasbro or Takara products. Knockoffs that are direct replicas of existing Hasbro toys are very obviously the result of theft – in that case, it is the precise design and engineering for the toy that has been stolen. However, it is not unheard of for manufacturers to create their own cheap toys in the image of Transformers characters, and these still constitute IP infringement– Optimus Prime the Character is as much Hasbro's property as Optimus Prime the Specific Toy.

Conversely, a toy that copies the engineering (i.e. transformation) of an existing Hasbro/Takara product but is changed enough as to not resemble an existing character protected by copyright might not necessarily constitute IP infringement: Functionality is protected by patents, and patent protection legally expires after 20 years. This is why you occasionally see off-brand toys that work just like the Jumpstarters but look nothing like Topspin or Twin Twist.

"Third party" toys

I Can't Believe It's Not Jetfire!

In the late 2000s, spurred on by the Transformers nostalgia boom invoked by the live-action film series, a new phenomenon arose—unlicensed products based on Transformers aimed at the adult collector market. The very earliest examples of this kind of product were accessories and then "upgrades" for existing Hasbro toys, such as a trailer/armor set for Classics Ultra Magnus, but the market quickly grew to include standalone action figures based on Transformers characters. The number of groups producing these figures has ballooned rapidly, to the point that two or even three separate companies will be simultaneously releasing toys of the same characters. Popular market trends have included combiners and, more recently, figures emulating the qualities of the Masterpiece line.

The fandom's generally recognized name for these kinds of figures is "third party Transformers", although this is ultimately a misnomer for the plain reason that they are not actual Transformers products. This terminology makes more sense in light of their history, as the initial accessories, add-ons and "upgrade" kits can still somewhat be considered "third party" products, and the term, once established among the fandom, was simply never adjusted when standalone figures became the main focus of such offerings. It also differentiates them from "bootleg" toys, as bootlegs are usually considered explicit copies of official Transformers toys designed to "trick" unaware buyers into purchasing thing, while "third party" products are usually explicitly purchased by collectors for their qualities. Obviously, these should not be confused with the actual third parties who produce Transformers merchandise under license from Hasbro or Takara.

In (very half-hearted) attempts to dissuade the notion that they are pinching Transformers characters, "third party" toy manufacturers typically avoid using faction symbols (although sometimes include molded spaces for the buyer to apply their own), and give their figures alternative names that attempt to capture the sound and/or spirit of the trademarked originals, with varying degrees of bizarreness. A toy intended to look like Starscream might, for example, wind up named "Stellaryell". Initially, fans would often avoid confusion by referring to these figures as "not" versions of the characters they were based on (for example, "Not-Starscream"), though as the market has grown that terminology has been mostly abandoned since there's liable to be multiple different Not-Starscreams. After many years of these products, name overlaps are bound to happen; for example, different companies have figures alternatively based on Huffer and Grimlock that are both named "Rager". Even more hilariously (though not really surprising), there are even knockoffs of "third party" toys! Let's see them duke out their IP conflicts in court.

Desire for those toys arises for various reasons, including:

• Wanting a toy of a character who has not received a modern, or any toy, at a certain scale or quality, or in a specific style, such as the Masterpiece line.
• Desiring different aesthetics (such as a more movie accurate design compared to official toys), or a new design of a character.
• A belief that they are of superior quality. Design limitations such as safety regulations and budget are much less of an issue compared to official toys; like many other figures designed for an adult audience, a "not a toy" disclaimer can be found on some of these products to justify these features, such as sharper edges on characters or small parts.

For reasons that should be obvious, TFWiki considers "third party" toys unrelated to its goal of documenting the Transformers brand, beyond examples where they have influenced official product.

Types of "third party" toys

Note: The following terms are descriptors rather than actual official terms since, well, they're clearly not official products.

Accessories

These are generally items that are designed to interact with official product, but involve no modification to said official product. These are most often weapons (e.g. the Star Saber and Dark Star Saber from Transformers: Prime), but may also include MacGuffins like the AllSpark Matrix or even characters like notable humans such as Sari and Isaac Sumdac.

Add-ons

These are items that are designed to interact with official product and modify their appearance. However, said modification takes advantage of preexisting tabs, slots, posts and so on, thus requiring no actual modification of the official product. An example would be panels designed to fill in the gaps in the thighs of Titans Return Powermaster Optimus Prime, which slot in snugly into the gaps.

Upgrade kits

These are items designed to interact with official product and modify their appearance, but require some sort of actual modification to the official product. This can be as simple as popping off and swapping a limb on ball joints or putting a small piece in a gap to fill it in, to more comprehensive modifications like partial disassembly and replacing of parts. A kit that allows someone to switch the head of Classics Bumblebee to create a Classics-styled Goldbug or giving G1 Ironhide and Ratchet actual heads would be an example of this.

Full figures

As mentioned above, these are generally what is meant when references are made to "third party Transformers". These are standalone fully transformable figures clearly based on and meant to evoke actual Transformers characters. One of the earliest and most (in)famous examples was a triple-changing Not-Springer which became wildly popular because official Springer toys of that time transformed into either a land vehicle or an air vehicle, but not both. These types of products are arguably the most problematic, as they may actually cause lost sales for an official figure. Add-ons and upgrade kits, in contrast, may actually encourage collectors to purchase the official products they are meant to complement.

