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the custom pony rights debate [Jan. 14th, 2007|07:23 pm]
[Tags|, , , , , , ]
[mood |worriedworried]
[music |ratm - freedom]

Where do I even begin...on Friday, I received an e-mail from a law firm which represents Hasbro. They basically asked me to stop selling and distributing (?) custom ponies.

I'm going to refrain from posting the exact contents of the e-mail until this situation is resolved. However, I did ask at www.mlparena.com if anyone else heard from them. Apparently, some people have had their replica pony auctions pulled from eBay, but no one else has received this e-mail.

To answer some questions:
Do you believe the e-mail is real?
The headers lead back to a law firm which has represented Hasbro in the past and the lawyer who sent it specializes in intellectual property rights. So, I do believe it is "real". I am going to send her a respectful reply on Monday.

Why would they e-mail you and not other customizers?
Not sure here. Probably because my website is really prominent. The site is extensively linked through the search engines and gets thousands of visitors each month. Also, I made some customs with printed boxes...they might think I'm trying to pass them off as original Hasbro ponies or having them mass produced?

Is this related to the website worm?
No, I don't think it is related. I uploaded all of the files, so the site should be clean now. However, it got on a malware list, so I am working with Google to get the warnings removed. :(

Is pony customizing illegal?
Custom ponies are closely related to fan art. I did a lot of reading on the legal aspects of fan art & fan fiction over the weekend. I also listened to a podcast dealing with intellectual property. Apparently, most experts think it is illegal. However, it's usually tolerated by the respective companies which own the copyrights/trademarks because it generates more interest and product sales. I think there is a gradient here as well. Some things may be more tolerated than others. Making a replica Rapunzel or Greek Ladybird is probably NOT, since people may mistake your custom replica for the real Hasbro product (even if it's signed). However, making a custom entirely of your design that doesn't look like an original MLP (like the full-body sculpted dragon ponies) may be more acceptable. Unfortunately, the definitive way to tell if your pony is "too close" to the original MLP is in court. As far as I know, Hasbro has not asked eBay to pull auctions containing customs which were NOT replicas.

Should (other people) continue making customs?
I'm not a lawyer, so take the following advice with a grain of salt. As long as you don't sell them, I seriously doubt Hasbro would go after individual pony fans making customs for their own personal use. Hasbro supported a pony customizing contest in the UK. They also ran the Pony Project, which was a fusion of art & ponies.
However, I do strongly recommend AGAINST using names that Hasbro has trademarked or making baby/alternate versions of existing ponies or replicas. Also, it is NOT a good idea to use their box/packaging designs/logos/or even their copyrighted term "My Little Pony" when describing your custom. Yes, I know you originally bought the pony from the store and it's a real Hasbro base pony, but that doesn't matter. That would lead people into thinking the pony was indeed an original Hasbro pony. We collectors think that is extremely silly...we know what a "custom" is, but non-collectors and kids may not.

Anything else I can do to avoid the wrath of the lawyers? I don't have a lot of free time and millions of dollars and Johnny Cochran.
[insert standard non-lawyer advice disclaimers here] It seems that most people who did get sued for copyright infringement made the copyright owner mad. So, don't make the customs too much like the originals, don't sell your customs, and don't make ponies with non-kid-friendly themes.

What about the people who make custom Barbies and other modified toys?
Those are also considered derivative works. The maker of Barbie tried suing a man who used Barbies in his photography and the company actually lost. However, the photographer/artist spent much time and money in fighting the case. I'm not exactly sure why the makers of Barbie aren't going after the other Barbie re-painters, but this particular artist had the Barbies in rather provocative poses.
You could also transition to other brands which are more "customizer-friendly", like the Trail of Painted Ponies (which supplies a "blank" template for painting), Breyer, and other model horses. Ty even made some blank "Color Me Beanies" for customizing.

