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 Kilkrazy wrote:
If I remember it correctly, the GW models have already been deemed in British courts to be toys rather than sculptures, and therefore fall under Design Rights.

Not GW figures in particular - but figures for playing games with in general (the particular case was actually Star Wars related...and Lucas can afford much better lawyers than GW).

By extension though, based on the opinion given by the high court - it would apply to GW figures as well...the rule is based off from what there primary purpose is. If you look at a company like Andrea, who is primarily interested in making miniatures for collectors - they receive copyright protection. If you look at a company like Hasbro, they are primarily interested in selling toys to be played with. Games Workshop would likely be closer to Hasbro than to Andrea. However, they have been working hard these past few years to change that narrative (the snarky side of me would like to say they are tanking their rules on purpose...).

Other companies, like a Hasslefree for example, would probably be collectibles as opposed to toys as well. In that case, because they sell no games - they could make a much more reasonable argument that their primary purpose is not to play with, rather to collect.


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 Yodhrin wrote:

 Do_I_Not_Like_That wrote:

 Kilkrazy wrote:
Copyright has a term of 70 years after death for an individual creator, such as Arthur Conan Doyle, and 90 years from creation date for a corporate entity like Disney.

Corporations' contract with their employees normally make it clear that the artwork, designs and inventions of the employees become the property of the company. Freelancers normally retain the copyright of their work.

This is what confuses me, because a few pages ago, somebody (it might have been you) was talking about Goodwin/Blanche concept sketches from the 1980s and how a lot of GW's ideas were up in the air. I'm still scratching my head on this one

Unless they were freelancers or something.

That was I think in reference to UK law specifically(not relevant to this case), and hinges on whether the models GW produces are art/collectables in which case copyright law applies, or toys/game pieces in which case they would likely fall under Design Rights laws which have MUCH shorter and more narrowly defined protections, IIRC you only "own" something under Design Rights for 9 years or so and must license the rights to anyone who makes you a reasonable offer in the latter half of that term, and that 9 year term would be expired on virtually all the models GW produces as they're almost all based on designs and concepts that have been around for decades. The point I believe the poster was making was that if someone seriously applied for aforementioned licensing rights, GW would obviously refuse, at which point the applicant could take them to court and argue that since GW models are mass-produced and evidently designed to be used in-concert with the wargame rules, they're toys/game pieces and Design Rights should apply not artistic copyright. If that argument was successful GW would lose control over most of their IP overnight.

In a round about way...and I believe I would be the somebody.

Now, my comment regarding the artwork goes to the purpose of the artwork as well. Goodwin is a miniature designer. Much of Blanche's work is done in his capacity as an art director for the larger Games Workshop. Art which is broad in nature from Blanche (and to a lesser extent Goodwin) would likely still retain copyrights. These would be things like cover illustrations that show a whole battle as opposed to a specific figure. However, the figure studies which Goodwin has done (the Eldar and Imperial guard variants for example) would likely have been done as his capacity as a miniature designer. Now the thing with that goes to intent. What was the purpose of the sketch? Goodwin's would be brainstorming and what not for different miniatures that they might design. That then becomes a design document and is subject to Design Rights as opposed to Copyrights. Blanche often did single figures as well (the big Visions of Heresy book is full of them). These smaller in scope sketches and paintings are intended to be given to the design team to develop a unified vision for the miniature line. Again...Design Document.

The other thing that would hurt GW in this regard is the prior design. If you have a design for a sprocket, you have your regular design right protections. Now, if after 7 years - you design a new sprocket that is roughly the same size and shape as the first sprocket - the new sprocket only has the remaining design right protections...not a new design right term. This means that all the sequential figures would become freely available...GW's current figures are based on their previous figures. Some, like the GK baby carrier would not have a prior design (at least none I can think of off the top of my head) - but the difference between any of the new Space Marine figures and the old is largely superficial (some stuff stuck on the surface...maybe a little different pose). The original design right for the very first Space Marines would have expired 16 or 17 years ago. All others would fall under that design (all your flavors to include Chaos types).

