Games Workshop vs Chapterhouse Document Dump

[Arglebarg]

I realize I'm coming in really late on this, but my question is: what effect will the court ruling have on people like machinator? Assuming the court rules in favor of GW, will that mean that machinator cannot sell jetbikes and fellblades? Or is his more careful avoidance of certain trademarks allow him to keep producing?

Other than that, I'm leaning more toward GW's side in this.

[Wildeybeast]

The issue there goes towards the purpose of the art - again, addressed in the LucasFilm case.

The lawyers for Lucas argued that even if the armor and toys themselves were not sculptural they were created from drawings which would be artwork. The court held that the purpose of the artwork was in fact to facilitate the design of physical goods. The artwork is not created simply for the sake of being artwork, rather it is created as part of a process to make and sell products...which makes them not "art". As a result, the courts further held that the physical objects were not derivative works of a copyrightable item rather they were the natural progression of design documents.

The same would likely hold with regard to GW products and artwork. Because the artwork is part of the path to create a miniature or to sell a product and the freedom of the artist to express themselves is limited by the rules set forth by the product - it isn't artwork for the sake of artwork, it is a design document for the sake of manufacturing and marketing.

Further within that case, the products were sold as "Storm Trooper Armor" made by the official prop maker for "Star Wars". The trademarks were used specifically and without any attempt to alter them. The court did not find that to be a violation - which means a product which is sold as a "Space Marine Should Pad" would likely also not be held in violation as long as there is no confusion as to the nature of the product.

I might be thinking of a different case, but didn't it hinge on the fact that they guy making and selling the stuff had designed it in the first place for Star Wars? This is a case where people in no way connected to GW are making stuff for GW games using GW trademarks. Seems like different situations to me.

[Sean_OBrien]

I realize I'm coming in really late on this, but my question is: what effect will the court ruling have on people like machinator? Assuming the court rules in favor of GW, will that mean that machinator cannot sell jetbikes and fellblades? Or is his more careful avoidance of certain trademarks allow him to keep producing?

Other than that, I'm leaning more toward GW's side in this.

The specific ruling will have little specific impact on what other people do. If they are utilizing GW fluff and stuff to sell stuff, they can continue to do so...until they get sued. If GW looses though, they will be able to continue doing what they have always done - with the exception of willy-nilly use of C&D letters. People will able to actually identify their products without fear of reprisal.

There are also regional concerns which will come into play. Certain countries provide a greater weight to certain types of court rulings - some countries ignore them completely. If he is in a country which has a somewhat more flexible view regarding IP cases...then he may well be able to do what he wants regardless of what GW might think.


I might be thinking of a different case, but didn't it hinge on the fact that they guy making and selling the stuff had designed it in the first place for Star Wars? This is a case where people in no way connected to GW are making stuff for GW games using GW trademarks. Seems like different situations to me.

The prop maker was a contractor for the Star Wars movies - however, that aspect is irrelevant. If you were a former employee of Microsoft and you stop working for them but run off with the source code, you can not start to sell your own version of Windows. In most cases, the court views former employees in a more strict position with regards to the law.

Again, the merits of the case were decided on the law as it is written and understood in England and none of the points which were addressed included his past relationship with LucasFilm or how he managed to get a hold of the tooling which he used to create the armor.

[Kirsten]

I realize I'm coming in really late on this, but my question is: what effect will the court ruling have on people like machinator? Assuming the court rules in favor of GW, will that mean that machinator cannot sell jetbikes and fellblades? Or is his more careful avoidance of certain trademarks allow him to keep producing?

Other than that, I'm leaning more toward GW's side in this.

Games Workshop don't seem to mind so long as you don't use their names, plenty of sites sell 'sci fi vikings' for example, and things like that, and have never had any issue, Chapterhouse were approached by GW and told to use more generic names, and were total a$$holes about it and refused, they deserve to be shut down.

[Kirsten]

There are thousands of companies that "serve no purpose but to trade on _____'s existing work". Such as those that make 3rd party car wheel, phone covers, screen protectors, generic power adapters, and so on. Those that are providing something useful survive whilst those that don't, don't, but there's nothing wrong in providing X to use with Y.

Yes but a third party accesory for example might say 'suitable for iPhone' they wont claim to be an actual iPhone cover, for example, Chapterhouse could have released an 'alien pod' but they cannot make a mycetic spore. They cannot make a tyranid creature, copying artwork in the codex, using the same name etc. Look at the battle between Samsung and Apple over their tablets, or any of the ongoing battles regarding tablets, smart phones etc. all those are arguments about looking to similar and doing similar things. If samsung released a tablet and called it an iPad they would be sued and lose instantly. If it is art, then it is copyright, if it is not art, it can still be patented, trademarked etc. Regardless, Chapterhouse are trying to make money from GW's ideas. Most other third party model companies are suitably generic in naming and GW doesn't care about that. They also make a lot of alternative bits that GW doesn't make, so they are not stealing directly, much like your comment about third party accessories, that is fine.

[Sean_OBrien]

Games Workshop don't seem to mind so long as you don't use their names, plenty of sites sell 'sci fi vikings' for example, and things like that, and have never had any issue, Chapterhouse were approached by GW and told to use more generic names, and were total a$$holes about it and refused, they deserve to be shut down.

I have heard the claim that GW tried to contact them prior to filing suit - but I haven't seen anything which actually demonstrates that to be true. In fact, the lack of a contact attempt in evidence for this trial would indicate that they did not file an initial attempt to contact CHS and have them change the names of products. Normally that is standard evidence for these sorts of trials as it demonstrates a willingness to avoid litigation and reflects favorably on the plaintiff when it comes to court filings.

GW does claim that they sent a letter of sorts on December 22, 2010 to CHS in their first Amended Complaint:

By letter dated December 22, 2010, Games Workshop alerted Chapterhouse to
these and other specific infringements, yet Chapterhouse has never acknowledged or responded
to the letter or the specific instances of infringements detailed therein.

http://ia600405.us.archive.org/18/items/gov.uscourts.ilnd.250791/gov.uscourts.ilnd.250791.32.0.pdf - page 10.

However, they filed the suit in District Court on December 21, 2010...which is of course, before they claim to have sent a letter. That sounds a bit like a$$hole behavior to me, though I don't think GW should be shut down as a result of their behavior.


Yes but a third party accesory for example might say 'suitable for iPhone' they wont claim to be an actual iPhone cover

But CHS doesn't claim to be genuine GW products. Further, you can find 100s of examples without trying to hard in the other 3rd party market where they simply call their product an iPhone Case:

http://www.iskin.com/iphone5/ - Title of the page...iSkin - Best iPhone 5 Case

http://www.grovemade.com/ - iPhone 5 Case and iPad Case

https://www.skinit.com/pages/iphone-skins/ - iPhone 5 Cases

http://www.zazzle.com/iphone+cases - iPhone Cases

http://www.case-mate.com/iPhone-4-Cases/iPhone-4-Cases.asp - iPhone 4 Cases

http://www.speckproducts.com/iphone-case.html - iPhone cases

http://www.switcheasy.com/product/Blossom_iPhone4S - From the pages meta - SwitchEasy iPhone cases, iPad cases and the other accessories.

And those are just from the first page of results from a simple Google search. If it were something that Apple could squash they would. They haven't because their legal counsel has explained to them that a trademark can be used to identify compatibility of products both as an iPad Case or a Case for iPads. In the same way, CHS can sell products as Shoulder Pads for Space Marines or as Space Marine Shoulder Pads.


If it is art, then it is copyright, if it is not art, it can still be patented, trademarked etc.

Except when it isn't or can't. There are a lot of things which can't be copyrighted, patented, trademarked or covered by design right protections - it is called the public domain and is a vast and wild space filled with things that anyone can draw upon for inspiration. Even GW has come to have to deal with this realization on a number of instances throughout this case as can be seen in their ever evolving infringement claims (with many going from copyright violations, to trademark violations and finally being dropped from the case entirely).

[Wolfshade]

iPhone covers are not really an issue here. Reasonable usage could result in damage i.e. keys in your pocket scratching the case, and therefore necessitate a need to get a replacement. These are therefore allowed and defined in the US and English & Welsh law. In reasonable usage miniatures do not get damaged and therfore do not require replacement. and therefore replacement parts are not required.

[Caitsidhe]

iPhone covers are not really an issue here. Reasonable usage could result in damage i.e. keys in your pocket scratching the case, and therefore necessitate a need to get a replacement. These are therefore allowed and defined in the US and English & Welsh law. In reasonable usage miniatures do not get damaged and therfore do not require replacement. and therefore replacement parts are not required.

I beg to differ. What do you define as "reasonable" usage? In my area, where play is regular and heavy, models are regularly dropped, squashed, and have bits snapped off in the process of play. My damn models suffer a lot more wear and tear than the cover on my phone.

[Wolfshade]

I beg to differ. What do you define as "reasonable" usage? In my area, where play is regular and heavy, models are regularly dropped, squashed, and have bits snapped off in the process of play. My damn models suffer a lot more wear and tear than the cover on my phone.

:eek:

How do you have a model that becomes squished?

Arguably, the 'phone case sole purpose is to protect the inards of the 'phone and as such is designed to have wear, the astetic design are a secondary concern, though i would wager most people are more bothered by how the case looks rather than how rugged it is. In contrast the models are not designed for wear certainly I've never seen a models so man handled as you described and I would be mortified if mine models were so mistreated.

[Psychosplodge]

I beg to differ. What do you define as "reasonable" usage? In my area, where play is regular and heavy, models are regularly dropped, squashed, and have bits snapped off in the process of play. My damn models suffer a lot more wear and tear than the cover on my phone.


:eek:

How do you have a model that becomes squished?

Arguably, the 'phone case sole purpose is to protect the inards of the 'phone and as such is designed to have wear, the astetic design are a secondary concern, though i would wager most people are more bothered by how the case looks rather than how rugged it is. In contrast the models are not designed for wear certainly I've never seen a models so man handled as you described and I would be mortified if mine models were so mistreated.


Sounds like user error. Either that or you're so rich you don't have need to look after your possessions?

[Herzlos]

Sounds like user error. Either that or you're so rich you don't have need to look after your possessions?

I'm pretty careful with my stuff, and I've had a few figures broken over the years due to various factors; mostly insufficiently secure storage or accidental drops. Some bits of figures are incredibly fragile.

[Psychosplodge]

I think everyone one probably has, but not generally beyond a bit of superglue and maybe pinning.

[Mr Mystery]

Occasional bit dropping off? From time to time.

Requiring a new purchase to put it right? Never in the 23 years I've been gaming.

[Herzlos]

Maybe not, but there's definitely a market for 3rd party replacement parts. Especially since GW stopped selling bitz.

[Caitsidhe]

:eek:

How do you have a model that becomes squished?

Inadequate table space at tournaments resulting in having to stack stuff under tables or to the side. Someone steps on them.


Arguably, the 'phone case sole purpose is to protect the inards of the 'phone and as such is designed to have wear, the astetic design are a secondary concern, though i would wager most people are more bothered by how the case looks rather than how rugged it is. In contrast the models are not designed for wear certainly I've never seen a models so man handled as you described and I would be mortified if mine models were so mistreated.

It happens. People pick up models and little bits snap. People drop models. People hit models with other models. The list goes on and on. It depends on how often you play, how much space there is to play at said location, and whether or not you are kind enough to let other people touch your toys. In my area most people allow others to pick up their models and look at the paint jobs. We should also not forget carry trays at tournaments where ALL your models are on one tray to walk from table to table. One bad step or bump and an entire army goes flying. Does it happen every time you go out? No. Does it happen? Yes. The point is that the models are fragile and not intended for serious wear and tear. Replacement parts come up. I'm not going to buy an entire boxed set to get another damn Melta or torso. I also don't want to stress and deal with spending hours to try and fix a cracked part to the quality I demand (where you can't tell it was repaired). I have better things to do. I prefer a replacement. If I was going to spend that kind of time working on fixing parts, I just as soon cast my own.

[Psychosplodge]

Sprues generally have enough extras to leave you with a reasonable collection of extremities, including common weapons...

[Mr Mystery]

Maybe not, but there's definitely a market for 3rd party replacement parts. Especially since GW stopped selling bitz.

Perhaps, but that isn't the issue. Issue is using other companies copyright to flog your wares. CH did. And now they're being sued. Scibor et al didn't, and haven't been sued. Pattern emerges.

[Caitsidhe]

Sprues generally have enough extras to leave you with a reasonable collection of extremities, including common weapons...

And it is never the "common" weapons that need fixing. :) The day GW provides me with two of each weapon on the sprue so I have a backup for EACH weapon from bland hand-to-hand club to fancy Melta or Lascannon, I will reconsider my opinion. They don't provide you enough of the special weapons nor do they provide enough backup. Perhaps your boxes are packed different across the pond. My boxes seem to come with exactly enough stuff for the models and no more.

[Psychosplodge]

I dunno, I know I've got plenty of various weapons in my bits boxes, I'd assume they'd be the same...

[Caitsidhe]

I dunno, I know I've got plenty of various weapons in my bits boxes, I'd assume they'd be the same...

Let me put it this way; I'm a skinflint. If I didn't have to buy more bits to get what I want, I wouldn't do it. I would much rather GW provide me with everything I need. They don't. The moment they do provide me everything I need at an equitable price I will not buy from other folks.

[Psychosplodge]

Maybe it's time they reopened the full mailorder catalogue...

[Wolfshade]

Certailny there is a market for it, just like there is a market for organs (and not the musical variety).

I would argue that they are subsitute parts and not replacement parts. I know this is a bit of word play and in the end the two amount to similar meaning but let me try and explain the difference. A replacement part suggests that the item would need replacing because it is worn out, like replacement gearbox, whereas the fleshtearers shoulder pad isn't a replacement part it is a subsitute part, the shoulder pad had not been worn out, not should it be.

[Sean_OBrien]

iPhone covers are not really an issue here. Reasonable usage could result in damage i.e. keys in your pocket scratching the case, and therefore necessitate a need to get a replacement. These are therefore allowed and defined in the US and English & Welsh law. In reasonable usage miniatures do not get damaged and therfore do not require replacement. and therefore replacement parts are not required.

Actually, the US specifically cuts out a section for cosmetic changes as well (and as part of that, prevents manufacturers from voiding warranties when cosmetic parts are used that do not impact the function of the product).

Consumer's actually do have a right to choose how they use their purchases - and that includes choices in aftermarket "parts". In the recent Nespresso Case, one of the aspects sited in the decision was the right of the consumer to shop around for competing sources for their coffee pods.

The consumer's right to unlimited use of their own property had higher priority than the protective interests of Nestlé, said a court spokesman.

http://www.thelocal.de/money/20120816-44403.html - The court case documents are in German and my German isn't strong enough to read through legal paperwork...but that article is a fair summary of what the case is about.

The US courts have ruled several times on comparable issues, ranging from functional to entirely cosmetic products.


Occasional bit dropping off? From time to time.

Requiring a new purchase to put it right? Never in the 23 years I've been gaming.

While I don't maintain it as a requirement to justify this case, I have in fact lost a few bits over the years. I've lost the backpack for a harlequin shadowseer, as well as the simulcrum off an SoB. Both of which would have required new purchases in order to replace the lost part as the bitz markets didn't provide replacements.


Perhaps, but that isn't the issue. Issue is using other companies copyright to flog your wares. CH did. And now they're being sued. Scibor et al didn't, and haven't been sued. Pattern emerges.

Trademark - not copyright.


Maybe it's time they reopened the full mailorder catalogue...

That would probably cut the knees out of a lot of these companies. Already, GW has been throwing back out a lot of bits which have been out of production for years. Part of that is in order to establish valid trademarks for a variety of their claims - however it has an added benefit of actually providing the products which customers want.