Again, these are descriptors, partially because there is a lot of overlap. For example, would a replacement head for a reissue G1 Bruticus that comes with light up LED eyes be considered an upgrade kit (since it replaces the original head) or an add-on (since it makes use of the post hole already intended for the original head)? Would hands and feet for a Combiner Wars Combiner that also transform into weapons for the component bots fall under accessories (as they're weapons) or upgrade kits (since they replace the original hands and feet) or add-ons (since they slot into preexisting ports)? And what about stickers that can change, for example, Siege Prowl into an approximation of an Autotrooper? In fact, a lot of what created the demand for figures in the first place was that grey area. The first widely-successful "third-party" figures were technically an upgrade kit for Bruticus Maximus, which were "fixing" the problem of the set having only two limb molds by adding two additional Basic-sized figures to the mix.

Doujinshi

Generally understood to mean fan-comics, doujinshi (同人誌) are a uniquely Japanese occurrence. Japan has a very healthy culture of fan groups who make their own manga, many of them starring original characters but a huge portion starring characters owned by companies (for a Transformers example, imagine a gag manga where Deathsaurus is portrayed as a little child and being raised by Megatron and the other Decepticons to be the mighty Emperor of Destruction he is in Transformers: Victory. Hijinks ensue). This would of course never fly in a litigious society like the US, but in Japan doujinshi exist in a strange gray area.^[3]

Basically, the difference between what would be understood as a fan-comic in the West and a doujinshi in Japan is that in the West (especially the US), while a company might turn a blind eye to someone making fan-comics for fun (e.g. on a site like DeviantArt), they would come down on them if they tried to put those same fan comics up for sale. Hasbro might allow (or at least ignore) people selling fanart and fan-comics at a proper Transformers convention like BotCon, but might be much less forgiving if those same people tried to sell those items at, say, a general science fiction convention. Meanwhile, in Japan, there are various conventions where doujinshi are actually the key focus, such as the famous Comiket. A Transformers doujinshi might be sold at a Transformers-related convention, but might also appear at, say, a mecha-related convention or a general science fiction-related convention (since the Transformers would fall under a mecha or science fiction category).

Long story short, TakaraTomy could complain and shut down groups making doujinshi any time they wanted, but like many Japanese companies, it appears that it simply isn't worth the hassle. People who make doujinshi are often the most hardcore of fans, and so alienating them isn't something most companies are eager to do. In addition, any victory would simply not be worth the resulting bad press, since fan groups are not exactly swimming in cash and while doujinshi are put up for sale, a lot of groups seem to just do it for love of the art or the series. Most doujinshi also receive extremely limited distribution, such as at dedicated conventions for only one or two days at a time. It should also be mentioned that many big names in manga got their starts or honed their skills in doujinshi circles, and it isn't impossible for a company to want to recruit some of these up-and-coming talents.

It, er, probably should be pointed out that some (though not all) doujinshi are very, very NSFW.

Hasbro and IP infringement

Remarks and actions

Official statements from Hasbro on "third party" toys are few and far between. In one response, provided as part of the company's now-defunct fansite Q&A program, they noted the illegal nature of the figures, and remarked that this kind of IP infringement was unfair to legitimate licensees who pay to produce Transformers merchandise.^[4] Hasbro did keep a binder cataloging every "third party" toy in case action needed to be taken against them.^[5]

In 2015, Hasbro's UK branch distributed an online survey of the collecting habits of Transformers fans to coincide with the Auto Assembly unofficial convention, which included a surprising number of questions regarding "third party" products. In a bit of an embarrassing faux pas, a Hasbro representative present at the convention itself also addressed a Vos cosplayer as "Cynicus", the name of an unofficial figure of that character.^[6]

To date, there has only been one known instance of Hasbro pursuing actual legal action against the manufacturers of "third party" toys. While such unofficial toys were banned from being sold at the dealer room at BotCon 2012,^[7] 2015 and 2016, they generally seem to adopt a "laissez-faire" approach to such toys; while they don't officially condone such material, they're willing to allow it to exist as long as it isn't impacting Hasbro's bottom line. The one instance of Hasbro taking legal action was an unofficial toy of Unicron, announced during the HasLab campaign for War for Cybertron Unicron, seemingly intended to directly undercut Hasbro's big-ticket crowdfunded toy; evidently and understandably unhappy with this, Hasbro apparently intervened to have all posts about the pretender to the throne taken down from social media.^[8]

Third party designs in official products and marketing

IP un-infringement?

Beginning in the 2010s, there have been occasions where "third party" figure designs have slipped into official media. One cover for More than Meets the Eye #18 saw Huffer and Gears drawn based on unofficial figures "Rager" and "Cogz." Hasbro and IDW did not comment on this, although it seems likely that somebody somewhere might've gotten a slap on the wrist. (The artist in question has not done any comic covers since...)

