I think the CH lawyers cunning plan was to snow the deposees with lots deposition questions (and there were lots of questions) in hopes that they will be overwhelmed and not do due diligence on the questions that really matter (which the GW lawyers should have keyed them on). It would appear that the plan has worked...
Tim
so, can you provide a better suggestion of how to defend against a broad claim that specifies everythign and details nothing? If there are so many inconsistencies and broad sweeping claims, the easiest way of destroying the claim is by doing what CHS has done. Lord knows, I've seen the same attempted whenever our firm filed claims, with the liability arguments lasting as longer than four years.
I think you missed the point of my post. I was hypothesizing on what the strategy was. Never said it was not a good strategy. I think its was a very good strategy especially in light of the apparent ineptitude of GW's lawyers. They don't seem to be making a strong (professional) effort in this case.
Tim
ah, did not get that out of your post. Duly noted, but I shall redact nothing for the sake of maintaining thread integrity, though i take back the snide tone in my response.
I love how some people above are trashing CHS for it's terribad sculpts, but not one person made any mention of GW's sculpts, or casting quality. On the whole, Id say CHS is doing much better in the quality department, because you get what you expect in terms of the casts. GW? crap. Total crap. You're paying top dollar, and you're getting garage grade material done on a heroic scale, so all told I'm not exactly impressed with GW's line of finecast excrement. Let's not forget the recent GW vehicle releases. Only the IG, orks and DE have decent fliers. I find both of hte SM flying vehicles immensely offensive. I can't actually think of any person that has given the Stormraven any sort of positive review. Heavily modified versions of it look great, but the entire customer base agrees that it looked absolutely dreadful. Instead of learning from that, GW went what looks to me to be the angry birds route, failing to do any research or take customers into consideration, and slap us in the face with 1.) another ugly model that reflects the stormraven 2.) limited rule access, along with insane OTT abilities 3.) another ridiculous price tag..... The stormguppy is overpriced, has no rules for it (unless you coughed up for a copy of WD.... and with GW's rules, you be in violation of copyright laws for showing up with a photocoped page of rules for the darn thing), and the stormguppy is just plain ugly. I mean, sure, the CSM in dark vengeance are so sexy they make me drool, but the dark angels are such an eyesore.
I'm starting to get the whole feeling about this mess that GW is acting like a hipster.
EDIT: ..... oh internet... how I hate you. I have no idea how I always succeed in ending up at the top of every page...... i hate it, drives me crazy
TBH the older CHS sculpts are rather... lacking IMO. They are the style of sculpts from 20 years ago. Perhaps some of that is just the paint jobs and not seeing the items in the context of an entire model. For the most part (for me) that's mostly shoulder pads. None of them really tickle my fancy, except perhaps the exorcist pads. The Salamander upgrades in general I don't care for, but that is mostly because I just don't like the look and feel of Salamander marines in general.
Now the newer stuff CHS does are excellent. Their single models are beautiful, and their vehicle upgrades/mods are very nicely done. I can't speak to the quality of their product as I've not handled any of it. I've not heard any horror stories of their cast quality, certainly nothing like the nightmare of finecast horror stories which are still going on well over 16 months later.
CHS has very limited resources, so remodelling items or adding more items is a slow process. GW has vast resources and yet they push out shoddy products be it in design or in execution.
CHS has very limited resources, so remodelling items or adding more items is a slow process. GW has vast resources and yet they push out shoddy products be it in design or in execution.
that's exactly it though. As a consumer looking for different parts, the truth is either I as the consumer am unwilling to create my own conversion, unable, lazy, lack the insight, or need to do it by bulk...... etc. Going to someone like CHS (Have bought from them, the exorcist pads need some fixing, the rims stand up just a smidgeon too far, but otherwise, reccomend them) you would expect that the quality to be lower. Going to someone like GW.... You'd expect better. Much better. But it seems like they've spent their entire budget on creating the new line of DE, and everything else wound up on the back-burner or economy version of things....
In any case, I think the moral of CHS vs GW will be that, if CHS wins, even if they have terribad sculpts of inferior quality to the army of start-ups that will flood the market in the wake of the court's decisions, CHS will probably be remembered for a long time in the gaming community for just having opened the door. And hey, who knows. CHS might be working out the kinks in how sculpting-to-casting works, whereas these new startups will have to learn like CHS everything from square 1, so we may yet come to expect much and more from CHS
CHS has very limited resources, so remodelling items or adding more items is a slow process. GW has vast resources and yet they push out shoddy products be it in design or in execution.
that's exactly it though. As a consumer looking for different parts, the truth is either I as the consumer am unwilling to create my own conversion, unable, lazy, lack the insight, or need to do it by bulk...... etc. Going to someone like CHS (Have bought from them, the exorcist pads need some fixing, the rims stand up just a smidgeon too far, but otherwise, reccomend them) you would expect that the quality to be lower. Going to someone like GW.... You'd expect better. Much better. But it seems like they've spent their entire budget on creating the new line of DE, and everything else wound up on the back-burner or economy version of things....
In any case, I think the moral of CHS vs GW will be that, if CHS wins, even if they have terribad sculpts of inferior quality to the army of start-ups that will flood the market in the wake of the court's decisions, CHS will probably be remembered for a long time in the gaming community for just having opened the door. And hey, who knows. CHS might be working out the kinks in how sculpting-to-casting works, whereas these new startups will have to learn like CHS everything from square 1, so we may yet come to expect much and more from CHS
Don't you love it when you read something and you are on the exact same page as the person who wrote it? I couldn't agree with you more.
And I'm hopeful for CHS's future products, as the quality and designs are definitely improving. Even if someone doesn't like the design of their hover bikes, the cast quality that I've seen on them is wonderful. I do hope they do more stuff in resin as I think that metal is on its way out from companies and will likely be relegated to garage casters who don't do the quantity to facilitate plastics or resin. I also hope that the initial costs associated with injection molding drop to a point where any company with $20K can get up and running with a few molds to start.
poda_t wrote: I can't actually think of any person that has given the Stormraven any sort of positive review. Heavily modified versions of it look great, but the entire customer base agrees that it looked absolutely dreadful.
This made me laugh. Why? Because I built my Stormravens using CHS's true scale conversion kits!
CHS, and many of the other third parties, have both good and bad stuff. That's the neat thing about the internet, anyone can get on and try to make a buck. The good ones will stick around. I guess what really boggles my mind about GW's lawsuit is that, to me, it would be like Ford suing some guy who makes aftermarket spoilers for the Ford Mustang. Doesn't make sense, does it? I mean, when I had to buy a replacement gas cap for my truck a couple years ago, it wasn't made by GM. Should GM be suing somebody over that?
Aerethan wrote: TBH the older CHS sculpts are rather... lacking IMO. They are the style of sculpts from 20 years ago. Perhaps some of that is just the paint jobs and not seeing the items in the context of an entire model. For the most part (for me) that's mostly shoulder pads. None of them really tickle my fancy, except perhaps the exorcist pads. The Salamander upgrades in general I don't care for, but that is mostly because I just don't like the look and feel of Salamander marines in general.
Now the newer stuff CHS does are excellent. Their single models are beautiful, and their vehicle upgrades/mods are very nicely done. I can't speak to the quality of their product as I've not handled any of it. I've not heard any horror stories of their cast quality, certainly nothing like the nightmare of finecast horror stories which are still going on well over 16 months later.
You must have missed their latest releases then. Some chunky ass wings, a love poem to terrible '90s miniatures, and shoulder pads that looked like they were cut out of plasticard with scissors. It looked like they sent miscasts to their painter.
Date Filed # Docket Text
09/07/2012 239 MOTION by counsel for Defendant Chapterhouse Studios LLC to withdraw as attorney (Cooper, Bryce) (Entered: 09/07/2012)
09/07/2012 240 NOTICE of Motion by Bryce Allen Cooper for presentment of Winston & Strawn's motion to withdraw appearance of Catherine B. Diggins before Honorable Matthew F. Kennelly on 9/11/2012 at 9:30 A.M. (Cooper, Bryce) (Docket Text Modified by Clerk's Office). Modified on 9/10/2012 (smm). (Entered: 09/07/2012)
09/07/2012 241 NOTICE of Motion by Bryce Allen Cooper for presentment of motion to withdraw as attorney 239 before Honorable Matthew F. Kennelly on 9/11/2012 at 09:30 AM. (Cooper, Bryce) (Entered: 09/07/2012)
09/10/2012 242 MINUTE entry before Honorable Matthew F. Kennelly: Defendant's motion for leave to file under seal Exhibit 46 to the declaration of Thomas Kearney [dkt. no. 225 ], plaintiff's motion for leave to file redacted exhibits under seal [dkt. no. 227 ], and defendant's motion to withdraw the appearance of Catherine B. Diggins [dkt. no. 239 ] are all granted. Defendant's request for judicial notice [dkt. no. 235 ] is taken under advisement. Plaintiff's response, if any, should be contained in its summary judgment reply brief. The motion hearing date of 9/11/12 for all four motions is vacated. The parties are reminded that they must file redacted versions of their materials in the public record and complete, unredacted versions under seal. The required chambers copy and requested electronic version of the same must be complete, unredacted versions of the filings. Mailed notice. (et, ) (Entered: 09/11/2012)
That is the PACER report as of this evening for the remaining documents. Mostly book keeping type stuff.
The downside of course is that the specifics of GW's financial claims will remain under seal at this time:
The spreadsheet which is mentioned in that particular motion would be a lot of fun if it were somehow "leaked"...anyone have family up in Cook county who would be willing to take a bribe?
The way that GW's lawyers have handled this, I still get the impression that they're just trying to stall until Chapterhouse goes belly up.
Even with Pro-Bono legal defense, this case is taking a lot of the time out of a small business owner who really needs to be overseeing everything that goes on for his company. I mean, with a small company, it isn't unlikely that this guy just stocks all of their products in a spare room and mails everything out himself.
The sparseness in new Chapterhouse releases is probably due to so much of his time being taken up by the case. Still, he seems to be doing well enough to keep fighting, and I'm glad that he can- not just for him but for all of the small businesses that GW strong arms.
Steelmage99 wrote: There is a big difference, in the eyes of the law, between saying; "This is a Space Marine Shoulderpad" and "This is a shoulderpad compatible with Games Workshop Space Marines".
Since the dawn of the internet age - the disclaimers at the bottom of web pages have been found to be suitable in identifying (or making clear of a lack of) any connections with the originator of 3rd party parts. Still, since I don't recall the nominative use being contested at the Supreme Court level - it is something which they could rule as not being a valid defense. All the current cases have stopped withing their district court systems.
Interesting.
I wonder how much the law can change for different industries.
There was a big document update yesterday - though they are not available on the Recap website yet:
Date Filed # Docket Text
09/20/2012 243 REPLY by Games Workshop Limited to MOTION by Plaintiff Games Workshop Limited for summary judgment 213 (Attachments: # 1 GW Reply to Additional Material Facts, # 2 List of Exhibits, # 3 Exhibit Ex 150, # 4 Exhibit Ex 151, # 5 Exhibit Ex 152, # 6 Exhibit Ex 153, # 7 Exhibit Ex 154, # 8 Exhibit Ex 155, # 9 Exhibit Ex 156, # 10 Exhibit Ex 157, # 11 Exhibit Ex 158 - part 1, # 12 Exhibit Ex 158 - part 2, # 13 Exhibit Ex 159 - part 1, # 14 Exhibit Ex 159 - part 2, # 15 Exhibit Ex 159 - part 3, # 16 Exhibit Ex 160 - part 1, # 17 Exhibit Ex 160 - part 2, # 18 Exhibit Ex 161 - part 1, # 19 Exhibit Ex 161 - part 2, # 20 Exhibit Ex 162 - part 1, # 21 Exhibit Ex 162 - part 2, # 22 Exhibit Ex 162 - part 3, # 23 Exhibit Ex 163 - part 1, # 24 Exhibit Ex 163 - part 2, # 25 Exhibit Ex 163 - part 3, # 26 Exhibit Ex 164 - part 1, # 27 Exhibit Ex 164 - part 2, # 28 Exhibit Ex 165 - part 1, # 29 Exhibit Ex 165 - part 2)(Keener, Jason) (Entered: 09/20/2012)
09/20/2012 244 REPLY by Defendant Chapterhouse Studios LLC to motion for summary judgment,,,,,,,,,, 208 (Attachments: # 1 Declaration of Thomas Kearney, # 2 Exhibit 1 to Declaration of Thomas Kearney, # 3 Exhibit 2 to Declaration of Thomas Kearney, # 4 Exhibit 3 to Declaration of Thomas Kearney, # 5 Exhibit 4 to Declaration of Thomas Kearney, # 6 Exhibit 5 to Declaration of Thomas Kearney, # 7 Exhibit 6 to Declaration of Thomas Kearney, # 8 Exhibit 7 to Declaration of Thomas Kearney, # 9 Exhibit 8 to Declaration of Thomas Kearney, # 10 Exhibit 9 to Declaration of Thomas Kearney, # 11 Exhibit 10 to Declaration of Thomas Kearney, # 12 Exhibit 11 to Declaration of Thomas Kearney, # 13 Exhibit 12 to Declaration of Thomas Kearney, # 14 Exhibit 13 to Declaration of Thomas Kearney)(Kearney, Thomas) (Entered: 09/20/2012)
09/20/2012 245 REPLY by Defendant Chapterhouse Studios LLC to motion for summary judgment,,,,,,,,,, 208 to Plaintiff Games Workshop's Responses to Chapterhouse's Statement of Material Facts and Chapterhouse's Response to Games Workshop's Additional Facts (Kearney, Thomas) (Entered: 09/20/2012)
09/20/2012 246 DECLARATION of Gary Chalk regarding motion for summary judgment,,,,,,,,,, 208 (Attachments: # 1 Index of Exhibits, # 2 Exhibit A to Declaration of Gary Chalk, # 3 Exhibit B to Declaration of Gary Chalk, # 4 Exhibit C to Declaration of Gary Chalk)(Kearney, Thomas) (Entered: 09/20/2012)
I need to go through and figure out how the Recap website works before I go ahead and download the new files...unless of course someone else does first that is. Only want to do that once though, since at 10 cents a page - a few thousand pages of new documents adds up fast, and I would rather make them freely available for all as opposed to just something to read through for myself.
Recap is a firefox extension that archives and shares documents purchased from PACER. Install it and it should automagically add any pacer files you buy to its free archive.
Before you buy any let me check and see if I have pacer access through my university library.
[edit] No dice. Not much call for it up here I guess. [/edit]
Automatically Appended Next Post: Woah. Someone just added them all to recap. Was that you?
Automatically Appended Next Post: That Gary Chalk declaration is dynamite! Has a copy of a letter sent to him from GW saying... hey, mind saying that you were 'work for hire' not freelance? Pretty Pretty pretty please!
4. In my experience, it is standard practice in the publishing industry that, unless
there is a written agreement to the contrary, a publisher who commissions an illustration from a
freelance artist owns only first publication rights for the artist’s illustration. After the first
publication, the copyright, including subsequent publication rights, reverts to the artist.
5. Between about 1986 and about 1989, I worked as a freelance artist for various
companies, including Games Workshop.
6. Games Workshop did not deduct income tax from the money it paid me as a
freelance artist.
7. Games Workshop did not deduct pension payments from the money it paid me as
a freelance artist.
8. I provided my own materials and supplies for the illustrations I created for Games
Workshop as a freelance artist.
9. As a freelance artist, I did not work at Games Workshop’s facilities.
10. I have never had any written agreement with Games Workshop concerning
ownership of copyrights in any of the works I created as a freelance artist.
11. I have never assigned any of my copyrights to Games Workshop.
12. Exhibit A is a copy of an illustration that Games Workshop commissioned me to
create in or about 1988. That illustration appeared in White Dwarf Magazine in or about 1988.
13. I was a freelance artist at the time I created the illustration depicted in Exhibit A.
14. I did not have a written contract, or any written agreement, with Games
Workshop concerning the illustration depicted in Exhibit A.
15. I did not assign ownership of copyright for the illustration depicted in Exhibit A
to Games Workshop.
......
"18. I have not agreed to assign any copyrights, or any other intellectual property rights, to Games Workshop."
For folks who don't have JDs. He's mentioning stuff about tax, pension payments, tools and where he worked because those are factors that point to whether or not a person is an employee or an independent contractor.