I would argue that they are subsitute parts and not replacement parts. I know this is a bit of word play and in the end the two amount to similar meaning but let me try and explain the difference. A replacement part suggests that the item would need replacing because it is worn out, like replacement gearbox, whereas the fleshtearers shoulder pad isn't a replacement part it is a subsitute part, the shoulder pad had not been worn out, not should it be.

The law doesn't actually differentiate between whether or not you are replacing a faulty part or upgrading. You see this with a variety of automotive parts from high flow air filters, fuel injections, triple core radiators, high output alternators and pretty much anything else that you can think of. It isn't limited to cars either. As I have already pointed to, the coffee pods are also in play as are things like iPad covers (which Apple also makes: http://store.apple.com/us/browse/home/shop_ipad/ipad_accessories/cases ).

A substitute part or a replacement part are both equivalents in the eyes of the law - so you can argue either way, but it won't change the outcome.

[Sean_OBrien]

GW filed a new suit against CHS:

http://ia601208.us.archive.org/12/items/gov.uscourts.ilnd.276476/gov.uscourts.ilnd.276476.1.0.pdf

The new complaint (new case...though it was kicked over to the same judge of the first case...so GW might have some 'splainin to do).

The new case is effectively the same as the old case, with the exception of their claim that CHS didn't just quit:

Subsequent to the commencement of the related case, Games Workshop Limited
v. Chapterhouse Studios LLC, 1:10-cv-08103 (MFK), Chapterhouse has also introduced
numerous new products copied from Games Workshop’s original WARHAMMER and
WARHAMMER 40,000 universe, including without limitation various “Tru-Scale” conversion
kits to change the size scale of genuine Space Marine figures to a new size that Chapterhouse
contends is more “true” to Games Workshop’s own original artwork than Games Workshop’s
actual Space Marine figures;Tau heads for Tau “Crisis Model” warriors; various “Heresy” era
shoulder pads for Terminator Space Marines and a “Pilum Imperial Attack Jetbike” equipped
with new weapons copied from Games Workshop’ Space Marine Bike and Games Workshop’s
weapon designs.

Exhibit A to their claim is a list of their copyright claims:

http://ia601208.us.archive.org/12/items/gov.uscourts.ilnd.276476/gov.uscourts.ilnd.276476.1.1.pdf

All of the ones listed their were filed for this year.

http://ia601208.us.archive.org/12/items/gov.uscourts.ilnd.276476/gov.uscourts.ilnd.276476.7.0.pdf

Judge Kennely actually requested that the case be given to him as opposed to a new and different judge... <cue dramatic music>Duh, duh duuuuh</>

[Angelofblades]

Does anyone else get the feeling that GW is getting desperate? Sounds like they know they're about the loose the initial case.

[RGilbert26]

I was wondering when GW would add the new stuff CHS have done, although they're missing the new cyclone missile launcher.

[Wolfshade]

Does anyone else get the feeling that GW is getting desperate? Sounds like they know they're about the loose the initial case.

I'm not sure, it sounds like they are just adding the new things that they have been released since the initial case...

[RGilbert26]

To me it's a way of saying that CHS are still copying GW stuff even during a court case.

[Deadlift]

It's getting boring now :), just how long until we get a judgement ? Anyone got a guesstimation ?

[Psychosplodge]

It's getting boring now :), just how long until we get a judgement ? Anyone got a guesstimation ?

When the lawyers have made enough money?

[Wolfshade]

It's getting boring now :), just how long until we get a judgement ? Anyone got a guesstimation ?

23st of Smarch

[Psychosplodge]

23st of Smarch

Not the 31st of February?

[Wolfshade]

Not the 31st of February?

No, interestingly enough if you dated a cheque 31/02/2013, come 01/03/2013 it could legally be cashed..

[Psychosplodge]

No, interestingly enough if you dated a cheque 31/02/2013, come 01/03/2013 it could legally be cashed..

I wonder if people would notice if you dated them 2113...

[Sean_OBrien]

I'm not sure, it sounds like they are just adding the new things that they have been released since the initial case...

The majority of things which they mention in the new case are already in the old case. The Heresy era jetbikes are claim #134, alternate Tau crisis suit heads are claims #135 and #136, Heresy era shoulderpads are claims #137 through #141 and Tru-Scale Marines are claims #142 and #143.

Other items like the Storm Raven kit are used nominatively and are named in a pretty clear manner which would avoid confusion.


It's getting boring now :), just how long until we get a judgement ? Anyone got a guesstimation ?

The summary judgement on the initial set of claims was set to come down the pipe 10-14 days from 13 days ago. So, that "should" be coming out today or tomorrow. Thursday is Thanksgiving here in the US - and some judges like to drop those sorts of things just before a holiday so they can avoid hearing from complaining lawyers for a little bit longer.

The actual court case was set to start in December but had to be rescheduled until early 2013. The new date hasn't been set yet the last I looked, though several portions will likely be settled in the summary judgement.

[Mr Mystery]

Does anyone else get the feeling that GW is getting desperate? Sounds like they know they're about the loose the initial case.

I disagree. Court Cases are not cheap. I'd imagine if GW, or more appropriately their legal eagles felt the original case was on a sticky wicket, they'd be inclined to await the outcome before bringing a new case....

[Herzlos]

I disagree. Court Cases are not cheap. I'd imagine if GW, or more appropriately their legal eagles felt the original case was on a sticky wicket, they'd be inclined to await the outcome before bringing a new case....

But if the outcome goes against them, the new case would be dismissed pretty quickly and the judge would be unhappy about a spurious case being filed since it'd already been ruled against in the first case.

[Mr Mystery]

Indeed. Which is why it suggests a certain confidence in their current position.

[Herzlos]

Or that they think they are going to lose and want to file before it'd be rejected immediately.

Or that they think that they are going to lose with what they've currently got, and are trying to sneak in some 'after discovery' additions, which is even more amusing as the trademarks they are trying to defend in the 2nd suit were all filed after the first one started, so are obviously inadmissible in the first case. How they'd be regarded in a merged case I don't know, but I assume a judge wouldn't be too favourable about someone suing based on a trademark infringement when the trademark wasn't registered yet.

I certainly don't think it shows confidence on GW's part.

[Angelofblades]

I agree with Herzo's thinking. It smacks more of desperation than confidence.

To me, it looks like they were trying to get another judge to pick up their 2nd case, in order to get a difference of opinion. It doesn't seem like they were aware the original judge may have had the foresight to request additional cases.

I would be interested in what their excuse would be to Judge Kennely about the second case.

[Bigred]

A couple points on this so far:

1) Summary judgements should be coming out any day now. Careful examination of them should be a strong "tell" to both sides as to their relative strengths going into court.

2) Regarding money, it is GW who is having to pay for every second of legal time spent on the case. Last I checked, CHS is being represented Pro Bono, so the case dragging out doesn't affect them one way or the other. I have no idea what a multi-year case like this runs, but GW's yearly profits are roughly 10M Pounds. Large legal expenses might make a noticeable dent in that - which would require explanation to shareholders.

[Cap'nSmurfs]

Unless they win and the other side has to pay costs, of course.

[isotope99]

If they 'win' (and I don't think its a binary win or lose, they could surely win in some areas and lose in others) and get awarded damages and/or costs then chapterhouse will most likely fold and reinvent itself as a new business that avoids whatever it is they lost on (reduced product range, different names etc.). I don't know what their cash position is like but I imagine given the scale of the business they would struggle to pay GW off. i.e. I expect it's going to cost GW either way, but defending their IP rights which are a huge part of the value of the business should be an easy sell to shareholders.

I think everyone is reading too much into this 'additional case'. As long as chapterhouse continues to add new products that GW sees as infringing, they are going to bolt them onto their claim but as pointed out they can't just throw them in as extra evidence to the original suit. Happens all the time with technology suits also, they argue about one model of smartphone etc. based on a particular patent or design and then move onto the next on a slightly different issue/patent etc.

[lattd]

A win will normally only cover 70% - 80% of costs in England just to give you an idea.

[LordGrise]

I still don't understand why Games Workshop didn't simply roll up to Chapterhouse's offices and offer to make them a subsidiary. Would have been a lot simpler, would have protected the IP and trademarks... Lawsuits benefit no one except the lawyers.

[weeble1000]

I still don't understand why Games Workshop didn't simply roll up to Chapterhouse's offices and offer to make them a subsidiary. Would have been a lot simpler, would have protected the IP and trademarks... Lawsuits benefit no one except the lawyers.

Hey now, lawsuits benefit a lot more folks than lawyers. There's all sorts of support staff, for example, and third party contractors like consultants, IT professionals, and graphic designers. Then there's local businesses in the venue. People have to stay at hotels, go out to eat, launder clothes, print all kinds of stuff, rent cars, the list goes on really. A lot of times in big cases that's money that flows in from out of state; not a boon to be ignored.

The fight over where the BP oil spill cases would be tried had a lot to do with the financial benefit the litigation would have on the local municipality.

[Mr Mystery]

I still don't understand why Games Workshop didn't simply roll up to Chapterhouse's offices and offer to make them a subsidiary. Would have been a lot simpler, would have protected the IP and trademarks... Lawsuits benefit no one except the lawyers.

Probably because CH sculpts are somewhat ropey in quality?

And lawsuits benefit the winner, more than the legal team....

[Chris Copeland]

Alright, Interwebz: what does THIS (http://ia600405.us.archive.org/18/items/gov.uscourts.ilnd.250791/gov.uscourts.ilnd.250791.258.0.pdf) all mean? I'm mostly interested in what real lawyers have to say, not armchair lawyers... cheers... Cope

[Nabterayl]

Alright, Interwebz: what does THIS (http://ia600405.us.archive.org/18/items/gov.uscourts.ilnd.250791/gov.uscourts.ilnd.250791.258.0.pdf) all mean? I'm mostly interested in what real lawyers have to say, not armchair lawyers... cheers... Cope

EDIT: sorry, ignore all the asterisks. Those appear to have been inserted somewhere between Notepad, my webmail, and posting.

Genuine lawyer #1 here, as requested.

Short version:

GW definitely owns the copyright to the works in question (with one small exception, with respect to which it may or may not own the copyright).
The things in question are copyrightable.
A jury will decide whether Chapterhouse actually copied GW's stuff.
A jury will decide whether Chapterhouse actually infringes GW's trademarks.

Long version follows.

To preface, the theory of summary judgment:

"Summary judgment" is when a court decides matters of law without deciding matters of fact.* Since lawsuits are fundamentally about a court deciding what is true in the "he said, she said" morass of conflicting stories that the plaintiff and defendant tell, this often surprises lay people.* However, if you think about it a little more, you'll see that this could (and does) happen all the time.* A party asking a court for summary judgment says, "Even if you accept my opponent's factual statements as true - and I'm not admitting that they are - I still win."* Essentially, they've failed to allege facts that support the lawsuit.* If you would win assuming that everything about your opponent's story is true, there's no need to figure out whether your opponent's story is true.

So, granting summary judgment is a court saying that one side wins, even if their opponent's factual allegations are all 100% true.* But denying summary judgment doesn't mean anybody loses.* It only means that the court feels that it has to go to the trouble of figuring out what the facts actually are before deciding who wins.

That said, on to the actual summary judgments granted and denied:

GW WITHDRAWS ITS CLAIM THAT CHAPTERHOUSE COPIED CERTAIN SPECIFIC PRODUCTS
On page 6, the court says:


Chapterhouse is entitled to summary judgment on Count 1 with regard to the products identified in these entries.

"These entries" are products that GW is trying to drop from the list of items that Chapterhouse allegedly copied.* Since GW is no longer alleging that Chapterhouse copied these specific products (whatever entries 8, 15-16, 25-26, 28-30, 32, 38-42, 44, 70-72, 81, 84-86, 88-89, 91-93, 107, and 109 on the Second Revised Copyright Claim Chart are), obviously, Chapterhouse wins with respect to those products.

GW DEFINITELY OWNS ALMOST ALL OF THE COPYRIGHTS AT ISSUE
Beginning on page 6, at "B. Standing and ownership," the court considers whether or not GW is even the copyright owner of several items (including the Blood Angels chapter symbol and the Rhino) created by several artists who were not, Chapterhouse alleges, GW employees at the time they created them.* The theory here is pretty straightforward: you cannot sue for copyright infringement if you are not the copyright owner.* If I sculpt a totally original miniature, and Chapterhouse copies it, I can sue Chapterhouse for copyright infringement, but GW can't.* Similarly, if Bob Naismith designed the Rhino when he was not a GW employee, and never sold his copyright in the Rhino to GW, then it doesn't even matter if Chapterhouse has copied the Rhino, because only Bob Naismith can sue him for that (if this were true, Naismith could sue Chapterhouse and GW both for copying the Rhino - but he hasn't).

The court grants summary judgment that GW does own the copyrights created by these men, except those created by Adrian Smith (remember, denying summary judgment with respect to Smith doesn't mean GW doesn't own the Smith-created copyrights, only that the court has to weigh the facts before it decides).* It has two bases for doing so.* First, Alan Merrett, who has worked at GW since 1981, has testified that he knows from personal knowledge that three of the disputed artists actually were employees at the time in question.* Chapterhouse's rebuttal is, "Well of course a GW employee would say that.* He's probably lying."* Now, the court is entitled to decide whether it thinks Merrett is a credible witness, and dismiss his testimony if it agrees that Merrett is probably lying.* But seeing no particular reason to believe that, it comes down to Chapterhouse failing to offer any actual evidence that contradicts Merrett's testimony.* Second, GW has produced signed copyright assignments by the non-employee artists, which transfer their copyrights to GW (for money, obviously).* Faced with this evidence that the artists sold their copyrights to GW, Chapterhouse apparently has no reply.

Thus, there really is no factual dispute as to whether these men were employees / sold their copyrights to GW, and the court therefore accepts the only evidence offered, which shows that GW owns these artists' copyrights, and thus that GW can sue over the copyrights they created - though note, deciding that GW is allowed to sue for copyright infringement is not the same as deciding that Chapterhouse has committed copyright infringement.* The only artist for which this isn't true is Adrian Smith, whom Merrett does not say was an employee at the time he was working for GW, and for whom GW cannot produced any documents showing he sold his copyrights to GW.* GW has produced a very recently signed document in which Smith "confirms" that he assigned his copyrights to GW for money way back when, but the court isn't prepared to accept that, so it denies summary judgment - in other words, it asks the parties to fight it out over whether GW owns Smith's copyrights or not.

TOY SOLDIERS ARE COPYRIGHTABLE
Starting at page 16, the court goes on to discuss whether GW's toy soldiers (or drawings of toy soldiers) are copyrightable at all.* It's important to note here that even though GW is an English company, Chapterhouse is a United States company, and United States copyright law does not care whether the product at issue is copyrightable outside the United States.* Thus, it is irrelevant whether toy soldiers are copyrightable in England.* If they're copyrightable in the United States, a United States court will still punish a United States company for copying them in the United States.* So, are toy soldiers copyrightable in the United States?* Chapterhouse has three theories why not: the things at issue (e.g., the Blood Angels logo, space marines, etc.) are (i) simply ideas, (ii) tropes of science fantasy, (iii) utilitarian elements, and (iv) names or titles.

With regard to (i) ideas, it certainly is true that ideas cannot be copyrighted.* But the court observes that the products at issue are not ideas.* There really is a physical drawing of the Blood Angels logo, there really are physical toy space marines, etc.* So the court disagrees that GW is suing to protect mere ideas.* Similarly, GW is not actually suing over any actual names or titles.* They aren't suing over the name "Salamander" (which is certainly not copyrightable, because you can't copyright single words or short phrases).* They're suing over a real, physical drawing of the Salamanders logo, which actually exists somewhere in England because a real person drew it on a real piece of paper.

