Chapterhouse Motion to Dismiss [Archive] - BoLS Lounge : Wargames, Warhammer & Miniatures Forum

weeble1000

03-09-2011, 11:25 AM

I'm sorry that I haven't posted until now. I was hit by the trifecta of DOW II: Retribution, Mardi Gras, and my mother-in-law. However, I have now played through the IG campaign, I've sobered up from carnival, and my wife took her family down to New Orleans today.

Okay, so what is a motion to dismiss? Harry is correct that it means Chapterhouse Studios does not believe that the claim has a remedy in law, i.e. there's no reason for the case to be in court because there's nothing the court can do about it. For example, a case can be dismissed because of a failure to state a valid claim. If there's no law that says there's a remedy for what you claim, you can't ask the court to hear the claim. Another example would be the statute of limitations. The law says that you can't file certain claims after a certain period of time, so if you file such a claim past that date, there's no legal remedy that you can seek even if you have a valid claim.

A motion to dismiss is different from a motion for summary judgment in that it says the case shouldn't be in the courtroom in the first place whereas a motion for summary judgement asks the court to rule on something as a matter of law. This basically means that the motioning party feels that given the available evidence, even if you look at it in the light most favorable to the opposing party, a ruling in favor of the motioning party would be inevitable. This could mean, for example, that no reasonable jury would find in favor of the opposing party on the particular issue in question. This distinction is only important because the Chapterhouse motion to dismiss also briefly brings up potential summary judgement.

So let me take you through this document a little bit.

By the way, it is important to note that this is a motion to dismiss the copyright infringement claims. But, as I've said before, the copyright claims are the meat of the complaint. This motion doesn't discuss the trademark infringement claims. The claims are different, distinct, and have nothing to do with one another.

The first thing to consider is what the stated grounds for dismissal are.

This is a motion to dismiss due to lack of specificity. In brief, Chapterhouse is saying that Games-Workshop's complaint does not specifically state which Chapterhouse products are causing what kind of damage to which claimed copyrights.

There are laws that require a complaint to be specific [Rule 12(b)(6) discussed in section II subsection A on pages 2-3 of the motion], and there are a lot of good reasons for those laws. The basic idea is that if you don't tell me what you are accusing me of, I can't intelligently respond to the allegations. There are also issues of discovery. If you don't tell me specifically what you are claiming, I have no way to focus pre-trial discovery. This necessarily wastes the court's time, my time, my attorney's time, and costs everyone lots of money that we would otherwise not have to spend.

Because this is a motion to dismiss due to lack of specificity, it also states that as an alternative to dismissing the case, the plaintiff (Games Workshop) should be required to further define its claims of copyright infringement. This means that Chapterhouse is saying that as the complaint stands, the case should be dismissed, but Games Workshop could be given the opportunity to define its claims.

Okay, so the motion argues that "The Complaint fails to state a prima facie case of copyright infringement because it neither specifies the works it claims are infringed, nor adequately alleges the manner in which Defendant’s works infringe those works."

The short answer: Games Workshop accuses all 106 of Chapterhouse Studios's products of infringing all of its copyrights without specifically identifying the copyrighted works, what portions thereof are infringed, what specific product(s) infringe those portions, and finally what manner in which they are infringed.

It is worth noting here that a prima facie case simply means that the plaintiff has presented sufficient evidence for all of the essential facts of the case such that it merits being taken to court. A case does not necessarily need to stand solely on this evidence, nor does it need to be strong enough to withstand refutation. You just need to show that the necessary facts exist. In a copyright infringement case, I believe it is sufficient to claim ownership of a copyright and identify the infringing product. If you can't point to a thing you own and point to the thing that you say copies it, you can't possibly have a case.

On a related point, there's a good reason for these requirements beyond making sure you don't waste the court's time. You aren't allowed to use a complaint as a fishing expedition. That is, you need to show that you have sufficient cause for action because if you don't have cause, you shouldn't be allowed to use pre-trial discovery to find that cause. Simply put, I'm not allowed to make unsupportable accusations in order to get special access to all of your private files, documents, communications, etc.

I'll break down the above quote in the manner of the motion.

First, Chapterhouse says that Games Workshop does not properly specify the works at issue. As the motion indicates, "The requirement to plead ownership of particular works limits the universe of possible infringed works, without which a defendant cannot be certain what it is alleged to have done." Simply put, I need to know what I'm accused of copying. Chapterhouse says that Games Workshop "fails even to identify many of the works it apparently claims have been infringed. For example, although it alleges that all of Chapterhouse Studios’s products infringe its “sculptural works” (Compl. ¶ 31), it does not identify even a single sculptural work in which it claims a copyright. Instead, Plaintiff simply alleges that it produces “army figures. . . and a wide range of accessories,” which are purportedly protected by copyright. Compl.
¶ 12."

Chapterhouse also says that although Games Workshop identifies several literary works (including game manuals and a novel) it fails to identify what portions of those works have been infringed, which is also required by law. Further, Games Workshop "does not limit its allegations to those works: it implies that there are myriad other such works, that it fails to identify, that are infringed by Chapterhouse Studios’s products. Compl. ¶ 12."

Instead of specifying what portions of the works are infringed, Chapterhouse says Games Workshop argues that each of Chapterhouse Studios's 106 products is "'derived from . . . Games Workshop’s copyrighted works' (Compl.¶ 30)" As I've said previously, Games Workshop is making blanket claims that all of Chapterhouse's products are derivative works. Later in the motion the derivative claims are specifically attacked.

Next, Chapterhouse argues that the copyrights claimed to be owned by Games Workshop are unprotectable as a matter of law. That's serious business and I think this is one of the most significant sections of the motion.

The short answer: Chapterhouse argues that Games Workshop's lack of specificity necessarily limits its claims to "familiar general themes" embodied in an expansive, open-ended universe. Chapterhouse cites the very relevant precedent of FASA (Battletech) v Playmate Toys (Exosquad) in which the court ruled that such claims are unsupportable and not subject to copyright.

Chapterhouse argues that Games Workshop only identified familiar, general themes as the purportedly infringed "works" and argued that relying on this is fatal to a copyright claim. In support of this argument, Chapterhouse cited the very interesting precedent of FASA Corp. v. Playmate Toys, Inc. (1994), arguing that "the Court addressed strikingly similar copyright allegations by a gaming company against a rival." FASA v Playmate involved BATTLETECH (FASA) accusing Playmate's Exosquad action figures of infringement.

Chapterhouse argues that Games Workshop alleges that all of Chapterhouse Studios's products "'are derived from and bear the unique characteristics and expressions of Games Workshop’s copyrighted works, including unique expressions created and set forth in great detail in Games Workshop’s background published works described above.' Compl. ¶ 30. But Games Workshop concedes its games are 'not [played] . . . with defined game places [sic], but in an open-ended world. . . .' Compl. ¶ 9. This 'open-ended world' is described in terms both vague and familiar." Chapterhouse further argues that in the FASA v Playmate precedent, the plaintiff, "brought copyright claims, but did not identify 'concrete details pertaining to the universe.' Id. at 1351." Chapterhouse says that the Court recognized that these "familiar general themes" were unprotectable and quoted the Court's ruling and further cited statute 17 U.S.C § 102(b):

"insofar as FASA's copyright infringement claim is predicated on the assertion that ‘[t]he Exosquad lives in a futuristic, interstellar, battle dominated environment significantly resembling the futuristic, interstellar, battle dominated BATTLETECH universe,’ that aspect of the claim must fail because it rests on familiar general themes which are unprotectible elements.” Id. at 1352; see 17 U.S.C. § 102(b) (“In no case does copyright protection for an original work of authorship extend to any [I]idea, procedure, process, system, method of operation, concept, principle, or discovery, regardless of the form in which it is described, explained, illustrated, or embodied in such work.”) (emphases added)"

Next, Chapterhouse argues that Games Workshop does not adequately state a claim for infringement based specifically on any of the exclusive rights of a copyright owner. That is, Games Workshop did not state how the works were infringed. This is fairly straightforward, although Chapterhouse cleverly cited precedent in a very strategic manner, which I will discuss in more detail later. The idea is that you have to know how you are infringing in order to have proper notice under Rule 8. It's related to knowing which of your products are accused of infringing what works.

Games Workshop did accuse Chapterhouse of infringing its exclusive right to produce derivative works, but Chapterhouse attacked that claim directly, arguing that Games Workshop has failed to adequately plead such a claim. This is a little complicated, but the idea is that the statute of derivative work is very specific and requires specificity in the claim.

In order to be a derivative work, a product must either be in a form specifically mentioned in the statute (a translation, musical arrangement, dramatization, fictionalization, motion picture version, sound recording, art reproduction, abridgment, condensation) or it must "recast, transform, or adapt" another work. Chapterhouse cited precedents which state that a work is not derivative "simply because it is 'based on'...preexisting works," and that "[a] work is not derivative unless it has been substantially copied from the prior copyrighted work."

Based on this precedent, Chapterhouse argues that Games Workshop, "merely alleges that Chapterhouse Studios’s products are 'derived from' and 'inspired by' Plaintiff’s works. Compl. ¶¶ 30, 34." Chapterhouse Studios argues that this does not meet the legal definition of a derivative work. "To the extent Plaintiff relies on a theory that any work having anything whatsoever to do with another is ipso facto a derivative work, its allegations fail at the pleading stage. This 'but-for' interpretation of the derivative works right has no basis. Even if it were assumed, for the sake of argument, that Chapterhouse Studios’s products were 'inspired by' Plaintiff’s alleged works, inspiration is not infringement."

Interestingly, Chapterhouse also argues that any derivative claim is implausible on its face because the only works directly mentioned in any way by Games Workshop are literary works. Chapterhouse argues that it is implausible to argue that a sculptural work of art (which constitutes all 106 of Chapterhouse Studios's products) is "recast, transformed, or adapted from" a literary work. In essence, you can't "recast" a novel into a sculpture, transform a novel into a sculpture, or adapt a novel into a sculpture. The implication is that this is especially true given that Games Workshop did not specify which portion of the identified works are infringed. One must then assume, for example, that the "Soul Drinkers" novel in its entirety has been recast into Chapterhouse's super-heavy walker, the only product specifically mentioned in the complaint.

On a final note, Chapterhouse Studios discussed the implications of the alternative to dismissal: requiring Games Workshop to define its claims. "Chapterhouse Studios also believes that Plaintiff’s copyright claims, if properly defined, may well be susceptible to early determination. The Seventh Circuit uses the 'ordinary observer' test to determine infringement, and requires a side-by-side comparison of the works at issue." (emphasis added)

Chapterhouse Studios is suggesting that the court may be able to "separate the wheat from the chaff" by directly comparing accused products with allegedly infringed works and making summary judgement based on "'whether, as a matter of law, a reasonable jury could find...that the two works are substantially similar.'"

As this post is super long, I'll save my opinions about the implications of the motion for a later post.

Denzark

03-09-2011, 04:45 PM

Weebs (aka CHS lovechild)

I am actually genuinely glad that somebody is posting this, because no one could give a tinker's cuss about this, particularly when the firm is putting out GK, but I am interested in this case.

Presumably, as GW did not fold in the face of CHS getting free lawyers, I suppose they intend to max this out, therefore, they will wait to see if the court agrees and dismisses on the lack of specifity, if the court does they could go to default of trying to be more specific. If the court doesn't it is game on. Obviously the court will take into acount the guilty looking acts of changing products that used GW TMs as names, into generic names such as maxmini would, and also the removl of things like a Doom of Malantai when GW released their own.

TSINI

03-09-2011, 05:18 PM

Sacre Bleu!!

weeble1000

03-09-2011, 06:04 PM

So my previous post was an unbiased presentation of the content of Chapterhouse's motion to dismiss. As the document is publicly available, please feel free to read it. The document isn't very long, but the above post pretty well lays out the content of the motion (technically the memorandum in support of the motion).

Now I'd like to offer my personal opinions about the strategic importance of this motion as well as how I think it will impact the case going forward.

In short, it was a very good move on the part of Winston and Strawn. A motion to dismiss is neither extraordinary nor unexpected, but it was argued well, argued for the right reasons, and well timed.

Why is a motion to dismiss a good idea at this point? First, it is a strong shot across the bow. Mr. Moskin (lead attorney for the plaintiff) was well aware that Winston and Strawn is representing the defendant before this motion was filed. He had notices of appearance and an extension request. However, less than a week before Chapterhouse is supposed to provide a response, which one might expect to be a blanket denial of all claims, the court gets a motion to dismiss instead. This is a strong indication of two things. First, Chapterhouse isn't paying Winston and Strawn. Second, Chapterhouse is going to fight this thing. What this communicates to Mr. Moskin is that he's in for a world of crap.

Moskin is a brand new hire at Foley and Lardner, having made a lateral move from another large firm, White and Case in 2009. Inside of Mr. Moskin's first year at Foley and Lardner, he's managed to take a small case for a relatively inconsequential client that was supposed to be a quick scare 'em and settle deal and turn it into a knock down drag out fight with one of the largest IP law firms in the country. He's costing his client more money than it had expected and he's making the firm look bad. It doesn't help that Moskin's reputation in Chicago isn't the best and that the court is well aware that he's been attempting to intimidate the crap out of a small defendant with no money. Further, Winston and Strawn's strategic citation of precedent helps to characterize Moskin and his firm in this light, but more on that in a bit.

Alright, so that's the timing, but what about the content? Why is a motion to dismiss based on lack of specificity a good idea? First and foremost, it directly attacks the character of Games Workshop's complaint. One of the themes inherent in the motion is that Games Workshop is attempting to use the threat of litigation in order to leverage favorable settlements. This position allows Winston and Strawn to come right out and say that the complaint has no basis; that it's a ridiculous waste of the court and Chapterhouse's time as it currently stands. All 106 of Chapterhouse's products, only one of which is specifically referred to, are essentially claimed to infringe every copyright that Games Workshop has. As the motion puts it, "Which of the Plaintiff's alleged works is this product alleged to have infringed? How? Must Defendant take discovery concerning the entire universe of Plaintiff's copyrights?"