Automatically Appended Next Post:
Having been put to the test on its remaining claims, GW utterly fails to meet its burden of proof or show any genuine issues of fact for trial. Conceding now that certain of its copyrights were created by contractors and that it thus requires written assignments to assert those works, GW attempts to cure the issue by recently obtaining assignments. But the law is clear that a copyright claimant cannot cure its lack of standing by obtaining assignments during the lawsuit.
More troubling, it now appears that GW improperly withheld discoverable communications it had with the authors in attempting to obtain those post-litigation assignments, and then simply dropped the claims days before the deadline for dispositive motions if the authors refused to assign their rights. GW fares no better on the issue of ownership of rights in the 110 trademarks it claims CHS has infringed, relying upon never before produced, self-serving reports generated for this litigation in lieu of any evidence of senior U.S. rights.
Ouch.
And clownshoes!
A. GW Cannot Meet Its Burden To Show Ownership of All Its Alleged Works After repeatedly representing to CHS and the Court that every copyright alleged in this
case was created by GW employees (SUF 38), and objecting to discovery regarding the status of individual authors on that basis, GW now concedes that a still-unspecified number of the works were created by “freelance artists.” Nonetheless, GW argues, it should be deemed the owner of those works as well because it has what it refers to as a “general practice of collecting” “confirmatory assignments” from such individuals, and claims it has obtained such “assignments for the works here at issue.” (CHS Reply re SUF 34.)What GW fails to mention is that it only recently—and more than a year into this lawsuit—obtained those assignments. A plaintiff that does not own the property on which it sues at the time it brings suit does not have standing to sue. Gaia Techs., Inc. v. Reconversion Techs., Inc., 93 F.3d 774 (Fed. Cir. 1996) (plaintiff’s nunc pro tunc intellectual property assignment was “not sufficient to confer standing on [plaintiff] retroactively”). “[A]n [intellectual property] assignment made over one-and-a-half years after [the] action was instituted cannot retroactively solve the standing problem that existed at the time the action was filed.” Triple Tee Golf, Inc. v. Nike, Inc., 2007 WL 4260489 (N.D. Tex. Aug. 24, 2007), aff’d on appeal, 281 Fed.Appx. 368 (5th Cir. 2008).
......
CHS’s independent investigation reveals that GW attempted to contact at least one of its alleged authors, Gary Chalk, multiple times, and that it dropped its copyright claims with respect to Chalk’s work only after failing to obtain his assignment. Contrary to sworn statements, GW failed to disclose the contact information in its possession and failed to produce its correspondence with Chalk.4 Compare Supp. Merrett Decl. at ¶¶ 2, 3 (“we did not withhold contact information on any of the individuals”; “Games Workshop has provided all the contact information within its control concerning its former freelancers and employees”); Opp. at 5 (GW “produced all of the information it has” about its authors) with Declaration of Gary Chalk (“Chalk Decl.”) ¶¶ 16-17, Exs. B, C (Aug. 9, 2012 email from GW’s in-house counsel to Chalk admitting possession of “an old address that we have for you”).5 It is not credible that GW managed to obtain assignments from dozens of other far-flung authors without generating any correspondence—none of which has been produced. The purported assignments should be disregarded: not only are they untimely, and insufficient to confer standing, the related communications were withheld, in violation of discovery obligations.
I don't know how you folks handle costs down south (other than the general rule that the loser doesn't normally pay the winner's legal fees) but it looks to me like CHS lawyers are not only setting up to win the case, they are also going to go for legal fees by showing the plaintiff being frivolous, unreasonable, unresponsive, etc... The language in Kearney's most recent declaration and the various replies seems to highlight things like that.
I wouldn't want to pay the fees for the pack of partners and associates they have beavering away at this
Unfortunately, I have to fulfill my husbandly duties by accompanying my wife to a reunion this evening - however that Chalk Declaration is particularly interesting and will likely result in a stern scolding from the court.
IIRC that particular image is actually a two page spread (and if he did the one, he likely did the other side of it). While many of the icons have changed in the years following that, others have remained the same...or close enough to the same to be derivatives of that image.
Also, I think Naismith was one of the other freelancers that they weren't able to get a letter from...he is working with Mantic right now, correct?
Automatically Appended Next Post: Regarding "Looser pays" systems...
The bar has been set fairly high on that now, I forget the specific case, late 1990s IIRC - but the Supremes weighed in on the issue...and now it almost takes gross misconduct in order to win attorney fees on either side of the issue.
Sean_OBrien wrote: Also, I think Naismith was one of the other freelancers that they weren't able to get a letter from...he is working with Mantic right now, correct?
He does Freelance for Mantic, On The Lamb, Gangfight Games, and likely a few others. Great chap, and really speedy turnaround.
Contrary to sworn statements, GW failed to disclose the contact information in its possession and failed to produce its correspondence with Chalk
Is it just me or is this line something that will really PO the judge? GW trying (poorly) to cover up that it was purposefully omitting evidence that didn't support them seems like they're SOL for this case. Shame it sounds like CHS will have an uphill fight asking for attorney fees, as I think that added financial dropkick might help faster institute the changes some were hoping would come out of the GW v CHS suit.
Contrary to sworn statements, GW failed to disclose the contact information in its possession and failed to produce its correspondence with Chalk
Is it just me or is this line something that will really PO the judge? GW trying (poorly) to cover up that it was purposefully omitting evidence that didn't support them seems like they're SOL for this case. Shame it sounds like CHS will have an uphill fight asking for attorney fees, as I think that added financial dropkick might help faster institute the changes some were hoping would come out of the GW v CHS suit.
CHS probably aren't too bothered about attorney fees, given they've got pro bono representation.
CHS' lawyers might want to get fees from the court, mind you
Contrary to sworn statements, GW failed to disclose the contact information in its possession and failed to produce its correspondence with Chalk
Is it just me or is this line something that will really PO the judge? GW trying (poorly) to cover up that it was purposefully omitting evidence that didn't support them seems like they're SOL for this case. Shame it sounds like CHS will have an uphill fight asking for attorney fees, as I think that added financial dropkick might help faster institute the changes some were hoping would come out of the GW v CHS suit.
If the allegation is true, it hurts the credibility of everything they put in front of the judge. In my jurisdiction, dicking around like that in discovery will get you nailed to the wall and it's a constant worry that your client will hide something and make you look like an donkey-cave. But we have an incredibly broad disclose everything remotely relevant automatically standard, instead of a 'only what the other side asks for or you intend to rely on' standard.
Contrary to sworn statements, GW failed to disclose the contact information in its possession and failed to produce its correspondence with Chalk
Is it just me or is this line something that will really PO the judge? GW trying (poorly) to cover up that it was purposefully omitting evidence that didn't support them seems like they're SOL for this case. Shame it sounds like CHS will have an uphill fight asking for attorney fees, as I think that added financial dropkick might help faster institute the changes some were hoping would come out of the GW v CHS suit.
CHS probably aren't too bothered about attorney fees, given they've got pro bono representation.
CHS' lawyers might want to get fees from the court, mind you
Yeah, the amount of billable hours they are throwing down on this thing, they'll ask for fees.
CHS will want to be paid out for court fees and disbursements though - gak like filing fees, airplane flights to the UK for discovery, photocopying and what not usually aren't always covered under pro bono.
If the allegation is true, it hurts the credibility of everything they put in front of the judge. In my jurisdiction, dicking around like that in discovery will get you nailed to the wall and it's a constant worry that your client will hide something and make you look like an donkey-cave. But we have a disclose everything remotely relevant automatically standard, instead of a 'only what you ask for' standard.
Officially, I believe the same more or less holds true here - for the most part. GW should disclose everything that they need to prove all aspects of their case right from the get go. For example, the claim to the shoulder pad design should not have been laid out as they did...basically, they stole our stuff...rather:
We contend that CHS stole our shoulder pad design.
Our shoulder pad design was designed by Jes Goodwin in 1988 and was first sold as part of our Uber Marines plastic kits. See Exhibit 1.
If you look at other more substantial copyright cases layout their claims in that manner. CHS on the other hand only needs to show what they are asked to show. Goes towards that whole no incriminating yourself schtick that we have down here. Over the years though, it has largely descended into something else. Oh, we had no idea you would want to see that. Well, we thought that that would be assumed. Why would you need to know that.
CHS will want to be paid out for court fees and disbursements though - gak like filing fees, airplane flights to the UK for discovery, photocopying and what not usually aren't always covered under pro bono.
Not sure on their specific arrangement. The specifics of any pro bono representation will be decided case by case by the parties involved. Should Winston & Strawn win...and win big though, it would be well worth their costs in terms of the advertising value which is gained from the case. Plus, there are significant tax benefits to pro bono work (forget the exact filing for it though).
Perhaps I'm just a pessimist, but does anyone really think GW will learn any lessons from this even if they do lose? I have a sneaking suspicion that they would just change a few words around to create "new" Trademarks sufficiently different from the ones they failed to defend in court, then file them properly this time and continue bullying 3rd party companies with C&Ds.
Yodhrin wrote: Perhaps I'm just a pessimist, but does anyone really think GW will learn any lessons from this even if they do lose? I have a sneaking suspicion that they would just change a few words around to create "new" Trademarks sufficiently different from the ones they failed to defend in court, then file them properly this time and continue bullying 3rd party companies with C&Ds.
And third parties could produce similar items under the old un-trademarked names. ?
I am still apalled that fraud (like accusing someone of copyright infringement then after a year trying to get the copyright) and false oaths by GW lawyers are totally okay for the judge. GW lawyers wouldn't have a chance in German courts.
czakk wrote:That Gary Chalk declaration is dynamite! Has a copy of a letter sent to him from GW saying... hey, mind saying that you were 'work for hire' not freelance? Pretty Pretty pretty please!
I didn't see this line in the quotes, could someone show me where it is, or where the contents of the letter are, etc?
czakk wrote:That Gary Chalk declaration is dynamite! Has a copy of a letter sent to him from GW saying... hey, mind saying that you were 'work for hire' not freelance? Pretty Pretty pretty please!
I didn't see this line in the quotes, could someone show me where it is, or where the contents of the letter are, etc?
Looking at the letter, note the way the request is framed and how it deliberately leaves out the chapterhouse litigation. But they didn't start asking artists in these letters until after the litigation started and as a response to discovery requests / the copyright challenges.
Oh, we just happen to be doing some archiving work, oh it's hard work and we've lost some old documents yadda yadda yadda...
Alan Merret isn't a lawyer as far as I know, but he sure as gak didn't draft that without having his counsel advise him on it. The 'we've lost old documents' line is a big trust and ethical issue. Clients lose old documents all the time (expecially gak as old as from 1988), and sometimes you need to backdate things or reconstruct, or go to court and do a rescission, rectification or whatever. But writing a letter like that as a lawyer if those old documents didn't actually exist back in the day, or if you are mischaracterizing the relationship that did exist... You only get to sell your professional reputation once and it is never worth it to do so.
Kroothawk wrote: I am still apalled that fraud (like accusing someone of copyright infringement then after a year trying to get the copyright) and false oaths by GW lawyers are totally okay for the judge. GW lawyers wouldn't have a chance in German courts.
Games Workshop: Robbing people blind with our prices, and suing people to death for infringing copyrights we don't actually own.
So, this is definitely a good thing to have come from all this- GW being forced to offer products for what they claim rights to, to try to back up / support those claims. And they end up supporting their product lines better at the same time... imagine that
Hopefully we'll see full releases for all items in a codex in one wave, as seems to be the case, too.
I find it quite interesting that paintings are only "licensed" for the first print, after which the rights revert back to the author.
This all could mean an absolute end to GW using freelance work, or they'd have to explicitly buy all rights to a work they commission.
Regardless, they were trying to obtain licenses and rights after already suing over them, claiming to already own the works. That right there should be punishable by the court.
While I am of the opinion that CHS are winning this hands down, I also think that the GW legal documents are sounding/written a lot tighter than they were at the start.
Less of the woolly details and more specific in parts.
Wish I could attend the hearing as a spectator though.
Paintings or other freelance work (e.g. writing) aren't necessarily only licensed for one use. That's just the usual, default expectation if there's no contract. It's certainly possible for a contract to state that the freelancer's client is buying permanent ownership of the copyright.
It's quite shockingly bad practice on GW's part to not have bothered with contracts. I run a tiny RPG publishing business and still manage to get contractual stuff hammered out correctly with any freelancers I work with.
Ian Sturrock wrote: Paintings or other freelance work (e.g. writing) aren't necessarily only licensed for one use. That's just the usual, default expectation if there's no contract. It's certainly possible for a contract to state that the freelancer's client is buying permanent ownership of the copyright.
It's quite shockingly bad practice on GW's part to not have bothered with contracts. I run a tiny RPG publishing business and still manage to get contractual stuff hammered out correctly with any freelancers I work with.
Yup you are spot on this comment as I have done the same thing in the past as well as in current practices.
It's not my field of expertise, but the UK had a new copyright act come into force in 1988/89. The old 1956 act had different rules about who got the copyright of commissioned paintings/portraits. The UK courts would also assign equitable title to the commissioner of a piece of artwork to let them sue infringers.
czakk wrote:Supplemental declaration - those sworn financial figures we gave you before weren't accurate. Whoops.
As I'm sure someone has mentioned previously, this case is best read to background music of Yakety Sax. I'm surprised the judge has even entertained GW's case for so long when they keep boffing it like this...
czakk wrote: It's not my field of expertise, but the UK had a new copyright act come into force in 1988/89. The old 1956 act had different rules about who got the copyright of commissioned paintings/portraits. The UK courts would also assign equitable title to the commissioner of a piece of artwork to let them sue infringers.
It was still sloppy.
Wouldnt that be irrelevant, since GW is suing in US court, under US laws?
czakk wrote: It's not my field of expertise, but the UK had a new copyright act come into force in 1988/89. The old 1956 act had different rules about who got the copyright of commissioned paintings/portraits. The UK courts would also assign equitable title to the commissioner of a piece of artwork to let them sue infringers.
It was still sloppy.
Wouldnt that be irrelevant, since GW is suing in US court, under US laws?
Yeah, I was just trying to think of a reason why back in 88 they might not have bothered with assignments or proper documentation.
czakk wrote: It's not my field of expertise, but the UK had a new copyright act come into force in 1988/89. The old 1956 act had different rules about who got the copyright of commissioned paintings/portraits. The UK courts would also assign equitable title to the commissioner of a piece of artwork to let them sue infringers.
It was still sloppy.
Wouldnt that be irrelevant, since GW is suing in US court, under US laws?
As other's have said - it is in regards to the actual assignment of the rights themselves.
The way the laws are set up is that if the country of origin grants a copyright - the international treaties allow that copyright to be used in the various signatory countries under their law. If for example, the British laws allowed for shared rights between the author (or artist) and the publisher (or commissioner of a work) then when they go to sue in the US - the damages each party could seek are only equal to half of what they could potentially get.
If, however, in the case of the Chalk artwork - the publisher only has the right of the first publication, the actual copyright in relation to derivative works would actually be to Chalk...not GW as Chalk is the one who has the copyright relating to duplication after the first publication. The Publisher would have a certain level of protection relating to actual copies of the book and pages within the book, but since we are talking about works which may or may not be deemed to be derivatives of the artwork presented there then the publisher's rights are not being violated specifically.
The issues relating to Chalk and the various shoulder icons are a complicated matter as well. Technically speaking, other Chapter Emblems which have evolved from the work which he originally did may well be deemed to be derivatives of the work which he did first. It comes down to who set the idea down on paper first. If GW gave him a bunch of names on paper and told him to draw up something neat to go with them - then the resulting artistic fixture would be his property. Subsequent adjustments to that fixture in minor form would be deemed as derivatives of that original work and would also in fact be his property. In the case of many of the Chapters, they have had significant changes since the Rogue Trader era illustration - however others have not been so significant that they could not be deemed derivative works:
Chalk actually did a fair amount of work for GW during the time that he worked for GW. You can find his images in White Dwarf and throughout various books from that period. Just a little aside, here is an interview with him which he does mention his time at GW as well:
czakk wrote:Supplemental declaration - those sworn financial figures we gave you before weren't accurate. Whoops.
As I'm sure someone has mentioned previously, this case is best read to background music of Yakety Sax. I'm surprised the judge has even entertained GW's case for so long when they keep boffing it like this...
The judge is letting it continue so that he has a good story to tell the other judges on the golf course.