With regard to (ii) common tropes (referred to by the legal term of art scenes a faire), a technical point about the law first.* It is generally impossible to literally prove that somebody copied something else - it's not like the Chapterhouse guys videotaped themselves creating their products in a room full of GW toys and art, after all.* From a technical standpoint, the court will assume they copied GW's stuff if Chapterhouse's stuff is very similar to GW's stuff (imagine if I wrote a book that happens to be, word for word, identical to The Hobbit.* It's technically possible that I didn't copy Tolkien.* But the similarities are so striking that it's a safe assumption I copied).* But that assumption only holds true if the copied stuff is very unique.* If Chapterhouse produces a space man in armor, well ... maybe they looked at GW's space marines and copied them, but how could we tell?* Maybe they copied Star Wars storm troopers.* Maybe one of the dozen or so versions of Mobile Infantry.* How could we tell?* "Space men in armor" are so common to science fantasy milieus that it's no longer safe to assume that person A's space men in armor copied any other specific space men in armor, even if they did.

Chapterhouse's contention here is that the disputed stuff is not so unique that it's safe to assume Chapterhouse copied GW.* To paraphrase page 19, Chapterhouse says, "Look at these shoulder pads.* Every space man in armor has shoulder pads!* How can you tell that we specifically copied the shoulder pads of GW's space men in armor?"* To this, the court essentially says, "I can tell."* While it is true that every space man in armor has shoulder pads (and indeed, many more non-space men in armor also have shoulder pads), the court feels that GW does have a distinctive style of shoulder pad - one that is sufficiently unique as to be copyrightable.* Similarly, while it is true that GW cannot copyright a chevron (the devastator symbol), it can copyright one of their distinctive shoulder pads with a chevron on it.* The point here is that the overall design includes something unique.* This is why the court says that the Flesh Tearers' chapter symbol is not copyrightable - you can't copyright a drop of blood, you can't copyright a circular saw blade, and putting them together does not magically make something copyrightable.* Put that symbol on a shoulder pad, and it's copyrightable, but the symbol itself is not.

With regard to (iii), Chapterhouse's argument is kind of jumbled, but they're getting at the doctrine that a useful object cannot be copyrighted.* For instance, I can't copyright a nail.* If I produce a super badass space gothic nail with a stylized skull on top, the skull design (if sufficiently unique) might be copyrightable, but the underlying nail is not.* You can see the analogy: is GW seriously arguing that it can copyright a Rhino door?* After all, it's a door.* To this, the court says yes, GW can copyright a Rhino door, because it's a door on a toy car.* A real Rhino door would not be copyrightable, no, because a door is a useful object.* But we're talking about a toy Rhino door here, and toys are not "useful" (i.e., utilitarian) in the eyes of copyright law.

So, long story short, the toy soldiers and pieces of toy soldiers are copyrightable.* Now we get to what all the lay people in the audience want to know ...

THE COURT WILL NOT DECIDE - YET - WHETHER CHAPTERHOUSE ACTUALLY COPIED GW
So far the court has declared that GW can sue over the copyrights in question (except, maybe, those created by Adrian Smith) and that the things in question are in fact copyrightable.* But at page 24 the court addresses the big question: did Chapterhouse actually copy GW's copyrightable stuff?* GW wants summary judgment on this point, declaring that any reasonable jury looking at Chapterhouse's stuff and GW's stuff side by side could only conclude that yes, Chapterhouse copied.* That being the case, there's no point in sending the case to a jury, so -

And at this point the court interrupts and says yes, actually, a reasonable jury could find in Chapterhouse's favor.* Maybe they will, maybe they won't.* There's only one way to find out.* And so, on the all-important question of whether Chapterhouse copied or not, the court denies summary judgment.* It says, "Let a jury decide that."

CHAPTERHOUSE MAY OR MAY NOT HAVE INFRINGED GW'S TRADEMARK
At page 27, we leave copyright land and move to trademark land.* This is getting kind of long, so I'll skip some of the nuts and bolts and get to the conclusion.* GW alleges that Chapterhouse infringes various of GW's trademarks.* To understand how this is different from copying, we need a short trademark vs. copyright primer.* Copyright, as the name implies, only protects actual copying of actual things.* We can infer copying (cf. my Hobbit example), but at the end of the day, copyright infringement is about copying.* Trademark is about how the market perceives things.* Let's say I didn't copy The Hobbit, and somehow I can prove that, despite the fact that my book and Tolkien's are word-for-word mirrors of each other.* I did not infringe Tolkien's copyright.* Even so, if a consumer would look at my book and say, "Hey, I bet that came from the pen of J.R.R. Tolkien," I have infringed Tolkien's trademark.* Copyright protects against actual copying; trademark protects against companies masquerading (intentionally or not) as other companies.

And in order to decide that, the key legal question is this: if a consumer looked at a Chapterhouse product and a GW product, taking into account (i) the visual similarities, (ii) any other similarities (e.g., how well do they fit onto a GW shoulder or Rhino hatch?), (iii) the manner and location of their use, (iv), how careful consumers generally are when buying this type of product, (v) how strongly GW is associated with the product in question (a lot more strongly with the Rhino than with stylized dragon heads, probably), (vi) actual evidence of actual confusion, and (vii) Chapterhouse's intent, if any, to deliberately sell its products as if they were actual GW products, which company would she assume made it?

On this question, like the question of actual copying, the court defers to the judgment of a later jury.* The facts, it says on page 33, are disputed.* Let a jury sort them out.

[wittdooley]

What an awesome post nab. I only skimmed it, but basically it's up to a jury to decide if CHS did in fact copy GW?

Man, that's sounds great for GW. I'm sorry, but I have a whole lot of trouble believing any "reasonable" jury won't think they're copied.

[Nabterayl]

What an awesome post nab. I only skimmed it, but basically it's up to a jury to decide if CHS did in fact copy GW?
Correct. Actual copying/trademark infringement was always going to be a factual (i.e., jury) question, even though GW asked for summary judgment on those points. The big question for the summary judgment motions was whether the case would even get to a jury.



Man, that's sounds great for GW. I'm sorry, but I have a whole lot of trouble believing any "reasonable" jury won't think they're copied.
Well, we'll see. The truth is litigators generally don't want to go to a jury no matter their opinion of the merits of their case. One reason lawyers like summary judgment is because you're only trying to convince one judge, who you are assured is a highly educated person trained in logic and able to appreciate legal nuances. Juries are unpredictable. And remember - if Judge Kennelly really felt that Chapterhouse had no chance of winning on the copying and trademark confusion issues, the case wouldn't be going to a jury at all.

[wittdooley]

Professionally, do you believe that's due to the fact that GW is such a niche hobby?

[Nabterayl]

I think that's part of it. I think the factors in Judge Kennelly's mind probably looked something like this:

Whether CHS actually copied the parts of GW's stuff that are sufficiently unique as to be copyrightable is, fundamentally, a factual question. Did CHS artists actually copy GW art and/or models? Do real consumers actually think CHS stuff is officially associated with GW? Those are questions of fact. Note that the parties have not waived their right to a jury trial, which means they have asked (as is their right) to have questions of fact decided by a jury. Even if Judge Kennelly felt 90% certain that a jury would find for GW, he probably would not want to take that call away from a jury because it isn't his role in this case to decide factual questions as to which there is any doubt whatsoever. The parties are allowed to ask the judge to be the finder of fact, but they didn't, and I'm sure Judge Kennelly would be very conscious of that.
As you say, wargaming is a niche hobby. Even the lawyers in this case have by now spent months or years immersed in its details. A jury of peoole outside the hobby might well see things differently.

[wittdooley]

Makes me wonder if during the jury trial GW will request to see CHSs masters. I, for one, have a lot of trouble believing CHS didn't, at least initially, remould stuff using GW parts. I'd love to see that initiated.

[Nabterayl]

Makes me wonder if during the jury trial GW will request to see CHSs masters. I, for one, have a lot of trouble believing CHS didn't, at least initially, remould stuff using GW parts. I'd love to see that initiated.
In general that time has passed. The parties could always ask for more discovery, but you aren't supposed to ask for summary judgment until you've collected all the evidence you will use at trial. I don't think seeing the masters would necessarily be especially probative (unless the masters are literally production-run GW parts with green stuff on them, which I doubt), but if GW felt that was relevant (and I doubt it would be any kind of smoking gun, but I agree it is relevant), they've had their chance to examine them already.

[Nabterayl]

By the way, as far as why GW didn't simply buy CHS, I think there were probably a lot of reasons, but I bet one was this: to establish a precedent as to whether or not bits were copyrightable at all. If they had bought CHS rather than suing, it would remain an unknown question whether copying pieces of GW models was even illegal. Now, GW's legal department has at least one court on record that even tiny pieces of GW models, such as the pauldrons of a space marine or the hatch of a Rhino, are copyrightable on their own.

That is a significant long-term victory for GW. Although Judge Kennelly's ruling is not law anywhere except his district, other US courts will be less likely to find bits uncopyrightable after his ruling than before it. GW is in a stronger position in a world where it is illegal to copy bits, even of CHS specifically is found not to have done so.

Of course, the result of the CHS jury trial will likely have a significant impact on how people perceive the boundaries of what will be considered "copying." If this CHS shoulder pad is found to be copying but that is not, other bits companies - as well as GW - will likely take that as indicative of what will be found legal in the future. Theoretically a subsequent jury could find totally differently, if a CHS piece with X characteristics is found non-infringing, GW would probably not bother suing other companies who make other pieces with those same characteristics. It's an uphill battle to convince another court or jury that you really honestly truly should have won last case, cross your heart.

For this reason, obviously, GW will want to win as many individual claims as possible. Aside from the obvious implications against CHS, losing on too many individual counts of infringement will weaken or even eviscerate their theoretical victory.

[grimm]

Did anyone else see that the 7th District let heresy slip into this ruling on the motion for summary judgement?

"Turning lastly to entry 105, the only basis upon which GW seeks a finding of infringement by Chapterhouse’s “Tactical Rhino Doors with Skulls Kit” is that both it and GW’s products display piles of skulls. A depiction of a pile of skulls is not copyrightable without more."


(To be copyrightable, there must be) MORE SKULLS FOR THE SKULL THRONE!

[Chris Copeland]

Genuine lawyer #1 here, as requested.


How cool is that?! I ask for a real lawyer's perspective and I receive a real lawyer's perspective! Everything is coming up Millhouse! Thanks for the breakdown, Nabterayl! You made my day! Cope

PS: The above illustrates of of the aspects of this hobby I like the most: I keep meeting great people (even virtually)!

[White Tiger88]

So in layman's terms is Chapter house screwed yet?

[Nabterayl]

No. Getting past summary judgment on the main claims means they have a chance. How good a chance is up to the jury, and there's no real way to tell which way a jury will lean.

As much a litigators tend to distrust juries, this is exactly the sort of thing they're for. Will ordinary men and women look at CHS and GW products side by side and decide that they're so similar they must have been copied, or not? Can ordinary people tell that CHS is not affiliate with GW, or not? We'll find out next year.

[White Tiger88]

No. Getting past summary judgment on the main claims means they have a chance. How good a chance is up to the jury, and there's no real way to tell which way a jury will lean.

As much a litigators tend to distrust juries, this is exactly the sort of thing they're for. Will ordinary men and women look at CHS and GW products side by side and decide that they're so similar they must have been copied, or not? Can ordinary people tell that CHS is not affiliate with GW, or not? We'll find out next year.

That long for people to figure out its a blant rip off of GW stuff? I mean...hell they look the same!

[Wolfshade]

Brilliant summary Nabterayl and no hint of bias :)
Thanks

[Psychosplodge]

How cool is that?! I ask for a real lawyer's perspective and I receive a real lawyer's perspective! Everything is coming up Millhouse! Thanks for the breakdown, Nabterayl! You made my day! Cope

PS: The above illustrates of of the aspects of this hobby I like the most: I keep meeting great people (even virtually)!

Now can we have some scantily clad gothic cheerleaders?

[White Tiger88]

Now can we have some scantily clad gothic cheerleaders?

I second this No dudes please.

[RGilbert26]

Where's EldarGal? :p

[White Tiger88]

Where's EldarGal? :p

Behind you with a gun if your thinking what i think you are.

[Denzark]

I was interested to see that, in the tooing and froing, both sides have taken hits. However, on the GW side it seems to be on legal procedures - ie trying to withdraw various items from their claims list - the Judge rules they are too late and must stand by initial claim.

However, CHS seems to have lost a few legal arguments - I counted at least one over-ruled objection in there.

On balance it would seem to a layman that it is better to be weak in understanding the procedure, than it is to lose the actual argument. I think this will end up as a partial victory, but even the slightest in may allow GW the chance to make a kiling blow.

[Mr Mystery]

I guess it would depend on what they're trying to remove from the list.

If it's stuff the Judge feels they don't own, then all is hunky dorey, as they wouldn't be considered anyway I'd imagine.

But seems CH are looking a bit ropey in their argument. Judge has stated (and I assume the Jury would have to follow) that the stuff GW accuse CH of copying are in fact copyrightable, and that copyright (for the most part) is in fact owned by GW.

And as others have said, given the testimony of one of CH's own sculptors, that he was given the HH artbook and told 'make that jetbike' I just don't see CH winning this one....

[Denzark]

Thats it - I waded through some of the testimony. Because many nay sayers will come up again sure as flies to plop, I recount in paraphrase - a freelancer for CHS was told to make something (possibly said jetbike) like in the Collected Visions (HH) Book. CHS asked if he needed a copy mailed to him, he said no, he had a copy already. Yes thats right, for him to copy the idea out of.

And the Judge has ruled the vast majority as copyrightable.

Stand by, stand by.

[Herzlos]

By the way, as far as why GW didn't simply buy CHS, I think there were probably a lot of reasons, but I bet one was this: to establish a precedent as to whether or not bits were copyrightable at all. If they had bought CHS rather than suing, it would remain an unknown question whether copying pieces of GW models was even illegal. Now, GW's legal department has at least one court on record that even tiny pieces of GW models, such as the pauldrons of a space marine or the hatch of a Rhino, are copyrightable on their own.

I don't think they'd want a precedent set, as it may then rule out the possibility of them threatening other companies to cease trading. I suspect the reasons they didn't want to buy out Chapterhouse are two-fold: (1) They don't want to encourage/support 3rd party bits makers ("Hey, GW bought CH, maybe if I make GW bits they'll buy my company" and (2) the legal action would have been cheaper, assuming of course CH just folded like everyone else. They've probably spent more than a buy-out at this stage, but I doubt they ever expected it to get to this stage.

[Nabterayl]

I don't think they'd want a precedent set, as it may then rule out the possibility of them threatening other companies to cease trading. I suspect the reasons they didn't want to buy out Chapterhouse are two-fold: (1) They don't want to encourage/support 3rd party bits makers ("Hey, GW bought CH, maybe if I make GW bits they'll buy my company" and (2) the legal action would have been cheaper, assuming of course CH just folded like everyone else. They've probably spent more than a buy-out at this stage, but I doubt they ever expected it to get to this stage.
I don't think money's the issue. If it were, GW could always have settled by now - I have a hard time imagining CHS being so sure of its merits as to not accept a settlement. To my mind, GW is acting like it wants to hammer the third-party bits industry (or at least upgrade the hammer it has available), and the only way to do that is to carry a lawsuit through.

Does anybody have a link to the Second Revised Copyright Claim Chart? Be interested to know what GW was trying to withdraw, and whether it's significant that the court didn't allow them to do so without prejudice.