I've speculated with a few people in the UK that that is one of the reasons that recent releases have been a more significant departure from what came before them.

Fun fact: GW Ltd, which is ostensibly the UK retail part of GW PLC, is registered with Companies House here in the UK as "Manufacturer Toys and Games: Other" for it's main business interest.

I would love to see a lawyer try and argue that a company which self identifies as a toy manufacturer wasn't actually making toys and therefore wasn't subject to the legal regulations thereof!

 Do_I_Not_Like_That wrote:

Spoiler:

 Kilkrazy wrote:

 Do_I_Not_Like_That wrote:
Like I've said many a time, I'm no expert on this aspect of law, but wouldn't be sensible thing for CHS to rename their space marine range Star Knights or something like that? Everybody would then look at star knight shoulder pads/weapons etc and know exactly what they were for, and CHS (and other bit companies) could get on with peacefully trading.

For example, I go into the supermarket and see food products that are near identical to big brand products, but because these products are called McDowell's burgers instead of you know what, nothing happens.

* I will give an exalt to anybody who identifies which film the McDowell's burgers reference comes from

Legally they don't have to.

It is well established that after market companies can make compatible parts and market them using the original trade names for reference. "Compatible with Warhammer 40K Space Marines" for example.

Some of the case hinged around the point that GW did not understand this aspect of the law.

Thanks for shining a light on this. I'll be honest, I've read through nearly every page on this thread, and I still don't know what is what!

Maybe slightly OT, but in the most simplest terms and using basic examples, is my understanding of the following terms correct?

Trademark: Coca Cola etc is a trademark and nobody else can make cola and call it coca cola, but anybody can make cola.

Copyright: If an artist or writer creates something, they own the copyright until 100 years after their death, even if they work for another company. So Jes Goodwin's designs/drawing still belong to him, and not GW.

Patent: the right to make a unique invention/part etc for a limited time frame, then it becomes public. For example, I invent TV, but years later, anybody can make a TV.

Yeah, I could use google, but I prefer things In layman's terms.

Right on the Trademark (at least right enough).

Copyright depends on how the work is done. If I were to go up to an artist and ask him if he happened to have a drawing of a horse I could buy - it would be his drawing of a horse and he would have full copyright control of it. If I were to ask an artist to draw me a horse, it now is a commission (I gave him a specific work of art I wanted). Now, in general - that doesn't do anything for me...and the artist still retains their full copyright control. I might have been smart enough to bring a contract with me (GW wasn't) that would allow me the right of first publication or even exclusive printing rights depending on what I wanted to do with it. The next level goes to "works for hire". This is a legally recognized status. It comes in two flavors. The first being a contract artist. I pay him to draw the horse, I purchase the horse drawing and have the artist sign a work for hire agreement - this transfers the copyright to me (some areas prevent the transfer of moral rights...so I might still have to say that Bob the Artist` drew it for me). He can no longer use it - it is mine. The other is for regular employees who are employed to create artwork as part of their job. So, if I hire a graphic artist to draw me horses, penguins and whatever else I might want a picture of - while they are working for me and collecting a regular paycheck...everything they draw on the clock is mine. Everything. Mine. One area that gets people in trouble (well actually two) comes with those regular employees. The first is when I happen to walk past someone's desk who works in accounting and see they had drawn an excellent horse. Now, if I want to buy that horse - I have to do so under a contract as if they did not work for me. Their regular job is counting beans, not drawing horses. I have no right to claim their drawing...even if they did do it while they were supposed to be counting beans. The other one is for the artists. Again - sometimes inspiration hits you when it is inconvenient. There have been several cases where artists have created something outside the scope of their regular job (yet still related...artwork of some form that is) and it might have started while on the clock (either really on the clock or due to onerous employment contracts). That work now technically belongs to me. If they decide to try to sell it - or get fired/quit and try to market it themselves...it gets ugly. Look at the Bratz Dolls...

Anywho, moving right along - right enough on Patents.