No judge wants to see something like this. The law is clear about the need to provide a short, concise statement of claims and there's reams of precedent directed towards this point. But speaking of precedent, Winston and Strawn was very careful about which precedent it cited and the content of those citations. In support of this point, Winston and Strawn cites that "Threadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice." And Winston and Strawn further cited notable copyright authority Bill Patry, "decrying, 'blunderbuss complaints...used as leverage to obtain settlements,' and stating that, for example, 'if plaintiffs know 669 sound recordings have been infringed, they owe a duty of fair notice to specify each one.'" (emphasis added)

In addition to being on point precedent, these citations help to build the impression that the plaintiff is aggressively attempting to intimidate the defendant and has not been treating the defendant with much in the way of fairness or respect. This would be evident to the judge absent these citations, but the point is that Winston and Strawn knows what it is doing and has a clear angle in which it is approaching this case.

Arguing lack of specificity also allows Winston and Strawn to attack the principle concept that embodies Games Workshop's case and its legal strategy in general: derivative infringement based on generalized, wide-sweeping, open-ended copyrights. The motion includes not one, but two sections specifically devoted to this particular issue. Furthermore, the motion brings up the wonderfully on point precedent of FASA v Playmate Toys. Again, the thing to take away from this is that Winston and Strawn knows what it is doing and it is serious about aggressively litigating this case. Not only is this an excellent argument to the Court, but it sends a clear message to the Plaintiff that Chapterhouse is not intimidated and that it intends to aggressively respond to Games Workshop's complaint in a way that has the maximum potential to both erode the strength of Games Workshop's copyrights and its ability to pursue similar litigation in the future.

In this way, the motion is less a firm stance and more of a punch back. Without a doubt, neither Mr. Moskin nor Games Workshop were expecting this. Moskin's partners are wondering what the hell he's been doing to get into it with Winston and Strawn and Games Workshop is likely wondering how in the hell its copyrights are being attacked.

Finally, and most significantly, a motion to dismiss based on lack of specificity will not get the case thrown out. Certainly, that is a potential result, but only if the court does not give Games Workshop the opportunity to define its claims, which it will. But this is exactly where Chapterhouse Studios wants Games Workshop to go. Even before a an initial pleading, Games Workshop is now going to be required to define its claims or have the case thrown out.

Of course, if the case were dismissed on the basis of this motion it wouldn't be prejudicial, meaning that Games Workshop wouldn't be barred from making the same or similar claims in the future, but that's not the point. The point is that Games Workshop will be forced to define its copyright infringement claims. This means going line by line, section by section, artwork by artwork, and model by model specifying the how and why of infringement. This will potentially, in and of itself, narrow Games Workshop's copyrights before they are even tested in court and before they are refuted by Chapterhouse.

Bear in mind that Chapterhouse still hasn't responded to the complaint. The point of this motion is that a response is impossible based on the lack of specificity. Just imagine, for example, Games Workshop doing a "side by side" comparison of the Chapterhouse super-heavy walker and...what? What model, artwork, or description will Games Workshop put side by side with the super heavy walker? It isn't a mistake that Winston and Strawn suggested to the court that once specificity is obtained from Games Workshop that the Court can "separate the wheat from the chaff." The suggestion is that the Court will be able to rule out infringement as a matter of law on most claims before they even get to a jury.

All of this puts Games Workshop and Mr. Moskin in an uncomfortable position. The Plaintiff now faces the possibility of having to narrow its copyright claims and erode the underlying logic of its legal strategy (which, if you remember, is one of the stated reasons why the company is doing well).

Of course, Games Workshop will probably respond with some cursory definitive description, but Winston and Strawn will likely respond by simply renewing its motion to dismiss and then a real fight will ensue. All the while Games Workshop is being forced to keep paying Foley and Lardner in order to try and preserve something of its copyright claims for trial. This also means that even if Games Workshop negotiates a settlement with Chapterhouse Studios, any definition of its claims would be a matter of public record and therefore freely available to any further potential defendants.

This is why this motion to dismiss is a significant and well-crafted move on the part of Chapterhouse Studios. Chapterhouse has everything to gain as a result of this motion and Games Workshop is forced to make tough choices about how to proceed with this lawsuit.

wittdooley

03-09-2011, 07:57 PM

Gee... there's no way that they'll use the Flesh Tearers shoulder pads as an example.

I hope Chapterhouse loses badly.

Old_Paladin

03-09-2011, 08:09 PM

How about they put up a broadside?
Those railguns are essentually identical; they can also explain how the numerical designation is stolen from their published ideas (as in the heavy walker is a prototype of the class 14, mark 1 combat rig; as that's what the number actually mean). And if you try and say the 'super-heavy walker' isn't tau, then why does it have rules on how to use it in a Tau army, with Tau weapons and Tau special rules?

Like I've said before, cannot produce an original physical object based directly upon another parties copywrited ideas. I cannot sell an "L-wing starfighter" that clearly based upon starwars and give it a place in the expanded universe domain. I cannot sell a 'Halo boardgame' and say "show me where Microsoft has produced said boardgame." I cannot mass produce an 'Lycanthrope Walker' that looks like a modified ghost on a pair of legs, colour it metalic purple, try and sell it to Halo fans and say "this is totally original, and based upon no ones works."
Once an idea has been actually expressed in any form (writings, drawings, physical objects); it becomes your property. Other people do NOT get to make money by expressing it in a different medium without the original producers concent. This is why when Tolken only wrote a book, other people weren't allowed to make art collections, video games, miniatures/figurines, mock weapons, etc. without the permission of his estate.

Or how about GW just shows the 'Nid dex and turn to the page with the 'Doom of Malantai'; as chapterhouse, once again, has it listed (with full name) on their news page. In this instance, it's literally like me trying to sell tablet technology and calling it an Ipad or Kindle.

eldargal

03-09-2011, 08:30 PM

You mean the GW Flesh Tearer pad with a 12 tooth gear and integral blood drop, compared to CHS shoulder pad with 8 teeth and an optional blood drop, ideal for other purposes? Etcetera.

There are also signfificant differences between the Tau railgun and th guns on the CHS walker, if one bothered to look closely. A vague similarity is not enough to sue a company.

Old_Paladin

03-09-2011, 10:10 PM

Well, since we both touch upon it; lets look at the two aspects: Appearance and Context.
You say that since they don't look perfectly identical, there is some leeway.
The problem was their context and intent with the marketing.
They didn't make something that just looked similar, or something that was kind of close and allowed it to be used for several things.
It was blatantly meant to be stolen from GW. They actually called the shoulder pad a "Flesh-tearer's Shoulderpad"; it's clear that is was meant to be. Then they changed the name after the fact to try and cover their butts.

So the argument goes from "look there are slight differences in design" to "we meant to steal their ideas and we just happen to be crappier modelers then the guys from GW and Forgeworld."

Of course the guys from chapterhouse don't say steal, they probably say 'borrowed' or 'were influenced by'
Just like they were 'influenced' by H.R. Giger and totally ripped off his original masterpiece of gothic/bio-mechanical horror, in space!
Which just further illustrates that they take ideas from others to make a buck (maybe 20th Century Fox, or Giger should also be notified about the case...).

eldargal

03-10-2011, 12:15 AM

But 'ripping off', which is a meaningless phrase anyway (do you mean exact copy, taking inspiration, plagiarism, incorporation of elements etc.) is not illegal, only out and out copying is illegal, in general. GW Tyranids are inspired by Giger, as are CHS sculpts which are intended to be used with GW Tyranids. Is CHS 'ripping off' GW/Giger? No. Is GW ripping off Giger? No. Fact is this sort of thing has been the basis of all artistic and cultural development in the West since the ancient Greeks.

harrybuttwhisker

03-10-2011, 05:44 AM

Intent only really comes into the law when it comes to restitution. The physical item itself would have to be found to infringe in its own right first of all. Then when deciding damages would they taken into account the intent to do fiscal damage when working out the punitive part of the settlement. The item in question would be compared against the item it's is allegedly infringing, in a vacuum by the "layman test" though they don't really use laymen anymore.

This is why specificity is so important as it's what gives the "layman" something to base a decision upon.

Aldramelech

03-10-2011, 06:24 AM

Games Workshop has never had an original idea in its history, just about everything they bloody produce was thought up by someone else, people in glass houses should not throw stones..........................

Weeble1000, can I just say thanks for taking the time to type all this out for us and keeping us up to date, TBH its now the only reason I'm visiting BOLS these days.

weeble1000

03-10-2011, 07:16 AM

First of all, I agree with Eldargal, Harrybutwhisker, and Aldramelech and I think they are correct.

Old Paladin,

A Tau Broadside model would be an extremely poor choice to use for a side by side comparison with Chapterhouse's super-heavy walker. First and foremost this is because works of art like paintings and sculptures are typically considered in their entirety. That is, you don't cherry pick what part of Plaintiff's sculpture A is infringed by what part of Defendant's sculpture B. In the sense that these works of art have meaning, it is typically considered to be communicated in the totality of the design. This is one technical reason why Games Workshop's infringement claims concerning the Chapterhouse shoulder pads may become subject to summary judgement, to the extent that a work that is just a shoulder pad is not at all similar to a work that is a genetically enhanced armored soldier that incorporates a similar shoulder pad.

The above example is just an extreme case. Games Workshop sells individual shoulder pads, the shoulder pad "bits" are molded separately from the rest of the model, etc. I personally believe that any comparison of shoulder pads will fail to satisfy infringement because of the fact that most of the works are unprotectable functional elements.

Speaking of functional elements, even if you considered the Tau Broadside railgun and the Chapterhouse super heavy walker rail gun side by side, you would still have several problems. First, there's the issue of the nature of the copyright. What makes the Tau railgun different from other railguns or even other sci-fi guns? That is what defines Games Workshop's copyright.

But if you go out on a limb and assume that the whole thing is unique, you still have problems with functional elements. One could argue that the vast majority of the railgun design is made up of functional elements. Look at some real railguns, or railgun patents, or other fictional railguns and you can easily point out aspects of the Tau railgun that are necessary to its function as a railgun.

If I remember correctly, you also can't combine elements of multiple works in order to establish copyright infringement. A single work could infringe multiple copyrights in theory, but you can't establish infringement based on a combination of different works. Each work, to my understanding, is a distinct copyright (to the extent that it is copyrightable) and infringement must be found separately for each one.

Old_Paladin

03-10-2011, 08:28 AM

To the responses about context and intent.
I'm pretty sure you're actually wrong about this; results are never taken at face value, or in a void limbo or nexus. The events leading up to those results are looked at and taken into account, even before a verdict and extent of punishment.
A person isn't charged with "killing a persons" they get charged with First or Second Degree or Manslaughter.
Possession of Stolen Goods (or possession of narcotics) is a crime; but if the events leading up to someone coming into possession of those goods show that they were planted, or they had no legitimate way to know they were stolen/there, tends to have a verdict of not guilty.
By your explanations there should only be a single crime of murder, and only sentencing would change. Or one should be found guilty of possession (the actual crime), but given no other penalty as intent and context should reduce it.
I've seen far too many cases come down directly to context to believe that you just look at two whole pictures and that’s how judgment is made.

@Weeble: I agree with pretty much all those points to an extent.
To clarify my feelings once again; I think chapterhouse did make several original or generic pieces (most of the shields, probably most of the hammers some of the helmets, the actual sculpts of the 'Nid bits) some of the things could have been generic (the Tau heavy walker several of the shoulderpads) but where clearly labeled and sold with copyrighted names/groups, and some things are so clearly stolen I'm surprised people even argue about it (several of the shoulderpads, the jump-pack, the Eldar Farseer and Warlock, and the 'Doom of Malantai').
And a lot of this case does simply come down to labeling; chapterhouse had no right to call and sell their products by GW names; as they didn't say "*original name* piece, that could work with *GW name*" they just sold things as "Eldar Farseer," "Fleshtearer Shoulderpad," "Armour for a Mk.1 Rhino," "Doom of Malantai."

Edit: Except I disagree with your post about 'art' having to only be considered in there entireties. I've seen musicians win a case where other musics have only included 4 seconds of their work. You can sue a company that has made a collage of many people, but included you without your permission.
A full side-by-side comparison would be a bad idea; but a faded side by side that picks out the railguns, burst cannons, symbolic knee joint (the Tau 'circle' that’s seen on all their pulserifles and usually hidden somewhere on most their models), along with the rules to go with the model. There's no single exact thing that condemns the walker, it's all the smaller things together.

Old_Paladin

03-10-2011, 09:29 AM

On the actual topic of the Motion itself.

Does anyone actually know what the Judge ruled? Was the motion granted, denied or the alternative of GW having to resubmit the specifics of the litigation?

harrybuttwhisker

03-10-2011, 09:39 AM

Criminal and civil cases have a different emphasis on intent so your examples whilst valid for criminal courts are not in a civil case. Plus there is also an issue of how original the works GW is claiming to have a copyright is. For instance the tau symbol is in essence a stylised scarad. A symbol that has been around for quite some time. Eldar is not an original name either, nor are virtually every character name in GW codex's the majority coming from various religious texts. This is were the naming of there products become contentious some of there trademarks are indeed inviolable and were infringed. However chapter house seem to have cleared there site of these, so they have in essence acceded to the cease and desist they no doubt received regarding this. Any court would be loathe to interfere in a situation were one party has responded by compliance to such a matter and it would be seen unfavourably that having been successful in your cease and desist to then try and retrospectively sue (effectively withdrawing your consideration in such a legal arrangement), this could be viewed as breach of contract on GWs part.

As for the miniatures themselves this is a different kettle of fish, there is case precedent in the USA to allow someone to manufacture a good for use with an existing product. It is reasonable therefore that said item be allowed to incorporate functional elements as necessary for it to be used for said purpose. Therefore the basic shape of a spacemarine shoulder pad is fair game. Any insignia on said pad can only be protected where it is sufficiently original and distinct. Therefore squad designation markers seem fair game as I doubt any would fall into that category. Onto chapter markings, many of these are based on medieval and military heraldry and thus would fail on originality and be fair game. The alleged protection of the isignia claimed would be tested and possible be enshrined in law as being null and void, GW wouldn't like that.

The other example being the SAW is that when put to the "laymen" test, if I were the defence i would present pictures of tachicoma and other anime walkers (such the walking battle fortresses) and ask wether they associated this quadruped design with SAW more strongly than the bipedal humanoid design of a battlesuit. I'm fairly certain I know which way the decision would fall. As GW could Snot sue on the anime producers behalf they would have to rescind that claim in that area.