Meanwhile, official third party licensee Imaginarium Art's statues of Rodimus Prime and Devastator seem to be based on the unofficial figures "Carry" and "Green Giant", with Rodimus Prime featuring detailing on his forearms otherwise unique to Carry and Devastator having kneepads only found on Giant. One has to assume Hasbro wasn't looking too closely, or were understandably unaware of those figures, when they signed off on these.

In what was presumably an innocent mistake that resulted from the use of a fan's personal collection, a slide shown at the Hasbro investor and press event presentation during Toy Fair 2016 that represented Transformers "Spanning Generations" featured a photograph of a father and son surrounded by a variety of Masterpiece toys... and the "third party" Devastator "Green Giant".^[9] Oops!

Although stylized, the Transformers: Earth Wars models for the Predacons are recognizably based upon the "Feralcons", one of the three notable sets of "third party" Predacons. It even leaked into their combined mode, thusly based upon "Feral Rex". Meanwhile, Motormaster is modeled on the TransFormMission "Powertrain" interpretation of Motormaster's design from IDW's 2009-2011 ongoing series.

IP dis-infringement.

The Earth Wars rendition of Warpath is based on one or both of BadCube "Wardog" and FansToys "Sheridan".

Similarly, Earth Wars and the Power of the Primes cartoon feature models for the Dinobots based on the Fanstoys' "Iron Dibots" figures, rather than those from the concurrent toyline.

In an odd occurrence for a game which almost exclusively employed screen models and recent toys, Jazz in Transformers: Forged to Fight is directly modeled on Toyworld's "Coolsville" figure.

E. J. Su, fulfilling the role of guest artist for Lost Light #19, was not given vehicle mode references for Rodimus, Drift, Ratchet, and Chromedome. Consequently, he had to make do with googling and used alt-modes based directly on the Mastermind Creations "Calidus" and "Stray" figures. Ratchet and Chromedome were based on official, though inaccurate, toys of the character.

An ILM design presentation about the 2018 Bumblebee movie used an image of Fans Toys "Rouge" as a "Generation 1" Arcee design reference for Bumblebee Arcee.^[10] This is an unsurprising research method as Arcee did not receive an official Masterpiece figure until 2020, with multiple unlicensed third-party companies vying for fans' attention throughout the 2010s.

Package art for the Legacy Evolution Titan-class Nemesis toy featured Skywarp in his Cybertronian "Tetra Jet" mode with the art for it being based off Impossible Toy's "Prankstor".

Cybertron Fest 2023 accidentally let some third party upgrade kits slip through the cracks in it's display of fan collections. Namely, in a cabinet full of Optimus Primes, Unite Warriors Optimus Maximus has the Perfect Effect upgrade kit equipped, giving him a different pair of hands, feet, torso, and waist than the normal retail release. Not too far away, Thrilling 30 Metroplex and mold-mate Titans Return Fortress Maximus have also been seemingly upgraded, using the Unique Toys Metropolis head and Perfect Effect PC-14EX blaster (meant for his brother) respectively.

Daniel Warren Johnson uses Magic Square's 2023 "Light of Peace" Optimus as a reference when drawing him in Skybound's Transformers comic, on account of its poseability. .^[11]

Hasbro's own copyright dodging

First party problems.

Despite Hasbro's own (completely understandable) aversion against people making a profit off their IP without permission, it's not like Hasbro is entirely innocent in this regard: In fact, the Transformers toys' alternate modes being unlicensed reproductions of real-world vehicles and aircraft goes back all the way to the very first Transformers toys.

While the whole market situation was still very different back in the 1980s, and car manufacturers apparently didn't start properly enforcing their intellectual properties in the field of toys and merchandise until the early 2000s, Transformers toys with licensed vehicle alternate modes are still the exception rather than the rule. The vast majority of popular Earth vehicle alternate modes are still unlicensed approximations of their real-life inspirations, basically "not-Lamborghinis" or "not-A-10s", with a few details altered to avoid a lawsuit — though this wasn't enough in one notable case. Some examples are a little more creative, meshing together two or more real-life inspirations to create a genuine "hybrid" design, but most are just barely altered and instantly recognizable for what they are supposed to represent. While the target audience is obviously a different one (most people who buy a Hasbro Sunstreaker do so because he represents Sunstreaker the Transformers character, not because they want a Lamborghini for their toy car collection; however, most, if not all, people who buy a "third party" version of Sunstreaker do so because he represents Sunstreaker the Transformers character), it illustrates the gray area involved.

Less of a gray area appears to be the case of the Generation 2 Go-Bot High Beam (released in 1995), though: Its alternate mode looks plain identical to a vehicle from Mattel's Hot Wheels line that was first released in 1991 under the names "Back Burner" and "Sonic Special", but would eventually become more well known in 1995 under the name "Speed Blaster". Unless both toys were based on the same obscure real-life concept car that has since been completely forgotten by history, that would be a very blatant case of Hasbro literally copying one of its competitor's toys and just making it transform.

Hasbro's Built to Rule! and Kre-O toylines "knocking off" LEGO's iconic bricks cannot be considered IP infringement, however, as the technical patents for their brick-building system expired in 1978.

References