[Caitsidhe]

The rulings so far were exactly as I expected them to be. Now it will go to the jury (where the Pro Bono Chapterhouse Lawyers will have a field day). Proving that Chapterhouse "copied" Games Workshop in the legal definition of the word is going to be a very hard sell. The precedent likely to be set by the end is what kind of deviations clearly protect spin-off works, i.e. what size and proportional differences are required. :) This is the last thing Games Workshop should want. It means, win or lose this particular case, that the floodgates are wide open. Anyone wanting to follow in the steps of Chapterhouse knows exactly what to do to be within the precedent, i.e. be like Games Workshop without them being able to legally win.

I happen to think that the final court outcome will be a split too with minor corrective action (if any) against Chapterhouse and no damages of importance whatsoever awarded for Games Workshop. They will only eat the massive legal fees, while Chapterhouse won't owe a cent to its Lawyers. More to the point (and it bears noting) that the firm that took this case Pro-Bono saw financial gain in it, i.e. a way to recoup huge legal fees from Games Workshop. They are in it to win it, and clearly believe that they will. I think they have a very good chance of it actually, but my bet is still on the split call.

[DrLove42]

If CHS win its a sad day for common sense.

But its sets a great standard for the industry. That you can piggyback on someone else artwork and ideas and marketing and work for your own products.

[Caitsidhe]

If CHS win its a sad day for common sense.

We disagree. It could be cultural. The United States believes in competition for better prices and product. Chapterhouse only exists because Games Workshop left a niche for them. They have NO ONE to blame but themselves. They owned the market entirely and instead of taking the steps to ensure that this would remain so, they followed a different path and created the very situations which led to the creation of Chapterhouse and all the others like it (and those that will surpass).


But its sets a great standard for the industry. That you can piggyback on someone else artwork and ideas and marketing and work for your own products.

This has always been the standard of any and EVERY industry. Everyone stands on the shoulders of giants to achieve their goals. Games Workshop is no different. :) It suffices to say that Games Worship STILL has the brand name and tools to CRUSH their opponents within two quarters simply by cutting costs and driving would-be competitors out of business. They can do this because they have the production means to produce product cheaper, the distribution network, and brand identity.

They are playing a dangerous game. They want it ALL. :) They want to continue to charge prices as if they are the only game in town and release their product if/when they feel like it. They want their would-be competition driven out of business by the courts rather than by competition. Greed; it will get you every time. Times change. The world moves on. Commonsense, that you talk about, is about using the most efficient tactics, i.e. doing those things which will result in the outcome you want. Who is demonstrating a lack of commonsense?

[Nabterayl]

The rulings so far were exactly as I expected them to be. Now it will go to the jury (where the Pro Bono Chapterhouse Lawyers will have a field day). Proving that Chapterhouse "copied" Games Workshop in the legal definition of the word is going to be a very hard sell.
I'm not sure I agree with this. If the jury finds that a Chapterhouse work looks like a copy of a Games Workshop work - and I don't know if they will for any given work, but I don't think it's far-fetched to imagine - then the burden of proof shifts to Chapterhouse to prove that it didn't copy. Proving that you didn't copy something is just as hard, if not harder, as proving that somebody else did copy something. I do doubt that GW can prove that CHS copied, but I also doubt that CHS can prove it didn't. So I expect what it will come down to is who has the burden of proof, which in turn comes down to how similar the jury thinks the works look. I can see that going either way.


The precedent likely to be set by the end is what kind of deviations clearly protect spin-off works, i.e. what size and proportional differences are required. :) This is the last thing Games Workshop should want. It means, win or lose this particular case, that the floodgates are wide open. Anyone wanting to follow in the steps of Chapterhouse knows exactly what to do to be within the precedent, i.e. be like Games Workshop without them being able to legally win.
I think it's premature to say that the floodgates "are wide open." I think that setting a precedent as to what kind of deviations are permitted is actually what both parties want. The difference is that GW wants a precedent that only very large deviations are permitted, whereas CHS wants a precedent that even very small deviations are permitted.


I happen to think that the final court outcome will be a split too with minor corrective action (if any) against Chapterhouse and no damages of importance whatsoever awarded for Games Workshop. They will only eat the massive legal fees, while Chapterhouse won't owe a cent to its Lawyers. More to the point (and it bears noting) that the firm that took this case Pro-Bono saw financial gain in it, i.e. a way to recoup huge legal fees from Games Workshop. They are in it to win it, and clearly believe that they will. I think they have a very good chance of it actually, but my bet is still on the split call.
I agree that it's highly unlikely for either side to prevail on 100% of its remaining claims. Bear in mind, though, that there are reasons for a firm to take on a pro bono case other than being awarded attorney's fees. I don't think Winston & Strawn is actually very likely to win attorney's fees in this case. Attorney's fees are generally only awarded when a court thinks the losing side was wasting everybody else's time, and if Judge Kennelly thought GW was wasting everybody's time, he likely would have just granted summary judgment for CHS. Even if it eats its own costs, though, Winston & Strawn has a very interesting copyright and trademark case to add to its IP group's portfolio. Interesting copyright and trademark cases don't come along every day, so just being involved in this case is a feather in their professional cap.


If CHS win its a sad day for common sense.
Speaking with my lawyer hat on, "win" is too broad a term. Suppose Chapterhouse is found to have infringed the copyright of 50% of the accused works and found not to have infringed any trademarks. Is that a "win" for CHS? For GW? What if they are found to have infringed all the copyrights but none of the trademarks, or all of the trademarks but none of the copyrights? There are a lot of possible outcomes here that are only a "win" or a "loss" from a particular point of view.

EDIT: Bear in mind, too, that the merits of a case are not necessarily connected to who wins in a jury trial. I think (and I think most other lawyers think) that juries generally take their jobs seriously, but that doesn't mean they're good at it. It's always true that who will win is different from who should win, but even moreso when you're past the summary judgment stage and into "what do regular people think?" land.

[Caitsidhe]

I'm not sure I agree with this. If the jury finds that a Chapterhouse work looks like a copy of a Games Workshop work - and I don't know if they will for any given work, but I don't think it's far-fetched to imagine - then the burden of proof shifts to Chapterhouse to prove that it didn't copy. Proving that you didn't copy something is just as hard, if not harder, as proving that somebody else did copy something. I do doubt that GW can prove that CHS copied, but I also doubt that CHS can prove it didn't. So I expect what it will come down to is who has the burden of proof, which in turn comes down to how similar the jury thinks the works look. I can see that going either way.

These are fair points, but then again we don't disagree on much anyway. The ironic (and funny) thing about this comparison is that Chapterhouse will actually BENEFIT from what some claim is their poor quality workmanship in this case. :) Most Chapterhouse products that look even a little like Games Workshop products are largely inferior in quality and thus look substantially different. The best quality Chapterhouse stuff either hit the market BEFORE Games Workshop (like their Jump Packs) or represents original models or other things not yet released. I buy from lots of different vendors and I have tons of Games Workshop product and some Chapterhouse stuff. It suffices to say that NOBODY is going to confuse the two.


I think it's premature to say that the floodgates "are wide open." I think that setting a precedent as to what kind of deviations are permitted is actually what both parties want. The difference is that GW wants a precedent that only very large deviations are permitted, whereas CHS wants a precedent that even very small deviations are permitted.

This is also a fair point but I think this is very likely to go toward Chapterhouse's desires as it does in most other industries. You don't have to change very much in music or art to make it your own. It is unlikely that toy soldiers will get greater protection. More to the point, this is a case involving international law, and you know better than I that they will tend to avoid the larger strokes in the final rulings for this very reason. I think Games Workshop was unwise because none of the likely outcomes are very good for them. I think there are lots of companies itching to get into the market but unlike Chapterhouse have been held back by legal concerns. Once those lines are clearly drawn (broad or narrow) they will jump in and the number of competitors is going to increase a great deal.


I agree that it's highly unlikely for either side to prevail on 100% of its remaining claims. Bear in mind, though, that there are reasons for a firm to take on a pro bono case other than being awarded attorney's fees. I don't think Winston & Strawn is actually very likely to win attorney's fees in this case. Attorney's fees are generally only awarded when a court thinks the losing side was wasting everybody else's time, and if Judge Kennelly thought GW was wasting everybody's time, he likely would have just granted summary judgment for CHS. Even if it eats its own costs, though, Winston & Strawn has a very interesting copyright and trademark case to add to its IP group's portfolio. Interesting copyright and trademark cases don't come along every day, so just being involved in this case is a feather in their professional cap.

You are correct. I honestly don't think Winston & Strawn jumped in for the cash (although they will certainly get it if they can) but rather because they think they can win and put that symbolic feather in their cap. That feather translates into more money in other cases down the line. The best advertisement for a law firm is a winning record, so most take Pro Bono they think they can win. I am one of the "regular people" but I tend to read up on things I comment about. I am at best a well-read layman, but I pay attention to what you and other actual lawyers say. I happen to be very interested in the difference between good "Trial" lawyers versus good lawyers. In that respect, Chapterhouse has a clear advantage. Games Workshop would do well to employ American lawyers for the actual trial, i.e. those who are good at "working" a jury. The last thing Games Workshop needs in an already difficult case is to add cultural disparity in how one wins over a jury.

[Mr Mystery]

Pleb question incoming...

Would GW be able to ask CH for their original sketches etc? We know GW is likely to have several for each piece, such as Jes Goodwin's sketchbook.

If CH are unable, or unwilling to show their working, how would that affect things?

As for GW's lawyers, I'm sure they are using a major US firm, a rival of CH's team?

[Psychosplodge]

The best quality Chapterhouse stuff either hit the market BEFORE Games Workshop (like their Jump Packs)

They just look like the Original (really old) GW jump pack...

[Caitsidhe]

They just look like the Original (really old) GW jump pack...

Ah but therein lies the problem. Games Workshop hasn't shown they own the copyright to that. All those sub-contractors or employees muddy the water. :) I agree it looks like how most of us conceptualize pre-Heresy Jump Packs. It is why I bought them (they are good), but ownership of said idea has not been shown to belong to Games Workshop, nor is it likely to do so. Twin Turbines on a backpack has been around a LONG time, all the way back to the 30s and 40s at least.

I highly suggest the Chapterhouse ones if you are using magnets. The material they are made with drills easily and sinking little magnets in is a breeze. Once the chaff is trimmed off they sit very well on the back. I use them with a variety of Cult Troops, so I can have Mark of Khorne Raptors or Mark of Nurgle Raptors. You get the idea. I magnetize everything so I can swap out heads, weapons, backpacks, or whatever. It allows me (as a CSM player) maximum options without having to buy as many models.

[Mr Mystery]

I recommend using the Forgeworld ones. They're much nicer.

[Psychosplodge]

I've got the one original, that's fine for making my chaplain stand out...

[Nabterayl]

Most Chapterhouse products that look even a little like Games Workshop products are largely inferior in quality and thus look substantially different.
That's an interesting argument, though I think it's more apposite to the trademark claims than copyright. If I drew a space marine, it would be a poor quality drawing (because I'm not very good at drawing), but it would probably still be clear I was trying to draw a space marine. Unlikely that anybody would confuse my work for GW's, and thus unlikely that I infringed GW's trademark. But I was still copying a space marine even if I did a bad job of it, so I likely did infringe GW's copyright. I think that's the most natural way to take the "CHS' work is poor quality" line of thinking. Pushing it beyond that to "this stuff is such crap that I can't even tell what they were trying to copy" is certainly possible, but would be much more of a stretch.


More to the point, this is a case involving international law
It does technically, but not on the main points. Now Judge Kennelly has gotten the question of who owns the copyrights out of the way (well, except for Smith's, which will need to be decided at trial), the remaining questions are governed by US law. And the big questions - did CHS infringe GW's copyright; did CHS infringe GW's trademark - always were US only.


Games Workshop would do well to employ American lawyers for the actual trial, i.e. those who are good at "working" a jury.
They have, all along. Foley & Lardner is a well respected American firm, based out of Chicago, in the heart of the 7th Circuit (the circuit in which this case is taking place).
[EDIT: Apparently they're actually based out of Milwaukee, though they do have a major office in Chicago, and both cities are in the 7th Circuit.]


All those sub-contractors or employees muddy the water.

I don't have a copy of the claim chart, but CHS did name seven artists who created copyrights at issue in the case back in the '80s. CHS alleged that these seven individuals were the original creators of the art in question, were not GW employees at the time they created the art, and never assigned their copyrights to GW ... and thus they remain the copyright owners, not GW. In his summary judgment order, Judge Kennelly shot CHS down as to six of the seven. The court found that three of the seven were GW employees at the time they created the art (and that they created the art within the scope of their employment), which according to English law makes GW the copyright owner. Another three were found not to have been employees at the time, but found to have assigned their copyrights to GW, which obviously makes GW the copyright owner (GW was able to produce documents from the same time period by which the freelancers sold their copyrights to GW).

As for the seventh (Adrian Smith), he wasn't an employee at the time and GW was not able to find a copyright assignment from the time. Did it once exist, and has just been lost? Maybe. GW was a small company back then, offices were not very computerized, and things do get lost. The jury will decide who owns the copyrights created by this seventh artist. Sadly, without the claims chart or a PACER subscription, I don't know what this seventh guy actually created.

Either way, the majority of the water-muddying as to who exactly owns which copyrights was cleared up by Judge Kennelly's summary judgment order.


Pleb question incoming...

Would GW be able to ask CH for their original sketches etc? We know GW is likely to have several for each piece, such as Jes Goodwin's sketchbook.
Yes indeed. They're allowed to ask for any information CHS has that would be relevant to the case, with very limited exceptions that for our purposes essentially boil down to things CHS said to its lawyers asking for legal advice. So if CHS ever asked a lawyer, "Hey, I think I'm infringing GW's copyright; what do you think?" they would not have to show that conversation to GW. But original sketches, greenstuff masters, and stuff like that is totally fair game. Since those certainly seem relevant to the case, I assume GW has indeed seen those things, but there is no particular reason for them to talk about it yet. All that stuff would go towards whether CHS copied GW, so the proper time to trot that out for observing public would be at trial.

[Caitsidhe]

I recommend using the Forgeworld ones. They're much nicer.

I assume you are talking about the ones on the Mark IV Space Marine Assault Squad? Those are nice, but you can't buy them without the rest. They also don't fit my CSM look. The issue always comes down to a market. There are people who want bits, not entire models. In my case I just wanted 10-15 good looking Jump Packs I could magnetize. Ideally I wanted the Turbine-style to have a Pre-Heresy kind of allure. Neither Games Workshop nor Forge World had what I wanted. Why wouldn't I turn to another vendor?

Don't mistake me for a Chapterhouse fanboy. I only buy the things from them that meet my criteria. They have a LOT of stuff that does not. The Jump Packs are aces for the cost though. :)

[Caitsidhe]

That's an interesting argument, though I think it's more apposite to the trademark claims than copyright. If I drew a space marine, it would be a poor quality drawing (because I'm not very good at drawing), but it would probably still be clear I was trying to draw a space marine. Unlikely that anybody would confuse my work for GW's, and thus unlikely that I infringed GW's trademark. But I was still copying a space marine even if I did a bad job of it, so I likely did infringe GW's copyright. I think that's the most natural way to take the "CHS' work is poor quality" line of thinking. Pushing it beyond that to "this stuff is such crap that I can't even tell what they were trying to copy" is certainly possible, but would be much more of a stretch.

Yes, but while you and I logically can follow that distinction, the jury will look at the models and bits. We both know they will be brought in as exhibits and handled. Juries are famous (or infamous) for going by what they can understand in a sensory way over what they are told in an intellectual way. What will matter most is how much or how little the products look alike side by side.