Missed designs...see above. Design Rights are different than copyrights, different than patents, different than trademarks. Basically it is applied to something that is not art for the sake of being art (useful things). Not a technological marvel (not patentable). And not a trademark.

weeble1000 wrote:

 Do_I_Not_Like_That wrote:

 Kilkrazy wrote:
Copyright has a term of 70 years after death for an individual creator, such as Arthur Conan Doyle, and 90 years from creation date for a corporate entity like Disney.

Corporations' contract with their employees normally make it clear that the artwork, designs and inventions of the employees become the property of the company. Freelancers normally retain the copyright of their work.

This is what confuses me, because a few pages ago, somebody (it might have been you) was talking about Goodwin/Blanche concept sketches from the 1980s and how a lot of GW's ideas were up in the air. I'm still scratching my head on this one

Unless they were freelancers or something.

Judge Kennelly allowed Alan Merrett's dubious testimony to hand wave that all artists were employees of GW when they produced the artwork, even though at least one of those artists swore an affidavit to the contrary, and even though we all know that GW had virtually no actual employees in the early days, but rather contracted verbally with freelancers. GW produced no employment records despite discovery requests to do so, and produced no copyright assignments, freelance agreements, or other documentation supporting its claims of ownership.

Judge Kennelly literally accepted the word of Alan Merrett as sufficient evidence to prove ownership without letting the jury make a finding as to this critical fact with respect to the asserted artwork.

Now, when you think about the reliability of Merrett's trial testimony, how does that make you feel?

If you don't own a copyright, you cannot sue. Case closed. Apparently the testimony of someone who was neither in a position to have direct knowledge nor who could provide contemporaneous documentation is sufficient for a summary judgement of ownership.

This case needed to be appealed...

Edit: Judge Kennelly's decision allowed GW to literally steal the ownership rights of artists from whom GW did not obtain those rights. Moreover, GW attempted to conceal this fact from the court by contacting artists and requesting retroactive assignment of rights, and yet failing to provide the defense with the contact information for those artists. And that wasn't the worst that went down.

^^^^^^ AGREED. ^^^^^^

There are a number of reasons this case should have been appealed, and this type of behavior ^^^ was one glaring reason. I remember hearing these things and saying "you know, it doesn't even matter where this ends up, because its going to be appealed."

I think many people here may not understand why this appeal would have been important and why it could have been damaging to GW overall.

While some appeals may essentially look at the case de-novo, many appeals are undertaken to challenge the verdict reached due to errors at law/procedure on the part of the judge/trier of fact. In short, because there of boneheaded decisions on the part of a judge, like what weeble noted above, appeals are filed (and won).

Webble et al, please correct me if I'm wrong, in this specific instance, as I have not looked at the appeal itself, and am assuming that the latter would be a primary reason for appeal.

Now, thinking about it, I would have loved to see this case appealed. But I don't think its an entire waste. Sure, it would have been great to get some very clear opinions about the subject. But, it quite clearly demonstrated a few things.

First, the legal arguments that GW has used to bully people for years re: their IP, etc. are vacuous, questionably supported by facts and/or legal precedence when challenged and ultimately ineffective at doing what they wanted it to do. They had to play their hand, and it was weak. Future legal defendants will have a much easier time disassembling their legal arguments and will be able to use what they have already said against them.

Second, they demonstrated that throwing a hissy fit and legally challenging someone has real consequences that can be quite detrimental, even if you 'win.' They spent waaaaaaaay to much time/$$$ and reputation for this to be a win.

Along with that, they now have to 'retool' their approach. That means they have to rethink what they are doing, including how they try to control and influence 'the hobby', and in particular their legal approach to their products and IP, taking time and money to do so.

Third, GW has demonstrated they are pretty inept and self-defeating when trying to litigate and support their arguments, and a poor ability to adapt to any legal environment outside of the UK. I doubt this will change with any change in counsel, because at the root of their problems are their assumptions legally, their interpretation and understanding of facts, etc.;

Fourth, they demonstrated how weak they believe their position by the the last series of dirty tactics in this case before the settlement. And, CH is still in business, has the $25k waived, etc.... Those are some substantial concessions to make to settle.