Do you think Hasbro will take an official stance on custom ponies?
Collectors have been displaying, trading, and selling customs for many years and Hasbro hasn't taken an official stance yet. And I don't think they will either, since that is going to have an effect on their sales.
Although through their actions, it seems they are against replica custom ponies and the use of their logo/packaging/"My Little Pony" brand name. Are they against ALL custom ponies or ALL sales of custom ponies? It's hard to say at this point. If you have had a non-replica custom pony auction pulled or received a letter from Hasbro's attorneys, please post a reply.

Are you going to stop customizing?
For the time being, I'm going to stop making custom ponies from Hasbro's products. Perhaps I'll try my hand at some Breyers or Trail of Painted Ponies.

Will there be changes to the website?
Yes, but I don't know exactly what they want changed; the letter was kind of vague. If I took the entire site down, I personally think it would hurt Hasbro more (in terms of bad publicity and lack of good publicity). Please see the next question for details.
So, in good faith, I am taking down all pages containing replicas, customs based on original Hasbro pony designs, removing the pictures of custom boxes, logos, changing the descriptions to remove the wording "My Little Pony", adding a disclaimer to the bottom of each page saying that aikarin.com is not affiliated with Hasbro and that My Little Pony is a copyright of Hasbro. I am also removing the list of custom ponies for sale. The site has grown tremendously, so it will take me a few days to encode all of the pages. Hopefully, this will be enough to make them happy.

What is the response of pony fans?
Countless pony fans have written over the years saying how much they enjoyed the site. I get daily e-mails about this! Many people said they got into re-collecting or started buying the new ponies after seeing custom ponies, whether they were mine or from other customizers.
A lot of collectors were heartbroken or enraged after hearing the news. Many people also expressed that they would stop buying new ponies if customizing was completely banned. Some people collect custom ponies only. Hasbro's product sales would definitely decline if they took an anti-customizing stance. By how much? It's uncertain at this time, but I think it would be noticeable, since most customs are made from the new ponies.

What can I do right now to support the custom ponies?
It's too early to say. I really hope that Hasbro responds in a way which supports the wishes of the My Little Pony fan base. Keep watching this journal for an update.

How is this affecting you?
I'm worried and also saddened by the whole situation. Ponies were the highlight of my childhood...I always associated them with warm fuzzy feelings, watching the cartoons and movies, and styling their hair. Now, I'm seriously hoping those memories won't be replaced with negative ones. I really do appreciate the support! Lets hope for a good outcome! ^_^ Thanks everybody!

Disclaimer: My Little Pony© is a copyright of Hasbro, Inc. aikarin.com is a fan-made site which is NOT affiliated with, nor authorized, endorsed or licensed in any way by Hasbro, its affiliates or subsidiaries. Other trademarks/copyrights mentioned in this article belong to their respective owners.

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[User Picture]From: firebyrd
2007-01-15 07:01 am (UTC)
I still think deciding to stop customizing before you've received clarification is jumping the gun a bit, but I'm sure it is rather frightening to be receiving such a communication. Take heart, though! I'm going to be shocked if the problem is more than the custom boxes and possibly some of the older ponies you did that were based off of Hasbro designs. If this were a general customizing thing, I really don't think you'd be the only one contacted. Hopefully you'll be able to clear this up quickly.
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[User Picture]From: aikarin
2007-01-17 07:58 am (UTC)
Thanks for the message. I wasn't certain what to do...I'm not exactly sure which customs were causing a problem for them, so I didn't want to keep going and anger them further. I might resume customizing ponies depending on what their response is.
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[User Picture]From: scarab_dynasty
2007-01-15 08:33 am (UTC)

I'll be damned.

I've always heard of fan productions being stopped by the original creators (personally if I was a creator of something I'd tell everyone who liked it to go nuts) but I never thought I'd actually encounter one. I mean, they can stop you selling them sure but they CAN'T stop you just MAKING them. That would be like not letting anyone use your cake recipe. And it would lose them money. Provided you aren't profiting from their characters, I don't see what would be to complain about.