I can tell you, having handled them side by side, that they don't look much very much alike. :)

[Nabterayl]

Oh, so have I. And I know I've been down on juries in my last several posts, but remember, they do have the judge to instruct them in the law (and to ask questions of during deliberations), and most jurors seem to take their job seriously. Maybe they'll understand the judge's instructions and maybe they won't, but if you - a lay person, albeit one who is pretty interested in this stuff - can follow the distinction, there's certainly a chance that the jury will too.

[inquisitorsog]

If CHS win its a sad day for common sense.

But its sets a great standard for the industry. That you can piggyback on someone else artwork and ideas and marketing and work for your own products.

Thankfully, the judge seems inclined to interpret the law and instruct the jury along lines that preserve incentive to create new ideas while disallowing GW from squatting on common images, shapes, and tropes.

CHS got handed a lot of losses already... many of GW's copyright claims have thus far been deemed valid. Unless there's some egregiously bad behavior discovered on GW's part, CHS will probably be parting with some cash at the end of this.

At the same time, GW wants to claim more territory than the law allows and has liberally used the threat of lawsuits to bully others into complying. That HAS been the standard in the larger gaming industry. TSR/Wizards/Hasbro has been doing the same(and worse) for years. It's not good for we, the consumer, anymore than allowing anyone to copy anything.

Overly broad IP law goes from being an incentive to create to being a disincentive as creators only create one thing then sit on their laurels.

[Nabterayl]

Thankfully, the judge seems inclined to interpret the law and instruct the jury along lines that preserve incentive to create new ideas while disallowing GW from squatting on common images, shapes, and tropes.
I ... don't think that's really a fair way to interpret it. The judge has pretty much just interpreted the law as it is. If there was anything surprising in the summary judgment order, it was finding that a sufficiently unusual pauldron is copyrightable - and even that, I think, was always pretty clear.

[Caitsidhe]

Oh, so have I. And I know I've been down on juries in my last several posts, but remember, they do have the judge to instruct them in the law (and to ask questions of during deliberations), and most jurors seem to take their job seriously. Maybe they'll understand the judge's instructions and maybe they won't, but if you - a lay person, albeit one who is pretty interested in this stuff - can follow the distinction, there's certainly a chance that the jury will too.

Perhaps. You still have more faith in the intellectual reaction of a jury than I do. I like people. I think most individuals (educated or not) are far more clever than given credit. I think people as a group tend to be rather stupid. I think that this case will boil down to the bits in hand and Chapterhouse will be singing its own version of "if the glove don't fit you must acquit." :) I think that in the end people will go with their gut on this (and I don't think they would be wrong in this instinct) to look at the product and decide if it looks like a copy. In the end, I don't think any of us will ever know the INTENTIONS of Chapterhouse. I don't think we can know if they copied or not. I think that unless someone picks up Chapterhouse bits and demonstrate that they are direct molds of Games Workshop products with a few minor changes, Chapterhouse is going to win. Now... that being said... if Chapter house did use molds made from Games Workshop products, I think that can and will be shown. If that is the case they will (and should) lose.

[Mr Mystery]

CH's intentions are all over DakkaDakka, proclaiming he is legally ripping of GW IP and designs...

[Caitsidhe]

CH's intentions are all over DakkaDakka, proclaiming he is legally ripping of GW IP and designs...

If his intention was to "legally" profit from GW's IP and designs, what possible beef can we have? Was Chapterhouse arrogant and obnoxious? Sure. That isn't a crime. Those aren't intentions that matter. What matters is did they COPY and how narrowly is copy going to be applied. In general, it doesn't take much to make something NOT a copy. This is, of course, why we are going to have a trial. The answers to these questions will be coming along at the snail's pace that a legal system provides. I've made my predictions. My summary judgment predictions were on target. I'm willing to go on out an ledge and predict the split final judgement which is largely a win for Chapterhouse. I think that:

1. Chapterhouse will not have to pay any (or any significant) damages.
2. I think Chapterhouse will get instruction and a hand slap about names.
3. I think clear rules about copying for bits and toy soldiers will be fleshed out.
4. I think Chapterhouse will have to pull a tiny number of items and have its rights to several big ones affirmed.
5. I think pro bono Laywers will have a great David & Goliath (small company versus big) case in their portfolio.
6. I think Games Workshop will be out a great deal of money.
7. I think little companies will start producing more bits and models using the guidelines set by the case.
8. I think Games Workshop will be back to square one and have to address competition in traditional ways.

[Mr Mystery]

Given he was bragging he'd 'found a way to circumvent' copyright, and told all and sundry, and one of his sculptors confirmed he was told to use GW IP.....

[Nabterayl]

I think that this case will boil down to the bits in hand and Chapterhouse will be singing its own version of "if the glove don't fit you must acquit." :)
Well, maybe. We don't know what GW turned up in discovery (that's the phase of litigation where each side is allowed to require the other to turn over relevant evidence). CHS' communications - internally, with its sculptors, online, etc. - could certainly make the difference between a juror saying, "I don't know, they both just look like generic shoulder pads to me" and "Oh, I think this is trying to be a copy of that, even if I don't know enough about toy soldiers for it to strike me intuitively that this is a copy." We don't know what evidence each side is planning to submit at trial, and we don't know the makeup of the jury - without those things, I don't think we have enough information to speculate on how the jury will go.

If you gave me two helmets, say, from some market I'd never heard of and said, "Look, Item A is clearly a copy of Item B!" I might well go, "I dunno ... I mean, they're both helmets, but otherwise they don't look that similar." If you also showed me an e-mail from the sculptor of Item A that said, "Hey, about our project to produce our own copies of Item B ... I came up with Item A; what do you think?" that would ... certainly at least incline me to believe that A is a copy of B, even if I don't know enough to tell that from the objects themselves.

[inquisitorsog]

I ... don't think that's really a fair way to interpret it. The judge has pretty much just interpreted the law as it is.

I don't think you're reading my comment as intended. He interpreted the law as is. The result of that is that incentives are preserved. This keeps Judge Kennelley's interpretation firmly in line with the germ of US IP law found in the US Constitution, which is to promote progress in arts and sciences.

[Mr Mystery]

Given the evidence we know about, I don't see CH walking away from this.

Even if found guilty(? Not sure of correct term) on only some, the damages GW would likely press for could well bury them.

As for other bits manufacturers, whilst they aren't dumb enough to use another company's trademarks, we may see fewer. When CH lose, it's very unlikely anyone else would get pro-bono representation. There is a reason a cease and desist usually does the trick. Few small companies can foot the bill of a legal challenge.

And as for 'traditional methods' suing someone using your IP is traditional. Not really seeing the David and Goliath thing here. It's not as if GW are in the wrong, and seek to use their muscle to shut down other games ala Microsoft.

[Denzark]

I don't think you're reading my comment as intended. He interpreted the law as is. The result of that is that incentives are preserved. This keeps Judge Kennelley's interpretation firmly in line with the germ of US IP law found in the US Constitution, which is to promote progress in arts and sciences.

Given that under the International Treaty quoted often in this case (can't remember the name) that states this is being looked at under UK IP law, how is this relevant?

[inquisitorsog]

As for other bits manufacturers, whilst they aren't dumb enough to use another company's trademarks, we may see fewer.

From what I saw of the summary judgements, CHS is winning most (not all) contention points on trademarks so far and may continue to do so. Contrary to GWs position, you ARE often allowed to display someone else's trademarks if the purpose of doing so is to make reference to that someone or their products and you're not trying to confuse others as to who is who. Even to the extent of saying "my product is compatible with their product".

CHS is going to run into problems on the copyright front. That's a whole other ball game and the summary judgements probably favored GW somewhat more than CHS.

[Nabterayl]

What matters is did they COPY and how narrowly is copy going to be applied. In general, it doesn't take much to make something NOT a copy.
Hmmm ... not sure I follow you here. It's true that it doesn't take much to make something copyrightable. However, you can't just transfer copyright from somebody by making changes to it. For instance, GW owns the copyright to their space marine pauldron design (well, designs, but let's just take one for now). If I copy that pauldron and decorate it with a totally original piece of artwork, we now have a sort of hybrid: I own the copyright to my artwork, GW owns the copyright to the pauldron, and neither of us can use the full object without the other's permission. If I tried to sell my Nabterayl Pauldrons, I'd be infringing GW's copyright (in the pauldron); by the same token, if GW tried to sell my Nabterayl Pauldrons, it would be infringing mine (in the decoration).

So here's how I see the merits of the case - which may or may not be how the jury finds:

Chapterhouse has infringed GW's copyright with respect to GW bits that (i) had publicly available 2D or 3D representations at the time CHS created the accused product, and (ii) are unique enough to be copyrightable in the first place.
Chapterhouse has not infringed any, or very few, of GW's trademarks.

Re: #1, I don't have a copy of the claim chart so I don't know what precisely CHS is accused of copying. But I think their space marine shoulder pads, for instance, are infringing with respect to the underlying pauldron design (neither GW nor CHS magically owns the copyright to the whole shoulder pad bit, but CHS still can't sell it without GW's permission). I doubt their variant thunder hammers are infringing (I'm not positive - again without seeing the claim chart - that GW thunder hammers are copyrightable, and in any case, I don't think CHS' thunder hammers are based on GW's). But the key principle here is that a bit cannot incorporate a distinctive GW design - no re-decorated shoulder pads or Mk. VII helmets, for instance.

If a visual design doesn't exist (even 2D artwork) but a textual description does, then creating a bit to match that description will most of the time, I expect, be un-provable copying. For instance, if GW creates a new monstrous creature in a codex for which there is neither artwork nor model, I think a company could safely (though not legally) create a bit or kit to create or convert that new MC. Now, mind, this would still be copying - the textual description is copyrighted, and a sculptor who sits down with that description and asks, "How can I give this description three dimensional form?" is totally copying the text. Likely it's provable, too - you can always ask the sculptor, "Did you create this kit to give this textual description three-dimensional form?" and unless he perjures himself, you've got your evidence. But so long as the company engaging in this completely illegal activity is smart enough to advertise the kit in sufficiently generic terms, I imagine it will be too much of a pain to track down this kind of infringement. Just say, "Can be combined with GW kits to create a flying alien egg-carrying space snake!" instead of "Can be combined with GW kits to create a <insert name of new MC here>!" You're still infringing, but I imagine that will get you under the radar most of the time.

I should distinguish this from creating bits or kits to create units for which no description exists, either visual or textual. For instance, if GW describes how a new tyranid monstrous creature has three fanged maws on an armored serpentine body with twelve scythe-tipped arms and a tail that drips acid with leathery bat wings from which hang bulbous egg sacs, that's one thing. Sitting down with that description to create your own model of it - even if GW hasn't produced one yet - is totally copyright infringement. But if instead the text gives no description of what the creature looks like, instead describing how it sails through the air looking for Imperial Guardsmen to decapitate so its young can play basketball with their heads ... well, you can sit down to create your own model of that description all day long.

As to trademark, I don't think GW's claims have much merit. Ordinary people might look at a CHS bit and confuse it with a GW bit. But the people who actually buy this stuff - that is, the actual consumers who would need to be confused - are more discerning than that, I think.

[inquisitorsog]

Given that under the International Treaty quoted often in this case (can't remember the name) that states this is being looked at under UK IP law, how is this relevant?

You have an American judge performing that interpretation. He comes from a legal background in which IP law has grown out of a different purpose than that of the UK. The UK has never been able to escape the notion of royal monopolies and it's very much reflecting in the conversation here.

[Caitsidhe]

Hmmm ... not sure I follow you here. uy[/i]

What I'm getting at is that if someone wants to copy but is smart about it, there is no way to prove it is a copy. For example, if Chapterhouse was idiotic enough to directly copy a shoulder pad by using a mold and then just altering the decoration on it, they will certainly be made fools of in court. However, if their shoulder pads are different sizes and dimensions with different decorations, they are not Games Workshop shoulder pads. What I'm pointing out is that most Juries do take their job seriously (emotional or not) and most will not rule against someone based on the basis of intentions. If they are going to rule for Games Workshop saying something is clearly a copy, they will do so based solely on the physicality of the item.

I'm making the argument that is far easier to copy something in spirit without copying that thing in physical fact. It is, in fact, much easier to do than it is for someone to prove that "spiritual" copying or intention. While the conversation has moved away from "after market product" I think it will come back in a big way at trial. I think that is REALLY the crux of the matter. Americans have that right. They are used to having that right. They will (right or wrong) see this case as a battle between being forced to buy everything from the dealership or have other options. It will go against their gut. In that mindset they will be VERY demanding about proof of copying because they won't want to rule for Games Workshop.

[Mr Mystery]

You have an American judge performing that interpretation. He comes from a legal background in which IP law has grown out of a different purpose than that of the UK. The UK has never been able to escape the notion of royal monopolies and it's very much reflecting in the conversation here.

Monopolies and Mergers commission would beg to differ on that one.

UK IP law essentially means if I create something, I automatically own all possible representations of it.

[Nabterayl]

Given that under the International Treaty quoted often in this case (can't remember the name) that states this is being looked at under UK IP law, how is this relevant?
You're probably thinking of the Berne Convention? Issue summed up in two quotes from the order. Emphasis mine.

Page 6:


United States law permits suit only by “[t]he legal or beneficial owner of an exclusive right under a copyright.” 17 U.S.C. § 501(b). The parties agree that because GW’s products were created in England, its ownership of copyrights with respect to those products is governed by that country’s law. Saregama India Ltd. v. Mosley, 635 F.3d 1284, 1290 (11th Cir. 2011); see also Rudnicki v. WPNA 1490 AM, No. 04 C 5719, 2009 WL 4800030, at *7 (N.D. Ill. Dec. 10, 2009) (“Under the Convention, the law of the signatory country with the closest relationship to the international work at issue governs determination of copyright ownership.”).

Page 15:


Chapterhouse contends that GW’s miniature figurines are ineligible for protection under English law and that as a result all of GW’s copyright claims against Chapterhouse based on its figurines fail. Chapterhouse’s argument begins with an incorrect premise. Although disputes over copyright ownership must be resolved under the laws of a work’s country of origin, other [b]issues regarding a claim of copyright infringement, including the question of copyrightability, are determined by the law of the country where the alleged infringement occurred.

In other words, whether GW owns the copyright is a matter of English law. The consequences of owning the copyright is a matter of United States law.

And, as already explained, with the exception of Adrian Smith's stuff, the issue of whether GW owns the copyrights (the English law question) is settled in the summary judgment order. Going forward, the issue is consequences (i.e., did CHS infringe, and if so, what are they liable for?). That's a matter of US law. We're essentially done with the international law portion of the case.

EDIT:
Monopolies and Mergers commission would beg to differ on that one.

UK IP law essentially means if I create something, I automatically own all possible representations of it.

That's not really different from US law. In the US, if you create something, you also own all "derivative works" of it. If I draw a character in my sketch pad, I also own the rights to that character as a videogame character, as a 3D miniature, as a cell-shaded animated character in a movie, as a cosplay, as a character in an erotic slashfic fan novel, etc. However, as Caitsidhe is correct in pointing out, there's a difference between copying my character and designing a set of paper doll clothes that could go with my character. Owning all possible representations of something is not the same as owning all possible objects that can be tacked onto it :P

[Mr Mystery]

So the jetbike and Nid beast are problematic for CH?

[templarboy]

Just an aside here but how cool would it be to be on the jury for this case? Being (probably) the only gamer on the jury would be amazing. Getting to see all the internal GW IP presentations would be epic.

[Mr Mystery]

Interesting point. Would an established gamer be allowed on the Jury? I know it's not volunteers, but say someone from BoLs got called up, would their prior knowledge mean they can't be considered impartial?