Like I said specificity is very important, GW needs to identify which products it can provide specific examples of it's product they can prove infringement on and drop the other claims. Then they hope the court awards sufficient damages based on those products to shut CHS down.

I'm not a supporter of CHS way of conducting themselves, they should have relied on producing sci-fi accessories suitable for table top miniatures and used viral advertising via forums to spread word of there products. Instead they stuck there head over the parapet by getting greedy.

Personally I'm hoping in essence for a split ruling one that punishes CHS for any actual infringements but one that clearly defines the boundaries of GWs domain so there is a clear guideline for those that want to provide good aftermarket parts in a responsible fashion.

There is plenty pie to go around, just look at the aftermarket parts for mecha models in japan. It just relies on mutual respect between all the companies involved. Big companies need to not bully small firms and stifle creativity, small firms need to rest on there originality and flexibility that cottage industries have and not to dip into the big companies pockets.

wittdooley

03-10-2011, 10:31 AM

Personally I'm hoping in essence for a split ruling one that punishes CHS for any actual infringements but one that clearly defines the boundaries of GWs domain so there is a clear guideline for those that want to provide good aftermarket parts in a responsible fashion.

I'm actually hoping for this, as well. The thing that has grated on me so much with this issue is the arrogance and audacity in which Chapterhouse has operated. The fix would have been as simple as not using Games Workshop names on their products. EVERY OTHER bitz site does this. To me, it's an arrogant statement that Chapterhouse made with their disdain for the common practice.

Further, their audacity to ask for donations for their legal defense really peeved me, in direct relation to this. You wouldn't need legal defense if you played by the same understood rules as Micro Art Studio, Max Mini, etc (most of whom aren't even in the US, and therefore would have been harder to prosecute!). I do think it's important that a boundary is established in terms of what GW can and cannot claim as their own.

weeble1000

03-10-2011, 10:52 AM

On the actual topic of the Motion itself.

Does anyone actually know what the Judge ruled? Was the motion granted, denied or the alternative of GW having to resubmit the specifics of the litigation?

The motion was entered into the record on the 3rd. It hasn't been ruled on. The most recent activity thus far is a notice of appearance for Scott R. Kaspar representing the plaintiff entered into the record on the 9th. Kaspar is a Foley and Lardner associate in the Chicago office. Interestingly, Mr. Kaspar's bio says that, "Mr. Kaspar is dedicated to pro bono work and has assisted legal services such as the Chicago Volunteer Legal Services and the Lawyers for the Creative Arts."

The LCA is a Chicago-based organization dedicated to locating pro-bono counsel in defense of the arts. From the LCA website:

"Lawyers for the Creative Arts provides free legal service to all areas of the arts— the visual, performing, entertainment, literary, arts education and more. We help individuals as well as for-profit and not-for-profit organizations with business issues, contracts, copyrights, trademarks and many other legal areas."

I wouldn't be surprised if Chapterhouse Studios received assistance from the LCA or a similar organization in order to get pro-bono representation from Winston and Strawn. The fact that Foley and Lardner touts Mr. Kaspar's pro-bono work doesn't really mean anything, but I often find the interweaving network of legal relationships interesting.

For example, I also have it on good authority that Mr. Moskin at Foley and Lardner knew that Chapterhouse was cultivating connections that would likely lead to serious representation before Winston and Strawn got involved in the case. Tellingly, Mr. Moskin decided to ignore this forewarning and proceeded to provide Chapterhouse with the options of fighting the lawsuit or going out of business. Given those choices, Chapterhouse really didn't have much to lose by fighting back. Moskin simply figured that Chapterhouse didn't have the means to put up a serious fight.

This is one of the things that makes this whole situation so repugnant to me. Nobody figured Chapterhouse could do anything about the lawsuit, so the company got abused with a false sense of impunity. But what Games Workshop and Mr. Moskin failed to realize is that in this tangled world of personal, professional, and legal relationships you can't take things at face value. It turns out that Chapterhouse knows somebody that knows somebody that applied the right amount of influence to get Chapterhouse solid, affordable representation. Now the one-sided fight that Moskin expected has turned into the legitimate legal battle it deserves to be. This is the essence of bullying: taking advantage of someone because you think they're too weak to fight back.

I hope that Games Workshop will learn from this experience.

wittdooley

03-10-2011, 11:00 AM

Affordable of course meaning free?

weeble1000

03-10-2011, 11:26 AM

The problem with distinguishing Chapterhouse Studios from other third party companies like MicroMark is that the "rules" being played by are fictional rules invented by Games Workshop and enforced by an environment of systemic legal intimidation.

Just because everybody else goes out of their way to appease Games Workshop simply because they don't believe it is worth it to argue for their rights does not mean the one company that does take advantage of its rights is in the wrong. If anything, those other companies are contributing to the fallacious interpretation of copyright and trademark laws put forward by Games Workshop. Now, I can't blame them. Just look at what happened to Chapterhouse Studios. It sucks to get sued. It sucks a lot. For most small companies it is a death sentence no matter who is in the right.

Games Workshop does not get to dictate the law just because it is a big company with lots of money. That is the point of volunteer organizations like Lawyers for the Creative Arts. Why creative arts? Because this is a field in which individuals or small companies come into contact with large companies on a regular basis. If one simply relies on the good nature of his fellow man, the lopsided nature of these interactions would mean that the rights of individuals would get trampled on a daily basis and large corporations would be able to dictate the terms of any interaction.

Games Workshop sued Chapterhouse Studios with the impression that it would be able to dictate terms. Mr. Moskin's behavior up to this point is clear evidence of that. Nobody thought that Chapterhouse would be able to respond. Why do you think the complaint was so broadly unspecific? It wouldn't have been if Games Workshop and Mr. Moskin thought that Chapterhouse could afford to pay an attorney to seriously litigate this case. A refutation of the underlying logic of the complaint is an inescapable result of serious litigation.

Everything on the part of Games Workshop and Foley and Lardner up to this point has been designed to frighten and intimidate Chapterhouse Studios with impunity. I think we will see a very different type of response going forward. From this point forward Winston and Strawn will be sitting on the opposite end of everything submitted to the Court by the plaintiff, waiting to pick it apart and turn it into an advantage at trial. If Chapterhouse was actually paying Winston and Strawn, the company would already be bankrupt, and that is why Games Workshop believed it would treat Chapterhouse Studios the way that is has.

weeble1000

03-10-2011, 11:29 AM

Affordable of course meaning free?

Obviously. You can't get more affordable than free. And honestly, with the cost of litigation the way it is, free is about the only way it is affordable for a small company like Chapterhouse Studios. Chapterhouse will still be out of pocket for a variety of expenses though, but I gather that with the support of the community fees like this won't be an issue.

Old_Paladin

03-10-2011, 11:31 AM

Weeble, this is my main problem with some of your stuff (namely your opinion of GW, you tend to be quite insightful otherwise).
You have NO knowledge of GW intent, yet you constently ramble about how they aren't willing to fight for their rights; and your constently proven WRONG about their actions.

Everytime Chapterhouse does something, you say "GW will have to drop the case now, they must do it, they have no other choice."
Except they have the most blantely obvious choice; keep going with the lawsuit like EVERY other company and person would do. For all the times you're said they'll have back down, they never have, and I bet they won't. Even if they have to clarify all their terms and give exact examples, they will. They won't back down at this point.

You don't pay a team of experts $1000/hour to do nothing but frighten people; you pay them to WIN against an oppoent in court AND make you your lost money back AND solidify your rights to the world.
You send people a cheap C&D to quiet them; you use an expensive lawsuit to sue the pants off people to gain back loses.

Most of us don't have distane for Chapterhouse because we thought they couldn't fight back; it's because we felt they should own up to their obvious actions and attitudes. We hope that this does go all the way, and that chapterhouse gets taught a lession; and that GW doesn't win on all counts, just the more obvious ones.

wittdooley

03-10-2011, 11:38 AM

Obviously. You can't get more affordable than free. And honestly, with the cost of litigation the way it is, free is about the only way it is affordable for a small company like Chapterhouse Studios. Chapterhouse will still be out of pocket for a variety of expenses though, but I gather that with the support of the community fees like this won't be an issue.

And I hope that same community wises up, purchases their secondary market parts from companies that are NOT being litigated, which, in the case of maxmini or Micro Art, look much better anyway.

weeble1000

03-10-2011, 11:46 AM

And I hope that same community wises up, purchases their secondary market parts from companies that are NOT being litigated, which, in the case of maxmini or Micro Art, look much better anyway.

Hey man, use your wallet. I think that's an awesome idea and I appreciate that you have different opinions than me. I wish you didn't, but it takes all kinds and we're only talking about plastic soldiers anyway.

What did you think about the content of Chapterhouse's motion to dismiss? Do you have any thoughts about Chapterhouse's position regarding Games Workshop's derivative works theory?

weeble1000

03-10-2011, 12:50 PM

Paladin,

This case is in the infant stages man. We haven't seen what Games Workshop has done other than its complaint and the actions of its lead counsel at Foley and Lardner.

All I've been saying, and I'm still saying it, is that the game changed with the introduction of Winston and Strawn. This does not change Games Workshop's motivation to sue. My opinions about that have not changed because I haven't been presented with any contrary evidence.

When Games Workshop sued Curse, I said the company was a bully. I'm still saying that now. If I had been posting on BOLS when Games Workshop sent a C&D to Board Game Geek, shut down Vassal 40K, or violated anti-trust laws by dictating price points to retailers, you would have seen very similar responses from me. I've communicated these views directly to Games Workshop as well, and I am motivated to help thwart what I've seen as a series of injustices perpetrated by a company that I otherwise really love.

You are very correct that I do not know what was motivating Games Workshop. I'm not a mind reader, but neither are you. What I have done is to gather the available information and make inferences based upon that information. Now, I will also say that I personally have more information at my disposal than I have presented here, but I have confined myself to strictly that information which is undeniably in the public domain.

Have you read the Games Workshop v Chapterhouse complaint? I've read it several times. It makes demonstrably overstated claims. I said that before Chapterhouse filed its motion to dismiss, but take a look at the motion. You can't really argue with Rule 8. If you think you can, tell me why and we can have a dialog about it, but I believe that Chapterhouse is quite correct in arguing for a greater definition of claims.

This begs the question of why Games Workshop would file a complaint with such broadly unspecific claims? Jonathan Moskin is not an idiot. He's an experienced, accomplished attorney that specializes in intellectual property. He was a partner at White and Case and he's now a partner with Foley and Lardner. Plus, Games Workshop has plenty of in house legal counsel that was in all reasonable likelihood communicating with Moskin when the complaint was drafted and submitted. I'm also guessing that Tom Kirby was aware of the Chapterhosue complaint and he may have had a hand in drafting certain parts of it. I've inferred this from the fact that he's stated that one of Games Workshop's business goals is defending its IP and he's in America right now trying to expand Games Workshop's market presence in the states. Plus, he's the Chairman of the Board. I should hope that he's aware of this litigation and Games Workshop's position in it. Otherwise one could argue that he isn't doing his job very well.

With all of these trained legal professionals and interested parties aware of the complaint and its content, why is it worded in a way that flagrantly ignores the complainant's duty to provide fair notice? Why does it claim such broad, open-ended copyrights? I don't know the answer to that, but I have made an inference. I have inferred that Games Workshop did not intend to litigate this case.

I believe that this inference is reasonable given the available information. Games Workshop litigates very few cases as the plaintiff. Games Workshop often threatens legal action against small, poorly funded organizations. Games Workshop rarely threatens legal action against large, well funded organizations. Games Workshop has a history of threatening legal action and seeing parties comply without a fight (Vassal, Board Game Geek, Curse, etc.). Games Workshop's legal department encourages a flawed and overly generalized interpretation of copyright law. It is reasonable for Games Workshop to expect Chapterhouse Studios to comply with its demands without a fight because: Chapterhouse is a small company, Chapterhouse does not have a legal team, Chapterhosue's revenue precludes the ability to fund a protracted legal defense, and Games Workshop has successfully intimidated similar companies in a similar way in the past. Games Workshop does not have an overabundance of available cash. Foley and Lardner is a very, very expensive law firm. Games Workshop only has 17 million dollars in cash. Much of that 17 million was used to pay dividends. Litigating a case like this could cost Games Workshop at least several million dollars. Games Workshop bases its success as a company in the strength of its IP. The complaint only opens up the possibility of Games Workshop's IP being narrowed if the case is litigated. Jonathan Moskin went out of his way to surprise and intimidate Chapterhouse Studios. The complaint was filed on December 22nd. The complaint gave Chapterhouse until January 10th to respond. Jonathan Moskin was out of the office and could not be contacted until January 6th. The complaint was filed in Chicago by alleging a fallacious relationship between Chapterhouse Studios and Rob Paulson. Chapterhouse Studios is based in Texas. Chapterhouse could not respond to the complaint without an attorney of record in Chicago.

I believe that all of this suggests that Games Workshop had every reason to believe that Chapterhouse Studios would be intimidated and would settle the case or burn all of its money paying an attorney to negotiate a settlement. I also believe that Games Workshop attempted to actively encourage Chapterhouse Studios to be intimidated in order to induce a swift settlement. This legal tactic is A) not new and B) specifically decried by copyright law. "decrying 'blunderbuss complaints...used as leverage to obtain settlements..."' (Chapterhouse motion to dismiss II(B)(1))

Games Workshop has not yet dropped the lawsuit, but I never said that it would drop the suit today. It has only been a few months. What I said was that it is now in Games Workshop's best interest to drop the suit. I never said that the company would. I said that the company would be forced to settle on Chapterhouse's terms or face having its copyrights narrowed in court if it did not drop the suit. If you want to disagree with that, I'd love to know why. I don't think you can offer an intelligent refutation of that interpretation. You could say that Games Workshop will win on all claims and Chapterhouse Studios will go out of business, but I don't think that this is a reasonable interpretation of the facts.

Games Workshop has limited funds. Chapterhouse Studios effectively has unlimited funds. Games Workshop has an interest in maintaining strong copyrights. Chapterhouse has already unilaterally attacked Games Workshop's copyright claims even before the first pleading of this case. The longer that this case progresses, the more Games Workshop's copyrights will be attacked. Any other interpretation would have to assume that Ms. Golinveaux has no idea how to defend a copyright infringement case. The motion to dismiss clearly contradicts that interpretation. The resulting conclusion is that as long as this case progresses, damage is being done to Games Workshop and no damage is being done to Chapterhouse Studios. Chapterhouse Studios therefore has no motivation to stop the lawsuit other than to get exactly what it wants. If you disagree, please explain why and we can have a discussion about it.