To be honest though I'm not a law student or anything so don't take my word on any of that.
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[User Picture]From: aikarin
2007-01-17 07:59 am (UTC)
Thanks! LOL, let's hope that Hasbro also realizes how much customizing is helping their business. ^_^
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[User Picture]From: kaikaku
2007-01-15 08:57 am (UTC)
I hope everything will be okay. I found your site a while ago when you made the first Borg pony, and it inspired me to dig my vintage ponies out of the closet. The next thing I knew, I had more than 300 G3s on top of my old collection. And it all started with your site. That's a lot of ponies Hasbro never would have sold without you, and I'm just one collector!

I'll be really sad if you decide you have to stop customizing. I keep hoping that they're just upset about the older "Hasbro-style" replicas you made a few years ago, and the printed boxes. I can understand why they might be against sale of customs, but I think they'll be shooting themselves in the foot if they really try cracking down on that. Much as I hate to say it, I'd probably lose interest in Hasbro pretty quickly if there weren't so many talented people out there inspiring me with their customs.

Again, I'm so sorry this has happened, and I sincerely hope that the changes they request will be small. I've been upset about this all day. I'm going to try crafting a polite letter to Hasbro in the next few days. Don't know if it will help, but I figure it's something.

Hope you really are handling this okay... bleh.

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[User Picture]From: aikarin
2007-01-17 08:03 am (UTC)
Thanks for the support! I'm doing okay...just trying to stay positive. ^_^ You're living proof that custom ponies increase sales for Hasbro!
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[User Picture]From: mistytsim
2007-01-15 01:19 pm (UTC)
Having worked for eBay for 3.5 years, I can tell you this much: the people there don't have enough time to go around looking for items which might be infringing upon someone's copyright/intellectual property. It is the IP owner's responsibility to search all of eBay, find infringing items, register with eBay as the legal IP owner, and then request that they remove the item.

I've seen major corporations get really petty with things, and I've seen some which let anything fly. I'm in the same camp as firebyrd, though. I think your ponies which are very similar to ones which could be purchased are the problem. Any one could see the more ornate ones and know there is no way that Hasbro would make something like that.

If you have a lawyer, I'd recommend contacting them and see if there's anything you should be doing. You can call the Copyright Office and get a copy of Hasbro's rights where the MLP Kingdom is concerned.

And bless your pointed little head for realizing that even though one purchases an item, they don't have the rights to resell said item. Trying to get eBay PowerSellers to understand that is like getting toddlers to understand calculus. Fun fact: a recent (eBay) study shows that the average reading comprehension for eBayers is no higher than a 6th grade.
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[User Picture]From: aikarin
2007-01-17 08:10 am (UTC)
Thanks for your message and for your eBay knowledge. ^_^ A lot of people I talked to had trouble understanding why they couldn't re-sell something they modified. You're right...it's okay as long as the company isn't bothered by it.
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[User Picture]From: diana_arcuri
2007-01-15 04:33 pm (UTC)
I was so sad when I read this news in the Arena... As many here have said, you were the one who introduced a lot of us to the pony or the customizing world, and it's hard to read that you got this email asking you to stop what you're doing.

I strongly believe that away of that thing of boxes and replicas of original ponies, they're messing with free expression. I'm really angry, bcause you say that "and don't make ponies with non-kid-friendly themes"... If this is also a Hasbro's recommendation in any point, I will have to scream. Remember those Pony Project ponies... "Ella Bella" was the main pony of the exhibition if I remember well... That pony was seductive and she was showing her undies!!!! Also, those ponies went too far from the original idea of MLP. Then, why? Hasbro sold them too!!! Or didn't them? Are those customs more important bcause they're made by recognized artists??? And ours, bcause we're amateurs in art, don't have the right to be treated as real pieces? It's not fair. I'm really angry and sad, bcause I recently uploaded my customs webpage and I was having really good practice on this, my commissions were weirder than bfore, and now, with this, I feel that all this went to trash. I was thinking that someday I could be able to show my pieces when I'm able to get an art show... Now, you make me think about this seriously :(