Having this case evaluated for errors in law/procedure would have possibly lead to a number of outcomes, but I highly suspect that GW would have been on the loosing end. If the case were looked at De-novo, there is no guarantee GW would do any better.

But, one thing would happen for sure if this appeal were allowed to continue: they would be engaged in a protracted legal quagmire that essentially would do nothing for them with regards to protecting their IP, would have continued to place a drain on the company's resources, and would continue to erode what little goodwill they had with a hobby community that really is not that large worldwide. It also could also be a 'black eye' for them if/when they try to sell the company.

I think this is why they did everything they could to end this now asap.

Just some thoughts.

Here's a technical legal question which might be relevant to the case:

If I created a design, let's say a wargames miniature, based on a copyrighted work of art but in a different medium (from a painting to a 3D miniature for instance), would that be in breach of copyright?

For instance, GW made a miniature of John Blanche's 'Amazonia Gothique' which they can claim IP rights to, but I don't think they ever did one of 'Mona and the Moonman'. If I made a miniature of it, could John Blanche sue me successfully?

I say this may be relevant because GW claimed copyright on things they'd never made minis of, but only appeared in the artwork (or were mentioned in the text) of their rule books.

 OsitioRojo wrote:
Here's a technical legal question which might be relevant to the case:

If I created a design, let's say a wargames miniature, based on a copyrighted work of art but in a different medium (from a painting to a 3D miniature for instance), would that be in breach of copyright?

For instance, GW made a miniature of John Blanche's 'Amazonia Gothique' which they can claim IP rights to, but I don't think they ever did one of 'Mona and the Moonman'. If I made a miniature of it, could John Blanche sue me successfully?

I say this may be relevant because GW claimed copyright on things they'd never made minis of, but only appeared in the artwork (or were mentioned in the text) of their rule books.

First note that I am not a lawyer and this is not legal advice.

The short answer is maybe, maybe not. There is precedent for copying across different mediums. One particularly salient example is the Rogers v Koons case in which an Artist made a sculpture based on a photograph. However, that case is most noted for its fair use decision. That said, I believe, if I recall correctly, that the courts ruled that the sculpture was not a new work of art and was a copy because it had in significant differences from the photograph.

At the end of the day it just depends. Now, you can also, as it happens, look to the games workshop v chapterhouse studios case for guidance on this issue. You will note that chapterhouse studios was not found to infringe with respect to the company's heresy shoulder pads, which games workshop argued were based on drawings from one of its publications, Horace heresy collected visions. You will also note that the mycetic spore pod chapterhouse studios product was not found to infringe the asserted artwork from the Tyranids codex. There are lots of other, similar examples from the case.

The heresy pads are very on point, however, and were also extensively discussed by chapterhouse's expert, Dr. Carl Grindley, both in his report and in his trial testimony.

weeble1000 wrote:

 OsitioRojo wrote:
Here's a technical legal question which might be relevant to the case:

If I created a design, let's say a wargames miniature, based on a copyrighted work of art but in a different medium (from a painting to a 3D miniature for instance), would that be in breach of copyright?

For instance, GW made a miniature of John Blanche's 'Amazonia Gothique' which they can claim IP rights to, but I don't think they ever did one of 'Mona and the Moonman'. If I made a miniature of it, could John Blanche sue me successfully?

I say this may be relevant because GW claimed copyright on things they'd never made minis of, but only appeared in the artwork (or were mentioned in the text) of their rule books.

First note that I am not a lawyer and this is not legal advice.

The short answer is maybe, maybe not. There is precedent for copying across different mediums. One particularly salient example is the Rogers v Koons case in which an Artist made a sculpture based on a photograph. However, that case is most noted for its fair use decision. That said, I believe, if I recall correctly, that the courts ruled that the sculpture was not a new work of art and was a copy because it had in significant differences from the photograph.