"So then they tried to copyright the things after already starting the suit!"
"Surely no one is that dumb"
"you'd think"
If that were actually true - I am sure GW would have evidence of it happening once...
I can't speak to the quality of the CHS product, nor do I care on any significant level. For me it is a question of the right to produce a kit (crappy or otherwise) versus the heavy handed tactics of large IP conglomerates. Within this little corner of my world - GW is the large IP conglomerate...and what do you know, they have heavy handed tactics. The chilling effect goes against the very intent of the copyrights as a bunch of old dead guys set out to protect to ensure artists would be able to make a living off their trade.
One of the reasons that the UK (and broader EU) did the adjustments that they did in regards to manufactured goods regarding design rights (which to be perfectly honest renders this whole case moot for anyone on that side of the pond who wants to make Bits) is to return towards the original spirit of the law and encourage IP creators to actually be creative. No more milking the same cow for 50 years, you have to make something new every now and again.
As Sean stated above--this thread is for the discussion of the ongoing case between Chapterhouse Studios and Games Workshop--not to discuss our personal dealings with Chapterhouse or a critique of the quality of their casts. Thanks.
As I saw Excel mentioned in that those PDFs recently posted in regards to the sales spreadsheets, I have a query if I may for the legal eagles in the thread.
As 50K+ lines is by no means a big spreadsheet in terms of file size, even in old xls format if it is straight data, are they saying they don't want to submit it because they would have to submit a print out of all the lines?
And if they do need to show the lines, couldn't they just do a pivot table (condensed breakdown for those uninitiated with Excel) for a breakdown, then attach the printout of all the raw data behind it just in case for ease of use?
It just seems bizarre to me that given how serious this case seems to be that it wouldn't be included if it actually makes their case for them. Unless they can't produce the paper records for the transactions if quired on them later.
I would love to get my hands on those sheets they did provide so I can see how competent their staff are with simple data analysis. Especially since it was stated they had macros on the sheets provided to CHS.
If they just let some department head compile data for this case it speaks volumes of their mentality and competence. And if it was a proper analyst then I highly doubt they would have made the oversight of including Canadian sales data in there unintentionally. Especially if they were able to work it out later based on nothing more than the actual data they used or had available in the first place.
Atma01 wrote: are they saying they don't want to submit it because they would have to submit a print out of all the lines?
No, they are deeming sales data to be super secret. That is fairly common for most cases, the actual breakdown of individual sales figures is very useful for figuring out specifics of a business and how it operates. The judge granted them the ability to file that information under seal in order to keep it out of the public eye.
Because of the way which damages are calculated regarding these cases, certain aspects of it may well come out at a later date though. However that would require GW to win on a point and then the value of the mark or copyright would come into play to determine the penalty. The value would be based largely on the sales figures for that specific mark.
Had a thought. Looking at GWs recent pleadings they've started to complain about the amount of discovery,saying it was overbroad, vague etc... I think that's a reaction to some of CHS's pleadings about non-responsiveness. But it is pretty funny when you look at their initial complaint, refusal to specify anything and then see how the discovery forced them to drop a whole whack of stuff and start specifying things. Which is what discovery is meant to do, clarify the issues It's hard to complain about broad discovery when you refuse to name what you are suing someone over.
It should be very easy to get the relevant sales data they need, hell I still have some leftover from my time at GW.
Attached is the sales data for metal and for finished goods for 2006, the numbers would include Direct Sales, Canada and Australian orders since they were all shipped out of Memphis.
The cost column is what it costs GW for each component/product as a finished item.
Anyone at GW Memphis has access to this information, it's not exactly secret at all, at least for GW staff it's not.
rigeld2 wrote: That might be confidential info... Not a great idea to post it.
Confidential information is one of those funny things...generally speaking, there is no law that exists about releasing it. The worst case scenario would be a violation of an employment (via a non-disclosure agreement) or post employment contract (via a non-compete agreement), though with the exception of people like software developers and other engineers - those largely do not exist. Sales figures are not generally covered under the legal interpretation of things like Trade Secrets laws and they have not had a specific area carved out for them like credit or health care information. Once you no longer work for GW, there is little leverage that they hold over you to keep you from sharing information you know.
Regarding the information, I've managed to get a hold of a few similar documents over the years. The larger issue is the larger picture. A single year or months worth of information is a snap shot. In order to get a better picture of the popularity of different things within their line, you need several years worth of data...ideally an entire editions worth that way you can normalize for swings based on the "shiny object syndrome" which exists amongst GW customers.
Fair enough. I work in IT where sharing internal things like that is enough of a no-no that legal has a talk with us every couple of years... That I barely pay attention to. >.>
rigeld2 wrote: Fair enough. I work in IT where sharing internal things like that is enough of a no-no that legal has a talk with us every couple of years... That I barely pay attention to. >.>
Ahhh...that is a different issue entirely. Internal speech and policy doesn't always reflect what the law actually is. In many ways it is like the various claims over the years which companies have attempted to make, from Disney attempting to gain a trademark for Seal Team 6, TSR attempting to trademark "Dungeon" and "Dragon", GW attempting to claim trademark protection for "Plasma" and "Halberd". Just because they say it is so (or try to) doesn't mean it is.
Largely, there is little that stops a company from making a false claim, with regards to IP or internal policy discussions. I wouldn't be surprised though if the various internal discussions you had were very carefully worded in order to press up against the law without actually crossing the line. There are certain laws regarding workplace intimidation and various statutes which are generally written to protect either journalism or whistleblowers that protect the ability to release certain information.
Automatically Appended Next Post: BTW - I am not sure if it has been mentioned before, but for anyone who has found a new interest in IP law...you might consider picking up a copy of "Copyfraud". It is a good introduction to the issues surrounding this and other cases and provide a primer to IP law in general.
Ha, so document 245 contains a gem that will make all independent painters quake in their collective boots should GW win; (I don’t know why I didn’t spot it on the GW submission but I did on the CHS response)
(Excerpts take from P45 of that document) Second, to the extent Chapterhouse has copied three-dimensional miniatures produced by Games Workshop, it has promoted those products painted in Games Workshop’s colors,….. Games Workshop’s has produced all the relevant and responsive painted depictions of its miniature figures to Chapterhouse in the form in which Chapterhouse would have had access to them, and in which customers see them and know them,
So good old GW is claiming the paint schemes as part of their IP, so no painting GW Marine Chapters for you then.
AndrewC wrote: Ha, so document 245 contains a gem that will make all independent painters quake in their collective boots should GW win; (I don’t know why I didn’t spot it on the GW submission but I did on the CHS response)
(Excerpts take from P45 of that document) Second, to the extent Chapterhouse has copied three-dimensional miniatures produced by Games Workshop, it has promoted those products painted in Games Workshop’s colors,….. Games Workshop’s has produced all the relevant and responsive painted depictions of its miniature figures to Chapterhouse in the form in which Chapterhouse would have had access to them, and in which customers see them and know them,
So good old GW is claiming the paint schemes as part of their IP, so no painting GW Marine Chapters for you then.
Cheers
Andrew
Still recovering from the weekend - so I haven't yet had a chance to fully read and cross reference the claims and counter claims yet...but more poignant is the statement on the following page regarding the painting:
GW’s statement that it has produced exemplars “in the form . . . in which customers see
them and know them” is irrelevant to any issue in this case, because GW does not allege that any
customers have copied any of its works.
Funny thing is, there was no confidentiality agreement with GW when I was hired nor when I left the company. At no time during my time at GW was there anything like that at all either implied or on paper for me to sign.
I just went through my GW employee handbook and there isn't even anything in there about confidentiality either.
IIRC there is also a "time frame" for confidentiality agreements as well, the items I posted were from 6 years ago, well out of any clause they should have had, but didn't.
BTW, those prices in the spreadsheets, those take into account manufacturing and tooling costs. That's basically what it costs GW to make each individual part/finished good.
Gotta love GW and their markup!
Basically here's how it works. When you the customer place an order with Direct Sales, they send the order to Manufacturing for it to be filled. DS is in the same site as manufacturing for North America, Memphis.
So after the order is filled, manufacturing charges Direct Sales (or whatever dept sent their order to Manufacturing) the cost you see in the sheet.
So if you ordered as a single bit, 9947010132205 Maximus armor, manufacturing would then send a bill to sales for $0.72.
At least that's how it was done for years up till the time I left. They might have changed it slightly since then.
I just read that as 'sniping' at GW for sloppy writing, and I praised their writing earlier, ironic I know. It was the fact that W&S didnt dispute GWs claim to those colours. But I see they have touched on them later on.
A Tactical Squad box set costs them 7.70 to make
They charge 55% retail to FLGS They make $12.78 per Space Marine box profit
They sold 1692 units in the United States
They made $21,623 dollars off Tactical Squad boxes in 2006 in the United States
Is that right--or am I reading the sales sheet wrong?
A Tactical Squad box set costs them 7.70 to make
They charge 55% retail to FLGS They make $12.78 per Space Marine box profit
They sold 1692 units in the United States
They made $21,623 dollars off Tactical Squad boxes in 2006 in the United States
Is that right--or am I reading the sales sheet wrong?
You are correct as far as I am reading it. The costing now for many kits would be less too, as the tooling and design costs would have been written down to almost nothing at all.
Automatically Appended Next Post:
AndrewC wrote: I just read that as 'sniping' at GW for sloppy writing, and I praised their writing earlier, ironic I know. It was the fact that W&S didnt dispute GWs claim to those colours. But I see they have touched on them later on.
What did I miss?
Cheers
Andrew
Basically, if they are making a claim for a trademark violation against CHS for using the colors - they also must make the same claim for trademark dilution against anyone, anywhere who uses studio color schemes on their figures. Using them commercially isn't necessarily important in that regards. You see this with trademarks from time to time to prevent them from becoming generic, as well as to maintain the validity of the mark. They can't give a blanket free use for everyone...except a few people and expect the trademark to stand.
Well, I thought so too--but it seems much lower (Qty) than I thought. For example, 845 Terminator boxes dispatched for 2006 in the entirety of the United States?
What's interesting (and granted I'm using 2012 prices here)--but the direct only Techmarine would make them 26k+ in profits this year if it sold in the same quantity (and had the same tooling costs). That's more than the Tactical Squads sales would clear.
In fact Sean, reading further W&S have completely sidestepped the issue by ignoring the entire thing repeatedly pointing out that CHS products are unpainted. (I should have read further before posting here) So actually I guess that the painting/colour issue wont actually be settled here at all. But it doesn't surprise me that GW really 'hates' it's customers to the point where you're not allowed to paint your figures in their colours....
These numbers are what came out of Memphis at the time so they wouldn't include any finished goods that needed to be shipped from the UK due to manufacturing backorders.
If we had backorders and we couldn't make the box sets due to missing components then we would either get the components from the UK to make them or just order finished boxes if they were a rush, which happened a lot in the early days of Memphis.
I said they included the Canadian and Australian quantities as well, but I might be mistaken. It's been a while (6 years!) so I'm not really sure if these sheets include those quantities, we didn't separate out those numbers at the time.
The cost for GW to make the tools for plastics is also much less than what many on these forums speculate since they are made by GW staff with an hourly wage. Most of them don;t cost anywhere near the $100,000 amounts I hear thrown around, more like $5,000 to $15,000 per tool (what I was told by a former manufacturing manager from Memphis), and GW gets better and more efficient at making them every year.
The cost for GW to make the tools for plastics is also much less than what many on these forums speculate since they are made by GW staff with an hourly wage. Most of them don;t cost anywhere near the $100,000 amounts I hear thrown around, more like $5,000 to $15,000 per tool (what I was told by a former manufacturing manager from Memphis), and GW gets better and more efficient at making them every year.
A lot of the costing ends up being confusion between in house costs versus contract costs. A contract company charges much more than it would cost to perform the same work in house as they have all the same basic expenses (wear and tear on equipment, utilities, facilities, man power...) plus they have to add on a profit to make it worth while. In house though, unless you can keep your machine shop working full shifts, you are loosing money when they are just sitting idle (still paying for the roof over their head and man power related expenses). I know from personal research that you can do the work in house for fractions of the contract cost regarding machining in general and tool and die specifically...though I have never gotten into pricing out miniature molds themselves.
Automatically Appended Next Post:
AndrewC wrote: In fact Sean, reading further W&S have completely sidestepped the issue by ignoring the entire thing repeatedly pointing out that CHS products are unpainted. (I should have read further before posting here) So actually I guess that the painting/colour issue wont actually be settled here at all. But it doesn't surprise me that GW really 'hates' it's customers to the point where you're not allowed to paint your figures in their colours....
Cheers
Andrew
They do - however, you must remember that the way the court will rule on this...CHS will offer up more than one way in which they are in the clear.
Their first point of fact is that they sell unpainted miniatures. If however the judge doesn't buy into that as being a valid defense to the issue which GW raised, the next point of defense will be that GW doesn't prohibit thousands of others from using the same colors to paint their own miniatures with.
Generally, the judge will only speak to the first point which withstands the law as the court interprets it - however from time to time...they do extend their opinion if they see merit or just feel like writing a good bit (I haven't gone through this particular judges rulings to get a feel for him though). In those cases, the first opinion is considered to be the one which will be addressed in future cases...however the secondary statements carry a significant amount of weight as well.
Automatically Appended Next Post:
AgeOfEgos wrote: Well, I thought so too--but it seems much lower (Qty) than I thought. For example, 845 Terminator boxes dispatched for 2006 in the entirety of the United States?
What's interesting (and granted I'm using 2012 prices here)--but the direct only Techmarine would make them 26k+ in profits this year if it sold in the same quantity (and had the same tooling costs). That's more than the Tactical Squads sales would clear.
I would guess that is probably about half or less of the actual product movement for the North America region if my memory serves me based on what Purple Hippo says above. 2006 was the year that they moved warehousing from...I believe Baltimore and started to move manufacturing back from China. It was a bit of a mess all around based on info I have from other sources due to the way they were trying to move the stock and get manufacturing up and running at full tilt.
It is an interesting snapshot, but just a snapshot.
czakk wrote:Supplemental declaration - those sworn financial figures we gave you before weren't accurate. Whoops.
As I'm sure someone has mentioned previously, this case is best read to background music of Yakety Sax. I'm surprised the judge has even entertained GW's case for so long when they keep boffing it like this...
The judge is letting it continue so that he has a good story to tell the other judges on the golf course.
"So then they tried to copyright the things after already starting the suit!"
"Surely no one is that dumb"
"you'd think"
Automatically Appended Next Post: So I saw this on the thread about the new WD:
filbert wrote: Jervis also let slip that his vision of GW is as a seller of collectible models; Jervis is of the opinion that collection comes first and everything else (painting, gaming) comes secondary to that.
Which caused me to immediately think of this:
http://ia600405.us.archive.org/18/items/gov.uscourts.ilnd.250791/gov.uscourts.ilnd.250791.213.22.pdf
wrote:·Q.· And would you agree that if in fact it's true that the
·5· · · ·game pieces are primarily made for and sold to
·6· · · ·collectors to use them simply as -- for purposes of
·7· · · ·painting and collecting and displaying as opposed to
·8· · · ·playing in a game, that that factor would favor
·9· · · ·a finding that they're sculptures?
10· ·A.· I think if -- if they are created for collection and
11· · · ·consumed by collectors, that is certainly a factor that
12· · · ·is relevant under Mann's list, insofar as it indicates
13· · · ·that things are created for their visual appeal and are
14· · · ·consumed for that visual appeal.
Another case of GW trying to modify fact after the case? If they can convince their customers that the largest demographic buying GW products are collectors, perhaps they can convice a court of law, thereby garnering am artistic copyright, rather than the production copyright perhaps?
prplehippo, I haven't had a chance to sink my teeth into those sheets yet, but I just wanted to tell you that you are my favoritest person ever right now.
Sean, thank you for the clarification on my query. I read it as they were using Excel as a scapegoat. And if that was the case then it would be another mark against GW for me to add to the list.
Another case of GW trying to modify fact after the case? If they can convince their customers that the largest demographic buying GW products are collectors, perhaps they can convice a court of law, thereby garnering am artistic copyright, rather than the production copyright perhaps?
Entirely and completely. They know that what they produce as Games Workshop, are components for a game. The LucasFilm case set out that the primary purpose for an item be its first indicator to determine whether or not something should qualify for copyright protection or design right protection. Further, since they are Games Workshop - all "artwork" is what would actually be considered a design document, not regular artwork to exist for its own purpose - so even that wouldn't stand on its own as art either.