Also, I find it ridicously stupid by the fact that you mention... why hasbro wants us to stop? We might be the 2nd strongest clients that they have. At least, I spend here like $20 a month for custom ponies or even more, I imagine that you, or other famous customizers have to purchase even more ponies than I do. And we're not a little bit of persons, we're many customizers!! And I believe that the 70% of the people who collects ponies, starts to customize their baits in some point of their lifes... And I believe that, if we get stopped, lots of people, at least the customizers, will stop purchasing ponies for their works... Remember that custom ponies are the ones that Hasbro never made... They represent what people wants from the ponies in some cases... Like personas, like intrincate designs... So, they're wanting us to be happy with their ponies?? I, personaly, don't like that much the G3 ponies, they're great for customizing, but there are some designs that seems to be made just for selling, simple and without any grace... Remember the "mexican g3 exclusives" ????? They're licensed by hasbro... and look how simple and weird they are!!!!! I can't believe that they're stopping real art just for selling crappy stuff!!

I really appreciate the FAQ you placed, I'll be checking your journal to watch for more news about this...

I send you a million of hugs my dear, cheer up, you know that we're supporting you!!! :)

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[User Picture]From: aikarin
2007-01-17 08:17 am (UTC)
Thanks for the support! ^_^ You've brought up some really good points. No, Hasbro didn't tell me that I had to make ponies which were not offensive, but other companies have sued artists who used their products for controversial art...like the guy who posed nude Barbies in blenders.

I think I'm the only customizer who has been contacted by them so far. There are still lots of custom websites that are still up. Your pages should be okay.
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[User Picture]From: sparklypoof
2007-01-15 06:29 pm (UTC)
there's been a lot of uproar about fanart at cons I have been to, as well, with the rules being changed for otakon's artist alley to say something like "you can make fanart as long as you get the original artist's permission..." or something like that - but I think that was in reference to selling the fanart. they dont care if you doodle zelda over and over again, just don't make money off of it.

but then there's this thing called "fair use" ...I don't see why hasbro would be upset by your site, specifically. if anything, your customs [and other's too...] are sending out free advertising for them, letting folks know that hasbro ponies are great to make customs out of, even if you don't come out and say just that. for them to pester you about your beautiful creations - that's only going to be detrimental to them in the long run.

it's a shame, really. do keep us posted on this as you can. I have fought my own copyright battle in the past, and it ended in a draw [the fellow wouldn't pay up for using my image, and decided to stop using it all together ...so perhaps a loss for me overall]... but, yeah. this is rough. and imho, kind of petty of hasbro. they obviously don't understand their custom pony fans.
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[User Picture]From: aikarin
2007-01-17 08:28 am (UTC)
Thanks for the note. ^_^ Yes, they did mention something about selling. I agree...I think they are more likely to be lenient if you're not selling your customs. Fanart is a big gray area!

I've always wondered how connected they are with the pony fans. They did seem to respond when we asked for some G3 unicorns in simple packaging. However, a lot people seem to dislike the current G3 designs. Hmmmmm...
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From: nattykank
2007-01-15 06:50 pm (UTC)

Wow, I'm shocked!

It's unfortunate to hear that such a large company is taking what is merely a passion for a toy, and twisting it into a copyright issue. I can only speak for myself, but I only customize ponies because they're such a part of my past and by customizing them, I get to bring them into my future. Personalizing them makes them more my own.

It's sad to think that there are so many die-hard pony collectors who will undoubtedly be upset by this (myself included) Not to mention that there are so many talented pony customizers that will lose something that I'm sure has become a relaxing and enjoyable part of their day-to-day routine.

**Sigh** what next...

Keep your chin up Aikarin, we can only hope that this mess will sort itself out peacefully and without too much damage to your (and others) customizing creativity.
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[User Picture]From: aikarin
2007-01-17 08:32 am (UTC)

Re: Wow, I'm shocked!

Thanks for writing. I was unbelievably shocked when I got the e-mail...I had to read it a few times to try to figure out what was going on. Hopefully, this won't be the end of the customs.

I guess I can try my hand at some Breyers. I was checking some of them out at the store today. But I won't clear out my MLP baits just yet. ^_~
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[User Picture]From: sunshineguinn
2007-01-15 07:55 pm (UTC)

Time for me to be non-lurky!

For starters, I want to say that I absolutely love your customs. They are so awesome; I know that's a very generic statement, but I have a hard time describing them in any other way.