At the end of the day it just depends. Now, you can also, as it happens, look to the games workshop v chapterhouse studios case for guidance on this issue. You will note that chapterhouse studios was not found to infringe with respect to the company's heresy shoulder pads, which games workshop argued were based on drawings from one of its publications, Horace heresy collected visions. You will also note that the mycetic spore pod chapterhouse studios product was not found to infringe the asserted artwork from the Tyranids codex. There are lots of other, similar examples from the case.

The heresy pads are very on point, however, and were also extensively discussed by chapterhouse's expert, Dr. Carl Grindley, both in his report and in his trial testimony.

Also, keep in mind, that IP laws are highly localized. What might not fly in US courts may be perfectly acceptable in the UK or Australia (not even getting to the issues of places like China or Russia...). This case would have been completely different if it were tried in the UK.

The reason I mention this is your country icon indicates Spain - different rules there (as well as the "normalized" EU laws on top of that). Be sure to check and recheck what is allowable on your home turf. Granted, that does open a can of worms...if you can produce it in Spain, can you sell it to the US?


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 OsitioRojo wrote:
Here's a technical legal question which might be relevant to the case:

If I created a design, let's say a wargames miniature, based on a copyrighted work of art but in a different medium (from a painting to a 3D miniature for instance), would that be in breach of copyright?

For instance, GW made a miniature of John Blanche's 'Amazonia Gothique' which they can claim IP rights to, but I don't think they ever did one of 'Mona and the Moonman'. If I made a miniature of it, could John Blanche sue me successfully?

I say this may be relevant because GW claimed copyright on things they'd never made minis of, but only appeared in the artwork (or were mentioned in the text) of their rule books.

One other point specifically to this, and relating to the CHS case... One of the things which GW made a large stink about were the paint choices on the CHS page. Now, we all know that the miniatures come unpainted and unassembled. How the end user chooses to paint/pose a figure is there own creative choices. However, in front of the uneducated jury - paint colors can become an issue. The picture of the completed miniature looks like the picture which was copied. If you have only unpainted images - it removes that bullet from the chamber. If you paint them completely differently - it disarms the argument (as the colors of the completed miniature make it look completely different). While the jury may not consciously take it into consideration - it is hard to subconsciously ignore certain things like colors.

 Sean_OBrien wrote:


One other point specifically to this, and relating to the CHS case... One of the things which GW made a large stink about were the paint choices on the CHS page. Now, we all know that the miniatures come unpainted and unassembled. How the end user chooses to paint/pose a figure is there own creative choices. However, in front of the uneducated jury - paint colors can become an issue. The picture of the completed miniature looks like the picture which was copied. If you have only unpainted images - it removes that bullet from the chamber. If you paint them completely differently - it disarms the argument (as the colors of the completed miniature make it look completely different). While the jury may not consciously take it into consideration - it is hard to subconsciously ignore certain things like colors.

Unless, as in the CHS case, you paint them a different color, and then GW pays its design studio to copy your paint scheme in preparing trial demonstratives, and the Judge allows them to do it...

'So in support of your claim of copyright infringement you propose to commit copyright infringement of exactly the same kind you are accusing the defendant of committing...seems okay to me.'

And be careful about putting too much stink on the jury. Remember that it was Judge Kennelly who ruled that the sculpted green, the cast miniature, the painted copy, and the website photograph were all a single work of art, and that GW could also combine discrete elements from multiple works of art into a "Frankenstein's monster" of a gestalt claim.

Again, this case needed to be appealed.

So, given that the appeal was dropped and the decisions of the case stand, could someone, weeble maybe, give a summary of the new precedents and their implications for future lawsuits in the miniature wargaming industry?

 Shadow Captain Edithae wrote:
So, given that the appeal was dropped and the decisions of the case stand, could someone, weeble maybe, give a summary of the new precedents and their implications for future lawsuits in the miniature wargaming industry?

That would be difficult to do because the ultimate impact is open to debate. One can discuss the decisions that the trial judge made, but as to the meaning and impact of those decisions, we can only speculate.

It is a fact that lower court rulings are less persuasive as precedent than higher court rulings. It is also a fact that precedent within one district court is not binding on another district court.