The duration for an unregistered design is now expired for...pretty much everything, except maybe a few of the new chaos items (will need to watch the design right registry to see if they are attempting to register those designs now...). Chances are pretty good that their lawyers have informed them of this and now Nottingham is trying to adjust 35 years of history in order to make them different then what they are.
Sounds like GW Legal won't be getting any help from him
Russ Nicholson wrote:This all made more amusing in a cynical sort of way by two letters from Games Workshop just recently. Apparently, according to the nice letter sent, which was quit complimentary about my work for Games Workshop, they had 'lost' contract copies of my signing over the rights to my work and they'd like me now to re-affirm the rights by completing a draft document sent by separate letter.
I have not replied to either letter, especially as when I originally did the work I never signed over rights to my work in the first place, and this goes back to the 'Warlock' and 'Doctor Who' games they produced.
Clearly GW are trying to pretend they had the rights to works they (and their artists) knew fine well they never possessed rights to!
I'd die for the sales statements for 2010-present.
The fact that actual cost of a $10 item is as low as $1.76 is just hilarious when GW employees are whining about how much money they were losing on metal models.
BewareOfTom wrote: I think they meant how much money they weren't making with resin models vs actually "losing" money on metal models
The schpiel from my local manager is that for the last year or two, every single metal model sold they mostly broke even on or lost money on it, which is why they switched to resin, which they then raised the prices on.
The schpiel from my local manager is that for the last year or two, every single metal model sold they mostly broke even on or lost money on it, which is why they switched to resin, which they then raised the prices on.
If that were true then the Perry brothers must be a registered charity considering the prices of their metal models, and they aren't the cheapest you can find either.
Sidenote: Apparently I'm in Tanzania today, news to me...
BewareOfTom wrote: I think they meant how much money they weren't making with resin models vs actually "losing" money on metal models
The schpiel from my local manager is that for the last year or two, every single metal model sold they mostly broke even on or lost money on it, which is why they switched to resin, which they then raised the prices on.
I do a fair amount of casting for my own and local friends needs. Right now, it costs me around 25-50 cents per figure in terms of metal costs. Sculpting fees generally run me $300-500 depending on the figure we want done. Molds cost me about $30. So far, I have only had to replace a couple molds for often requested items - but normally they are good for a few hundred spins with the fairly hard tin alloy we are using. I'm slow and clumsy and so is my equipment, so I generally take about 2 minutes per spin because I get distracted by looking at the neat stuff which I just made. Better spin casters than me can do 2 or 3 spins a minute. Each of my 12" molds holds around 16 figures worth of stuff - though again, better mold makers than me are able to cram two and sometimes three times as much stuff in a mold. Primarily metal shops like Reaper manage to do pretty good business by it, and the vast majority of their product is sold wholesale (figure 50% or so of MSRP). They also pay their sculptors better than I do and probably pay themselves better than I do (normally, when someone needs something I have the molds for they bring a case of beer and order a pizza). Metal is definitely more expensive in many ways...but far from horrible. What kills a lot of the small companies on metal pricing is the contract costs and what not. Even there though, a small company like Hinterland or Micropanzer who is entirely contract (sculpting, molds, castings...) can keep the price at or below $10 per figure for largish figures.
Sounds like GW Legal won't be getting any help from him
Russ Nicholson wrote:This all made more amusing in a cynical sort of way by two letters from Games Workshop just recently. Apparently, according to the nice letter sent, which was quit complimentary about my work for Games Workshop, they had 'lost' contract copies of my signing over the rights to my work and they'd like me now to re-affirm the rights by completing a draft document sent by separate letter.
I have not replied to either letter, especially as when I originally did the work I never signed over rights to my work in the first place, and this goes back to the 'Warlock' and 'Doctor Who' games they produced.
Clearly GW are trying to pretend they had the rights to works they (and their artists) knew fine well they never possessed rights to!
Tsk tsk!
Hang on, so GW is half way through a legal case and finding it has been challenged to prove ownership of certain images. So they then write to these artists claiming to have 'lost' the contracts in which the artists signed the rights over and ask them to write a letter to say that they dif give over the rights back in the day. If the artist is correct and that such a thing never happened then GW are effectively fishing for someone to retroactively have over the rights to their work which is little more than robbery if they can convince someone that this did happen when it did not. How on earth can that be legal, especially half way through a legal battle?
Sounds like GW Legal won't be getting any help from him
Russ Nicholson wrote:This all made more amusing in a cynical sort of way by two letters from Games Workshop just recently. Apparently, according to the nice letter sent, which was quit complimentary about my work for Games Workshop, they had 'lost' contract copies of my signing over the rights to my work and they'd like me now to re-affirm the rights by completing a draft document sent by separate letter.
I have not replied to either letter, especially as when I originally did the work I never signed over rights to my work in the first place, and this goes back to the 'Warlock' and 'Doctor Who' games they produced.
Clearly GW are trying to pretend they had the rights to works they (and their artists) knew fine well they never possessed rights to!
Tsk tsk!
Hang on, so GW is half way through a legal case and finding it has been challenged to prove ownership of certain images. So they then write to these artists claiming to have 'lost' the contracts in which the artists signed the rights over and ask them to write a letter to say that they dif give over the rights back in the day. If the artist is correct and that such a thing never happened then GW are effectively fishing for someone to retroactively have over the rights to their work which is little more than robbery if they can convince someone that this did happen when it did not. How on earth can that be legal, especially half way through a legal battle?
Yes, it is pretty underhanded to lie to someone to induce them to sign over their rights. It is even more underhanded to lie to them to get them to assign you their rights for free, while you are suing someone with the expectation of getting damages (money) based on those rights.
It's also sloppy as feth to start a lawsuit without having proper standing. Of course if I am remembering correctly, this was just a thrown together intimidation suit at the beginning. Am I remembering correctly?
Re Metal Prices: The most common complaint I've heard is the difficulting in getting consistent pricing on tin, especially for folks who can't buy in bulk and store when it is cheap. Hedging metal prices / futures contracts is a way to lose your shirt as a little guy as well.
Sounds like GW Legal won't be getting any help from him
That's hilarious, and a definite display of karma coming back to bite them on the ass.
Indeed. I think someone from CHS's legal team should write a polite e-mail to Mr. Nicholson asking if he would be willing to appear in court.
Has anyone sent CHS's legal team an email about it? They may not even know he exists, GW was dropping claims rather than providing discovery on people who didn't reply or replied in the negative.
Something I just remembered as well is that we used to get, as staff, a discount on metal purchases.
We paid ¢4 per gram for metal, pretty cheap.
So if you were to buy 9947010131212 Servitor Body 3 which weighed about 12.7 grams it would cost you around ¢50.
So GW made a profit off staff purchases as well, kinda shows you just how cheap metal is.
@Sean_Obrian
For smaller casters it would naturally cost them more though. GW fits anywhere from 4 to 100+ cavities on each mold depending on the part. The average number of cavities is 18 per mold.
For casting a box set run of 1500 units with say 10 components, we would make 2 molds for each component; 3 or 4 if the component went into the box more than once (say for backpacks)
But in Memphis the mold/casting manager was improving their casting times and costs by spruing things like backpacks to the model (Cadian Kasrkins come to mind) instead of having them separate parts. He was also simplifying their moldmaking as well. It took about 2 hrs to press a mold in silicone, but only about 12-15 minutes to cut it in and get it to casting, and the molds that went to casting had a %90 fill rate.
So you have less molds to press, less molds to cast, shorter casting time to complete the order, less packing time since the packers didn't have to count out each backpack (and possibly miscount).
Add to the at the semi-automatic casting machines GW used for metal casting which means one ot two casters can knock out the entire order in one or two days at most, during which they are also casting up metal for 2-3 other orders. They generally had 25-30 molds on each side of the casting station being rotated for casting. One staff cast while the other quality checked and talced the mold before sending it back to the caster.
I attached an old pic that was sent to me of the Memphis casting station for you to get an idea of how organized and efficient GW has gotten their casting.
Add two cars, a water heater...take away the shelves...replace the nice clean automatic casting station with a 30 year old manual one which was used for casting fishing weights...throw some half full gallon and 5 gallon containers of paint under the benches and it looks a bit like my shop if I squint really hard.
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rigeld2 wrote: If it was me I'd just go into my records and get a notarized copy of the original contract sent back to GW... the single use one.
Same here. I don't even sell my castings, but I have contracts done with the sculptors to allow for production and resale should I ever wish to torture myself that way. In each instance I have three notarized copies of the contract - one for the sculptor, one for my own records and one which I keep in offsite storage with the rest of my important papers in the event of a fire or flood. Would think a company like GW would have at least managed to grasp the concept of filing.
Yes, it is pretty underhanded to lie to someone to induce them to sign over their rights. It is even more underhanded to lie to them to get them to assign you their rights for free, while you are suing someone with the expectation of getting damages (money) based on those rights.
It's also sloppy as feth to start a lawsuit without having proper standing. Of course if I am remembering correctly, this was just a thrown together intimidation suit at the beginning. Am I remembering correctly?
..........
Has anyone sent CHS's legal team an email about it? They may not even know he exists, GW was dropping claims rather than providing discovery on people who didn't reply or replied in the negative.
I have it on good authority that they are watching.
Largely, this was likely an anti-competition lawsuit in an attempt to get CHS to go away. Most small shops can't afford to fight a case like this on their own - so just filing the paperwork will generally deal with the annoyance. I don't think GW will have ever come out and said as much - though IIRC, when the case was in mediation, the judge overseeing that more or less addressed what he thought the case was about (would have been around December of last year). To paraphrase, he asked GW if their goal was to make CHS file for bankruptcy go into a corner and die.
Mr Hyena wrote: But GW losing means theres absolutely no way for them to protect even the slightest bit of their I.P; which is bad for us anyway.
GW winning means resentment by some aspects of the community; and the community losing another website. But GW can defend their I.P. without blatant copies that damage the brand (gogo poorly-made conversion kits. Probably not Chapterhouse stuido's ones; but it opens the way for questionable sites even more.)
GW has to own the IP in the first place. In more then a few cases, they dont.
There really can be no 'winner' and 'loser' for us; we'll lose out either way. GW winning would be for the best for those who love Warhammer.
Actually we can win quite nicely if CH wins. It opens it up to thrid party producers, which opens the door to more creativity and expression. And might give GW a kick in the rear to stop sending out C&D letters on reflex.
Is this the proper place to ask for speculation on what it means if CHS does indeed come out on top? Will things just go on as they have been? Or will other bits makers start using GW products to show off their own bits?
Mr Hyena wrote: But GW losing means theres absolutely no way for them to protect even the slightest bit of their I.P; which is bad for us anyway.
GW winning means resentment by some aspects of the community; and the community losing another website. But GW can defend their I.P. without blatant copies that damage the brand (gogo poorly-made conversion kits. Probably not Chapterhouse stuido's ones; but it opens the way for questionable sites even more.)
GW has to own the IP in the first place. In more then a few cases, they dont.
There really can be no 'winner' and 'loser' for us; we'll lose out either way. GW winning would be for the best for those who love Warhammer.
Actually we can win quite nicely if CH wins. It opens it up to thrid party producers, which opens the door to more creativity and expression. And might give GW a kick in the rear to stop sending out C&D letters on reflex.
You mean open competition in the market place? I don't know... that sounds a bit crazy...
But thats the thing; what really will stop bit companies from making and labelling that their bits are designed for warhammer 40k if this wins? If this happens; GW will lose alot of money; and armies will recieve less support; maybe with some even being squatted.
Patently false. GW does NOT lose money when folks buy bits from other copanies. Considering a) GW is out of the bits business for the most part, and b) every bit you buy from 3rd party producers needs you to BUY a GW kit to use. GW gains money, nots loses any.
SickSix wrote: Is this the proper place to ask for speculation on what it means if CHS does indeed come out on top? Will things just go on as they have been? Or will other bits makers start using GW products to show off their own bits?
If they win, it will depend on what grounds they prevail on. If you look at the motions for summary judgments you'll see that there are a lot of nested defences. GW's suit fails because of A and B. If not, then C, if not then D, if not then E. In your pleadings you have to cover any possible way you might win.
If the judge bites on the UK design rights argument and rules that GW's suit fails because the minis aren't copyrightable in the UK, it will be a gong show. Odds of an american judge making sweeping statements about another country's copyright scheme based on only two expert witness reports? Not great. I've seen it happen in tax cases (importing weird civil law concepts like austrian privatstiftung) though.
Back to the letters to the artists.
One of the things you see repeated again and again in the various sworn depositions is a statement to the effect of "GW has always done work for hire, and always works super closely with our artists to ensure it is our ip from start to finish".
If it goes to trial, I imagine there will be some stuff from gary chalk and others from that era on tap to impeach various witnesses who said that. If GW folks thought that the depositions for discovery were stressful...
SickSix wrote: Is this the proper place to ask for speculation on what it means if CHS does indeed come out on top? Will things just go on as they have been? Or will other bits makers start using GW products to show off their own bits?
Generally the same thing that always happens when markets open up to competition.
Increased consumer choice.
Increased competition for the consumer's dollar.
Increased creativity from the manufacturers.
Generally increased across the board.
Specific bits companies will be able to more freely utilize GW "trademarks" and figures to display their compatible products - so no more guessing games.
There is no reason that GW would suffer at all as a result of a loss here either. They have numerous advantages which it would be nearly impossible for a startup to match and they will carry a certain level of brand loyalty as well. They will likely have to address their pricing schemes though, as it wouldn't be hard for a startup to undercut their plastic prices at this point. Based on studies done of GW financials by numerous people - that would not necessarily cause a change in their bottom line.
Also, other companies will be able to make things similar to GW stuff with less fear, (at least if I read this right). That means more alternatives if you want to play the game at non-GW stores.
This has probably been brought up before, but i really can't see what GW are complaining about. Most of the Chapter house products are used in conjunction with GW kits. i would of thought that it would increase sales not hurt them.
pitboy2710 wrote: This has probably been brought up before, but i really can't see what GW are complaining about. Most of the Chapter house products are used in conjunction with GW kits. i would of thought that it would increase sales not hurt them.
Pretty sure it's just kneejerk reflex. GW has been hunting 3rd party manufacturers for so long that I doubt they even realize or care if they're providing parts that supplement or compete with their own products.
However, said reflex has now bit them in the butt, hard, and I think at the very least they might try to get their ducks in a row before leveling another C&D/lawsuit against any other small companies out there.
It really shocks me that GW's case can be this screwed up and the judge is still allowing it. I have never claimed that I have a strong understanding of law, but this blows me away that a case can have this many holes and obvious subterfuges and still be allowed to continue.
Remember how CHS asked GW to prove that they had rights to everything that they claimed they had rights to? Then GW said - of course we do...why would you even question that. Then the judge said prove it? Well - they didn't actually have contracts for many of the free lance artists who worked for GW doing illustrations back in the days that 40K was being created. After the fact, they sent out letters trying to get the various artists to sign away those rights after the fact...and one of them was Gary Chalk. He said no. For those who are not familiar with Chalk, he did several of the Rogue Trader era illustrations relating to the various Space Marine chapters - the most notable one can be found in this document:
Next on the list of interesting things is the CHS response to the GW response to the CHS response to the material facts of the case. Lots of back and forth referencing this and that.
Some of it is sort of silly (GW contesting that a 28 mm standard exists...it is irrelevant whether or not the industry moved with GW or if it existed prior to GW - it is an excepted standard within the industry) on page 42.
Following GW's response to CHS's request for summary judgement, CHS again reiterates its points and provides supporting evidence in this document:
The problem of course is that at varying points throughout the case, GW did claim items which were created by Chalk as mentioned above and only now provided evidence from other freelance artists in support of their claim to ownership (after close of discovery - and after they filed the case to begin with). They also insist that the principle market for GW products is collectors and not gamers (in order to avoid classification as a design). Likely you will see more of that speak through White Dwarf and quite possibly a shift back to the Citadel Miniatures branding versus the Games Workshop branding in order to try to enforce that position.
This document is an index of the GW exhibits so far in support of their case:
It includes the new assignments of copyrights from some of the freelance artists which they didn't present earlier in the case.
So GAMES Workshop doesn't produce toy soldiers and rules for gamers, but for teen collectors?