In regards to this situation, I hope, as you do, that it all works out for the best. I know that I'll be saddened if you have to stop. I think your plan of action should resolve this...I doubt Hasbro wants to create negative news/publicity (especially among the die-hards!). In looking over your site again (and more carefully in a 'legal' sense) I'd venture to say that what probably inspired the letter was the custom boxes. I originally thought it was an adorable idea, but looking at it now from Hasbro's perspective, I can understand their concern over it.

Hopefully that's all it is and you'll be able to continue your customizations as always, aside from what modifications you'll already be making.

Your site has actually inspired me to dabble in customs as well; something I always wanted to try but never really felt a push to do. Customs are great to create, and great to share with other fans. In my personal opinion, it strengthens our love for MLPs, and I hope that Hasbro sees this as well. =)

Whew, this ended up being long! Sorry! Haha --- back to lurking ^_~
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[User Picture]From: aikarin
2007-01-17 08:37 am (UTC)

Re: Time for me to be non-lurky!

Awwww...thanks! ^_^ It seems like a lot of people are getting into customizing now. Too bad this thing is going on...I also hope it gets resolved soon.
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From: elfleidy
2007-01-15 11:40 pm (UTC)
i am stunned! like so many it seems, this website has gotten me excited about collecting something that i have many memories of and i can't wait to try my hand at customizing. i can't belive that with all the customs done for anything under the sun that they would object to the customs themselves. i do understand it as far as using the boxes even with the ponys' names changed and with hasbro- like themeswith your older customs. but in the case of "true" customs, where all that is left is a blank pony.....that is going too far. isn't it enough that they (hasbro) get their money when we buy the sucky g3s? what we do with them after sale time shouldn't matter as long as we are not marketing the customs as a hasbro endorsed item. hasbro takes a huge risk if they pursue this with any seriosness, becuase let's face, the g3s really suck. there are a few that i have added to my personal collection (love butterflies!) but they lack any originality that the g1s and g2s have. i just don't know what else to say..... i stumbled across this website when i was looking for info on pony customizing. it has certainly helped! i truly appreciate all the effort that you have put into this site, aikarin!
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[User Picture]From: aikarin
2007-01-17 08:50 am (UTC)
Thanks for the support! ^_^

LOL, I had no idea so many people disliked the current G3s. Well...okay, I had some idea. When the G3s were first released, I was buying a lot of them. Then, in later years, the designs just seemed less appealing. And yes, I did buy a lot of them only for the purpose of customizing. Glad you found my website useful. ^_^
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From: weymouthbridoon
2007-01-15 11:53 pm (UTC)
I'm really saddened by this.
Customizing MLPs, Breyers, anything like that, is an ART FORM, and I don't feel that it should be censored. Since you are marketing the ponies as pieces of artwork, and not as toys, I don't see how Hasbro can really complain. Of course, they're a huge company and can flex their legal muscles whenever they want, I suppose.

Very upsetting, to me. :(
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[User Picture]From: aikarin
2007-01-17 08:58 am (UTC)
Thanks for writing. I'm really amazed at the amount of debate this has generated. My brother views it the same way: censorship by a large corporation. However, at this time, I don't know exactly which ponies they wanted me to remove, so it might just be the printed boxes & replicas causing an issue.
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[User Picture]From: kashuarashi
2007-01-16 12:18 am (UTC)
Like so many others, my non-existant-money is on the boxes and replicas, and given that you're no longer making replicas and have STATED as much, it shouldn't be much of an issue. I know I've heard about Hasbro fussing over the boxes in the past.

And if they do crack down on customizing in general...*shrugs* Their stupid. I know I have very little reason to buy most of the new designs, and Hasbro sure isn't making a profit by my buying used '80s toys off of eBay.
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[User Picture]From: aikarin
2007-01-17 09:01 am (UTC)
Thanks for writing. Hmmmm...so Hasbro had an issue with the boxes before? Do you remember the details of that?
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From: (Anonymous)
2007-01-16 07:28 pm (UTC)



I was quite sad to hear this news. You're one of my favorite customizers. I find it discouraging that Hasbro is doing this. It personally turned me off from ponies in general.