If the GW v CHS case starts being cited in future cases, this could shed more light on the matter. But who knows if, when, or in what context that will happen.

Again, this is why an appeal would have been nice to see.

Thanks for the responses Weeble and Sean. I'm not actually planning to do this. I have no talent whatsoever in that regard. It was just a hypothetical question which I thought they case had raised, for the reasons you've pointed out.

I remember GWs claims based on painted miniatures. The two things that stick in my head was that they got their painters to assemble their multi-pose minis in the same way as those on the CHS website as well as paint them the same, and that they claimed the CHS Lizard Ogre was like theirs because it wore gold jewellery, when that detail of the resin mini was only 'gold' if you painted it that way.

Thanks Yodrin. That might explain why GW does not throw C&D letters at UK based companies- only US based companies.

 Kilkrazy wrote:
Copyright has a term of 70 years after death for an individual creator, such as Arthur Conan Doyle, and 90 years from creation date for a corporate entity like Disney.

Corporations' contract with their employees normally make it clear that the artwork, designs and inventions of the employees become the property of the company. Freelancers normally retain the copyright of their work.

Well, sort of. Death of an individual creator plus 70 years is true- except that anyone who wants to can be a corporation now days.

The law changes every time Disney is about to lose something to public domain. They're still making a killing on Snow White and the Seven Dwarfs, so they make sure that they never lose the rights to Steamboat Willie.

As a result, it seems like for the foreseeable future, copyright from corporations will never run out.

Osbad wrote:
Given the value of an IP is decided by the revenue streams derivable from it, we can see that GW's gross turnover in 2011 was £123m and in 2014 was £124 - i.e. a cash increase of 1%, which after accounting for UK inflation equates to a real terms fall of 7%. In other words, the GW "pie" is 7% smaller than it was only 4 years ago.

One wonders whether any sort of piggybacking on 40k is worth the hassle, given it is declining in value so rapidly?

I guess its fine for one-man garage companies and the hobby market will sustain them for long enough. However I would hardly call it a growth industry as such!

If/Once GW go down the pan, then aftermarket companies exclusively servicing their fanbase are surely going to take a big hit!

This. Even with a 7% drop I suppose the 40K market is still so big that the little segment of aftermarket buyers keeps the aftermarket sellers comfortable. But I'd guess 40K would still be selling at a level more than high enough to satisfy the remoras at the point it collapses like a domino souffle on You've Been Framed.

Site is now up and working again!

http://chapterhousestudios.com/

Well you beat me to it

Site is mostly updated, I need to add a few more items to the store, but for the most part its done. Thank you all for your support and any continued support.

Nick

Amazing. Any hopes of an official statement, Nick?

Anyone familiar with the old site (or handy with the Wayback Machine) want to go looking and seeing what's different with the new site? Might shed some light on whatever settlement ended the legal battle...

Oh, and welcome back Nick and Chapterhouse. Thanks for fighting the good fight and I hope you have every continued success and can put GW's legal maneuverings behind you.

Valete,

JohnS

Got some shinies there, good sir! So looks like you can sell near-anything you like as long as you state that it's not GW but made for it?

Eldar, Tau, Space Marine, and Necron are all used to describe product, but Tyranid is not.

True Scale marines are absent

Noticed that, makes me wonder.

Does anyone think GW is going to start making True-Scale marines?

 odinsgrandson wrote:
Does anyone think GW is going to start making True-Scale marines?

No, I don't.

All GW would have to do though is start making Marines 'not copping a squat' and they'd be half way there though!

Some of FW's latest marines for Heresy era stuff are standing up straight, and they look surprisingly good.

I do hope that CHS puts their versions back up eventually though, and I hope this case shows other 3rd party manufacturers that they can too.

There were some really good versions out there that got C&D Carpet Bombed out of existence, sadly...

The storm raven extension kit is also now called military scale, not true scale

Could the implication of 'true' scale being correct and original have been a sticking point then?

So rename it "Better Scale".

Glad to see you up and running again Nick,

Any word for the KS guys like me still waiting on delivery?