I want to see the faces of the jury when they try to explain that
Still amazed that lying under oath is legal in US courts.
Yah...that was me. Didn't feel like keeping up with too many threads this weekend, as I was watching a bunch of 40 year olds pretend like they were in high school again (well...38, but I tend to round it unless my wife is watching).
That is more or less a summary of what we covered here and gives a quick coverage of what the new documents entail.
Sort of listed things in relative importance of new and interesting information for those who are playing catch-up over here as well.
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d-usa wrote: Games Workshop produces rules and games, Citadel produces collectible miniatures?
If I were a member of the GW legal/management team and had to figure out a way to manage this fiasco...that is the way I would likely attempt to spin it.
The Game Workshop makes it harder to justify that what they make are not pieces for use in a game (see the LucasFilm case for why that is important). Citadel Miniatures though removes the "game" from the name and makes it easier to attempt to make the case that miniatures are sold as collectibles first and game pieces second (a long ball of a case...but still, a case).
d-usa wrote: Games Workshop produces rules and games, Citadel produces collectible miniatures?
Pretty much. If you read the Codexes, it actually says the rules are for use with Citadel Miniatures.
From page 3 of the IG Codex(because it was the closest, emphasis mine): "The Warhammer 40,000 rulebook contains the rules you need to fight battles with your Citadel Miniatures..."
The Boxes also still have the Citadel logo in addition to the GW logo.
So, I guess they're trying to use this distinction to say that they're collectible miniatures for collectors that happen to have rules for gamers. Incidentally, that's something I've been using to describe the company for years, especially in comparison to other companies.
Citadel Miniatures is just a brand by GW ( http://en.wikipedia.org/wiki/Citadel_Miniatures ). Difficult for GW laywers to pretend that they are not working for GW. Difficult for GW to claim copyright for sketches in non-Citadel books then. Difficult to explain the demo game tables and gaming events in GW stores.
d-usa wrote: Games Workshop produces rules and games, Citadel produces collectible miniatures?
Pretty much. If you read the Codexes, it actually says the rules are for use with Citadel Miniatures.
From page 3 of the IG Codex(because it was the closest, emphasis mine): "The Warhammer 40,000 rulebook contains the rules you need to fight battles with your Citadel Miniatures..."
The Boxes also still have the Citadel logo in addition to the GW logo.
So, I guess they're trying to use this distinction to say that they're collectible miniatures for collectors that happen to have rules for gamers. Incidentally, that's something I've been using to describe the company for years, especially in comparison to other companies.
How can one argue that they make models first and games second when they release rules for units without a model, and then months or years down the road they release a model for the rule?
Also, 100% of their marketing shows the studio models as game pieces. They also rely on game rules to increase sales of a model. How many of GW's models are bought only because they look cool? How many are bought because they are mandatory/compulsory in the games? How many models are released without rules?
czakk wrote: Isn't there also a pricing scheme that relies on point cost / unit type more than cost to design and produce the mini?
I'm not sure GW has ever admitted to it, but yes.
Empire Greatswords dont use $41 worth of plastic for 10 models when 24 skinks run $35. But you won't buy as many GS's as you will skinks, so the profit margin has to make up for the reduced volume of sales.
One should also note that those Greatswords cost as much in plastic as they did in metal.
czakk wrote: Isn't there also a pricing scheme that relies on point cost / unit type more than cost to design and produce the mini?
This is merely a rumor made up by the customers as a way to rationalize GW's incomprehensible pricing practices. Another is that GW prices certain units higher to try to 'balance' the game through monetary attrition. I.E. It costs more (money) so you'll see it less on the tabletop. Sometime in 2005/6 they actually tried to standardize pricing for blisters according to range codes. There were letters on ever blister (A, B,C,D,E,F) and every blister with a given code was the same price ( I think 'c' was $15.00). This lasted not quite a year ( I presume it lasted as long as it took somebody to figure out that customers would pay more for models that were more useful or points efficient in game). Take a GOOD look at unit points vs. monetary cost, you'll not find a pricing scheme correlating the two, except tangentially. GW's only real pricing scheme is the scheme to price our money into their wallets.
czakk wrote: Isn't there also a pricing scheme that relies on point cost / unit type more than cost to design and produce the mini?
This is merely a rumor made up by the customers as a way to rationalize GW's incomprehensible pricing practices. Another is that GW prices certain units higher to try to 'balance' the game through monetary attrition. I.E. It costs more (money) so you'll see it less on the tabletop. Sometime in 2005/6 they actually tried to standardize pricing for blisters according to range codes. There were letters on ever blister (A, B,C,D,E,F) and every blister with a given code was the same price ( I think 'c' was $15.00). This lasted not quite a year ( I presume it lasted as long as it took somebody to figure out that customers would pay more for models that were more useful or points efficient in game). Take a GOOD look at unit points vs. monetary cost, you'll not find a pricing scheme correlating the two, except tangentially. GW's only real pricing scheme is the scheme to price our money into their wallets.
It isn't points per dollar per se, it's more of models per army. People will take 60 hablerdiers in any random Empire army, but you will never see an Empire player who buys 2 units of Greatswords.
So it's models per dollar, not points, in the scheme of an army as a whole.
And yes, it would be impossible to say that models are NOT gaming pieces first and sculptures second when certain models can ONLY be bought with the game they are intended for.
Had to laugh earlier, I was looking at exhibit C of 246.4 (Chalk declaration in which he was told they (GW) were simply clearing up their filing) when an attachment caught my eye,
Note from Alan to Gary.docx
004 v 1 Intellectual Property Assignment Note (Ex Employee or Independent) Chapterhouse GARY CHALK.doc
Really subtle GW.
Re Painting. GW has to start somewhere to get the ball rolling, a test case if you like, so why not here. See if the courts will accept chapter colours as a form of copyright. Perhaps as a prelim before rolling out prepainted miniatures? (Sorry speculation and OT) Perhaps I'll take this elsewhere.
Having read enough of these documents I've come to a few conclusions.
First, GW expected CHS to simply give up a LONG time ago.
Second, GW's legal team is way out of their league and should have punted to a decent US firm to handle this from day one. Of course, that wasn't quite possible due to #1 above. The legal team's screw ups alone are going to cost them big. If this was handled right, a good US firm would have laid the groundwork long before filing in court once they knew CHS wasn't going to just roll over.
Third, CHS will ultimately be punished for a few things; but nowhere near as badly as GW wants them to be. I saw perhaps two items out of the 100+ that I think CHS is weak on.
Fourth, out of the two companies: GW is going to come out worse than CHS. The amount they win on a few minor details is going to be more than balanced out by what they lose on. Namely the vast majority of their "trademarks".
Fifth: Within 6 months there will be a LOT more choice with regards to miniatures in the 40k world; and most of it coming from 3rd parties whose quality will range from great to moronic. This is a good thing, but is certainly something to bear in mind.
Sixth: GW will have to re-institute prize support at local gaming shops in order to encourage them to allow GW miniatures only. Or come up with some other mechanism. My fear here is that instead of branching out, they'll just cut off those 3rd party shops who don't comply with a GW miniature only demand and try to focus everyone into their own stores. This would be a very bad move, but completely within GW's historically bad moves.
clively, I don't think thats quite fair on GW legal representation. They are, to accounts, respected and known as IP laywers. Weeble, for example, spoke well of them. However consensus is that this case is being run by a UK firm with little knowledge and an inablity to accept they're wrong.
Honestly, it wouldn't be the first time a client has lied to his lawyer.
Aerethan wrote: People will take 60 hablerdiers in any random Empire army, but you will never see an Empire player who buys 2 units of Greatswords.
Then we get the circular argument, of not seeing as many greatswords as halberdiers because of the monetary cost.
Aerethan wrote: And yes, it would be impossible to say that models are NOT gaming pieces first and sculptures second when certain models can ONLY be bought with the game they are intended for.
GW would be in a much better spot if they had started like Wyrd: Creating miniatures for people to collect (and perhaps use in games ala D&D) and THEN deciding to make a game (which happens to use all the models in their range). However, they wrote Rogue Trader and then afterward (maybe simultaneously) released models based on said game.
Kroothawk wrote: Still amazed that lying under oath is legal in US courts.
Really? This is the country where former President Bill Clinton was allowed to dodge a perjury charge by parcing the meaning of the word "is". Nothing done in the US legal system should suprise you.
Russ Nicholson was also a free lancer from the same era - and was similarly contacted by GW in an attempt to have him assign the copyright to his works to them as well.
Paper work does get lost. Especially old paperwork - however when you have more than one person in disagreement to the plaintiff's testimony that freelance work was done on a work for hire basis...well, that is a pattern which can be used to influence the court or the jury.
Aerethan wrote: People will take 60 hablerdiers in any random Empire army, but you will never see an Empire player who buys 2 units of Greatswords.
Then we get the circular argument, of not seeing as many greatswords as halberdiers because of the monetary cost.
In either case though, the general end result is that there is correlation between game value and item cost. It may not be direct - and it may not even be a causation argument...however, when it comes to the 12 people in the jury box, you don't have to prove it on that level. You simply need to influence their beliefs enough that they might find in favor of what you are doing.
If GW would simply switch to a production cost based pricing scheme, then it would be easier to back their assertion that they sell for collectors. The current scheme is obviously not based on production costs though, so the human mind attempts to reason other causes for the pricing. The simplest is that of game value.
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Kroothawk wrote: Citadel Miniatures is just a brand by GW ( http://en.wikipedia.org/wiki/Citadel_Miniatures ). Difficult for GW laywers to pretend that they are not working for GW. Difficult for GW to claim copyright for sketches in non-Citadel books then. Difficult to explain the demo game tables and gaming events in GW stores.
Not saying it would be a good argument for them to make - just that is the only bullet left for that particular argument. They really need to attempt to do something, as if they didn't - the case would be dead in the water with the exception of their Trademark claims...and trademark nominative use is not a violation, so that would make their case dead in the water in general.
Also, keep in mind that it isn't uncommon to see different brands under the same large corporation produce collectibles versus regular items. NECA owns the Wizkids brand which produces the Clix toys. They also make a variety of large scale figures from movies and pop culture under their NECA branding.
Russ Nicholson was also a free lancer from the same era - and was similarly contacted by GW in an attempt to have him assign the copyright to his works to them as well.
Paper work does get lost. Especially old paperwork - however when you have more than one person in disagreement to the plaintiff's testimony that freelance work was done on a work for hire basis...well, that is a pattern which can be used to influence the court or the jury.
Yup, saw that and agree with your analysis, although CHS seems to have left out the most damning part of the story. Perhaps saving it for later?
Was primarily bring the Chalk stuff to the attention of people who were asking how this kind of thing might influence a judge (or jury as you suggest).
I'm beginning to see the pattern of nested defense strategies: in battlefield terminology, a defense in depth with multiple defensive lines that have to be breached before GW's goal (destruction of CHS) can be reached, along with an aggressive offense to forestall many of GW's probes and lines of attack.
But thats the thing; what really will stop bit companies from making and labelling that their bits are designed for warhammer 40k if this wins? If this happens; GW will lose alot of money; and armies will recieve less support; maybe with some even being squatted.
Patently false. GW does NOT lose money when folks buy bits from other copanies. Considering a) GW is out of the bits business for the most part, and b) every bit you buy from 3rd party producers needs you to BUY a GW kit to use. GW gains money, nots loses any.
GW will squat your army regardless.
I don't think you actually realize the quantity of bits makers out there and the range of products they actually make. Most 3rd parties produce alternate sets of legs, torsos and power plants for space marines, and they're pretty attractive. In fact they build complete models for alternate marines. Imperial guard --SPECIFICALLY imperial guard--abound like you wouldn't believe. About the only armies you'd have trouble getting from 3rd party manufacturers are Eldar, Dark eldar and Tau. If GW loses this, it's going to be a mad rush for many independents to jam some products through before GW gets it's IP protection in order and sorted out. GW's also going to have a hard time nailing down all those heads that pop up.
GW will lose money, but then this may lead GW to slash its prices to compete with the custom-made stuff. As of right now, the prices are so ridiculous that I find it better sense to buy from a third party than GW because at least I'll have a different characterful army. Suppose I want bulk terminator sorcerers to run as "thousand sons obliterators". Can't do that cheaply through gee dubya. The opening of the market won't just give GW a run for the money, but it'l open up the game and the best sculptor at the best price will get the business, so even CHS, bitspudlo, puppetswar etc may all have a run for their money. Why should I pay ridiculous shipping costs if some guy local does it to a comparable quality, and shipping is less, and the cost is comparable?
It's all just speculation from all around though. Let's get realistic, speculation only achieves one thing: Dissapointment, and a lot of it. .com bubble, japan economy bubble, housing market bubble.... the list goes on for quite a while. The reality is we won't know what the effect of this is until about 5 years after the decision is made.
The market is almost saturated with conversion bits makers (esp. when you can chose among 5+ companies making Razorback turrets, Dreadnought arms and Nazi orks). Most parts require you to pay 5times as much for GW than for conversion parts (e.g. shoulder pads). And IG? GW hasn't the copyright on normal humans in uniform.
Lordhat wrote: GW would be in a much better spot if they had started like Wyrd: Creating miniatures for people to collect (and perhaps use in games ala D&D) and THEN deciding to make a game (which happens to use all the models in their range). However, they wrote Rogue Trader and then afterward (maybe simultaneously) released models based on said game.
Not sure if serious, but GW started exactly as you described: First making D&D miniatures (they distributed this game in Europe), then starting with their own rules, which is Warhammer Fantasy. SciFi miniatures came much later, with Judge Dread miniatures predating Rogue Trader.
But that type of business cycle is so far in their past it doesn't have much bearing today. GW is in the business of releasing models and games together as single larger product line. Its not a chicken and the egg situation anymore... its peas and carrots or anything else that just go together.
Even if you could break down collectors vs gamers, you'd have to define what constitutes each. I have collections of armies I never really play, but I buy to play... are my purchases gamer or collector?-Its too subjective.
aka_mythos wrote: But that type of business cycle is so far in there [sic] past it doesn't have much bearing today.
Well it can do. For instance one of GW's claims is that they have copyright on the shape of a marine shoulder pad - its specific shape is one of the badges that demonstrates that it is their copyrightable design. Now the origins of that shape go back to the dim and distant past - the mid-80's, earlier even. The early pre-Rogue Trader Space Marine models had them, and who created the artwork that inspired them? Was that artwork a work for hire (and therefore now owned by GW and potentially protectable by them) or was copyright retained by the artist because GW *ahem* "lost" the paperwork, and therefore absolutely none of GW's business - amusingly potentially opening GW up to a counterclaim for copyright infringement by the original artist?
25 years isn't really *that* far into the past when it comes to the law.
AndrewC wrote: clively, I don't think thats quite fair on GW legal representation. They are, to accounts, respected and known as IP laywers. Weeble, for example, spoke well of them. However consensus is that this case is being run by a UK firm with little knowledge and an inablity to accept they're wrong.
Honestly, it wouldn't be the first time a client has lied to his lawyer.
Cheers
Andrew
I'm not entirely sure what you said that contradicts me. UK law != US Law. I wouldn't hire a US attorney to fight any type of court case in the UK, instead I'd hire a UK solicitor. For that reason alone I don't consider them competent to execute a case involving potentially huge ramifications for their client in the US. Then again, I have no idea if that team has an office in the US.
Regarding lying to the lawyer, I believe more in "Never attribute to malice that which is adequately explained by stupidity"
In this case, GW corporate's stupidity in developing a game in a half ass manner and putting witnesses up that appear to have no clue what is going on within the company even in the areas of their direct responsibility. A competent attorney would have properly discussed the issues with the staff as soon as it was apparent they were actually going to court and way before actually filing documents.
A very simple example of the direct failure of the legal team is when they created the list of items they felt CHS infringed on. All it should have take is listing the CHS item with a picture, the Games Workshop trademark or copyright being infringed, the example product (in case of trademark), date of first use and proof of that date through US sales data. All of which should be available. I would find it hard to believe that a bean counter in GW doesn't know exactly how many Space Marine Tac Squads where sold in the US, broken down by state, perhaps even by economic conditions. How else are you going to figure out what your stores are doing?