[Caitsidhe]

So the jetbike and Nid beast are problematic for CH?

Which Nid beast? The Jetbike doesn't look like an issue for them at all. It looks nothing (not even remotely) like any Games Workshop bike. It doesn't have a Games Workshop name. It is clearly an original model that people could "use" if they wanted in a 40K game, but someone could use the little dog from Monopoly to represent things in a 40K game too. Or are we talking about a Nid beast and bike that was on the site originally and is no longer up?

[Caitsidhe]

Interesting point. Would an established gamer be allowed on the Jury? I know it's not volunteers, but say someone from BoLs got called up, would their prior knowledge mean they can't be considered impartial?

An actual gamer (who was honest about it) has about as much chance of getting on that jury as winning the Powerball Lotto. :) Neither side would want him/her there unless they could already discern bias in which case the other side would say "nope."

[Nabterayl]

So the jetbike and Nid beast are problematic for CH?
In my opinion (at least as far as I remember those issues), yes (EDIT: the nid beast because it was, at least as I recall, a version of the tervigon, which existed as 2D artwork; the jet bike because, at least allegedly, somebody showed the sculptor a GW drawing of a jetbike - which did not exist, and does not exist, in model form - and said, "Make this"). On the other hand, things like their Ymgarl heads are probably much less so. Similarly, their lash whips are probably fairly kosher - I think those are a good example of an alternative approach to an alien whip-like appendage, not so much a version of the existing GW alien whip-like appendage.

[inquisitorsog]

Monopolies and Mergers commission would beg to differ on that one.

UK IP law essentially means if I create something, I automatically own all possible representations of it.

What are you differing on?
I was discussing purpose. The interpreation in this case happens to neatly align with the stated purpose of US IP law. That the law in question is UK law isn't what I was really commenting on one way or the other.

However, I was indeed commenting that the attitudes expressed on who should get cremated at the end of this seem to fall on national lines. This likely has as much to do with the history of each nation as anything. The US shed the notion that IP law had the purpose of granting monopolies, but rather that any such monopoly was a means of realizing the purpose. Prior to the 1970s, it was hard for copyrights to fall into legal limbo in the US. They had to be renewed every so often, thus if the creator died and it wasn't clear who their heirs were, it took less than a human lifetime for it to fall into public domain (And I'm not exaggerating "human lifetime", it's 75 years for personally owned copyrights). We also have very strong notions of fair use as a result of our notion that IP law is there to promote progress. That's strongly coming through in the debate here even if not impacting the case itself.

[Denzark]

However, I was indeed commenting that the attitudes expressed on who should get cremated at the end of this seem to fall on national lines. This likely has as much to do with the history of each nation as anything.

I think you are right but for the wrong reasons. GW - bolshy big business, picking on the little guy, resorting to the courts and sueing like hell? That sort of behaviour is from the west side of the Atlantic, where you can sue MacDonalds for making you obese, Samsung for not putting instructions not to microwave your dog in the oven, and not mentioning cruise control doesn't let you go into the baack of your motor home and make coffee. Litigation is an import, maybe thats why some Brits find a staunch defence of CHS a bit rich.

[Nabterayl]

What are you differing on?
However, I was indeed commenting that the attitudes expressed on who should get cremated at the end of this seem to fall on national lines. This likely has as much to do with the history of each nation as anything.
I do think there's an implicit understanding of what copyright and trademark law is for, which does differ along national lines. I think stating it in terms of "royal monopolies" may be confusing, though. The purpose of US copyright law is to incentivize the creation of written* works. The purpose of copyright law pretty much everywhere else in the world is to protect the moral rights of the creator vis a vis the creation. I don't know that it's fair to peg that to the idea of "royal monopolies," though. The non-US evolution of copyright law actually post-dates the US version. Historically speaking, it's the United States' copyright law that is stuck in the past.

* By "written," I mean tangible - a still life, a space marine miniature, and a novel are all equally "written" for the purposes of US copyright law.

EDIT: Example. In the United States (historically, at least), copyright was good for fourteen years. That has slowly been pushed back, but US copyright law still clings to the idea that copyright should eventually expire. The theory has always been that the author should enjoy the fruits of his or her labors for a set period of time - long enough to make it worth his or her while to "write" in the first place - but no longer than is necessary to incentivize the act of creation. In most of the rest of the world, this is not true - the point is that you created it. In fact, in most of the rest of the world, there are some rights that a creator has in his or her creations that cannot be sold at all, even if the creator wants to.

US law is slowly being dragged into line with the rest of the world, mostly through treaties, but it still fundamentally looks at copyrighted works as being produced for the good of the many. The rest of the world looks at copyrighted works as essentially an extension of their author.

[inquisitorsog]

I think you are right but for the wrong reasons. GW - bolshy big business, picking on the little guy, resorting to the courts and sueing like hell? That sort of behaviour is from the west side of the Atlantic, where you can sue MacDonalds for making you obese, Samsung for not putting instructions not to microwave your dog in the oven, and not mentioning cruise control doesn't let you go into the baack of your motor home and make coffee. Litigation is an import, maybe thats why some Brits find a staunch defence of CHS a bit rich.
Litigation is an import from the US? This from the nation that not too long ago allowed someone to have a debtor put in prison...

EDIT: And by that I mean, there's plenty of examples of British "over-enthusiasm" to use the law as a personal weapon.

[Psychosplodge]

Ridiculous litigation, and "ambulance chasing" are things that have existed here since the mid-nineties? in some form or other, I'm pretty sure I've seen them depicted in the US in films from the eighties. It's certainly considered a transatlantic import here...

[inquisitorsog]

Ridiculous litigation, and "ambulance chasing" are things that have existed here since the mid-nineties? in some form or other, I'm pretty sure I've seen them depicted in the US in films from the eighties. It's certainly considered a transatlantic import here...

And my first impression of over litigiousness in popular media came from Hound of the Baskervilles. Were you referring to the 1890s?

[Psychosplodge]

Nope. does someone get fat eating fast food and sue the Doc's chain of restaurants?

[Nabterayl]

So, out of curiosity, how long are we going to spend arguing over whether suing to enforce copyright is overly litigious and like ambulance chasing? And if the answer is more than one post, can we at least argue over whether suing to enforce copyright is overly litigious and like ambulance chasing, instead of making snarky passive aggressive comments at each other?

[Psychosplodge]

Now where's the fun in that?
I'd have learnt more towards sarcastic than passive aggressive, but if that's how it reads...

I don't think GW had no option but to challenge it in court, it's how it works here iirc - Defend it or lose it.
TBH Nab, you're possibly better versed regarding that...
So not really like ambulance chasing?

[Caitsidhe]

I don't really have an opinion on whether or not their taking the matter to court was overly litigious. That is a specious kind of notion. I will say it has ended up being a bad call for them economically. They will never, even if they won a total victory, recoup the costs. :) My opinion is that attempting to do in the courts was foolish because they had so many better tools at their disposal. All this event has done has drawn attention to all the alternative choices available. I've seen MORE ads and activity (and models appearing on tables) from little companies like Chapterhouse in the last year than I did in the previous three. There is no such thing as bad publicity and drawing ATTENTION to the fact that all these little competitors are out there was stupid.

[DrLove42]

Think about it. Apple got upheld in court in teh US against Samsung because the Samsung phone LOOKED like the iPhone.

Not because of technology or anything. Because they had a similar design.

[Mr Mystery]

I don't really have an opinion on whether or not their taking the matter to court was overly litigious. That is a specious kind of notion. I will say it has ended up being a bad call for them economically. They will never, even if they won a total victory, recoup the costs. :) My opinion is that attempting to do in the courts was foolish because they had so many better tools at their disposal. All this event has done has drawn attention to all the alternative choices available. I've seen MORE ads and activity (and models appearing on tables) from little companies like Chapterhouse in the last year than I did in the previous three. There is no such thing as bad publicity and drawing ATTENTION to the fact that all these little competitors are out there was stupid.

Until one gets shut down for treading on toes.... There is no way CH come out from this.

As for other methods...such as? C&D? Sent and ignored. Politely asking? Nah. Buying out a company churning out low quality knock offs? Why?

I don't think you quite grasp GW's motivations behind the court case. They have an obligation to actively defend their IP. They are fulfilling said obligation. Whether or not they lose money on the case is immaterial, when you consider to not bring it risks losing their IP.

[weeble1000]

Think about it. Apple got upheld in court in teh US against Samsung because the Samsung phone LOOKED like the iPhone.

Not because of technology or anything. Because they had a similar design.

The Apple v Samsung case again rears its head. No, that is not why Samsung was found to infringe some of Apple's patents. In fact, Samsung was found to not infringe Apple's design right patent in the shape of the phone. So no, Samsung was not found to infringe because the Galaxy looked like the iPhone. Samsung was found to infringe because it deliberately and willfully copied very specific bits of Apple's patented technology, such as the bounce back feature.

The Apple v Samsung case is completely off topic. It has neither facts nor law in common with the GW v CHS case.

[Caitsidhe]

Until one gets shut down for treading on toes.... There is no way CH come out from this.

You keep saying that. Do you repeat it over and over to reassure yourself? If there was no way for them to come out of it the summary judgments would have ended the case. There is a very good chance they will come out of this and the various, actual lawyers here have been saying so too. I'll go a step further. I think it is quite possible that Games Workshop will, within the next six months, try to drop the case and walk away to save money. They are responsible to the stockholders and the bean counters will be commenting that pride and personal honor isn't worth the expense. We are now in the stage of the game wherein Games Workshop has to:

1. Prove the copyright violations.
2. Demonstrate damages.
3. And assuming they manage the 1st two, convince a jury to inflict punitive measures to teach a lesson.

The "hat trick" we are talking about is extremely difficult to pull off. As I said before, the most likely outcome is some violations will be found and some will be thrown out. Damages, which are almost impossible to prove or estimate with any accuracy, will be light and amount to a slap on the wrist. They will not include legal fees. No punitive measures will be taken beyond that. That is my prediction. Chapterhouse will come off just fine.


As for other methods...such as? C&D? Sent and ignored. Politely asking? Nah. Buying out a company churning out low quality knock offs? Why?

No. Those are not the methods I mentioned. I suggested simply driving them out of business by pricing and production they cannot match. Do you honestly think anyone would turn to these companies if they could get what they wanted from Games Workshop at a comparable (or cheaper) price? Do you honestly think that these little companies can slash their prices and make a profit at the same rate as the big fish who has brand identity, a distribution system, and industrialized production? If Games Workshop wanted to put all of its competition out of business it could do so easily. There would be a trade off, however, as they would have to shift to making more product and profit by bulk.


I don't think you quite grasp GW's motivations behind the court case. They have an obligation to actively defend their IP. They are fulfilling said obligation. Whether or not they lose money on the case is immaterial, when you consider to not bring it risks losing their IP.

I grasp their motivations perfectly. I'm pointing out that they are being stupid about it. They could achieve the same goals for less money and far more effectively. This is a matter of business not 18th Century honor or schoolyard politics. I'm sure the lawyers love every, long idiotic legal battle based on principle that comes their way. It is a windfall for them. You continue to labor under the delusion that even a win does ANYTHING positive for Games Workshop. It doesn't. The genie is out of the bottle. They are not the only kid on the block anymore. One needs only to look at other industries with similar problems to know the writing is on the wall and that the methods they are attempting have been failing. The tighter you grip your fist, the more sand slips between your fingers. I don't have any bone to pick with any of these guys. I'm a consumer. I buy from whatever vendor offers me the product I want at the best deal. I root for me and others like me. I don't care about Games Workshop. I don't care about Chapterhouse. I don't care about Raging Heroes. I give them high marks when they do something right. I don't buy their product when they do something wrong. They are merchants, nothing more. It is probably a good idea that these companies remember that fact THEMSELVES. They have an obligation to stay in business and make money. You do that by using the most effective tactics that yield results, not the most expensive ones that do not.

[Nabterayl]

I don't think GW had no option but to challenge it in court, it's how it works here iirc - Defend it or lose it.
TBH Nab, you're possibly better versed regarding that...


Well ... only kind of. Trademark is one thing; broadly speaking, if you don't defend your trademarks you can't go crying to the justice system that nobody associates your logo (or your space marine chapter symbol, or whatever) with you anymore. Copyright is much harder to lose through inaction - almost impossible, as I understand it.

By the way, it's been brought to my attention that I might have given an incorrect impression of how the law works here. A number of people have asked about things like CHS' sketch books, master models or molds, and whether or not CHS artists were told to (or have admitted to) copying GW stuff. The quality of CHS' stuff has also come up, in the context of whether or not a lesser-quality sculpt can infringe GW's copyright in higher-quality originals. So to be clear ...

Whether or not CHS has copied GW is actually independent of whether or not they intended to copy GW's stuff. While this might be surprising, it does make sense. Suppose I announce to the world that my next film will be a shot-for-shot recreation of A New Hope. After months of hard work, all the while loudly proclaiming to all and sundry that I am copying as closely as humanly possible, I release my film - and lo and behold, I have made A Clockwork Orange. Have I copied A New Hope? Despite my intentions, I have not. On the other hand, whoever holds the copyright to A Clockwork Orange (I assume not Kubrick) should have little trouble proving that my film is a copy of A Clockwork Orange, despite the mountain of evidence that I intended not to copy that film.

And now it will be useful to take a small digression into lawyerly technicalities. When discussing court cases in everyday speech, we often speak as if one side or the other can "prove" things. This is not really true, or at least not helpfully so. In a trial, nothing is really true - for the purposes of the trial - until the finder of fact has said so. In this case that's the jury; sometimes it's the judge (as I mentioned earlier, both parties can always agree they would like the judge to serve as finder of fact). A litigant can pile up evidence of copying to high heaven, but that doesn't mean any copying actually took place until the finder of fact says it did.

This makes it easier to see why you don't have to show intent to copy in order to prevail on a copyright infringement claim. What the plaintiff really needs is evidence that the two works are "substantially similar" to each other, in respect of their copyrightable detail. To give an example from this case, a space marine pauldron is copyrightable, but that doesn't mean all space man pauldrons infringe GW's copyright. Very likely neither being a pauldron nor fitting on a space marine shoulder are the copyrightable parts of that work. The copyrightable parts would instead be things like the proportion of the pauldron to the head and the boxy silhouette (which the court focuses on at page 20), and perhaps the distinctive raised rim, the little rectangular cutouts on the inside edge, and other such details.

Similarity is what really matters, initially - as the example of my movie shows, even irrefutable evidence of intent to copy is irrelevant if I have not, in fact, produced a substantially similar work. And if I have produced a substantially similar work, the law allows us to presume that I have, in fact, deliberately copied - even in the absence of other evidence.

But there is a place for evidence of intent to copy, and now we have reached that place. I can defend myself against a charge of copyright infringement by showing that, despite the similarities between my work and the alleged "original," I created my work independently. This is called "independent creation," and you can see at page 26 of the summary judgment order that Chapterhouse is claiming independent creation of its works.

How hard it is to prove independent creation depends on the extent of the similarity and the works in question - if I turn out a word-for-word copy of The Hobbit or a shot-for-shot recreation of A Clockwork Orange, I will have one hell of a time proving independent creation. It would be much easier, comparatively, to show that a space man shoulder pad that is only kind of sort of similar to a space marine pauldron was created independently of GW's space marine pauldrons. And here is where evidence of intent to copy can be useful. The more and better evidence the other side has that you intended to copy their work, the harder it will be to prove that you created it independently.