I hope that both you and the hasbro lawyers can come to some sort of compromise. After All your customs are Much more original than the majority of customizers out there, it would be such a shame to loose you in this catorgory.

I'll be thinking and supporting you through this ordeal

**Lady seashell**
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[User Picture]From: aikarin
2007-01-17 09:04 am (UTC)

Re: re

Thanks for writing and for the support. ^_^
I'm waiting to hear back from the lawyer and from Hasbro. Perhaps they're not going to ban customizing entirely...we'll see what happens!
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[User Picture]From: violetstarshine
2007-01-17 01:02 am (UTC)
Aikarin, I'm upset, saddened and angered by Hasbro's steps towards you. I can't wrap my head around why a huge corporation who makes millions of dollars a year would bother going after someone who sells custom creations as a hobby. The fact that they even feel threatened by you is absolutley ridiculous! If they were smart, they would approach you with a job offer as a designer on their MLP team!

First of all, they don't appreciate MLP collectors AT ALL. They have proven this time and time again. (They are not involved in Collector Cons like they are with their Transformer fans, they have not re-released older versions of MLPs like the collector community has begged for, and when the Pony Project came around, they asked 'real' artists to participate, not community members.) MLP collectors will ultimatley feel too frustrated with them to keep collecting their product. If I was still collecting, this would seriously be it for me. Hasbro has gone too far.

I really don't think they've thought their actions through. Don't they realize that they aren't losing any revenue from you... In fact, they are gaining sales through you! Many people have started collecting MLP by discovering your customs. You help promote the fun of collecting ponies! If Hasbro decides that no more pony customs shall be made, collectors will feel angry at Hasbro, and I guarantee that MLP sales will dwindle once collectors realize how cheap Hasbro is being with the artists of the community.

If there is a petition to keep MLP customs around, I would sign it in a heartbeat. Keep your chin up, Aikarin! ♥
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[User Picture]From: aikarin
2007-01-17 09:32 am (UTC)
Wow, thanks for your message and support! ^_^ In my e-mail to Hasbro's lawyer, I also tried to convey the importance of customizing to the hobby. Almost all pony collectors customize at some point in time...banning ALL customs would upset a LOT of people.
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[User Picture]From: linniekin
2007-01-17 06:55 pm (UTC)
Hi Aikarin,

It baffles me why on earth Hasbro would risk such bad publicity for itself (the mean, greedy, enormous corporation) bullying a lone customiser and pony fan. 'Cause that's how most people (see responses you've received so far) will see it.

What do they seriously think they stand to gain from this? I'm really interested. Everyone knows Mattel are itchy about Barbie, and keep throwing money at lawyers while people laugh at them. There's a point where something - be it Barbie or a pony - becomes a cultural icon. And at that point, even if they legally own the copyright, the object has entered a cultural lexicon to the point where its image cannot be controlled. They cannot win this battle. There are too many of us.

I'm also interested as to why they've targeted you, when that (in my opinion hilarious, but I don't have small kids) Porn Star vs My Little Pony quiz still appears on the first page of results when you google My Little Pony. If I were a parent with children into MLP, I know which one I'd be concerned about.

If Hasbro takes further action against you or any other customisers, I will stop buying new ponies. 'Cause they'll have sucked all the joy out of them. Instead, I'll surreptitiously buy moonshine custom ponies on the pony black market, and chuckle evilly to myself. Mwahahaha.

From an old-time collector to an old-time customiser, good luck, and I hope they see sense.

(This'd make a great story for the 2007 MLP annual.)
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[User Picture]From: nenufar
2007-01-17 09:11 pm (UTC)
I'm really sorry for it, I follow your projects and your works since some years ago, because your ponies are very pretty.
I don't think that the customs and the marketing of them are illegal absolutely. I think that they only want to make all the money as possible. You're an artist and that's not fair.
I'm sad to hear that you're going to leave customizing ponies :<
I hope that this could be solved soon. Hugs.
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