I have said that this case will settle out of court because I believe that Games Workshop understands that it has little interest in taking this case to trial. However, Games Workshop will be irrevocably altered by this lawsuit even if it drops the suit today. This places Games Workshop in a lose/lose situation in which, even if it succeeds at trial it will have incurred massive expenses, exposed its copyrights to being significantly narrowed, and gained nothing but the removal of an inconsequential competitor that can easily start up essentially the exact same business the next day. In fact, any outcome that limits, defines, or narrows Games Workshop's copyrights will likely induce many similar third party companies to hit the market, thereby causing an effect precisely opposite to what Games Workshop originally intended.

It is in Games Workshop's best interest to placate Chapterhouse Studios. But luckily for Games Workshop, the owner is a very nice guy that just wants to be able to run his business in peace.

The fact that I believe it is in Games Workshop's best interest to placate Chapterhouse Studios does not mean that I no longer think Games Workshop is a bully that tried to destroy a defenseless company. What it means is that I believe the bully has finally gone too far and shoved somebody that can shove back. I'm predicting that Games Workshop will bluster for a bit and then back down because the only thing Games Workshop had going for it was that it was bigger and had more money than Chapterhouse Studios. Thanks to the generosity of Winston and Strawn, Games Workshop was wrong about that.

Old_Paladin

03-10-2011, 01:42 PM

GW is also suing for full legal costs. If Chapterhouse got themselves a cheap, small firm lawyer, I could see a Judge saying GW only gets fair legal cost (maybe a few thousand dollars); but at this point it's two expensive powerhouse teams going at it. A Judge might say that $250,000 was legitimate cost at that point.
What if GW only wins on a few things; that Chapterhouse has to destroy the 'doom of malantai' 'tervigon' and 'fleshtearer shouldpad' molds, pay triple damages on only those items and has to pay court and filing fees.
Can Chapterhouse pay all those fines if it adds up to a quarter million? Or will they have to liquidate completely to pay out?

Also, what if GW actually wins on most points? You seem to think it's impossible for GW to win anything; but it's not unlikely that they may win simply on the fact that Chapterhouse labeled almost everything with GW terms. It might not come down to "does this item look like this other item; and how do you compare a written thing to a physical thing." GW could win it all if the jury can be convinced that selling "things called Space Marines is against the law, as only GW can call things Space Marines (as they own the term itself)." At that point Chapterhouse could probably keep producing all it items; but would have to completely re-name all items, pay out all sales (or triple) up to that point and probably pay GW's legal costs.

I don't see how you can say GW can only lose its IP if they go ahead, but if they drop the case they can keep it all. If they drop the case it only shows that people should try and label and design their product as closely to the original product as possible.
And chapterhouse simply, logically cannot win on all counts; if chapterhouse has the right to make a "Doom of Malantai," others would literally have the right to make "Ipads" let along knockoff names like a 'mIPad/MiPad'

And once again you make proofless claims; that GW broke anti-trust laws. PROVE IT; put your money where your mouth is. Show the emails you have of GW telling store owners, against their will, that they cannot charge below a set price. Show the documents sent before a court that they were illegally price-fixing. You have none of that; you dislike a company, so you make up lies, give un-provable statements and delude yourself about the state of reality and other peoples perception of it.
This is the biggest difference between me and you. I can see this wit the possibility of going either way, Chapterhouse could win it all, GW could win it all, or anything in between; neither company has its hands clean, but this is how business is done.
You see Chapterhouse as faultless and GW is a vile bogyman; GW is helpless in count and any ruling against Chapterhouse, you'll view as unfair.

wittdooley

03-10-2011, 02:09 PM

In fact, any outcome that limits, defines, or narrows Games Workshop's copyrights will likely induce many similar third party companies to hit the market, thereby causing an effect precisely opposite to what Games Workshop originally intended.

I think this is the key, and in fact, wouldn't necessarily be a bad thing; I think it could help the present 3rd parties that have been doing things correctly. There are plenty of companies making models based on derivitive works (Kabuki models, for one, with their Knights cough*primarchs*cough line) that are not being sued by Games Workshop. But they're not claiming for them to be, nor are they using copyrighted terms. Now, I'll be honest in that I don't know if Farseer is a copyrighted term by Games Workshop, but the fact that Chapterhouse is using it is like them waving their balls to the wind at GW and saying, we don't care what you say.

To get back to the point, I'd love for more specificity on their trademarks, copyrights, intellectual properties, because I think it can only benefit the industry if high quality, ethical 3rd parties can be endorsed by GW, much like Apple gives the licensing endorsement to Frog Skinz, etc, for iPod cases. If they want to put on their website, "compatible with Games Workshop Space Marines," they should have to pay for it. Otherwise, they should be required to put, "compatible with 28mm heroic scale miniatures" LIKE EVERYONE ELSE IS ALREADY DOING. Further, the quality that Chapterhouse produces isn't near the quality of Kabuki, Micro Art Studio, or maxmini. Not close. That means it's EVEN FARTHER away from the quality standards of Games Workshop. If a single person buys a Chapterhouse mini because of their misleading marketing, realizes it's a turd, and then doesn't buy another GW mini because they associate Chapterhouse quality with GW quality, then they're in the wrong.

Finally, your association with this case to the fiasco with Boardgamegeek is either completely ignorant of the facts, or irresponsible. Boardgamegeek administrators were asked to ammend FOUR files, adding only the statement that GW asks very clearly on it's website. The Boardgamegeek administration decided then to completely remove all the files, and then were disingenous about it, allowing GW to take the brunt of all the *****ing and moaning that subsequently came from it. As for injustices: how do you feel about the price fixing in place by the Flames of War producers, Battlefront Games? I don't hear anyone *****ing to high heaven about that.

Again, I don't feel sorry for Chapterhouse at all, and I hope they lose the suit. Their arrogance/ignorance, I still haven't been able to determine which it is, brought all this on.

weeble1000

03-10-2011, 03:11 PM

Paladin,

I appreciate your points, but you've managed to ignore mine. You want me to somehow prove to you in a forum post that Games Workshop violated anti-trust laws years ago when that isn't even germane to the discussion at hand and yet you don't seem interested in explaining why you disagree with what I've argued in my previous post.

I don't have proof that Games Workshop violated anti-trust laws. All I know is that owners of online retail stores said that Games Workshop did not want them to cut prices by more than 20%. Assuming that's true, it violates anti-trust laws here in the states. But in any event, that is not what we're currently discussing.

Do me the favor of reading my posts. I never said that Chapterhouse Studios would prevail on all issues. That result is as unlikely as Games Workshop prevailing on all issues. I also never said that Games Workshop will keep all of its IP if they drop the suit. What I said was that given the nature of a copyright infringement lawsuit, the claimed copyrights are at significant risk of being narrowed. I further said that Chapterhouse has started attacking Games Workshop's copyrights even before the first pleading in the case. This clearly demonstrates that Chapterhouse Studios will attempt to force Games Workshop to limit the scope of its claimed copyrights. Any claim of copyright infringement against any party would necessarily expose Games Workshop's copyrights to being limited purely according to the manner in which one must prove copyright infringement. However, Chapterhouse Studios is making a particularly definitive effort to force Games Workshop to narrow the scope of its claimed copyrights before it has even answered the complaint.

Thus, before the defendant has even begun to defend against allegations of infringement, which implicitly involves limiting the scope of the plaintiff's claimed copyrights, Games Workshop will likely be required to define its claims and thus narrow its copyrights. The only way it wouldn't be so required is if the Federal Judge ruled against Chapterhouse's clearly argued and well-justified motion to dismiss. Frankly, that scenario is wildly implausible. After this, the claimed copyrights will have to survive several rounds of motions and summary judgement before the case gets anywhere near a jury. Then if the case is still going to trial, the defendant will argue to the jury that the claimed copyrights are narrower than the plaintiff argues. If the jury agrees, it will further narrow Games Workshop's copyrights.

It is therefore incredibly unreasonable for anyone to suggest that even in the most favorable situation for Games Workshop that its claimed copyrights will not be narrowed. And even if that somehow happens, it does not change the fact, fact, that the risk of having the claimed copyrights narrowed does exist and is being considered by Games Workshop.

This case is not about money. I've said it until I'm blue in the face. This case is not about money. No reasonable person that knows anything about intellectual property law would believe that this case is about money. The only way for Games Workshop to get attorneys fees or anything in excess of measurable economic relief is if a jury finds willful infringement. I can't see the future, but as sure as I can say the moon will not fall out of the sky and kill me, I can say that a jury will not find willful infringement in this case. Chapterhouse Studios got a legal opinion about how to not infringe Games Workshop's copyrights before it opened shop. The only consideration for willfulness is state of mind. In order to get a finding of willful infringement you would have to believe that a person that pays for professional advice about how to not infringe and then follows that advice intended to infringe. If it walks like a duck and quacks like a duck, it isn't a chicken.

And all of this does not take into account the fact that few juries in these cases find willfulness. I have seen people that demonstrably lie to the patent office avoid willfulness. I have seen companies that scan a plaintiff's product and use software to reproduce it down the the exact detail including the easter egg that the inventor put into the prototype avoid willfulness. Games Workshop will not succeed on a willfulness claim in this case, so you can take that right off of the table.

It is a fact that the vast majority of copyright infringement cases such as this one do not result in monetary relief. Far more often is a finding of equitable relief. To suggest that money damages will result from this litigation, assuming it goes to trial and assuming that Games Workshop succeeds on some infringement claims, simply ignores this fact.

It is a fact that the terms Chapterhouse used to identify its products have nothing to do with whether or not those products infringe Games Workshop's copyrights. You can take that off of the table when considering the possibility of an infringement finding.

You are wrong that I am not able to imagine all possibilities. I can imagine a ton of possibilities, but it makes sense to limit ones self to considering those possibilities that are most likely. Hell, Games Workshop could disappear into the aether tonight, but that's not a possibility that I'm realistically considering. In the same way, it is not worthwhile to spend time considering the possibility of Games Workshop winning on all claims in the same way that it is not worthwhile to consider Chapterhouse winning on all claims. The most likely scenario is that the case will settle out of court.

If you actually take the time to consider what I've been arguing, you'd probably realize that most of what I'm talking about is risk and motivation. What risks are Games Workshop exposed to? What does the company stand to gain? What does it stand to lose? Similarly, what are Chapterhouse's risks? What does Chapterhouse stand to gain or lose? Considering those risks vs rewards, what might motivate either party's actions and decisions about this case?

As I've said, Games Workshop is at risk to have its copyrights narrowed or even eliminated. This is not only a plausible and realistic risk, but Games Workshop most likely considers it a serious risk. If the company doesn't then they aren't being very responsible. If Games Workshop's copyrights are narrowed, this could cause many difficulties for the company including eroding shareholder confidence, limiting Games Workshop's ability to initiate similar lawsuits, and the possibility of greater competition. Games Workshop has shown that it is incredibly sensitive about its copyrights. One might argue that this is why it sued Chapterhouse Studios in the first place.

Games Workshop is also at risk of spending a great deal of money to try this case. Foley and Lardner is an expensive firm. Games Workshop does not have a large excess of spare cash lying around. Having to spend a lot of money to litigate this case could adversely impact the company.

Chapterhouse Studios is at risk of going out of business. However, it is important to note that unlike Games Workshops risks of narrowed copyrights and legal expenses, Chapterhouse has faced this risk from the beginning of this litigation. Games Workshop's bargaining position from day one has been "go out of business and we'll drop the lawsuit." This amounts to Games Workshop telling Chapterhouse Studios that if it gives up everything that Games Workshop could possibly get at trial, it won't have to go to trial. That's not a bargaining position. That's an undisguised threat. It amounts to saying that if Chapterhouse cuts its losses and closes shop, it won't be bankrupted by an expensive trial and the owner can suck some money out of the company before it goes down.

Now, however, with Winston and Strawn, Chapterhouse faces substantially less risk. Again, the worst case scenario for Chapterhouse is that it loses on all counts and goes out of business, but that extreme situation is also true for Games Workshop. If a jury ruled that Games Workshop had no copyright protection at all, which could happen, Games Workshop would effectively be done. Both of those situations are extremely unlikely to the point of being laughable and they would be juicy fruit for an appeal. So, if one considers the most conservative outcome, you get a situation in which Games Workshop wins on some issues and Chapterhouse wins on some. What does that mean to Games Workshop and what does it mean for Chapterhouse?

For Games Workshop it means the erosion of its copyrights. Every copyright it loses on is a copyright that it now no longer possesses rights to. This is now something that anyone else can freely copy as much as they want. For Chapterhouse it means that they would have to pull a few products and might have to pay a nominal licensing fee to Games Workshop. What the hell does Chapterhouse care about that? Okay, so they can't sell a few products, but now they have a blessing to sell everything that survived the case and they also have guidelines about what copyrights additional products will or will not infringe.

Chapterhouse also hasn't spent more than a few thousand dollars in fees whereas Games Workshop has tossed a couple million down the toilet just to get its copyrights narrowed and to see Chapterhouse's business chugging along.

Please, if you don't agree with this, explain to me why I am wrong.

You say that the likely result is something in between the extremes. I agree and the above scenario is exactly that. Both parties come out a little bloody. The only difference between you and me is that I'm being realistic about what it means to both parties.

Now, my conclusion from all of this is that Games Workshop is in a tough position. Let's look at the options:

1: Settle - Chapterhouse has no motivation to settle on anything but its own terms. This likely means a fair license to all of its current products.

2: Drop the suit - Games Workshop gets to walk away but now the industry has an example of Games Workshop's failure to enforce its copyrights.

3: Take the case to trial - See the above analysis. Games Workshop likely loses some of its copyrights, sees others narrowed, and wins on some other ones. Chapterhouse pays for some licenses, takes some products off of the shelf, and stays in business.

Which of those options are good for Games Workshop? Which of those options are good for Chapterhouse Studios? What other options are there for Games Workshop other than "win everything and recoup a million dollars in attorneys fees that Chapterhouse will never pay and then watch the owner start a new business with new sculpts?"