So: the threshold question is whether you have, in fact, produced a work that is substantially similar to the alleged original. Then we ask if you have shown that you created your work independently of the "original," despite the similarities. And then we ask if there is evidence of intent, which would tend to rebut your claim of independent creation.*

* EDIT: Okay, technically evidence for all three of these things is produced, and then the finder of fact sorts it out. But this is the conceptual order of things. If the finder of fact decides there is no substantial similarity, it doesn't matter whether you created your work independently or you just fail at copying. If the finder of fact decides there is no proof of independent creation, it doesn't matter if there is evidence of copying because the presumption is already that you copied.

[Chris Copeland]

Nabterayl, I always love reading your posts in this thread! I read them and actually feel more informed than I started by the time I get to the end of each post! Thanks!

[Psychosplodge]

An actual lawyer being on hand does take some of the fun out of armchair lawyering though...

[Mr Mystery]

True. But those spouting 'after market' stuff seem to have stopped...

[Chris Copeland]

No. One can't throw a brick in these parts without hitting an aftermarket for some product that wasn't authorized by the maker of the original product. Y'now what? This case fits my iPod PERFECTLY. It's marketed as being FOR the iPod.... etc, etc, etc... the world is full of aftermarket products that no one authorized and yet are perfectly legal... cheers... Cope


True. But those spouting 'after market' stuff seem to have stopped...

[Nabterayl]

I think he meant "after market" legal analysis.

[Chris Copeland]

Ahhhh... I thought it referred to how often the topic of after-market products had come up during discussions about Chapterhouse and GW. I've been in on several of those threads.

It sometimes seems that folks (often Brits, but not always) seem to not know that there are many after-market products out there... perfectly legal products that are made to accessorize other things (things made by other parties). I keep pointing out that there is mostly nothing illegal or immoral about making something to go with something else. My favorite example is that of the custom car hood (car bonnet). I could start making hoods for 2003 Ford Mustangs and sell them quite explicitly as being for 2003 Ford Mustangs without any approval from Ford. I've always thought of Chapterhouse stuff as being in that same category: after-market stuff that I can slap onto my GW stuff if I so choose...

Cheers! Cope

[Denzark]

Copey we've been through this garden. So I will continue your metaphor. GW are arguing the jetbikes et al were copied from their designs for a concept car. Not in production but definitely out there. GW are arguing that the shoulderpads (aftermarket bonnet) aren't just FOR the ford mustang, but have a variation of the ford sign on them. Neither of these things are allowed.

[Chris Copeland]

Denzark, I believe we agree! GW sees the whole mess as the illegal way and CHS sees it as falling under the umbrella of the perfectly legal way to engage in after-market products. CHS is saying, "No, this is just an aftermarket bonnet for a Mustang" and GW is saying, "That's a variation of the Ford Pony on that bonnet, yer ripping us off."

One way is legal, one is illegal. I happen to see it CHS's way and you see it GW's way... both of us reasonable, rational people who look at an issue and come to different conclusions. Now a jury is going to do just that. They will look at the facts and decide which point of view is the correct one. I tend to think Caitsidhe is right and the end result will be a mish-mash of outcomes


Copey we've been through this garden. So I will continue your metaphor. GW are arguing the jetbikes et al were copied from their designs for a concept car. Not in production but definitely out there. GW are arguing that the shoulderpads (aftermarket bonnet) aren't just FOR the ford mustang, but have a variation of the ford sign on them. Neither of these things are allowed.

[Nabterayl]

Denzark, I believe we agree! GW sees the whole mess as the illegal way and CHS sees it as falling under the umbrella of the perfectly legal way to engage in after-market products. CHS is saying, "No, this is just an aftermarket bonnet for a Mustang"
One of the things that makes this case interesting is that in most cases, aftermarket parts can't be copyrighted. You can make an aftermarket bonnet for a Mustang because, while the overall shape of a Mustang is probably copyrightable, the shape of the bonnet isn't. Since Ford doesn't own the shape of the bonnet itself, you're only in trouble as an aftermarket bonnet manufacturer if you put something else on the bonnet that Ford owns.

CHS has argued that parts of GW models are like car bonnets - and, at least with respect to space marine pauldrons, Judge Kennelly has disagreed. That is, Games Workshop owns the shape of the pauldron itself. I find that super interesting, from a legal standpoint. I can't think of many other aftermarket industries where the basic shape of individual pieces, rather than the overall product, is protected. This raises the obvious question of which other pieces of GW models are protected? Space marine helmets (probably)? Space marine poleyns (probably not)? Tau pauldrons (probably)? Ork pauldrons (now that's an interesting question)?


and GW is saying, "That's a variation of the Ford Pony on that bonnet, yer ripping us off."
So now this, as it were, is the relevant question. After all, if you just put a pony on your aftermarket bonnet, you aren't ripping off Ford - it has to look like the Ford Pony. Between "pony" and "Ford Pony" there is obviously a lot of room for variation, which means there will inevitably be a gray area where it's unclear whether a pony is ripping off the Ford Pony or not.

Having lost their first argument - that individual pieces of toy soldiers can't be copyrighted at all - CHS is now down to its second line of defense: that its pieces aren't ripping off the proverbial Ford Pony. To adjust the analogy, suppose Ford did own the shape of the Mustang bonnet. That doesn't mean they own every possible bonnet that can fit on a Mustang. Within the basic constraints of fitting onto the Mustang chassis, there is an infinite variety of bonnet shapes that one could design. Similarly, just because GW owns the shape of a space marine pauldron doesn't mean they own every possible pauldron that can fit on a space marine shoulder.

[lattd]

I think its due to being such a unique shoulder pad, we all know a car bonnet is gennerally 4 sides slightly curved. But a should pad can be a square rectangle etc.

[Nabterayl]

I think its due to being such a unique shoulder pad, we all know a car bonnet is gennerally 4 sides slightly curved. But a should pad can be a square rectangle etc.
Yeah, I think it's a sensible ruling, even correct. But it's still interesting, and I don't think it was a slam dunk. I don't blame CHS for arguing that come on, you can't copyright a shoulder pad.

[Mr Mystery]

Quick question, as I dunno about anyone else but I remain confused....

For CH to be in deep poop, it would need to be found that they copied both the Pauldron, and any symbol on it?

And as an aside, does their advertising their bits as for GW kits, and thus making it known that is what they were designed for affect anything?

[Nabterayl]

For CH to be in deep poop, it would need to be found that they copied both the Pauldron, and any symbol on it?
No. Selling copyrighted stuff, even if you throw in non-infringing content too, is still selling copyrighted stuff. So CHS isn't allowed to (i) copy the space marine pauldron or (ii) copy the space marine pauldron and slap on a CHS-original symbol. In either case, they're liable for copying the space marine pauldron. Of course, CHS is arguing that, while their pauldrons fit on a space marine shoulder, they are not copies of the space marine pauldron.


And as an aside, does their advertising their bits as for GW kits, and thus making it known that is what they were designed for affect anything?
Well ... that depends on how exactly they said it. Let's take "space marine" as an example. "Space marine" is a Games Workshop trademark, but trademarking a word doesn't prevent other people from saying it. It prevents other people from pretending they're the company associated with it. So as long as you are being factual, you're fine. There is nothing wrong with saying, "This fits on space marines" or "We made this mostly so you could put it on your GW-designed space marines."

Conversely, there is a problem with saying, "This is a space marine pauldron." That implies that you are Games Workshop (or at least, you're very much in danger of a jury finding that). Assuming people in the market particularly associate "space marines" with Games Workshop (and while GW will have to prove that at trial, I don't personally think it will be very hard), claiming that you also make space marines is equivalent to pretending to be somebody you're not. So the exact wording matters. It's the difference between "I sell parts for Mustangs" and "I sell Mustang parts."

So with respect to the claim that they infringed GW's trademark (i.e., that they said, "I sell Mustang parts"), those statements matter. They aren't the whole story - I can try to pass myself off as Ford until the cows come home, but if absolutely nobody buys it, I haven't infringed Ford's trademark despite my best efforts. But they're certainly very important.

With respect to the copying claims, I don't think they matter much - unless they are found to be equivalent to "I sell Mustang parts." Remember, the first thing we have to ask in a copyright infringement claim is whether I actually copied your thing or not. If I didn't - whether because I wasn't trying to, I just suck at copying, or whatever - then we're done. But if I did, I will presumably try to claim that my thing and your thing are just coincidentally similar (that I created my independently of yours). If I am going around saying, "I sell parts for Mustangs," that probably doesn't help or hurt my independent creation defense. If I am going around saying, "I sell Mustang parts," then my claim that I didn't copy any actual Mustang parts starts to look weaker.

[Mr Mystery]

Gotcha. I think.

So the Judge has ruled(? Again shaky on terminology) that the pad itself is copyrightable, and in this case, said copyright is GW's.

But the question now is did CH copy the pad. And if a jury decides 'yes they did' then CH would not be able to sell any kind of the pads GW's complaint encompasses?

[Nabterayl]

Gotcha. I think.

So the Judge has ruled(? Again shaky on terminology) that the pad itself is copyrightable, and in this case, said copyright is GW's.

But the question now is did CH copy the pad.
Bingo.

EDIT: Of course, it works the other way, too. Let's say CHS didn't copy the pad (even though their pads fit space marine shoulders), but did copy a symbol. You can't sell a copied shoulder pad with an original symbol any more than you can sell an original pad with a copied symbol. But I think the main focus for the shoulder pads will be whether they copied the pad itself.

[Mr Mystery]

Fairly dos!

Cheers matey.

[Denzark]

There are a lot of pads out there. Is the copied aspect the curvature that allows it to mesh with the upper arm, under pad should of a GW SM? Do some have the rim furniture?

BTW Copey I see we are on different sides of the line here, and I think I agree it will be a mish mash of culpability. I just suspect that even a little CHS culpability will allow GW a chink in the armour (or armor if you prefer!) to smack down some undigestable damages to CHS.

[Nabterayl]

There are a lot of pads out there. Is the copied aspect the curvature that allows it to mesh with the upper arm, under pad should of a GW SM? Do some have the rim furniture?
Well, that is an excellent question. The technical way to think about this is that copyright protects only the original parts of a work. The classic example of this is drawing a mustache on the Mona Lisa (http://en.wikipedia.org/wiki/L.H.O.O.Q.). The Mona Lisa is in the public domain, and thus not protected by copyright. Something you draw on the Mona Lisa is [almost certainly*] copyrighted. Copying your Mona-Lisa-plus-mustache drawing is a no-no, for the same reason you can't copy a shoulder pad even if it has an original symbol on it. But suppose I see your Mona-Lisa-plus-mustache drawing and make a Mona-Lisa-plus-spectacles drawing. That is totally fine - I have copied only the public domain part of your work (the Mona Lisa), not the copyrighted part (the mustache).

So ... what is the protected part of a space marine shoulder pad? That is actually a very difficult question. It is almost certainly not the inside curvature; i.e., the fact that it fits on a space marine's under pad. When he found that space marine shoulderpads are copyrighted, Judge Kennelly focused on two aspects: their size relative to the wearer's head, and their boxiness. But is that all that's original about the space marine shoulder pad? As you say, what about the rim furniture? What about those little rectangular cutouts on the inside rims? Are those sufficiently original as to receive copyright protection, or are they scenes a fair - something commonly seen on all space man shoulder armor? We can infer from Judge Kennelly's order that an aftermarket space man shoulder pad that copies a GW pauldron's size and boxiness would infringe, even if it didn't have the rim furniture, rectangular cutouts, etc. But what about an aftermarket space man shoulder pad that was small and round, but did have the rim furniture, rectangular cutouts, etc.? We don't know the answers to that question. When the jury considers whether CHS' shoulder pads have copied the protected content of GW's shoulder pads, whether the protected content of a GW pauldron is limited to the two aspects that Judge Kennelly called out is something they probably should (but who knows if they will) consider.

* It takes very, very little creativity - often expressed as a "scintilla" of creativity - to be original enough to receive copyright protection. But it does require some creativity. To take an example from this case, drawing a clip art version of a circular saw blade is not enough creativity. Neither is drawing a clip art version of a blood drop. Neither is placing that blood drop in the center of the circular saw blade (http://wh40k.lexicanum.com/mediawiki/images/f/f1/Flesh_Tearers_Livery.jpg). However, very likely a painting that consisted of nothing but circular saw blades and blood drops scattered on the canvas like Jackson Pollock spatters would be enough creativity.

[jonsgot]

Gotcha. I think.

So the Judge has ruled(? Again shaky on terminology) that the pad itself is copyrightable, and in this case, said copyright is GW's.

But the question now is did CH copy the pad.

Except that the first space marines where skuplted by Bob Naismith, who I think was under contract and retained rights to the models. So if anything the copyright to big sholder pad would be his. After all they didn't come much bigger than his exo armour terminators!

http://s398928513.websitehome.co.uk/wp-content/uploads/2012/12/rare-marine.jpg

[Mr Mystery]

Yes, and no.

Current SM pads are Jes Goodwin's babies I believe (may be wrong!)

But in any event, I believe GW have proven the good Mr Olley transferred copyright and that to them, either under the terms of his contract or otherwise.

[jonsgot]

Not sure if that was in response to my post. The current pads are based Jes' scupts but the concept which is what the judge is talking about is Bob's. If Bob signed it across, I'm not sure. I haven't seen his name in the summary documents??? GW seam to have a statement from another employee.

I was told a long time ago in a GW store far far away. GW stopped selling the exo armour sculpts because Bob was still getting royalties from them. I realise that's not the same as retaining the copyright.

[Mr Mystery]

Well, named or not, the Judge has ruled GW own it. As for the figures, those are variant Terminators IIRC. Pads are also very different.

Remember, the trick here is that GW's pads are distinctive, for the reasons the judge set out.

[Caitsidhe]

I think the discussion is largely irrelevant now. It is going to trial and what is going to happen is literally anyone's guess. We will just around and around. :) It is one of the reasons I haven't had much else to say.

[Psychosplodge]

I was told a long time ago in a GW store far far away. GW stopped selling the exo armour sculpts because Bob was still getting royalties from them. I realise that's not the same as retaining the copyright.

So that's why they did away with squats?

[Cpt Codpiece]

Except that the first space marines where skuplted by Bob Naismith, who I think was under contract and retained rights to the models. So if anything the copyright to big sholder pad would be his. After all they didn't come much bigger than his exo armour terminators!

http://s398928513.websitehome.co.uk/wp-content/uploads/2012/12/rare-marine.jpg

those termies are jes goodwin though. the cobra termie is the only naismith one, you can find jes' pre sculpt sketches on all other types except the cobra one.

[Mr Mystery]

Cobra Terminator?

Whatchoo talkin' 'bout Willis?

[jonsgot]

We stone me you are right and I've been lied to :(

http://i1186.photobucket.com/albums/z378/RandomSelect/IMG_0513.jpg

Cobra is the one at the bottom, also know as turtle neck.

In response to "it's going to trail so this is irrelevant" I believe the trial will go over everything again unless it's been excluded in the summary, unless someone lodges an appeal to to something in the summary. So really nothing is decided.

[Mr Mystery]

I know there are those out there who will bay for my blood for saying this, but lordy, the older models really were fugly!

[jonsgot]

I know there are those out there who will bay for my blood for saying this, but lordy, the older models really were fugly!

No We're going to stay on topic and point out the models being ugly (or not) has no bearing on copyrights :)

[Psychosplodge]

No We're going to stay on topic and point out the models being ugly (or not) has no bearing on copyrights :)

orly?


I know there are those out there who will bay for my blood for saying this, but lordy, the older models really were fugly!

But they are clearly the forerunners to the current range...

ok, maybe we did...

[DrLove42]

Can I just point out the bottom of that sheet has a note saying "Copyright Games Workshop".

Just gonna point it out....

[Mr Mystery]

Well it is fairly standard that anything created during your contracted hours belongs to the company. Like Post Its (I think. That bit may be urban legend).