Instead, they delivered a list to CHS that had pictures of their *own* products as being infringing (back of shoulder pad, tervigon kit), never produced the actual products themselves (although commanded to by the judge) and did not produce proof of sales. Combined with the list of trademarks they initially claimed CHS infringed, but GW staff later said wasn't found anywhere on CHS's site or product descriptions. Totally amateur hour by the GW legal team. It really looks like the list was put together by someone in GW trying to be helpful but unaware of the specifics of GWs product line and certainly not reviewed by anyone prior to filing it with the court.
All in all it feels like the GW legal team has simply not put in the time necessary to do this right while hoping the Judge looks at the pile of crap they did deliver in order to sort it out. Not good.
aka_mythos wrote: But that type of business cycle is so far in their past it doesn't have much bearing today. GW is in the business of releasing models and games together as single larger product line. Its not a chicken and the egg situation anymore... its peas and carrots or anything else that just go together.
Even if you could break down collectors vs gamers, you'd have to define what constitutes each. I have collections of armies I never really play, but I buy to play... are my purchases gamer or collector?-Its too subjective.
You are absolutely right.
Of course it means that GW cannot establish themselves as a "pure collector company". On balance, I think a jury would look at the "collectable models" and the large amount of rules and army books, and conclude that GW is not a "pure collector company".
GW lawyers always forget that they have to deal with a jury.
Noone with common sense will believe GW that toy soldiers are for collectors only, that GW owns the copyright on skulls and halberds and that second market products are illegal per se.
I don't think you actually realize the quantity of bits makers out there and the range of products they actually make. Most 3rd parties produce alternate sets of legs, torsos and power plants for space marines, and they're pretty attractive. In fact they build complete models for alternate marines. Imperial guard --SPECIFICALLY imperial guard--abound like you wouldn't believe. About the only armies you'd have trouble getting from 3rd party manufacturers are Eldar, Dark eldar and Tau. If GW loses this, it's going to be a mad rush for many independents to jam some products through before GW gets it's IP protection in order and sorted out. GW's also going to have a hard time nailing down all those heads that pop up.
GW will lose money, but then this may lead GW to slash its prices to compete with the custom-made stuff. As of right now, the prices are so ridiculous that I find it better sense to buy from a third party than GW because at least I'll have a different characterful army. Suppose I want bulk terminator sorcerers to run as "thousand sons obliterators". Can't do that cheaply through gee dubya. The opening of the market won't just give GW a run for the money, but it'l open up the game and the best sculptor at the best price will get the business, so even CHS, bitspudlo, puppetswar etc may all have a run for their money. Why should I pay ridiculous shipping costs if some guy local does it to a comparable quality, and shipping is less, and the cost is comparable?
It's all just speculation from all around though. Let's get realistic, speculation only achieves one thing: Dissapointment, and a lot of it. .com bubble, japan economy bubble, housing market bubble.... the list goes on for quite a while. The reality is we won't know what the effect of this is until about 5 years after the decision is made.
Ignorance on your part. I've been playing and modeling for over 20 years, with and without GW. I use ALL sorts of bits from CH to Iron dog to reaper. I have lists of 3rd party producers. Some specifically for GW. Others just make models, adn I can incorporate into armies and models. Hell citadel Journal use to advise(as well as RT era books) use of other models and parts. Nowadays GW has become hamfisted and facist about other models.
MOST of the 3rd party require GW models to use. I've got 10 awesome shields from CH for my DA army. Still need the terminators or power armor to use. Had some spore pods for a tyranid army back and needed GW models to make the function, especially since GW refuses to produce a model. I have iron dog ork tracks, that went on a GW tank/ork bit hybrid.....the list goes on and on and on. Every project w/o 3rd party wouldnt have gotten done, nor GW models bought without.
We can look at OGL in the RPG world as an example- 3rd party producers there, and the edition was the second highest one since 1st ed D&D. People came back and stayed back with a unified idea that its one big playground others got to play in. Then look at 4e after words that barely last 2.5 years and crashed and burned when they excluded 3rd party producers. Now I'll grant that thats simplifed a few things, but its something to think of.
Alfndrate wrote: 4th Ed has lasted close to 4 years... but I totally get your point...
The game lasted that long, but the last year or so they produced practically nothing for the game(in fact canceled many products) and the last 6 months of its life they were working on 5th I believe. But glad the point is made.
Kroothawk wrote: GW lawyers always forget that they have to deal with a jury. Noone with common sense will believe GW that toy soldiers are for collectors only, that GW owns the copyright on skulls and halberds and that second market products are illegal per se.
And if you'd have asked the majority of the people at the time, no one with any common sense would have looked at the evidence and said OJ Simpson was innocent. The Legal Facts in a case don't always match up with what you think is common sense.
Kroothawk wrote: GW lawyers always forget that they have to deal with a jury.
Noone with common sense will believe GW that toy soldiers are for collectors only, that GW owns the copyright on skulls and halberds and that second market products are illegal per se.
The easiest evidence to show a jury that GW are full of it on this, are pictures from WD and their own website... its pictures of people playing their game. Not pictures or articles on how to display your collection. When they draw sooo much emphasis on making things uniquely yours, that is counter-intuitive to the norms of collectables.
Clively, Foley and Lardner (GWs Lawyers) are an american firm operating out of Chicago. Unfortunately they are taking instructions from GW corporate laywers in the UK (The UK firm I referred to, sorry I should have been clearer.)
This case should never have reached the stage it has. CHS should have folded as many others have in the past due to lack of funds. Now thanks to Winston & Strawns Pro Bono GW has now had to find a case with which to proceed, and poor F&L are the ones being hit with the flack.
AndrewC wrote: Clively, Foley and Lardner (GWs Lawyers) are an american firm operating out of Chicago. Unfortunately they are taking instructions from GW corporate laywers in the UK (The UK firm I referred to, sorry I should have been clearer.)
This case should never have reached the stage it has. CHS should have folded as many others have in the past due to lack of funds. Now thanks to Winston & Strawns Pro Bono GW has now had to find a case with which to proceed, and poor F&L are the ones being hit with the flack.
And its really really amusing to watch GW and their lawyers flail around like clowns trying to make a case.
AndrewC wrote: Clively, Foley and Lardner (GWs Lawyers) are an american firm operating out of Chicago. Unfortunately they are taking instructions from GW corporate laywers in the UK (The UK firm I referred to, sorry I should have been clearer.)
This case should never have reached the stage it has. CHS should have folded as many others have in the past due to lack of funds. Now thanks to Winston & Strawns Pro Bono GW has now had to find a case with which to proceed, and poor F&L are the ones being hit with the flack.
Cheers
Andrew
So what are Foley and Lardner's options regarding bailing out of the case due to interference from GW's lawyers and GW's (apparently) not being honest with Foley and Lardner?
I would be looking for a way out at this point...
AndrewC wrote: Clively, Foley and Lardner (GWs Lawyers) are an american firm operating out of Chicago. Unfortunately they are taking instructions from GW corporate laywers in the UK (The UK firm I referred to, sorry I should have been clearer.)
This case should never have reached the stage it has. CHS should have folded as many others have in the past due to lack of funds. Now thanks to Winston & Strawns Pro Bono GW has now had to find a case with which to proceed, and poor F&L are the ones being hit with the flack.
Cheers
Andrew
So what are Foley and Lardner's options regarding bailing out of the case due to interference from GW's lawyers and GW's (apparently) not being honest with Foley and Lardner?
I would be looking for a way out at this point...
Tim
Firing the client? Nah, why waste an excellent chance for Mr. Keener to get some trial and then appellate court time on GWs dime.
I don't know how it works down in the states but up here civil lawsuits settle 80-90% of the time before trial. This is a rare chance to get to argue a whole pile of issues with a top notch firm on the other side.
So what are Foley and Lardner's options regarding bailing out of the case due to interference from GW's lawyers and GW's (apparently) not being honest with Foley and Lardner?
I would be looking for a way out at this point...
Tim
Firing the client? Nah, why waste an excellent chance for Mr. Keener to get some trial and then appellate court time on GWs dime.
I don't know how it works down in the states but up here civil lawsuits settle 80-90% of the time before trial. This is a rare chance to get to argue a whole pile of issues with a top notch firm on the other side.
LOL! Thanks...I guess the key phrase is "...on GWs dime." F&L will do anything GW wants, but it all goes on the bill... and I bet GW is not happy about how big the bill is turning out to be.
So what are Foley and Lardner's options regarding bailing out of the case due to interference from GW's lawyers and GW's (apparently) not being honest with Foley and Lardner?
I would be looking for a way out at this point...
Tim
Firing the client? Nah, why waste an excellent chance for Mr. Keener to get some trial and then appellate court time on GWs dime.
I don't know how it works down in the states but up here civil lawsuits settle 80-90% of the time before trial. This is a rare chance to get to argue a whole pile of issues with a top notch firm on the other side.
LOL! Thanks...I guess the key phrase is "...on GWs dime." F&L will do anything GW wants, but it all goes on the bill... and I bet GW is not happy about how big the bill is turning out to be.
Tim
At this point the bill is completely GW's fault. Every time F&L have to fix some mistake or submit further papers because GW left out some detail or lied about something GW is paying for it.
Now to me, this case is damaging to F&L's reputation. But perhaps the payoff is worth that damage. Perhaps they'll make enough from GW to not care about reputation in the present.
Thanks! I just got a nose full of water. Stupid me for drinking while reading dakka.
The makers of finecast proudly present Finelegal. All arguements and filings guaranteed to be full of holes just like their resin.
Silly you! You're not supposed to poke around and examine the Finelawyer proceedings. You're supposed to accept the opaque C&D letter and settle out of court, and only after getting home and looking through the proceedings find out that it's full of holes.
EDIT: Since for some reason a half-dozen posts were deleted, here's a repost of the Finelawyer (tm) pic for the poster looking to use it as a sig:
"Indeed, Defendant’s very reason for selling miniatures offered in connection with GW’s marks was to benefit from the commercial magnetism that those miniatures and marks have developed in the gaming community."
"As a result of their inherent and acquired strength, and their ability to uniquely identify GW in the gaming field, GW’s trademarks and miniature designs are entitled to the widest scope of protection."
And the kicker - the miniatures are 'game related merchandise"
"3. For example, WARHAMMER 40,000 is a complex science-fiction war-strategy game set in the forty-first millennium featuring a futuristic war with human and alien warrior combatants in a fictional galaxy. (Verified Complaint, ¶ 8; Bennett Dep. at 7:3-10.)
4. GW also offers a vast selection of game-related merchandise, including books, templates, game cards, and a wide range of meticulously designed and crafted miniatures, such as model warriors, weapons, vehicles, and machines (“GW Miniatures”). (Verified Complaint, ¶ 11.)"
Wanna buy some chess-rules related merchandise Next, the Finelawyers™ will claim GW being a church needing special protection for their religious symbols
A Tactical Squad box set costs them 7.70 to make
They charge 55% retail to FLGS They make $12.78 per Space Marine box profit
They sold 1692 units in the United States
They made $21,623 dollars off Tactical Squad boxes in 2006 in the United States
Is that right--or am I reading the sales sheet wrong?
What? No way that can be even close to right. They have something like 1300 retailers in North America. There's no way they'd sell this few boxes; tactical marines must be one of their most sold products.
A Tactical Squad box set costs them 7.70 to make
They charge 55% retail to FLGS They make $12.78 per Space Marine box profit
They sold 1692 units in the United States
They made $21,623 dollars off Tactical Squad boxes in 2006 in the United States
Is that right--or am I reading the sales sheet wrong?
What? No way that can be even close to right. They have something like 1300 retailers in North America. There's no way they'd sell this few boxes; tactical marines must be one of their most sold products.
Agreed. I know that the $7.70 to make is very wrong. Also, I agree that 1692 units for a multi-million dollar company is also wrong. That doesn't add up.
A Tactical Squad box set costs them 7.70 to make
They charge 55% retail to FLGS They make $12.78 per Space Marine box profit
They sold 1692 units in the United States
They made $21,623 dollars off Tactical Squad boxes in 2006 in the United States
Is that right--or am I reading the sales sheet wrong?
What? No way that can be even close to right. They have something like 1300 retailers in North America. There's no way they'd sell this few boxes; tactical marines must be one of their most sold products.
That information was from the year that they were moving around both the warehousing and the manufacturing. What we see is a snapshot of the units which were fulfilled from the new location in Memphis as opposed to the old location (Baltimore IIRC...though there was a period where they were trying 3 warehouses in the US...though it is a bit foggy).
Now...if they still happened to have a friend who worked there who could access that information...and leak it for more recent years... I am sure many people would be very happy...
Those numbers might not be complete reflecting only some portion of direct sales. Direct sales to individuals and wholesalers and distributors might not be covered in this.
What? No way that can be even close to right. They have something like 1300 retailers in North America. There's no way they'd sell this few boxes; tactical marines must be one of their most sold products.
The numbers from that sheet are, from what I was informed, Direct Sales numbers not retail numbers. I'm just not sure if they include Canada and Australia numbers.
Agreed. I know that the $7.70 to make is very wrong. Also, I agree that 1692 units for a multi-million dollar company is also wrong. That doesn't add up.
As of this report being run back in 2006 that was the cost taken directly from the Access queries used in Direct Sales year end sales report. That was the cost of all the components, boxes, foam, etc used in packing the finished goods (including time). Anyone in the Direct Sales dept is trained to run it and any other Access report in DS.
If you are saying that is not correct, then GW's inventory control and inventory accounting has been way off for many years.
Really? I kinda like Access. All of the queries into the inventory control system were pretty easy to make. I can't remember the name of the inventory control system they used (or still might be using) I think it was something like Tetra Line Client (or something like that).
Really? I kinda like Access. All of the queries into the inventory control system were pretty easy to make. I can't remember the name of the inventory control system they used (or still might be using) I think it was something like Tetra Line Client (or something like that).
When I read Access I think Microsoft Access - am I misunderstanding?
Using Access still isn't unheard of. Not every business has moved to SQL. There are some benefits to using Access over SQL in that those who know Excel functionality can usually pick up Access syntax fairly easily, and they both use VBA for macros.
That being said SQL isn't the hardest thing in the world to read and understand, but you wouldn't be able to make effective queries just from being able to read it.
Were those sheets something they pulled from a query to get all the product codes and name for you to put a Qty you wanted on? Or were they compiled after the fact at the end of the month to show total units sold? If the latter I find it odd they couldn't separate out by region and what not. That kind of data label should be floating around in the database somewhere.
Atma01 wrote: Using Access still isn't unheard of. Not every business has moved to SQL. There are some benefits to using Access over SQL in that those who know Excel functionality can usually pick up Access syntax fairly easily, and they both use VBA for macros.
That being said SQL isn't the hardest thing in the world to read and understand, but you wouldn't be able to make effective queries just from being able to read it.
Were those sheets something they pulled from a query to get all the product codes and name for you to put a Qty you wanted on? Or were they compiled after the fact at the end of the month to show total units sold? If the latter I find it odd they couldn't separate out by region and what not. That kind of data label should be floating around in the database somewhere.
Unless you put a lot of time and love into Access (in which case - why not just use a real RDBMS) it does do well in a multi user environment. Too easy to corrupt the database, horrible permissions required to be able to use the database in the first place, etc.
Our locksmith shop's software uses Access as a backend. We get a work order about once a week because the database is "missing" (one of them deleted it), "corrupt" (actually corrupt for some reason, or has old data because yay old session finally saving) or some other issue. Unfortunately this is a vendor software issue, but once this contract is out we aren't going to let them renew it.
It's possible they've moved on and don't use Access anymore, it's been 6 years since I worked there.
I did talk to a few people I know that are still there about how things are now, but no one is talking but I did find out a number of staff were talked to about leaking information to outside sources and given the "Tennessee is an At Will employment state" threat.
Atma01 wrote: Were those sheets something they pulled from a query to get all the product codes and name for you to put a Qty you wanted on? Or were they compiled after the fact at the end of the month to show total units sold? If the latter I find it odd they couldn't separate out by region and what not. That kind of data label should be floating around in the database somewhere.
There were countless types of reports that can be run, you can also filter out specific data as well. Direct Sales had their own reports, the mold dept had theirs, packing had theirs etc. You can find out anything from just staff or internal purchases to specific customers purchases to how many box sets were made in a month to how much plastic gets used for making sprues. There is a lot of information GW tracks, you could find out just about anything you wanted to for whatever date range you needed.
But like I said, they are constantly changing and trying to improve things so it's very possible that they are using a new system and have new queries/reports now. It wouldn't surprise me if they also locked down certain information and have restricted access to those queries/reports for certain staff now.