If I'm missing some options, please let me know and tell me why they are reasonable options. I've explained why I think these are the only options available to Games Workshop. If you disagree, then as you yourself suggest, show me how. I'm waiting to be enlightened. Seriously, and I'm not trying to be dismissive. I'd like to know.

weeble1000

03-10-2011, 03:14 PM

If they want to put on their website, "compatible with Games Workshop Space Marines," they should have to pay for it.

I have to disagree with you here. In point of fact, you don't have to pay for that. It is called descriptive use and it is entirely legal. This is my point. Games Workshop wants you to think that you can't do that, but you can. Nobody does it because nobody wants to be sued by Games Workshop because nobody is willing/able to pay for a defense.

wittdooley

03-10-2011, 03:58 PM

I have to disagree with you here. In point of fact, you don't have to pay for that. It is called descriptive use and it is entirely legal. This is my point. Games Workshop wants you to think that you can't do that, but you can. Nobody does it because nobody wants to be sued by Games Workshop because nobody is willing/able to pay for a defense.

If that's the case, then how does licensing work in the United States? I'm honestly asking, as I don't know.

I can't see the future, but as sure as I can say the moon will not fall out of the sky and kill me, I can say that a jury will not find willful infringement in this case.

Why is it so hard to determine willful intent when they company is clearly using GWs name and product likeness to sell product? Again, don't know, so I'm asking.

Is there an issue here with the distinctiveness with the terms? Is their Space Marine trademark in danger of becoming a generic term?

Old_Paladin

03-10-2011, 04:09 PM

Weeble, I don't argue or ignore most of your points, because I don't disagree with them.
My sole point is that you take averages and often act like it's the only possibility and I just want to show anything could happen. You also talk about extremes being unlikely; but you apply the best 'average' outcome for Chapterhouse and the worse 'average' to GW, when (as averages) it's just as likely that the roles could be reversed (that's GW loses the right to claim a few things like eagle wings and dragon scales; but Chapterhouse might only be allowed to continue with a dozen lesser products; or can produce nearly all of them but pay out significant reparations for their past poor labeling).
You say things like it's a "Fact, that there's a Risk of the Possibility that GW Might lose it’s..." While of course that becomes a true statement; you've given yourself huge amounts of leeway.

I think you also ignore Chapterhouses potential concerns. You say that they could lose their whole business and livelihood and just bounce back and start the business over again stronger. Most small businesses cannot do that; he has bills to pay, cost of running a business, probably a high interest bank loan to pay off. If he owes $100,000 on his business and GW makes him pay off most of his sales from the past years; he'll lose it all, the bank isn't going to give him and extra $100,000 to buy all new moulds and start over again. I bet it keeps Nick up at night that it is a very real situation that could cost him everything he's worked on, even if he wins. I doubt it's even crossed his mind to think, "No matter what, I'm going to come out a winner." In fact Nick's probably thinking, "I've got to win almost everything to keep what I have."
It's actually GW in a strong position. They are a multi-million dollar company, with the ability to lose money and not suffer too bad. The cost your taking about is 1/17 of their liquid funds. Basically that's like a person that makes 60 grand a year losing thirty-five hundred; it's a used carthat turned out to be a lemon, it's sucks but you'll come back from it.

I also didn't bring up GW being involved with anti-trust, you did; so don't get defensive that I ask about it. You don't get to make a cheap shot, then say I shouldn't ask about it when I call you on your actions. You brought up the 'irrelevant' topic; so why did YOU bother if it was 'irrelevant'?

Old_Paladin

03-10-2011, 04:31 PM

If that's the case, then how does licensing work in the United States? I'm honestly asking, as I don't know.
Because there is a legal difference between saying "this can work alongside X product" and "We make X product".
If you were licensed to GW, then you could stamp the Warhammer 40,000 imperial eagle across the top of the product, or say "GW approved and licensed"

Part of this case is that Chapterhouse was in the middle. They never claimed to be working for GW, but they also named their product too simply and allowed the interpretation that they could be making it for GW. There argument is that when they said "X item" they meant "this product could be used AS X." GW says they meant "we really mean for this to be an actual *copywrited term*"

Why is it so hard to determine willful intent when they company is clearly using GWs name and product likeness to sell product? Again, don't know, so I'm asking.

Is there an issue here with the distinctiveness with the terms? Is their Space Marine trademark in danger of becoming a generic term?

The problem of intent is that your really have to show the person meant wrong; not that they are stupid. Basically, GW themselves need to prove that chapterhouse sat down and said "I am going to take this GW item, produce it cheaper then them, and sell it in order to deny GW money." A jury might not need to be pushed to that extent, but it's what the law would prefer. It's not malicious intent if chapterhouse went, "Um...durrr... if I use a term people know, that'll help them know what I'm trying to make for them...durrr..."
If they meant to steal, GW would get triple damages. If they just wanted to help the fan base get things that are hard to come by, GW might only get basic damages.

GW will always own 'Space Marines" as they have books with that as the title, just as no one can make a movie called "Chariots of Fire" regardless of content.

weeble1000

03-10-2011, 05:27 PM

Why is it so hard to determine willful intent when they company is clearly using GWs name and product likeness to sell product? Again, don't know, so I'm asking.

It is because you need to establish intent by the difficult standard of clear and convincing evidence. Intent is based on state of mind, so you need to prove that the defendant went into the infringement with specific malicious intent to cause harm.

Again, the fact that Chapterhouse tried to not infringe, paid an expert to provide them with an opinion about how to not infringe, and then followed that advice all goes towards state of mind. Plus, all of this is easily documented since a legal opinion about infringement would necessarily involve a document that would have been retained for the company's records. Additionally, even absent such an opinion, Chapterhouse clearly took steps to avoid infringement, such as the disclaimer. Even if it was incorrect, the plaintiff has to prove that Chapterhouse Studios knew that it was going to cause infringement, did it anyway, and did it deliberately to cause harm.

That is incredibly difficult to prove in any case, but especially so in this one. It likely won't get past the pleading stage as the judge can determine that given the evidence, no reasonable jury could conclude that Chapterhouse deliberately intended to cause malicious harm to Games Workshop.

Most of the time, you need really specific evidence, like an e-mail from Chapterhouse Studios saying that they have an evil scheme to copy Games Workshop's products in order to destroy their association with product quality.

Morgan Darkstar

03-10-2011, 08:16 PM

I am drastically oversimplifying things here but this is my point of view

1) Does GW have the Right to protect its intellectual property? = Yes

2) Did Chapterhouse infringe and intend to profit on said intellectual property by using terms such as the
Doom of Malanti? = Yes

3) Is there a case to answer? = Yes

i won't go into my personal feelings on the case as they have really got nothing to do with it.

Lane

03-10-2011, 09:11 PM

And I hope that same community wises up, purchases their secondary market parts from companies that are NOT being litigated, which, in the case of maxmini or Micro Art, look much better anyway.

Why should I favor Micro Art over Chapterhouse? Would you throw Maxmini under the buss if GW sued them as well?

Chapterhouse may have done the other custom bits sites a favor by pissing off the tyrant.

Not sure how many people remember how GW treated Armorcast, Epicast and Forgeworld (not the GW branch).
Back then three companies had licensing contracts with GW to produce 40k scale versions of Epic models. Then one day GW says "were canceling your contracts" and "super heavy vehicles have no place in 40k". AFAIK Forgeworld closed shop as they had no other products.
About a year later GW announces they are starting a company that will make resin display pieces. Within a year or two they had models of the Baneblade and then released rules for it.

Lane

03-10-2011, 09:32 PM

even if it succeeds at trial it will have incurred massive expenses, exposed its copyrights to being significantly narrowed, and gained nothing but the removal of an inconsequential competitor that can easily start up essentially the exact same business the next day.

I was wondering what GW can actually do to Chapterhouse?

I know the lawsuit asked for damages and seizure of means of production.

I have no knowledge of how Chapterhouse is organized or handles it's income. Are the owners liable for any damages that exceed the company assets? If owners/ employees are paid rather than split profits how would that affect their reliability. What if production equipment is owned by a third party working under contract to Chapterhouse?

Lane

03-10-2011, 09:39 PM

As for injustices: how do you feel about the price fixing in place by the Flames of War producers, Battlefront Games? I don't hear anyone *****ing to high heaven about that.

AFAIK there is a thread on this forum about just that, in fact there are comparisons with GW.

Then again who gives a rats _ss about Battlefront.

Lane

03-10-2011, 10:14 PM

I think you also ignore Chapterhouses potential concerns. You say that they could lose their whole business and livelihood and just bounce back and start the business over again stronger. Most small businesses cannot do that; he has bills to pay, cost of running a business, probably a high interest bank loan to pay off. If he owes $100,000 on his business and GW makes him pay off most of his sales from the past years; he'll lose it all, the bank isn't going to give him and extra $100,000 to buy all new moulds and start over again. I bet it keeps Nick up at night that it is a very real situation that could cost him everything he's worked on, even if he wins. I doubt it's even crossed his mind to think, "No matter what, I'm going to come out a winner." In fact Nick's probably thinking, "I've got to win almost everything to keep what I have."

I think you are greatly overestimating the scale of Chapterhouse.

AFAIK the owner(s) have regular jobs and run Chapterhouse as a side business.
You can get the pewter spin casting equipment for a few thousand dollars used. Molds are about $100 each. Resin casting, enough to make several casts at a time, for well under $1000. All of that would fit in a two car garage. Total equipment assets are probably under $10k and was either purchased out of pocket by the owners or with profits.

Molds for spin casting and resin models are consumable items. As long as you have masters to work from then you can easily get back into production.

A good example of a product rising from the grave are the B5 Wars ship models. When the license ended/ was revoked the publisher, Agents of Gaming, was required to destroy the molds. Shortly after that another company got the B5 license, hired the owner of AoG and quickly had models in production. Theory is some first generation castings, what GW refers to as "Tins", were retained as personal property and not as production equipment.

It's actually GW in a strong position. They are a multi-million dollar company, with the ability to lose money and not suffer too bad. The cost your taking about is 1/17 of their liquid funds. Basically that's like a person that makes 60 grand a year losing thirty-five hundred; it's a used carthat turned out to be a lemon, it's sucks but you'll come back from it.

A loss of 1/7 of their liquid funds could adversely effect their ability to borrow money if they need to.
It could also erode investor confidence causing stock value to drop. Simply put Bad JuJu.

weeble1000

03-10-2011, 10:19 PM

Okay Paladin, I agree with you that there could be a lot of outcomes to this litigation. And yes, anything could happen along the spectrum of Games Workshop wins on all claims and Chapterhouse Studios wins on all claims. Chapterhouse could win one and Games Workshop could win 200, or it could be the other way around.

My point is that Chapterhouse Studios faces significantly less risk than Games Workshop at this point. I'm saying that I believe Games Workshop does not want to take this case to trial. So far I haven't heard any compelling argument to the contrary.

The underlying reason that I am making this argument is to highlight that Games Workshop never intended to take this case to trial because the only difference between now and when the lawsuit was filed is that Chapterhouse Studios has the means to litigate the case. Do you see my point here?

I'm saying that if Games Workshop believed that Chapterhouse would have been able to defend itself it would not have filed the lawsuit. The conclusion that this inevitably leads to is that Games Workshop filed the lawsuit as a means to force a defenseless competitor out of the market. It made overly broad claims and used intimidating tactics to scare Chapterhouse into closing up shop.

If you agree with me that Games Workshop does not want to litigate this case, I think it is pretty clear that you must also agree with me that Games Workshop filed the case as a means to force Chapterhouse Studios out of business. Am I correct? If not, I'd like to know why you disagree with me.

weeble1000

03-10-2011, 10:41 PM

I was wondering what GW can actually do to Chapterhouse?

I know the lawsuit asked for damages and seizure of means of production.

I have no knowledge of how Chapterhouse is organized or handles it's income. Are the owners liable for any damages that exceed the company assets? If owners/ employees are paid rather than split profits how would that affect their reliability. What if production equipment is owned by a third party working under contract to Chapterhouse?

Lane, here I'm somewhat fuzzy. Damages are a whole other beast that I don't have as much familiarity with in terms of the law. From my experience with similar cases I can say that monetary relief is not very common in cases such as this. Games Workshop has a claim for damages,willfulness, and has requested the seizure and destruction of molds, etc. However, the complaint doesn't get into specifics about damages. That would only come after pre-trial discovery and expert reports, which we are pretty far away from at this point.

As far as I understand, and I could be wrong, Chapterhouse is incorporated so any personal assets of the owners are not at risk. I'm also not clear on how Chapterhouse Studios is organized. I never figured that it was my business. Does anybody else know?

As far as what Games Workshop can do to Chapterhouse Studios, it could be awarded monetary relief although I don't know off hand what the standards are for those calculations. I know more about calculating damages in patent cases. If Games Workshop succeeds on both infringement and willfulness, it could theoretically be awarded treble damages, attorneys fees, and maybe punitive damages.

I don't think any of that is likely though. Most cases that I've seen and from what I've been told, equitable relief is far more common in these cases. So this could mean an injunction or some kind of specific performance such as taking a license, altering content, or even destroying molds.

If you'd like, I can ask some folks that know more about damages in these cases and get back to you.

Lane

03-11-2011, 12:56 AM

If you'd like, I can ask some folks that know more about damages in these cases and get back to you.

no need for that, just wondering in general terms.

Is there any way GW could sue the sculptors if Chapterhouse is found guilty of violating GW copyrights.

Also

A few years back there was talk of GW threatening legal action for violation of their "trademarked image". basically they threatened people who made anything that looked like it fit into the 40k universe even if it did copy an existing model or artwork. Is there such a thing or were they just playing the bully?

I know there are a lot of people who would like to make conversion bits/ models etc but are afraid of GW legal action.

Mauglum.

03-11-2011, 05:17 AM

Hi Lane.
As far as I am aware lots of companies make product that can be used in-on-with 40k models and minatures.
I dont think this is a prolem as long as they are NOT direct copies of GW product, or use GW trademarks to market them.

Example with made up names...
Saying a 'MINI WAR' Heavy Mortar kit will fit in the back of several vehicle models including a GW Chimera kit, is fine.

But calling it a WH 40k (TM) Specified weapon (TM) for a WH 40k specified vehicle conversion kit(tm) would get you into trouble with GW plc.