Depends of course upon the contract. But look at GW's submissions rules. If I send them anything artsy or creative, I'm surrendering the copyright to them....

[Nabterayl]

Except that the first space marines where skuplted by Bob Naismith, who I think was under contract and retained rights to the models. So if anything the copyright to big sholder pad would be his. After all they didn't come much bigger than his exo armour terminators!

http://s398928513.websitehome.co.uk/wp-content/uploads/2012/12/rare-marine.jpg
Beginning on page 9 of the summary order, the court discusses whether Naismith was a contractor or employee and concludes that he was an employee for the relevant period. I still don't have a copy of the claims chart, so I don't know if Naismith's space marines are in question - but whatever works of Naismith's are in question, he was an employee when he made them. According to the summary judgment order, the only copyrights still at issue that GW might not own are those created by Adrian Smith. It's already been decided that GW owns the Gary Chalk, Simon Egan, Wayne England, Des Hanley, Clint Langley, Mike McVey, Bob Naismith, and Adrian Wild-created copyrights at issue in the case.

[Maelstorm]

We stone me you are right and I've been lied to :(

http://i1186.photobucket.com/albums/z378/RandomSelect/IMG_0513.jpg



<lol> I still have half of those models, including the Chaplain on the Jet Bike!

must be gettin' old....

[Mr Mystery]

And the flowers and countrysides were nice!

[Tzeentch's Dark Agent]

I hate spam bots.

[Mr Mystery]

But now it looks like I've just been a dick to Maelstorm!!!

[Tzeentch's Dark Agent]

No you don't, read it again!

[Mr Mystery]

Bit poofy, but fix'd all the same!

Right. Let's get back on track! When is this set to go for judgement/whatever?

[weeble1000]

Bit poofy, but fix'd all the same!

Right. Let's get back on track! When is this set to go for judgement/whatever?

Is it just my imagination or did a completely relevant, on topic post just get removed from this thread?

Back on track from what Mystery?

It feels like the Twilight Zone around here.

[Mr Mystery]

From TDA and I's gibbering of course!

[Bigred]

The plot thickens...

Read this latest court filing for a REQUEST FOR RECONSIDERATION OF SUMMARY JUDGEMENT:

http://www.archive.org/download/gov.uscourts.ilnd.250791/gov.uscourts.ilnd.250791.267.0.pdf

[Tzeentch's Dark Agent]

For the love of the Gods, I'm coming to America to solve this.

[Nabterayl]

The plot thickens...

Read this latest court filing for a REQUEST FOR RECONSIDERATION OF SUMMARY JUDGEMENT:

http://www.archive.org/download/gov.uscourts.ilnd.250791/gov.uscourts.ilnd.250791.267.0.pdf
Well, that's rather interesting! For those who can't be arsed to read it, here's the most interesting part:

Remember that, in the order for summary judgment, the court ruled that GW's space marine shoulder pad design was sufficiently original as to be copyrightable.
CHS has uncovered correspondence between GW and the U.S. Copyright Office in which the Copyright Office decides that the space marine shoulder pad design is not copyrightable.
GW had an obligation to turn over that correspondence to CHS, and did not.*
So what happens now?

First, the court doesn't have to reconsider its summary judgment at all if it doesn't want to. Second, even if the court does reconsider, it is allowed to disagree with the Copyright Office. In general, it isn't supposed to do so unless it feels like the Copyright Office was clearly wrong (if the court feels like the issue of copyrightability could go either way, it's generally supposed to defer to the Copyright Office - they're the experts, after all). Either way, the court will have to respond to this request for reconsideration (even if only to say the original summary judgment order stands), so that's the next thing we should look for.

* GW might have a legitimate reason for not turning over that evidence. I am really at a loss as to what that could be. Still, I don't want to say definitively that GW was bad without hearing GW's side.

[Tynskel]

Interesting.
This court case is going to have ramifications as 3D printing comes.

I wonder how these companies will adjust.
One thing I can think of is the selling of printer instructions, while GW continues to make very high quality miniatures for sale. For example: GW sells old MkII Rhino chassis 'blueprints', while making the new 'MkIII' rhino.

[Caitsidhe]

Judges have a notoriously negative reaction to failures on the part of litigants to honor discovery. It makes their rulings suspect and vulnerable to appeal. Judges don't like being overruled on appeal so they like every thing neat and up front. It also looks damn bad and makes the judge wonder WHY someone hid the discovery. How this plays out is even more interesting to me than the main part of the case.

[Mr Mystery]

So how does this interact with the trial being apparently under British copyright law?

[lattd]

First no British law!!! Second if this was an English case the lawyers would have got in trouble, an English lawyer has to disclose material even if it prejudices their case.

[Mr Mystery]

Not if it's not relevant. Granted I don't actually know what I'm on about, but if English law is being applied, would the thoughts of the US copyright office actually matter?

[lattd]

Clearly this is relevant, and well maybe, the judge may decide that the fact its has copyright under english law is enough they may decide that the department is wrong, the judge may change his mind, all in all its massive mistake by GW lawyers.

[Nabterayl]

Second if this was an English case the lawyers would have got in trouble, an English lawyer has to disclose material even if it prejudices their case.
So do American lawyers. You'll notice that CHS has requested that GW reimburse them for the costs of their investigation, which they wouldn't have a prayer of getting if GW hadn't acted badly.


So how does this interact with the trial being apparently under British copyright law?

Not if it's not relevant. Granted I don't actually know what I'm on about, but if English law is being applied, would the thoughts of the US copyright office actually matter?
I'm not sure where people got the idea that this is an English law case ... maybe early reports? Anyway, as the original summary judgment order makes clear at the top of page 16 (http://ia600405.us.archive.org/18/items/gov.uscourts.ilnd.250791/gov.uscourts.ilnd.250791.258.0.pdf), whether or not GW's stuff is copyrightable is a question of American law. For lay purposes, this isn't an English law case at all.

If this seems strange (given that the copyrights in question were created in England by Englishmen) ... well, it is, sort of. But it's also the way that things have always worked in international copyright law. Nations can and do make treaties to make each nation's copyright law is identical, but you still have to sue each nation's citizens under their own nation's laws. And in most countries, a treaty doesn't actually make the laws identical. For instance, in America, a treaty can be entered into with the president's and senate's involvement - but those aren't the parties that actually make American copyright law. I imagine similar situations obtain in other countries.

However, this isn't really any different from any other sort of law. Let's say England makes it illegal to call somebody a tosser, but Elbonia doesn't. An Elbonian, living in Elbonia, calls an Englishman a tosser. If that had happened in England, the Englishman could look to English courts for redress. But since it happened in Elbonia, the Englishman is plum out of luck - Elbonian law controls. Not any different in this case.

[Mr Mystery]

Gotcha! Cheers dude!

[Denzark]

Nabby this relates to the whole afore mentioned treaty business, the provenance of which I forget - there is some aspect of this being looked at under English/Welsh law and precedents. Can't be arsed to trawl throught the 43 pages to dig it out though.

[Nabterayl]

Nabby this relates to the whole afore mentioned treaty business, the provenance of which I forget - there is some aspect of this being looked at under English/Welsh law and precedents. Can't be arsed to trawl throught the 43 pages to dig it out though.
Yes, that's true. The English component of this is whether Games Workshop owns the copyrights in the first place. Somewhat unintuitively, that is a separate question from whether the works at issue are copyrightable at all, which is a United States law question. What CHS is asking the court to reconsider now, though, is whether the shoulder pads are copyrightable (US law question) - not whether, if copyrightable, GW owns the copyrights (English law question).

[Psychosplodge]

Nabterayl, you're the lawyer right? Why didn't GW just request extradition like the hollywood film companies do for UK based internet pirates?

[Wildeybeast]

Nabterayl, you're the lawyer right? Why didn't GW just request extradition like the hollywood film companies do for UK based internet pirates?

I'd hazard a guess that it's because this is civil case whereas piracy is criminal offence?

[Psychosplodge]

Fair enough, I just saw it both as a copyright theft issue, but if it's the actual offence that's different and one is civil and one criminal that makes sense.

Though why is film copying criminal rather than civil?

[Wildeybeast]

Again speculation, but I think the difference is between infringement of existing copyright/patents like say making shoulder pads that look like GW's/use their copyrighted symbols and outright reproduction of someone else's work. It's the difference between making a shot for shot copy of a film and simply copying the DVD.

Edit: Though that doesn't answer your question of why it's criminal. Basically piracy is theft.

[Psychosplodge]

So essentially,because you're pretending it's different you get charged with a lesser offence?

[Wildeybeast]

Sort of. By selling knock off DVD's you are basically nicking someone's income, by infringing on their ideas you are generating your own income stream based on someone else's idea. It seems a pretty fine line, but I guess one does involve some element of original creativity rather than blatant criminality. It may also have to do with the higher burden of proof required by criminal law. It would be much harder to successfully defend your copyright if it was a criminal case as you'd have to prove beyond reasonable doubt they deliberately copied your work whereas under civil law you only have to establish on the balance of probability that it is sufficiently similar to your work.

[Psychosplodge]

I kinda follow, not quite awake enough yet to keep up lol.

[Bigred]

Latest wrinkle in the case is working its way out.

Long story short:

CHS presented emails Games Workshop failed to disclose to the court between GW and the US Copyright Office. In these email the CO rejected the copyrightability of shoulderpads. This email would have been pertinent to the court in making its own summary judgement decision on copyrightability in the case of certain GW product claims. In almost all cases, judges will defer to the US Copyright Office's decisions on copyright (that is their specialty after all).

In this document (http://www.archive.org/download/gov.uscourts.ilnd.250791/gov.uscourts.ilnd.250791.275.1.pdf) GW's attorney tells the US Copyright Office that he is more than happy to let the court make a copyrightability decision for them with some interesting choice of words...

There are now some back and forth motions (http://www.archive.org/download/gov.uscourts.ilnd.250791/gov.uscourts.ilnd.250791.272.0.pdf) from both sides around this issue based on whether the Copyright Office has "formally issued a rejection" of GW's shouldperpad claim.

The judge has not commented on whether the court will take this new evidence into account and possibly update or reverse their own summary judgement on the case so far.

The jury-trial date is still set for April.

[Psychosplodge]

Can they just get on with it?.................the suspense is killing me

[RGilbert26]

Im not really that fussed anymore and i doubt it will affect hobbyists that much in the end.

[Mr Mystery]

Can they just get on with it?.................the suspense is killing me

The wheels of justice turn slowly young one!

Though last move, to my totally uninformed mind, seems an act of desperation from CH.

Wonder if he's still running his mouth over on Dakka?

[Caitsidhe]

The wheels of justice turn slowly young one!

Though last move, to my totally uninformed mind, seems an act of desperation from CH.

Wonder if he's still running his mouth over on Dakka?

What name does he post under and I'll go look? The last move from CH is not one of desperation. It is a devastating blow to the credibility of Games Workshop with the judge and will look extremely bad at the trial. Finding out that they had already been denied their petition by a U.S. government agency (which they withheld) is not unlike finding out your chief witness lied on the stand. You are correct that the wheels of justice turn slowly. I still expect this case to settle now in a very good way for Chapterhouse. The last thing Games Workshop is going to want is to actually go to court.

[Mr Mystery]

Chapterhouse I think!

Not sure it's that bad for GW. Judge doesn't seem to have freaked. At least not from the above post by Bigred.

[Caitsidhe]

Chapterhouse I think!

Not sure it's that bad for GW. Judge doesn't seem to have freaked. At least not from the above post by Bigred.

Heh. What did you expect him to do to indicate he is "freaked?" I assure you it is pretty damn bad.

[Mr Mystery]

It mentions back and forth things that I haven't a hope of understanding, and Judgeypoos is yet to decide.

Remember, this is the legal club. And from what I can make out, the first rule of legal club is 'logical arguments are for girls'

[Caitsidhe]

It mentions back and forth things that I haven't a hope of understanding, and Judgeypoos is yet to decide.

Remember, this is the legal club. And from what I can make out, the first rule of legal club is 'logical arguments are for girls'

I am merely commenting on the fact that Judges (as a rule) HATE the failure on the part of litigants to observe rules of discovery. Some are not logical at all and take it personal. It matters in the outcome. Judges do not like being made to look foolish (they are human after all) nor do they like the possibility of being overturned on appeal. I'm not claiming any great sage wisdom in the legal arena. I'm simply saying that their failure to release that SPECIFIC information which BEARS heavily on the case is going to haunt them. It was foolish for them to do so.

*I am not finding any Member with the name Chapterhouse on Warseer.

[Mr Mystery]

You raise fair and valid points. But again from my own pig ignorant position, the fact (or at least report, there may be a difference twixt the two) is that it's not been as open and shut as CH's team might have hoped.

But hey, for all I know this is standard practice.

[Caitsidhe]

You raise fair and valid points. But again from my own pig ignorant position, the fact (or at least report, there may be a difference twixt the two) is that it's not been as open and shut as CH's team might have hoped.

But hey, for all I know this is standard practice.

I agree with you that nothing is certain of course. :) My own view is it will settle long before the case finishes in Court. I think there is a good chance they will settle prior to Court. I'd rather it play out after all this wait though.

[Mr Mystery]

Not sure GW will settle out of court.

If they can win this, it sends a clear message that they are serious about their C&D stuff (which CH are reported to have ignored) and have both the will and the muscle to back it up.

[DreamForge-Games]

The law for copyright is the same here in the US the moment a work is published (Ie show in public, web or whatever) it gains copyright. Trademark infringement is more to the point on this case.

[Bigred]

HOLY MOLY!

Read this: Deposition of Bob Naismith, the sculptor of the original Space Marine miniature for GW.

Lots of origin and inspiration for the original Astartes design in there:

http://ia700405.us.archive.org/18/items/gov.uscourts.ilnd.250791/gov.uscourts.ilnd.250791.301.9.pdf

[scadugenga]

Very interesting read.

For the original design purposes, as well as the potential impact in the trial.

[DrLove42]

I've had a quick skim read.

The CHS lawyer trying to argue that "Marine models don't need helmets as theres nothing inside them to protect" i don't understand. Hes trying to prove that the components aren't neccesaary to the model for it to live therefore what?

As ever I'm worried the courts will give this to CHS. They are in the wrong and shouldn't win, but when has the law ever been about common sense?


Very interesting read.

For the original design purposes,

Its interesting to read how the marines backpacks evolved tolook like they were carrying sleeping matts

[Nabterayl]

I've had a quick skim read.

The CHS lawyer trying to argue that "Marine models don't need helmets as theres nothing inside them to protect" i don't understand. Hes trying to prove that the components aren't neccesaary to the model for it to live therefore what?

I'm kind of puzzled by that myself. The fact that model marine helmets don't actually protect a literal organism would seem to argue against them being functional objects, and one would think that CHS would want the helmet to be functional, since functional objects are not copyrightable.

Of course, come to think of it, I believe the helmet has already been ruled copyrightable ... so ... yeah, still puzzled. If I figure out anything brilliant I'll let you know :P

EDIT: Oh, I'm an idiot. The questioner in that transcript is probably Games Workshop's lawyer (the PDF is broken up, but that seems to be the case). So the point would be to reinforce the fact that the helmet is not a functional object, but a copyrightable piece of art.

[Mr Mystery]

I'm kind of puzzled by that myself. The fact that model marine helmets don't actually protect a literal organism would seem to argue against them being functional objects, and one would think that CHS would want the helmet to be functional, since functional objects are not copyrightable.

Of course, come to think of it, I believe the helmet has already been ruled copyrightable ... so ... yeah, still puzzled. If I figure out anything brilliant I'll let you know :P

Chewbacca Defence?

Lookatthemonkey! lookatthemonkey!