I imagine that they have had more than a few restructures since that data was relevant. Which would make it hell to backtrack in terms of correct cost centre allocation if you are determining sales. But that being said I can't imagine that the straight up data labels for where the product ended up, either to store or to customer, would be gone. Under a different header possibly, but not gone.
That being said, if they were using Access and didn't have decent backup protocols then I can envisage the older databases having broken beyond repair or being accidentally deleted by now.
But thankyou for the info. I'm going to drop out now since this is starting to veer off topic.
I apologize if you thought I was derailing the topic, that wasn't my intention. What I wanted to show was that it would be very easy to gather the information that was requested of GW, it would take then a matter of minutes to collect the data needed and sort it.
GW, IMHO, is just being evasive by saying it would be difficult to gather accurate data regarding specific sales.
I apologize if you thought I was derailing the topic, that wasn't my intention. What I wanted to show was that it would be very easy to gather the information that was requested of GW, it would take then a matter of minutes to collect the data needed and sort it.
GW, IMHO, is just being evasive by saying it would be difficult to gather accurate data regarding specific sales.
Honestly I'm sure that sales data is readily available for any large company, as it is probably the single most important data about the company. The company reports their earnings yearly, which means that at least once a year they have someone compile all of that sales data into an understandable format.
It's not like CHS was asking for their phone records from 1987. In 2012 all corporate data should be readily available, otherwise your doing it wrong and should be fired.
Fact is that GW wasn't able to provide the data intime. Nor any proof of copyrights and trademarks, only proof that none of its miniatures are protectable under UK law That is quite ... unusual for an IP lawsuit, at least for a successful one for the plaintiff.
So, hold on then, if most of GW's current model lines are found to be unprotected, does that mean third parties could stop making not-Guardsmen and not-Space Marines, and instead start selling "resin Tallarn Imperial Guardsmen" and such?
Yodhrin wrote: So, hold on then, if most of GW's current model lines are found to be unprotected, does that mean third parties could stop making not-Guardsmen and not-Space Marines, and instead start selling "resin Tallarn Imperial Guardsmen" and such?
IANAL but from what I understand, that should not be an outcome of this particular lawsuit; a U.S. court cannot determine British copyright status. What's important for this case is that GW hasn't provided proof that they owned the copyrights that they claim they did at the time that they brought the lawsuit against CHS. They may very well actually have said copyright status in Britain, they just havent supplied evidence supporting that claim (yet).
Now, that may not stop others from doing exactly as you said, but they'll be betting on GW being unable to prove copyright status in a British court of law (or however GW would go about doing so).
Yodhrin wrote: So, hold on then, if most of GW's current model lines are found to be unprotected, does that mean third parties could stop making not-Guardsmen and not-Space Marines, and instead start selling "resin Tallarn Imperial Guardsmen" and such?
No, but they might be able to make "Resin Tallarn Imperial Guardsmen Compatible" non-Guardsmen. IMPERIAL GUARD is still a trademark and that has no bearing on copyright, but is the GW-exclusive name of their product line. You have to use your own trademark to market you stuff, but it is legal to use the trademark of a different company to indicate compatibility (this works with that) or to compare your product to your competitors product (my Cola is better than Coca Cola).
Yodhrin wrote: So, hold on then, if most of GW's current model lines are found to be unprotected, does that mean third parties could stop making not-Guardsmen and not-Space Marines, and instead start selling "resin Tallarn Imperial Guardsmen" and such?
No, but they might be able to make "Resin Tallarn Imperial Guardsmen Compatible" non-Guardsmen. IMPERIAL GUARD is still a trademark and that has no bearing on copyright, but is the GW-exclusive name of their product line. You have to use your own trademark to market you stuff, but it is legal to use the trademark of a different company to indicate compatibility (this works with that) or to compare your product to your competitors product (my Cola is better than Coca Cola).
GW has also failed to provide proof that they own a significant portion of trademarks they're claiming in this case.
Yodhrin wrote: So, hold on then, if most of GW's current model lines are found to be unprotected, does that mean third parties could stop making not-Guardsmen and not-Space Marines, and instead start selling "resin Tallarn Imperial Guardsmen" and such?
No, but they might be able to make "Resin Tallarn Imperial Guardsmen Compatible" non-Guardsmen. IMPERIAL GUARD is still a trademark and that has no bearing on copyright, but is the GW-exclusive name of their product line. You have to use your own trademark to market you stuff, but it is legal to use the trademark of a different company to indicate compatibility (this works with that) or to compare your product to your competitors product (my Cola is better than Coca Cola).
GW has also failed to provide proof that they own a significant portion of trademarks they're claiming in this case.
Maybe, but that is for a judge or maybe even a jury to decide first. After the pretrial rulings and filings are done, we will know more. If I remember right, GW won't be able to introduce more evidence after the rulings. The judge will likely allow a bunch of claims from both categories to go forward and throw out a bunch of junk claims. How much he throws out, will give us a better feel for the judge and give us an estimate of how strong GWs claims really are. We will simply have to wait for the ruling to be entered in the court record system or CHS stops by on the forums and lets us know what is up with the case.
Until then, this is my last post, because we are not discussing any new developments.
Lordhat wrote: GW has also failed to provide proof that they own a significant portion of trademarks they're claiming in this case.
Actually they haven't provided proof of ANY trademarks and copyrights, they just retracted some where it was obvious.
GW also agrees that toy soldiers are not protectable in UK, they still desperately claim that general ideas ("skulls in the 40k universe") are or that their toy soldiers are a piece of art for collectors.
General problem for small manfacturers is not that GW actually owns the copyright on the whole world, but that GW thinks it does and tries to drag them to court if they don't agree which is too expensive for small companies.
Here some more background on the "Oops we lost our old contracts, can you please transfer all your copyrights to us again" issue.
Russ Nicholson is another artist they contacted and wanted his copyrights from. He had a laugh and didn't reply, maybe also because he was "fired" as a freelancer because he insisted on getting the fee of £200 as contracted for one of his works and GW only wanting to pay half. Full story here: http://russnicholson.blogspot.co.uk/2012/09/the-horror-of-it-all.html
Interesting comment to that blog entry:
Simon wrote:As someone who teaches Contract & Copyright law for a living, I love that claim of their having "lost the transfer of rights"! I saw their contributor contract when I submitted (written) stuff to them ca WD 95. All they asked for was a license with single-reprint rights, certainly no transfer of copyright ownership. I think that was pretty normal in the magazine industry in the '80s; even in the USA it was still quite common for work to be published with a license rather than a transfer of copyright.
Someone also linked him to this thread, explaining why GW send this letter. Russ replied: "Thanks for that, and the link, explains a lot."
Yodhrin wrote: So, hold on then, if most of GW's current model lines are found to be unprotected, does that mean third parties could stop making not-Guardsmen and not-Space Marines, and instead start selling "resin Tallarn Imperial Guardsmen" and such?
IANAL but from what I understand, that should not be an outcome of this particular lawsuit; a U.S. court cannot determine British copyright status.
Correct - however they can make a ruling to determine the status of a British Copyright in the US. If the court were to find that the copyright claims are void because in the opinion of the court they would fall under the UK Design laws (and not be eligible for copyright protection) - then that position would apply throughout the US (assuming it made it past all the appeals which would likely happen as a result). If that were to happen, then in the US...people could start selling near exact knock offs (recasting would still be illegal, however you could sculpt an exact copy) or Tallarn or other unregistered designs which are older than 10 years old (most the GW range).
Trademarks would still apply, so you would need to word the knock off a little differently, like "Compare these to Tallarn Imperial Guardsmen" as there is an actual trademark (unregistered) for "Tallarn Imperial Guardsmen".
If you are in the UK or EU - there is an actual process to challenge the design right and either force a license or have the design right revoked. I haven't been able to find out specifically whether or not a non-citizen (that is someone over here in the US or Canada) can perform a similar action under the existing law...more research and all that.
That case will likely become a text book example for jury misconduct. I hope the Foreman gets a good judicial tongue lashing and then some. Between the half truths which he told to get on the jury and then the manner in which he hijacked their deliberations (and was quite proud of it in the interviews after the fact as indicated in the various interviews he gave).
Mr. Justice Posner is a fairly big deal in the States, especially in law and economics circles.
If I understand your circuit court system correctly, he is also on the appeal court that would hear any appeals from this case.
Good chance of it - normally the appeals process isn't so much a straight line though, so he may well not be one to hear the actual case (he is not a young man).
Posner's opinions on the various aspects of Copyright and Patent law largely mirror my own - and I have read a fair amount of his writing. He has also done a significant amount of work related to UK/US legal issues (think there is a book or two as well) - so this case might be right up his alley.
One thing to keep in mind though, while a judge may have an opinion or feeling regarding something like this...he needs something to hang his hat on. If the facts were to point to a win for GW - no matter how he may personally feel regarding the underlying issues of copyright law...he would have to give them the win. That is one of the reasons they write articles like that, to hopefully push legislators forward and away from the big companies like Disney and what not who have been directing copyright laws for 60 years or so.
Crikey, that story on the Apple/Samsung case is a corker eh? I actually find my faith in humanity a little restored by it; sure, it appears one total git lied his way onto a jury in order to enact some kind of personal vengeance against a former employer, and then misled the other, less technically-informed jurors, but at least that means there's a reason a group of supposedly sane and rational people would decide that "black rectangle with rounded corners" is a concept which only one corporation in the world can own or use.
Out of interest, can someone be held in contempt of court after the fact?
Let me ask a question about the Gary Chalk business. For now lets put aside whether the Badab War artwork might be a derivative work itself (and probably is of the original artwork in Rogue Trader) and whether there might be input from others in the process.
If the copyright on this artwork was assigned to GW for the first printing in WD and then never got reprinted (which is what I believe actually happened), and then got copied (and lets assume it was), who gets to sue? The artwork is never reprinted, so is the infringement against GWs assigned copyright for that publication or Chalk's continuing copyright? Also what happens if the artwork is printed twice, under different copyright ownership?
Holdenstein wrote: Let me ask a question about the Gary Chalk business. For now lets put aside whether the Badab War artwork might be a derivative work itself (and probably is of the original artwork in Rogue Trader) and whether there might be input from others in the process.
If the copyright on this artwork was assigned to GW for the first printing in WD and then never got reprinted (which is what I believe actually happened), and then got copied (and lets assume it was), who gets to sue? The artwork is never reprinted, so is the infringement against GWs assigned copyright for that publication or Chalk's continuing copyright? Also what happens if the artwork is printed twice, under different copyright ownership?
Please don't guess- I can do that myself.
Chalk would have the right to sue...though it was reprinted at least once that I know of. The first in the WD and the second was in the White Dwarf Compilation book.
The publisher (GW) would have the right to sue someone like a Bit Torrent seeder though, as it would be a violation of their specific ownership and right. Then again - so would Chalk...as it would be his work as part of the larger collection in the form of a magazine or book.
Thanks S O'B. I think that I'm a bit more clear now.
I have learnt many things during this thread. The main ones would be; always keep every contract you sign, always have sensitive work discussions over the phone rather than E-mail or IM (I do already do this!) and that the law, especially in regards to copyright, is significantly more complicated than it would first appear.
I already knew (from a solicitor friend of mine) to never get involved in litigation that has any chance of going before a Judge unless it is absolutely necessary. This has been confirmed.
I have learnt many things during this thread. The main ones would be; always keep every contract you sign, always have sensitive work discussions over the phone rather than E-mail or IM (I do already do this!) and that the law, especially in regards to copyright, is significantly more complicated than it would first appear.
I already knew (from a solicitor friend of mine) to never get involved in litigation that has any chance of going before a Judge unless it is absolutely necessary. This has been confirmed.
Actually it frequently pays to have sensitive work discussions over email or by letter, or to diarize them on the spot and send a follow up letter to confirm if conducted by telephone. If you run your business properly it will save your ass more often than it burns you - especially if you expect to go to have to go to court over something. It's why lawyers write everything down - clients like to sue their lawyers and/or dispute bills.
If GW had had proper records of Gary Chalk's works for example, they could have either - gotten an assignment years ago, or at least prior to starting the lawsuit, briefed their witness properly so it didn't look like he was lieing, or left them out of the lawsuit from the start.
Instead you have an employee who probably honestly believed that they always did work for hire (because the 80s were a long time ago and there are few or no records to refresh his memory), but now looks like a liar, and a credibility issue.
Automatically Appended Next Post: Tiny bit of movement. Motion to seal 204 granted, leave to file 206 granted. Neither are available to download from recap currently.
weeble1000 wrote: Off topic post voluntarily removed - Apple v Samsung has nothing to do with wargaming or the GW v CHS case.
In a way it does. The location where the litigation has taken place.
A trial by jury in a favorable location is an important part of preparation for any legal case. To have your trial at your home turf, I can personally say first hand that it is an advantage. So if GW is able to have a trial by jury in a favorable locale, then they could have that advantage (how large of the advantage, if any, depends on the jury pool in that location) going into court.
Frankly, if it weren't weighted towards CHS, I rather doubt that CHS's pro bono law firm would still be enthusiastic, and I suspect GW's law firm would have kept someone other than a stepped-up intern on the case. First they had a partner, then a high-level member, and now a new hire that they probably just told, "This case is lost. But lose with dignity."
That's one sure way to track how a law firm sees a case: Who they put on it from their roster. A partner wouldn't want a loss on his record unless it's absolutely vital to the firm's reputation and client retention, and I somehow think that GW might be dropped from their client list after this little case....
In regards to why GW raised this in the US and are desperate to claim that they produce Art and not toy soldiers or games pieces.
Someone just raised a point on the warseer thread regarding the case, in regards to the Lucasarts case against the original designer of the storm trooper armour who was still producing replicas.
"The case in the US centered around trademarks and copyrights. The case in the UK however centered around the claim that the props were not sculptures but rather designs. Since the UK court determined that they were designs and not copyrights...Ainsworth didn't commit a crime in the UK and the courts stopped LucasFilm's attempt to collect.
The split between the UK courts and US courts present an interesting problem though, as the US ruling prevents Ainsworth from selling his props in the US even though the creation and selling of them isn't illegal in the UK.
Whether or not the case would follow backwards into the US would need to be tried more fully...though as the original creation would fall under UK law even though LucasFilm holds the copyright in the US.
The appelate judge addressed toy storm troopers as well as part of the case, and he determined that they also were designs and not sculptures (the UK Supreme Court didn't address that particular issue as it was sort of an aside to the main case). As a result, in the UK and EU - Stormtroopers from the original movies are in a free for all status...as are props and effects which are from movies which are older than 10 years old (for unregistered designs) or at most 25 years for registered designs (as long as the 5 year extension is filed for every 5 years following the first 15 years). Further a license right must be granted after 5 years for unregistered designs or 10 years for registered designs."
So GW may be worried that if the case was raised in the UK and that there products were ruled as toy soldiers, as originally described by the head honcho in his annual address to the board and not works of art.
Then if they had not filed the correct request in regards to their model designs anything over 10 years old is fair game.
SeanDrake wrote: In regards to why GW raised this in the US and are desperate to claim that they produce Art and not toy soldiers or games pieces.
Someone just raised a point on the warseer thread regarding the case, in regards to the Lucasarts case against the original designer of the storm trooper armour who was still producing replicas.
"The case in the US centered around trademarks and copyrights. The case in the UK however centered around the claim that the props were not sculptures but rather designs. Since the UK court determined that they were designs and not copyrights...Ainsworth didn't commit a crime in the UK and the courts stopped LucasFilm's attempt to collect.
The split between the UK courts and US courts present an interesting problem though, as the US ruling prevents Ainsworth from selling his props in the US even though the creation and selling of them isn't illegal in the UK.
Whether or not the case would follow backwards into the US would need to be tried more fully...though as the original creation would fall under UK law even though LucasFilm holds the copyright in the US.
The appelate judge addressed toy storm troopers as well as part of the case, and he determined that they also were designs and not sculptures (the UK Supreme Court didn't address that particular issue as it was sort of an aside to the main case). As a result, in the UK and EU - Stormtroopers from the original movies are in a free for all status...as are props and effects which are from movies which are older than 10 years old (for unregistered designs) or at most 25 years for registered designs (as long as the 5 year extension is filed for every 5 years following the first 15 years). Further a license right must be granted after 5 years for unregistered designs or 10 years for registered designs."