TFNN

MarneusCalgar

03-11-2011, 06:49 AM

Paulson games has also returned selling now resin parts strictly different from GW´s ones...

So we may hope there is an extrajudice agreement??

weeble1000

03-11-2011, 07:52 AM

A few years back there was talk of GW threatening legal action for violation of their "trademarked image". basically they threatened people who made anything that looked like it fit into the 40k universe even if it did copy an existing model or artwork. Is there such a thing or were they just playing the bully?

Lane,

I've never heard of the specific instance you are referring to, but Games Workshop might have been referring to trade dress. Trade dress is like a trademark. You can register a trade dress, but you don't have to in order to bring a civil suit accusing infringement of unregistered trade dress.

The idea behind trade dress is that you aren't supposed to be able to make a product that has the appearance of something you did not create for the purpose of causing confusion in the marketplace. So if you and I sell widgets and you always put your widgets in a distinctively triangular blue box such that consumers identify the shape, color, appearance, etc. of that box with your product, I can't then use a similar box because consumers might be confused about the source of my widgets.

Trade dress is a funny area of intellectual property law. It is important to note that trade dress has much more in common with trademarks than with copyrights. The key is product identification. Trademarks and trade dress are protectable in that they identify a product, service, etc. With a copyright, you don't even have to be selling a product to accuse someone of infringement, nor does consumer confusion or product identification matter.

I would like to point out two ways in which this question is specifically related to the GW v Chapterhouse case. They are important so I'm putting them in bold type.

1: Games Workshop did not make a specific claim of trade dress infringement against Chapterhouse Studios.

2: Games Workshop's theory of derivative copyright infringement in the Chapterhouse complaint is essentially what you described above.

In the Chapterhouse suit, Games Workshop is arguing that anything that could fit within the Warhammer or Warhammer 40,000 fictional universes must of necessity be derivative of copyrights related to these fictional universes and therefore owned exclusively by Games Workshop. Apparently, Games Workshop has been trying to get people to believe this for a while.

As I've pointed out in the past and as Chaoterhouse Studios argued in its motion to dismiss, this interpretation of copyright law is fundamentally flawed. It would also be a flawed interpretation of trade dress, which is far more constrained than a copyright.

People have used the automotive industry as an example before, so I'll use it in this instance. Okay, so we all know that plenty of companies produce compatible aftermarket accessories for cars and advertise them using trademarks and trade dress under the terms of fair use. I think we can also agree that not everyone that does this has a specific license to do so, because you don't need one.

Let's imagine that Games Workshop is Ford Motor Company and Chapterhouse Studios is selling some sweet rims, spoilers, steering wheel covers, cushy seats, etc. for Ford cars. Games Workshop's interpretation of copyrights and trade dress would be like Ford suing Chapterhouse Studios because its products are intended to be used with an automobile. Not a specific Ford automobile, because Games Workshop is not arguing that specific copyrights are infringed. It would be like Ford saying that because it makes cars, it owns everything that can be used with a car, even if it can be used with a car that it has never made. Well, more specifically, it would be like Ford saying that its cars are, in totality, characteristically unique and that therefore anything that can fit on or be used with a Ford automobile must therefore be derivative.

The problem is that there's really no boundaries to this argument. How does one distinguish between the entire body of Ford cars, from the model T to the Focus, and other automobiles? In what way does Ford define how your products copy that which defines the nebulous body of all Ford cars made and yet to be made, sold and merely conceptualized other than by arguing that if they work with a Ford, they must of necessity be derivative of that "special unique quality" that defines Ford Motor Company's products?

Games Workshop's fictional universe does not exist as a protectable copyright. The FASA v Playmate Toys precedent is specifically directed towards this point. Games Workshop only has rights to exactly what it has produced and only to that which makes those works unique.

Trade dress is even more limited. First, trade dress must be specifically associated with a marketed product. Second, that product must have a specific, unique form that identifies it, and only it, as a product of Games Workshop in the minds of consumers. Third, not only must that specific, identifiable form be copied, but the use must have also caused demonstrable confusion in the marketplace.

Is the Space Marine a trade dress? Is is a copyright? Nobody knows because Games Workshop hasn't answered those questions. But you have to answer those questions in order to accuse someone of infringement, and you have to answer them for every specific instance of alleged infringement. This act alone would define and narrow Games Workshop's copyrights and trade dress from the vague, unspecific, and open-ended universe that Games Workshop wants people to believe it has exclusive rights to.

This is why I think Games Workshop doesn't want to take the Chapterhouse case to trial. Even if it wins on all claims, gets a finding of willfulness, is awarded attorneys fees and treble damages, and seizes and destroys all of Chapterhouse Studios's molds, it will still have to define and narrow its intellectual property in order to do that. The likely result at trial is much worse, and the worst case scenario at trial is devastating. That's what I mean by significant risk. In the best case scenario, Games Workshop comes out damaged. In the worst case scenario, it comes out destroyed.

Remember that Games Workshop filed this suit in the first place and it had many, many other options. Chapterhouse Studios is not responsible for this.

Old_Paladin

03-11-2011, 10:20 AM

@Lane:
I said that the court costs would probably be one seventeenth, their liquid funds (the money left over after most other expenses). That's less then a month of expendable high-risk ventures, or expendable high-risk R&D; basically two and a half time less cost then the number you gave.

@Weeble:
I think GW still needs to, and will, fight this.

Let's look at this a different way; GW is a parent and the IP is it's daughter. GW has found out that some other guy has been driving its daughter around behind its back.
GW can now: Look away, allow this guy to keep being with its daughter and sent the signal that lots of other guys can come and get its daughter whenever they feel like it.
GW could: Buy its daughter a car, it might not be the safest, and she might still ocassionally hang out with guys (but it'll know what kind of guys will be hanging out with her).

Why would GW do anything but continue the lawsuit at this point?

Also, the worst case scenario for GW is that any other company can produce models that look like their models; no one else can ever produce their rule-set or their codexes. They still own full right to their printed works, the 40K logo and the 40k universe.
So does that mean the company shuts down, or does it mean it has to sell all it physical models at a very competitive price? If chapterhouse and GW sold at the same price scale, it could only be good for the whole customer base (even if GW becomes a smaller company; maybe even a solely online company); sucks for them, great for us.
And it won't come to that level.

weeble1000

03-11-2011, 10:51 AM

Paladin,

You're forgetting that Games Workshop's precious IP daughter is 18 years old and no longer a minor. As much as big daddy Games Workshop doesn't approve of it, little miss IP is old enough to make her own choices. She's also of legal age and can consent to a perfectly legal relationship with Chapterhouse Studios. Games Workshop can bluster all it wants about how "no daughter of mine ought to take up with some third party trash," but he has no legal basis to force Chapterhouse to leave his daughter alone or compel his daughter to stay away from him.

See, big daddy Games Workshop thought that he could just forbid Chapterhouse from seeing his daughter. He'd done it before with those other boys. He's a big, scary guy you know, and lots of folks are afraid of him. Back in the day, people used to believe in respect and decency. Those third party mongrels lived on the other side of the tracks. Normally, Chapterhouse wouldn't be able to do anything about it. He could run off with little miss IP, but where would they live, how would they eat? But Chapterhouse has a rich aunt, so he and little miss IP don't have to worry about money anymore. They can live together and be happy and have lots of little accessory babies all named after big daddy Games Workshop.

wittdooley

03-11-2011, 10:52 AM

Lest we forget that the last thing the hobby needs is a bunch of inferior products flooding the market upon a negative ruling. I buy the GW and Forgeworld stuff because the quality is higher (though FW has some issue, for sure, with warping on larger pieces) and am willing to pay the extra amount to do so.

Is there any matter in this addressing that fact; that Chapterhouse's deceptive marketing can make them appear to be a GW subsidary producing an inferior product?

Old_Paladin

03-11-2011, 11:08 AM

Weeble:
Chapterhouse might say she's 18, but GW says she's only 16 (she likes to lie about her age), now a judge and jury have to look through all her ID's and find out her actual age.

Lane

03-11-2011, 01:12 PM

Lest we forget that the last thing the hobby needs is a bunch of inferior products flooding the market upon a negative ruling.

I will admit GW has improved their quality. Twenty years ago it was kind of hit or miss. Weapons, hands, legs and in one case the chest of a terminator might be missing or mis formed. Flash 1/16 thick and 1/8 wide around the entire mini in a few bad cases.

Lane

03-11-2011, 01:17 PM

Hi Lane.
As far as I am aware lots of companies make product that can be used in-on-with 40k models and minatures.
I dont think this is a prolem as long as they are NOT direct copies of GW product, or use GW trademarks to market them.

AFAIK that is the big question in the lawsuit.

Does GW have a legal right to prevent third party companies from using their trademarked names as descriptions?

weeble1000

03-11-2011, 01:58 PM

AFAIK that is the big question in the lawsuit.

Does GW have a legal right to prevent third party companies from using their trademarked names as descriptions?

Lane, this is actually one of the least important issues in the lawsuit. Lots of people have fixated on Chapterthouse's use of GW's marks. On the surface it looks like a glaring example of infringement because the words are the same, right? GW registered those words and Chapterhouse used them. It is also conspicuous because few if any other third party mimi companies use GW's marks, so it looks like this is what Chapterhouse has done wrong.

However, Chapterhouse has clear defenses to trademark infringement and the company has already moderated the website, which would have been the most likely resolution if infringement had been found. Therefore, the trademark issue is basically moot. It will be difficult for GW to prove and the remedy has already been done.

You need to look to the copyright infringement claims to find out why this lawsuit is important. Winston and Strawn didn't take the case because of the trademark infringement claims, it was because of the copyright claims.

Old_Paladin

03-11-2011, 02:37 PM

Is there any matter in this addressing that fact; that Chapterhouse's deceptive marketing can make them appear to be a GW subsidary producing an inferior product?

Yes, one of GW complaints against chapterhouse is all about this.
GW claims that it has customer complaints, based on people unhappy with the poor production value of chapterhouse, and that they thought that chapterhouse was part of GW.

This is why GW is taken the 106 (or whatever) examples of improper labelling very seriously; even if weeble thinks it is a minor, pointless part of the lawsuit. GW argues that it constitutes deceptive business practices and that chapterhouse as to pay back all the income it has ever received, and then triple that value (all the money chapterhouse ever made was because many people thought they were buying GW, because of the very unclear, misleading labelling; and say they have the emails for chapterhouse costumers to prove it).

Edit:
It is section 41 of the lawsuit against chapterhouse.

weeble1000

03-11-2011, 04:58 PM

In the grand scheme of the lawsuit, Paladin, the trademark infringement claims are of little significance. You can try to make them sound serious by pointing out that Games Workshop also has a willfulness claim, but I hope that people understand that merely making a claim does not mean that the complainant is right.

Games Workshop's complaint says that it has customer e-mails, but it doesn't specify how many and it doesn't say how they were obtained. Games Workshop had to say that it had some complaints because it otherwise would have failed to demonstrate a prima facie case of confusion. In order to prove that Chapterhouse's labeling has caused confusion, Games Workshop will have to provide market research testified to by an expert. Chapterhouse Studios will have the opportunity to respond with its own expert(s).

Chapterhouse Studios also took many steps to avoid causing confusion. Every registered trademark was identified as such, its source was disclosed, and every page containing a registered mark also included a disclaimer. I've said this before, but that's a lot more than you are required to do to avoid causing confusion and it is also compelling evidence against willful intent to cause harm.

Furthermore, as I've said, it is not typical, and therefore not reasonable to expect, a judge/jury to award monetary relief as a result of this kind of trademark infringement, assuming Chapterhouse Studios was found to infringe. Attempting to make Games Workshop's trademark infringement claims sound serious by pointing out the maximum damages that Games Workshop could ever hope to obtain under the law is blatantly misleading.

Trademarks are a much more specific and solid type of intellectual property than copyrights. The rules regarding trademarks and the use/misuse thereof are less subjective than those regarding copyrights. Given this, it is much easier to predict the outcome of trademark infringement claims. We know precisely what the trademarks are. There is no dispute that the marks were used. The only questions that are being considered are A) was the use fair in accordance with the law and B) did the use of said marks, assuming the use of said marks is found to have been unfair, cause harm?

Chapterhouse Studios has strong arguments backed up by lengthy precedent that its use of Games Workshop's registered marks was in accordance with the law. Chapterhouse Studios also has strong arguments that no damage was caused by its use of said marks , according the legally-defined valuation.

This is why a reasonable individual can conclude that the trademark infringement claims are not a significant part of Games Workshop's complaint. I have always assumed that Games Workshop's in house legal counsel is made up of reasonable individuals that are also receiving advice from the reasonable individuals at Foley and Lardner. I'm fairly confident that these individuals are able to arrive at conclusions that are similar to those that I have reached and which have been reached by legal experts that I have consulted, and that Chapterhouse Studios has consulted.

I'm not suggesting that Games Workshop was stupid to make the claims. I'm suggesting that Games Workshop and its attorneys know it is likely that those claims aren't going to get very far. I know that Winston and Strawn is focusing on the copyright infringement claims and I suspect that Foley and Lardner is focusing on the copyright infringement claims. I therefore suggest that we all similarly recognize that we sould be focusing on the copyright infringement claims insomuch as we are discussing the the significance of this lawsuit.

Old_Paladin

03-11-2011, 05:22 PM

Chapterhouse Studios also took many steps to avoid causing confusion. Every registered trademark was identified as such, its source was disclosed, and every page containing a registered mark also included a disclaimer.

Um... No; they didn't have these things at the time of the original filing.
I remember going to their site right away; and they had none of those things. They added several shortly after, and changed the names of many of their products.
I was in fact one of the people that suggested to them to add a disclaimer to show they were not affiliated with GW; and they did so the next day.
I was also the individual that pointed out the problems that calling it the "Doom of Malanait" would cause and that the image was coded with that name; the next day they changed it to the "Doom of Chapterhouse" and recoded the picture to a different file name.
The recently changed them back and then added the trademark or registered marks; and reloaded the older "Doom of Malantai" post.
Don't make up facts you know nothing about. Just because to hope Chapterhouse will win, doesn't mean people will believe your incorrect attempt to falsify the past. And if you think I'm making any of that up; you can look through past posts and Find where I originally said all these things; it's a factual matter of record now (unlike your claims).

That's a major issue; you get judged in a lawsuit upon your past state of affairs; not the present condition.
I'll bet GW has kept the archived statuses of the website to show the problems in their original layout.

Edit: It's posts 24, and 32, on the 'Donations for Chapterhouse' thread; for those that don't wish to have to look through too many posts to find what I've claimed. Both posts are nearly 3 months old now.

Lane

03-11-2011, 09:27 PM

[QUOTE=Old_Paladin;124819
I'll bet GW has kept the archived statuses of the website to show the problems in their original layout.
[/QUOTE]

Unless they get those pages from server backups, if there are any, a good lawyer could get those copies thrown out. It's easy to edit an HTML document to say whatever you want and even date stamps can be forged.

Old_Paladin

03-11-2011, 09:46 PM

Well, I actually meant that they should have hard copies; actual physical print outs of the pages, that are signed and dated by a legitimate witness (that's what I would have done).

Also, what you’re taking about wouldn't just be having evidence thrown out; you're talking about forgery and contempt of court. GW would automatically lose the case and be severally fined.

eldargal

03-12-2011, 04:12 AM

You are completely incorrect on this, CHS had a banner at the bottom of their mainpage listing GW trademarks right from the beginning, I took special note of it. It wasn't exceptionally obvious, nor was it hidden, but it was there. This was twelve months ago, or more, long before there was any whiff of a lawsuit from GW.
You may want to follow your own advice about making stuff up.

Um... No; they didn't have these things at the time of the original filing.
I remember going to their site right away; and they had none of those things. They added several shortly after, and changed the names of many of their products.
I was in fact one of the people that suggested to them to add a disclaimer to show they were not affiliated with GW; and they did so the next day.
I was also the individual that pointed out the problems that calling it the "Doom of Malanait" would cause and that the image was coded with that name; the next day they changed it to the "Doom of Chapterhouse" and recoded the picture to a different file name.
The recently changed them back and then added the trademark or registered marks; and reloaded the older "Doom of Malantai" post.
Don't make up facts you know nothing about. Just because to hope Chapterhouse will win, doesn't mean people will believe your incorrect attempt to falsify the past. And if you think I'm making any of that up; you can look through past posts and Find where I originally said all these things; it's a factual matter of record now (unlike your claims).

That's a major issue; you get judged in a lawsuit upon your past state of affairs; not the present condition.
I'll bet GW has kept the archived statuses of the website to show the problems in their original layout.

Edit: It's posts 24, and 32, on the 'Donations for Chapterhouse' thread; for those that don't wish to have to look through too many posts to find what I've claimed. Both posts are nearly 3 months old now.

weeble1000

03-12-2011, 07:05 AM

You beat me to it Eldargal.

I agree with Eldargal about the Chapterhouse website disclaimer. Now, I had never heard about Chapterhouse Studios before I read Games Workshop's complaint, but I don't believe that Nick is lying. It also seems Eldargal has first hand knowledge. I hope we can agree that from day one there was a disclaimer on the website.

Now, Paladin, you are correct that the Chapterhouse website did not always identify registered trademarks. You are also correct that the state of the website at the time the complaint was filed is significant. The website did not identify registered marks until early last year, but this was done long before the complaint was filed by Games Workshop.

Finally, it is important to note that "Doom of Malantai" is not a Games Workshop trademark. Games workshop has not registered this trademark, nor does the company market a product under that name. Thus, it is is no way a trademark belonging to Games Workshop. If you want to be very technical, it is more properly a trademark of Chapterhosue Studios than Games Workshop. This is a critical distinction between copyrights and trademarks.

Again, all of this is why the trademark infringement claims are not a significant part of this lawsuit, in spite of the fact that they are conspicuous to the layperson.

On a different note:

I started this thread to discuss the content and implications of the Chapterhouse Studios motion to dismiss. Since you have such strong opinions, Paladin, I would like to know what you think about Games Workshop's theory of derivative infringement and Chapterhouse's arguments against the validity of that theory.

I'd also like to know what other people think about that. Eldargal, do you have any thoughts?

What about Chapterhouse's arguments that Games Workshop's claims require greater specificity? Do you think they do? What do you think the implications are for this lawsuit and the industry in general?

I have a .pdf copy of the memorandum in support of the motion. Would it be beneficial for that document to be hosted where it will be readily accessible? I don't want to limit folks to relying on my summary of the motion and I realize that it isn't always easy to access these documents.

Old_Paladin

03-12-2011, 08:02 AM

Then I'll add a memorandum to my claim;
In the many, many times I visited chapterhouse, I never once saw said disclaimer.
When I brought it up in the past; no one ever challenged me on said disclaimer; when Nick himself was reading this thread last night, he never challenged me on my comment on said disclaimer.
It took 12 hours for a single person to challenge me on that; which is a considerably long time considering the challenge I put forth, and the people I saw viewing the thread.

The only time I had ever seen a disclaimer on that website; was the huge page of text that listed all GW claimed Copyrights, trademarks, registrations, and multiple reiterations that they are a non-affiliated, independent company.

But, I'll believe Eldargal that there was a disclaimer (the only person I have enough faith in and respect more, to not challenge her to provide evidence); but still feel that it was so poorly place or so brief, that the average person would never know it was there (I certainly didn't and I visited the site everytime they put a new post on Bols). A disclaimer about hot liquids being hot, isn't valid if it is printed inside the cup at the bottom or a disclaimer about the dry cleaners not being responsible about damages printed on the receipt after you've handed in your clothes and paid; so to speak.

I'm not claiming the "Doom' is a trademark; It should fall under a full copywrite. It is a proper name in a book that does have a copywrite, and as a literary work, you cannot copy any section either in part or in full without breaking the copywrite (plagiarism). It is on the same level of any other literary character; even if you can produce halfling miniatures, you cannot name them 'Frodo Baggins and Samwise Gamgee,' you can make a model of a Human warrior-mage, but you wouldn't be able to sell it as 'Rand al'Thor.'

As to the actual motion; I think GW does need to drop, or be banned, from claiming on about half a dozen, to a dozen items. Otherwise, we all know what they mean by their claim and chapterhouse knows where they did wrong; but I suppose that clarification wouldn't hurt, if chapterhouses defense is to play dumb, like they don't know what's going on.
My worry is that, the refined lawsuit would end up being hundreds of pages long. You either go with a brief description of your IP universe, then people argue its too generic; or you put up the fine points of your IP universe and people could end up to bored and confused, because that's not the type of thing they're into (just imagine if the Tolken estate was asked to define the 'middle earth' universe and it had to go deeper the "a fantasy world, with men, elves, dwarves, and hobbits, fighting against the evil forces of orcs, goblins and trolls; in order to destroy an evil magical artifact, to save the world." They'd have to plop down, the war of the ring appendices volumes 1-8 and say, "read these 200+ pages. Then you'll see how our world is unique in fantasy." If the jury isn’t huge lord of the rings fans, happy to get some LoTR stuff for free; none of them are going to read that in full. So what was the point at all; people are still going to say 'Yup, stupid kid’s book with elves, short people, and ugly monsters."

I actually don't remember GW's claim on the motion, for derivatives; if you'd just summarize it, I'll say what I feel (but I can tell you now; I'll probably say either 'they need to tone it down a bit' or 'I think they're pretty much spot on.' I'd be shocked if they made a claim that made me *facepalm*, but you never know.).

weeble1000

03-12-2011, 08:18 AM

If that's the case, then how does licensing work in the United States? I'm honestly asking, as I don't know...Is there an issue here with the distinctiveness with the terms? Is their Space Marine trademark in danger of becoming a generic term?

wittdooley, I'm sorry about not answering these questions. I just ran through the thread again and realized that I left you hanging here. I've got a bunch of stuff on my plate this morning and I already ate up all my free time, so I'll edit this post with answers to these questions when I have some more time.

Can anybody else answer them?

weeble1000

03-12-2011, 08:22 AM

Paladin, I checked my facts and then went to bed before responding, so please ease off on the 12 hour bit. I'll address your other comments when I get back home tonight.

I think Games Workshop can claim "Doom of Malantai" as a copyright. But the distinction is significant because as a copyright there can be no claim of market confusion. In general, I think it is important to keep in mind the differences between various kinds of intellectual property. This stuff can be confusing at times, but a legal battle like the one we're discussing will be defined by these significant distinctions.

I appreciate that Paladin believes Games Workshop should drop from "a half a dozen, to a dozen items." But he follows that up by saying that we all know what the claim means.

What are the 6-12 "items" that Games Workshop should drop? I don't think Games Workshop made its claims very clear at all. The complaint only references a handful of works by name and only a single Chapterhosue Studios product. It doesn't specify what portions of those works have been infringed and it doesn't specify what products have infringed them. How do we have any idea what Games Workshop is claiming?

But I guess Paladin is right in that we know what Games Workshop wants, at least I think I have a pretty good idea. Games Workshop wants to claim exclusive ownership of an expansive, unspecific, generalized, and open-ended universe. Games Workshop wants to argue that anything related to that universe in any way must obviously belong to the company.

There are very good reasons for the way copyright laws are written, and many of them are related to preventing just this sort of thing from happening. This is why the Court ruled FASA's claims on the open-ended BATTLETECH universe were unprotectable as a matter of law. Not only were the claims found to be too unspecific, but they were found to be based on "familiar, general themes" that cannot be exclusively owned by anyone.

For years, Games Workshop has been attempting to promote the notion that it owns the Warhammer and Warhammer 40,000 universes. That sounds justifiable because the fine folks at Games Workshop came up with these universes, supported them, and basically invented fantasy wargaming. I don't begrudge them that. I think that there's lots of things about these universes that are special and unique. This is why I wargame, read, role-play, and watch movies in the Warhammer and Warhammer 40,000 universes. But much of these universes is based on age-old, unprotectable works; familiar, general themes; and/or the creativity of others. When Games Workshop says that it owns exclusive rights to the entirety of the Warhammer and Warhammer 40,000 fictional universes, it is claiming the right to exclude others from using everything they themselves used to invent the Warhammer and Warhammer 40,000 universes. When faced with this, I have to take a firm stand against it, as much as I think Warhammer and Warhammer 40,000 are special and unique. It isn't fair, it isn't right, it isn't legal, and it denies others the rights that Games Workshop exercised to create Warhammer and Warhammer 40,000.

eldargal

03-12-2011, 08:30 AM

Well, in hindsight I should have taken a screenshot of the disclaimer. I distinctly remember checking it out, and thinking 'Well, they shouldn't have much trouble from GW with that and their legal advice'.:rolleyes:

Old_Paladin

03-12-2011, 09:00 AM

wittdooley, I'm sorry about not answering these questions. I just ran through the thread again and realized that I left you hanging here. I've got a bunch of stuff on my plate this morning and I already ate up all my free time, so I'll edit this post with answers to these questions when I have some more time.

Can anybody else answer them?

I've did my best to point out some things, a few pages back.
Here's the link to my thoughts:
http://www.lounge.belloflostsouls.net/showpost.php?p=124602&postcount=39

But to be honest, most of my thoughts are based upon a Canadian point of view. I do keep forgetting ultimately how different United States law can be (case law? what's up with that? Here in Canada, we just ammend our codified laws every few years [sometimes decades]).

The disclaimer now is pretty d*mn solid; it's large and on every page. On some of the actual perchasing pages, I can even see it poking up. It pretty much fills my entire monitor when I scroll down, and leaves no doubt to me that they are not part of GW, corprately.
What did it used to be like? Was it like one or two sentances (like, warhammer 40K is the property of it's owners and creators, all right reserved?) and could it only be found at the bottom of only the home page (that's what Eldargal made it sound like to me)?

I don't mean to be insulting with the 12 hour remark. I just meant it as that is a long time in 'internet land.' When I see people going over it for hours at a time; it says to me that that is a major issue, and people are scrambling to find out what was going on. I honestly expected a "Your wrong" or"here's a mirror site." within like 40 minutes of people reading what I said; if I was misinformed.

eldargal

03-12-2011, 09:39 AM

From memory it was a fairly sold chunk of text on the bottom of the mainpage, and perhaps other pages too. It wasn't small, but it didn't stand out.

Faultie

03-12-2011, 01:38 PM

According to the waybackmachine, as far back as 7 June 2009, the disclaimer was as such:

Space Marine is a registered trademark of Games Workshop. Chapterhouse Studios has no affiliation with the Games Workshop. Throughout our website and miniature catalog these terms are used for identification purposes only.

Old_Paladin

03-12-2011, 09:00 PM

Thanks Faultie and Eldargal; now I now why I'd never seen it before.
It was on every page; but it was only two lines.
I think GW will fight it for being small and vague; but chapterhouse should be alright. I have a feeling GW might even take the rout of saying, "We're not 'the Games Workshop' We are "Games Workshop Ltd." the 'the games workshop' could be a local gaming den; you have to use a companies full and proper name for it to be valid."
Edit:
Actually, they will fight this for being vague; their IP claims state that they desire every individual peice of their IP to be listed with its proper name seperately.

Weeble: Thank you for the offer to discuss the other comment. I'll read and respond when I have time.

Wow, I just read all that again; I sound like a completely different person.

Denzark

03-13-2011, 04:47 AM

Old Paladin

Don't think doing a u-turn means anything at all - your earlier comments are quite correct - GW aren't doing this for nothing - they will probably fight to the end.

The hurried re-organisation to bits of the CHS website (can't be arsed to list them as they have been done to death) only looks guilty, and most of the rational members of the BoLS community have a lack of sympathy for companies that for whatever reason can't go the generic naming route of maxmini et al.

I think anything less than a total win for CHS will be pretty drastic. By which I mean if most but not all of GW claims are satisfied, but the judge awards costs to GW on the balance of judgement, stand by CHS.

Lets look at possible outcomes - by which I mean second order effects, not the actual case judgements.

CHS wins? GW takes a small hit, they carry on and a whole lot of 3rd party companies act like tics sucking off the back of the dog - the varying standards may piss people off but hey you get what you vote for. GW may even decide the US market is bust and go back to how it was early 90's - majority of UK (Euro) sales with very few importers, so as to deal with Eurpoean/UK standards of law.

GW wins? Strengthens their hand, protects IP, lack of impact to the company, which even with all its well publicised faults, has done more for wargaming than CHS will ever do in 1000 years.

Either way to be honest, the gamer is the winner at least in the short term.

Quite frankly the best bit of the outcome, is that Weeble can come on here, either crow about it or have sour grapes, and analyse the whole thing in his excruciatingly earnest detail, before fading back into low post count obscurity from whence he came - he only comes on not to contribute to the BoLS community but to fly the flag as a CHS proxy (funny how they have quietened down, obviously busy paying back all the donations like they said they would now they have free legal) and ram his opinion of GW doom down our throats.

weeble1000

03-13-2011, 07:06 AM

Otherwise, we all know what they mean by their claim and chapterhouse knows where they did wrong; but I suppose that clarification wouldn't hurt, if chapterhouses defense is to play dumb, like they don't know what's going on.

I edited my previous post responding to the first portion of Paladin's post. At this point it is on an earlier page of the thread

How can you say that Chapterhouse knows where it did wrong? To my understanding, Chapterhouse Studios did everything it believed was necessary to respect Games Workshop's rights while similarly exercising its own. Even if Chapterhouse Studios is found to have been wrong in a few instances, it doesn't mean that it knew it was doing wrong to Games Workshop. Now, my personal belief is that in this situation Games Workshop is the party inflicting harm. Moreover, I believe Games Workshop's intent from the outset was to drive Chapterhouse Studios out of business.

Chapterouse isn't "playing dumb" by asking the court to require Games Workshop to specify its claims or dismiss the lawsuit. It is more than reasonable for Chapterhosue to be unable to intelligently respond to the complaint as it stands. Given the wording in the complaint, every one of Chapterhouse's 106 products is accused of infringing every work associated with the Warhammer and Warhammer 40,000 fictional universes and even a blanket claim on the character of the universes. This would mean that the super-heavy walker, for example, individually infringes every work that Games Workshop has produced. Does the super heavy walker infringe the Carnifex, the Leman Russ Battle Tank, the Gaunt's Ghosts novels, or the Ultramarines movie? You can argue that it isn't reasonable to believe that the super heavy walker infringes those works, and I agree. However, Games Workshop did not specify that the super heavy walker wasn't accused of infringing Col. Commissar Ibram Gaunt. Chapterhouse Studios has a responsibility to respond to every specific claim in the complaint and it needs to know what those claims are.

How can you argue with copyright authority Bill Patry? The man says that "if plaintiffs know 669 sound recordings have been infringed, they owe a duty of fair notice to specify each one." It doesn't matter if the complaint will be 1,000 pages long, the plaintiff has a duty to give the defendant fair notice of all claims. Just consider the flip side. How long would Chapterhouse's answer have to be in order to meet its duty to individually respond to all claims in the complaint? Would it be fair for Chapterhouse to assume that Games Workshop wasn't accusing a product of infringing something, and thus not answer that claim, and then have Games Workshop argue that the claim is uncontested?

weeble1000

03-13-2011, 07:22 AM

Actually, they will fight this for being vague; their IP claims state that they desire every individual peice of their IP to be listed with its proper name seperately.

The key here Paladin is "their IP claims," meaning what Games Workshop tells people to do. The way that Games Workshop wants people to interpret the law is not necessarily the way that the laws are properly interpreted. Sure, it is very precise to list every mark separately with its proper name, but this is in no way a legal requirement. It isn't as if not doing this automatically means you are infringing. In point of fact, you don't even need a disclaimer to avoid infringement.

The flip side is that a disclaimer doesn't guarantee that you don't infringe. It can often be compelling evidence to the contrary, but it isn't a win button. It is certainly fair to say that Games Workshop wouldn't think that Chapterhouse's disclaimer is sufficient, but my point is that Games Workshop won't offer this as evidence of infringement. If Games Workshop discusses it, it will be addressing one aspect of Chapterhouse's defenses to trademark infringement. It is not itself evidence of infringement. I think it is important to highlight that distinction.

This is a summary of Chapterhouse's response to the derivative works argument:

Games Workshop did accuse Chapterhouse of infringing its exclusive right to produce derivative works, but Chapterhouse attacked that claim directly, arguing that Games Workshop has failed to adequately plead such a claim. This is a little complicated, but the idea is that the statute of derivative work is very specific and requires specificity in the claim.

In order to be a derivative work, a product must either be in a form specifically mentioned in the statute (a translation, musical arrangement, dramatization, fictionalization, motion picture version, sound recording, art reproduction, abridgment, condensation) or it must "recast, transform, or adapt" another work. Chapterhouse cited precedents which state that a work is not derivative "simply because it is 'based on'...preexisting works," and that "[a] work is not derivative unless it has been substantially copied from the prior copyrighted work."

Based on this precedent, Chapterhouse argues that Games Workshop, "merely alleges that Chapterhouse Studios’s products are 'derived from' and 'inspired by' Plaintiff’s works. Compl. ¶¶ 30, 34." Chapterhouse Studios argues that this does not meet the legal definition of a derivative work. "To the extent Plaintiff relies on a theory that any work having anything whatsoever to do with another is ipso facto a derivative work, its allegations fail at the pleading stage. This 'but-for' interpretation of the derivative works right has no basis. Even if it were assumed, for the sake of argument, that Chapterhouse Studios’s products were 'inspired by' Plaintiff’s alleged works, inspiration is not infringement."

Interestingly, Chapterhouse also argues that any derivative claim is implausible on its face because the only works directly mentioned in any way by Games Workshop are literary works. Chapterhouse argues that it is implausible to argue that a sculptural work of art (which constitutes all 106 of Chapterhouse Studios's products) is "recast, transformed, or adapted from" a literary work. In essence, you can't "recast" a novel into a sculpture, transform a novel into a sculpture, or adapt a novel into a sculpture. The implication is that this is especially true given that Games Workshop did not specify which portion of the identified works are infringed. One must then assume, for example, that the "Soul Drinkers" novel in its entirety has been recast into Chapterhouse's super-heavy walker, the only product specifically mentioned in the complaint.

Old_Paladin

03-13-2011, 08:25 AM

For your first section;
Perhaps I could have been clearer; but, you've taken my word 'wrong' out of context of the sentence, and you've taken the sentences out of context of the paragraph.

What I mean is 'Chapterhouse should know which of its actions have provoked GW.' Calling it a 'Blood Raven Shoulderpad' is the 'wrong' in that GW will be very protective of its Blood Ravens. With goes to the greater paragraph's point that GW might have been vague, but we all know that copyrights are actually being claimed. They are going to reference the Tau codex against the super-heavy walker, they are going to reference specific pages in Codex Space Marines when going after copyrights for 'storm shields' 'thunderhammers' 'jump-packs' etc.
As the above is both logical, and honestly we can all tell that's what they mean; it is 'playing stupid.' To act like you're unsure how a "Space Wolves Storm Shield" might be... I don't know... taking a printed idea from the equipment section of Codex: Space Wolves...
But like I said before, It'd probably be a good thing if GW had to simply come out and label all the sections from their Codex’s, White Dwarves, Novels and pictures from their websites that correspond to each item of chapterhouse.

As to the next part; once again I feel your are completely incorrect about copyrights and 'art'
A copywrite applies to the work as a whole AND IN PART (plagiarism). Like I've said; proper names in a book can be taken completely independent of the rest of the work. You are stealing from LoTR if you use the name "Frodo Baggins"
There are exceptions, like "fair use" and "parody/satire" but Chapterhouse is not reviewing GW products to be covered by 'fair use' nor are they making fun of any iconic references in the GW universe to be covered by parody.
You are also wrong about the ability to transfer 'art' into different mediums. The simplest example to show you is novel to movie; that's why they are called 'The movie ADAPTation of the novel.' And GW currently owns the "miniature adaptation of a movie (LoTR)", which is a film adaptation of a novel (by the same name).

GW also has a strong argument for chapterhouses works being copies. Once again, I'll state that their copies are NOT direct remoldings/press casts/etc., they ARE all done freehand.
But, I'll give you the oxfords English dictionary (c) 2001; definition of Copy:
1) Things made to look identical or SIMILAR TO another
2) IMATATE the style OF
The labeling on chapterhouses website makes it clear what we're supposed to think this things are, and they look very similar to GW's own; they are freehand COPIES of another person(s) work.
Just like a forgery of a Rembrandt or Picasso; those clearly aren't scans/press molds/etc. but they are copies, even if done freehand or through the talent of the forger.

weeble1000

03-13-2011, 10:38 AM

Paladin, you are missing my point that there is a distinction, very clear and unambiguous, between copyrights and trademarks. It is also often easy to draw a clear distinction between copyrighted works. The phrase "Space Marine" is a Games Workshop trademark. The phrase "Storm Shield" may be a Games Workshop copyright. The storm shield models are all distinct works that may also be Games Workshop copyrights, assuming they are considered to be distinct sculptures that stand apart from the whole models with which they are designed to be assembled. Games Workshop should not be able to enforce a copyright on the collective concept of storm shields. You cannot copyright a concept.

A product's labeling has nothing to do with whether or not it infringes a copyright. And, by the way, it is copyright, not copywrite. I normally wouldn't go out of my way to point this out, but as you are clearly having difficulty even spelling the term correctly, you might want to seriously consider how much you genuinely know about copyright law. A copyright gives one the right to copy the protected work. It is a little broader than the ability to copy that which you write.

I don't think I took your words out of context. You wrote: "Otherwise, we all know what they mean by their claim and chapterhouse knows where they did wrong..." In the context of whether or not Games Workshop's complaint should require specification, I think it was only reasonable of me to assume that by "Chapterhouse knows where they did wrong" you meant that Chapterhouse should be able to tell which of Games Workshop's works its products infringe without having to have it spelled out in the complaint.

To this I essentially responded that it is impossible for Chapterhouse Studios to know which of Games Workshop's works its products are accused of infringing and it would be unreasonable for Chapterhouse to make assumptions about that.

In no way did the context of what you wrote indicate to me that you meant Chapterhouse knows what provoked Games Workshop. I'm sure Chapterhouse Studios knows exactly what upset Games Workshop. But whether or not Chapterhouse knows what upset Games Workshop has nothing to do with whether or not Games Workshop should be legally required to be specific about its accusations of copyright infringement.

As to your "next part."

What I've said in the past, and to which I think you are referring, is that visual works of art are typically, as in a whole lot of precedent that one can reasonably assume will be followed in this case, considered in their entirety as the works have little use or meaning when arbitrarily divided. Written works are handled somewhat differently. A written work can often be broken down in terms of the narrative structure, the characters, specific descriptive language, etc. These things typically have meaning outside of the context of the whole work. A character, for example, is in a certain sense greater than the sum of its parts, and you can copy the unique narrative structure of a novel or play without exactly copying the words or using the same characters.

An interesting example often discussed by copyright attorneys is Romeo and Juliet versus West Side Story. Now, Romeo and Juliet is not subject to copyright, but if you pretend that it was, you could say that Shakespeare could have claimed that West Side Story is a derivative work. This is because the narrative structure of West Side Story is almost exactly parallel to Romeo and Juliet. Shakespeare could have argued that the play is more of an adaptation of Romeo and Juliet than a work that was inspired by Romeo and Juliet.

The plain and ordinary meaning of "copy" is not at issue here. The issue in the GW v Chapterhouse Studios lawsuit is copyright infringement. There are reams of writing about copyright law, what it means, what is protected, how you are required to make an allegation of infringement, etc. etc.

Specifically, we are talking about Games Workshop's derivative works claim. This is a very specific type of copyright infringement. The idea is that if you own a copyright, you also own rights to works that are derived from the base copyright. The relevant question is thus not "is Defendant's work A a copy of Plaintiff's work B," but instead, "is Defendant's work A derivative of Plaintiff's copyrighted work B?"

To make that determination you have to consider the legal definition of a derivative work, which I have copied below:

derivative work. Copyright. A copyrightable creation that is based on a preexisting product, such as a translation, musical arrangement, fictionalization, motion-picture version, abridgment, or any other recast or adapted form, and that only the holder of the copyright on the original form can produce or give permission to another to produce. Cf. compilation (1).

"[W]hile a compilation consists merely of the selection and arrangement of pre-existing material without any internal changes in such material, a derivative work involves recasting or transformation, i.e. changes in the pre-existing material, whether or not it is juxtaposed in an arrangement with other pre-existing materials. A catalog constitutes a compilation, and a translation of a pre-existing work constitutes a derivative work." 1 Melville B. Nimmer & David Nimmer, Nimmer on Copyright 3.02, at 3-5 (Supp. 1997).

So, a derivative work must be one of the examples cited in the above rule (translation, musical arrangement, fictionalization, motion-picture version, abridgment) or it must be a recast, transformed, or adapted from the original copyright. You have to have taken the original copyright and changed it into the version that you created in order for it to be derivative.

So a translation is derivative because it is the same work transformed into a new language. An abridgment is a derivative work because it is the same thing transformed into a condensed version. A motion-picture version is a derivative work because it transforms a written work into a screenplay. The narrative is the same, the characters are based on characters in the original work, etc. etc. Similarly, a fictionalization recasts the original story as a fictional narrative. In all such cases, the derivative work is substantially similar to the root copyright, and for the most part the medium is substantially similar or exactly the same. The furthest you get is a motion-picture version, but remember that a motion-picture is based on a screenplay and it is still a narrative with a story, scenes, characters, rising action, falling action, a climax, etc.

Explain to me then how a sculptural work of art is a "recast, transformed, or adapted" version of a novel? Not only is the medium entirely changed, but it lacks all of the essential elements that give a novel meaning. Bear in mind that implicit in the legal definition of a derivative work is the concept of same or similar medium. Recast implies the same or similar medium. Transformed implies the same or similar medium. Adapted from is as close as you get to a different medium, but an adaptation implies maintaining the original meaning or intent of the work, which is difficult across substantially different mediums. So too are all of the examples cited in the rule derived from the same or similar medium.

On a final note, an artistic forgery is only a forgery if you claim that it was done by the original artist. Of course, most works by the masters are not subject to copyright, but in the world of fine art, it is difficult to copy something without actually copying it. Andy Warhol never got a license from the Campell Soup Company.

It is also interesting to note that late last year the Ninth Circuit reversed the lower court's ruling in the Bratz-Barbie case. The federal circuit explained the distinction between protectable and unprotectable elements of a design and the difference between the copyrightable expression of ideas and the noncopyrightable ideas themselves.