So GW may be worried that if the case was raised in the UK and that there products were ruled as toy soldiers, as originally described by the head honcho in his annual address to the board and not works of art. Then if they had not filed the correct request in regards to their model designs anything over 10 years old is fair game.
249 Series of documents - primarily dealing with the pretrial proceedings. Each side lists out their particular claims which they will be making (more or less) as well as provides the list of witnesses who they will call or who they might call.
Beyond just the witness lists, you can also find the list of questions which are proposed for jury selection (reprinted here for convenience as I assume that will be of more interest than other large chunks):
1. Have you, or a relative or close friend, ever played any miniature war-games?
2. Have you, or a relative or close friend, ever collected and/or painted figurines?
3. Have you, or a relative or close friend, ever attended any gaming conventions?
4. Have you ever heard of Games Workshop, Warhammer, Warhammer 40,000, or Warhammer 40K?
5. Have you ever read a book published under the “Black Library” label?
6. Have you ever heard of Chapterhouse Studios?
7. Do you have any knowledge about or experience with copyrights or trademarks, including applying for a copyright registration or a trademark registration?
8. Have you ever been involved in the creation or selection of a trademark?
9. Have you ever been involved in the creation of an artistic work (book, painting, sculptor, etc) that was sold to others?
10. Have you, or a relative or close friend, ever made a claim of copyright infringement, trademark infringement, or patent infringement?
11. Have you ever considered filing for a copyright, trademark registration, or patent registration but decided not to?
12. Have you, or a relative or close friend, ever been accused of infringing another's copyright, trademark, or patent?
13. Have you, a relative or close friend, ever worked in sales or marketing?
14. Have you, a relative or close friend, ever been a member of a union?
15. Have you, a relative or close friend worked for commission, either currently or as part of a previous job?
Other interesting points is that GW expects the trial to take 7 days, while CHS is expecting 7-15 days. Not too big of a deal on either side, but it is indicative of how much testimony each side expects to take place. Page 9 starts the jury instructions (these are a fairly blanket set and may well be adjusted before the final trial to take into account the specifics of the case). In particular you can see how the instructions may well evolve on page 14 where you can see a proposed instruction by GW which is opposed by CHS. Ultimately, the judge will make a decision which instruction is included (either one of the two proposed or one of his own crafting).
The jury instructions (and the proposed instructions) continue through to the end of the document from page 9. It is a good (but very dry read) as it explains a lot of the legal points which have been discussed in this thread in some detail.
The other 4 documents in the 249 series are listings of the evidence and depositions which are to be used in the court case.
Lots goes into jury selection - sometimes as much as in the prep for the regular case. Each side has no doubt determined what their perfect juror looks like and will attempt to stack the pool with as many who are as close to that ideal as possible.
Regarding the specific issue of union ties, you have the corporation versus the little guy issue. You also have GW which is a manufacturer who runs a non-union manufacturing shop. There is also the various claims relating to ownership of creations which can run against union ideals.
In particular you can see how the instructions may well evolve on page 14 where you can see a proposed instruction by GW which is opposed by CHS. Ultimately, the judge will make a decision which instruction is included (either one of the two proposed or one of his own crafting).
For those who, like me, might be interested but unable to access the documents at work:
Spoiler:
12. COPYRIGHT—ALLEGATION DEFINED [DISPUTED] Games Workshop’s Proposed Jury Instruction
Plaintiff claims that Defendant has infringed Plaintiff’s copyright in a series books,
magazines, computer games, sculptural figures that form part of the fictional world of
Warhammer 40,000. Plaintiff alleges that defendant has copied characters, elements of
characters, weapons and accessories depicted in its books and shown by its figurines and that it
markets these products only to fans of Warhammer 40,000, such that all of the products it sells
are designed to be immediately recognizable to fans of Warhammer 40,000. Moreover, Plaintiff
contends that Defendant has collected all of these products together on its website and that the
website therefore is an infringement.
1diam-7 Modern Federal Jury Instructions-Civil 12.1.1
Chapterhouse objects to Games Workshop’s proposed jury instruction as follows:
Games Workshop’s proposed instruction improperly conflates its separate copyright
claims, will be confusing to a jury, and is prejudicial to Chapterhouse. The jury will be unable to
properly analyze Games Workshop’s claims unless Games Workshop separately identifies its
copyrights at issue. Games Workshop’s proposed reference to its claim concerning the
Chapterhouse website is confusing, redundant, and misleadingly implies that this claim is a
special type of copyright claim. Games Workshop’s theory of so-called “infringement in the
aggregate” has no basis in statute or case law, and appears to be based on a misreading of Castle
Rock Entm’t. v. Carol Publg. Group, Inc., 150 F.3d 132 (2d Cir. 1998). Games Workshop’s
proposed instruction is also argumentative and introduces factors that are irrelevant to its
copyright claims. Chapterhouse believes that the best way to identify Games Workshop’s
copyright claims is to use a jury form that identifies the allegedly infringed works that survive
summary judgment, as proposed below.
Chapterhouse’s Proposed Jury Instruction
Plaintiff claims that Defendant has infringed Plaintiff’s copyrights in: [insert number of
remaining works from Plaintiff’s Second Rev. Copyright Claim Chart that survive summary
judgment] works that are individually set forth on the jury verdict form that I will provide to you,
by copying unique, original elements from those works.
Federal Civil Jury Instructions of the Seventh Circuit, §12.1.1 (2009 rev.); SAC ¶¶ 43, 49.
Games Workshop objects to Chapterhouse’s proposed jury instruction as follows:
Case: 1:10-cv-08103 Document #: 249 Filed: 10/19/12 Page 14 of 65 PageID #:14055
Error! No property name supplied.
One of Games Workshop’s principal contentions in this case is that many of
Chapterhouse’s works constitute infringement in the aggregate. This includes the collection of
infringing products and descriptions thereof on its website and also includes ranges of products,
such as its extensive series of shoulder pad designs appropriating the entire Roman numeral
system, logo designs and character names of Games Workshop’s Tactical Space Marines,
Assault Space Marines and Devastator Space Marines. See, e.g., Castle Rock Entm’t. v. Carol
Publg. Group, Inc., 955 F. Supp. 2d 260 (S.D.N.Y. 1997), aff’d, 150 F.3d 132 (2d Cir. 1998).
Chapterhouse’s proposed instruction does not permit assessment of this aspect of its overall
infringement.
Moreover, Chapterhouse’s concern that the jury separately address the individual works
can easily be accommodated with Games Workshop’s concern that the jury assess patterns of
aggregated infringement by use of a special verdict form.
Janthkin wrote: That's certainly a...unique...reading of Castle Rock. I look forward to seeing what the court does with it.
It is a hook which they can attempt to hang their hat on.
For those who were unaware, the Castle Rock case revolved around a "trivia" book based on the Seinfeld TV series which took the form of a bunch of quizzes (the book was called the Seinfeld Aptitude Test IIRC). Each of the questions or parts of questions related to one or more different elements from within the series.
In that case, the defendants claimed fair use as they were using only small parts of each episode to create the questions. The plaintiff countered that as a whole of the book in question is copied substantial parts of the Seinfeld series. The court agreed with the later argument, finding that point for point on each question or part of the book it would have been fair use - however as an aggregated book, it was not fair use.
It required the court to consider the Seinfeld as a single property as opposed to individual episodes. Games Workshop will likely attempt to make the same claims. Their position on each portion of their copyright infringement claims is somewhat weak, however it may become somewhat stronger if they manage to convince the court to allow (and persuade the jury) that their work isn't the individual items which they sell, rather the whole 40K setting.
It seems fair to regard the whole of Seinfeld as a property in the Castle Rock case as the book was created of whole chunks of original material written by the Seinfeld writers.
In contrast, much of what GW claim as copyright -- arrows, the Omega symbol, and -- can better be characterised as the individual words that the Seinfeld writers used to create their scripts.
It seems fair to regard the whole of Seinfeld as a property in the Castle Rock case as the book was created of whole chunks of original material written by the Seinfeld writers.
In contrast, much of what GW claim as copyright -- arrows, the Omega symbol, and -- can better be characterised as the individual words that the Seinfeld writers used to create their scripts.
I tend to agree, I was merely presenting the probably train of thought behind the reference.
More so, each portion of the 40K universe has been developed independently of the others. There has never arose a unifying structure or design style as you might find between the different factions of a game like Infinity or PP games. Part of that is that each race has its own flavor, but also each faction (and quite often versions of a faction) are designed separately from the whole, normally by a seperate designer. A stronger argument would be to argue that the shoulder pads should be taken as parts of the whole Space Marine - though the wording which they used doesn't seem to indicate that that is the path which they want to attempt to take.
Also, there's the factor that while Seinfeld was a collection of like copyrightable elements (TV episodes), GW's claims here are all over the place - they're asking the court to treat pieces of physical models, artwork, and written works as a single copyrightable object.
Games Workshop first objects that Chapterhouse lacks standing to challenge Games Workshop’s ownership of copyright.
bottom of page 18, Doc 249
So GW is suing and they are complaining that Chapterhouse does not have the right to challenge GW's ownership of the copyright???? Gotta love that.
GW got a contract with God, where he transferred all rights on creating the universe to GW, the GW lawyers just haven't found the contract yet (they deny having send a letter to the Vatikan to renew that contract)
Seems an issue with some larger companies that they believe they are not only better than the little man, but that the little man has no right to query their claims even when it's threatening to put them out of business.
Howard A Treesong wrote: Seems an issue with some larger companies that they believe they are not only better than the little man, but that the little man has no right to query their claims even when it's threatening to put them out of business.
The jury will love that colonial attitude by a British company "Lackey, make Chapterhouse stop, they annoy us!"
(Exhibit 2 to 8/14/12 CHS Mot for Judicial
Notice)
Exhibit not produced
during discovery; FRE 402, 802, 901"
"298 Nationalist Movement Symbol and
Screenshot (Exhibit 1 to 8/14/12 CHS Mot for Judicial Notice)
Exhibit not produced during discovery; FRE 402, 802, 901"
It is an interesting thought, I would find it as an interesting legal defense...
Headlines now: Games Workshop settles case out court after secret ties to KKK and Nationalist Movement are brought out during trial. Parents baffled as to why children are turning into xenophobic cretins that spout "FOR THE EMPRAH" as they proceed to attack the local immigrant population.
(Exhibit 2 to 8/14/12 CHS Mot for Judicial
Notice)
Exhibit not produced
during discovery; FRE 402, 802, 901"
"298 Nationalist Movement Symbol and
Screenshot (Exhibit 1 to 8/14/12 CHS Mot for Judicial Notice)
Exhibit not produced during discovery; FRE 402, 802, 901"
Wonder where that is going.
Others have linked to the symbols - but I will elaborate some on the actual words (or abbreviations). Each side presents the evidence that they wish to enter in during the actual trial. The opposition can than object to the evidence. In the case of those two items, they were not entered in through normal discovery (though they were addressed in expert testimony IIRC) and were submitted for judicial consideration. The judge will deal with the various points of contention prior to the actual trial.
In most cases, both sides will object to anything that the other side enters in after discovery closes. Some might not be allowed - though in most cases, the burden during discovery is much more strict on the plaintiff (as they determine when they want to bring suit) than for the defense. For example, GW objects to the Chalk testimony and related evidence - however because he was not found till rather late in discovery and his response wasn't until after the discovery period officially closed it is likely the court will allow his statement to enter into evidence. In large part because of the significance to the testimony (in completely refutes GW's claim of having a standing policy to transfer all rights to GW) and also because GW didn't provide his name and the related correspondence with CHS prior to the close of discovery. Because of this - it wouldn't be entirely surprising if the Judge were not too terribly happy with GW in general (and if it is found that GW's counsel had access to the information they may well be sanctioned).
GW: We acknowledge that there have been geographical shapes for many centuries, but we are the first to add arrows to crosses and make assault marine markings:
Chapter House: Why are you racist!
Considering that GW made that argument in their filings, I can see where CH lawyers are going with this.
Jeez. Look at that picture of squad markings. Imagine you're John Q Public. They look pretty much like when John Q Public was writing an email to Granny Q Public and accidentally chose Wingdings as his font. This jury trial is not going to go well for GW.
Alfndrate wrote: It is an interesting thought, I would find it as an interesting legal defense...
Headlines now: Games Workshop settles case out court after secret ties to KKK and Nationalist Movement are brought out during trial. Parents baffled as to why children are turning into xenophobic cretins that spout "FOR THE EMPRAH" as they proceed to attack the local immigrant population.
Secret? It's hard to be secretive after producing nazi orks storm troo.. I mean boyz for a decade. I do find it endlessly entertaining that a symbol GW is claiming as their own has such a sordid secondary meaning outside of the minis gaming world.
GW apparently will also be suing Black Widows for using their copyright on the red hourglass design shown above, as well as Egypt for using yellow triangles in their building designs.
Blue Cross, Red Cross, and damn near every medical service company on the planet will also be sued for using Veteran symbols without license.
(Exhibit 2 to 8/14/12 CHS Mot for Judicial
Notice)
Exhibit not produced
during discovery; FRE 402, 802, 901"
"298 Nationalist Movement Symbol and
Screenshot (Exhibit 1 to 8/14/12 CHS Mot for Judicial Notice)
Exhibit not produced during discovery; FRE 402, 802, 901"
Wonder where that is going.
Others have linked to the symbols - but I will elaborate some on the actual words (or abbreviations). Each side presents the evidence that they wish to enter in during the actual trial. The opposition can than object to the evidence. In the case of those two items, they were not entered in through normal discovery (though they were addressed in expert testimony IIRC) and were submitted for judicial consideration. The judge will deal with the various points of contention prior to the actual trial.
In most cases, both sides will object to anything that the other side enters in after discovery closes. Some might not be allowed - though in most cases, the burden during discovery is much more strict on the plaintiff (as they determine when they want to bring suit) than for the defense. For example, GW objects to the Chalk testimony and related evidence - however because he was not found till rather late in discovery and his response wasn't until after the discovery period officially closed it is likely the court will allow his statement to enter into evidence. In large part because of the significance to the testimony (in completely refutes GW's claim of having a standing policy to transfer all rights to GW) and also because GW didn't provide his name and the related correspondence with CHS prior to the close of discovery. Because of this - it wouldn't be entirely surprising if the Judge were not too terribly happy with GW in general (and if it is found that GW's counsel had access to the information they may well be sanctioned).
I was a bit too dry in that post I think, yeah I know exactly where CHS was going with those.
Regarding objections, CHS has a whole wall of 'exhibit not produced in discovery', hearsay, etc.. objections to most of GWs evidence. Some for some pretty basic stuff which would have been a no brainer to send over - the eldar codex for example. Those charts with the rule the objection is based on is handy. I really wish our system up here had something like pacer / recap.
Blue Cross, Red Cross, and damn near every medical service company on the planet will also be sued for using Veteran symbols without license.
Not in the US. We've already established in court that the Red Cross owns the, ahem, "red cross" legally in the US. It's why Ratchet from Transformers can no longer have them on him(hence why the movie version has the universal AED symbol on his side).
Thus, the Red Cross should sue GW for using THEIR property.
Blue Cross, Red Cross, and damn near every medical service company on the planet will also be sued for using Veteran symbols without license.
Not in the US. We've already established in court that the Red Cross owns the, ahem, "red cross" legally in the US. It's why Ratchet from Transformers can no longer have them on him(hence why the movie version has the universal AED symbol on his side).
Thus, the Red Cross should sue GW for using THEIR property.
That is insanely stupid that something as generic as a symmetrical cross that is red can be copyrighted or patented.
So stupid. That said, I'd love to see GW on the receiving end of this kind of lawsuit.
The Red Cross is not copyrighted per se however its use as a symbol of medical aid and of the Red Cross organisation is controlled by international treaties, as is the symbol of the Red Crescent (the Arabic equivalent). In other words it is more like a trade mark.
That is insanely stupid that something as generic as a symmetrical cross that is red can be copyrighted or patented.
So stupid. That said, I'd love to see GW on the receiving end of this kind of lawsuit.
(pedantic rant)
The Red Cross cannot be copyrighted or patented and it is neither.
HOWEVER it can be TRADEMARKED. A trademark is a symbol that a company or organization or individual uses to distinguish their goods and services from those of others. The Red Cross has established that their red cross (itself derived from the Swiss flag) is a recognized symbol of their group not a generic symbol meaning medicine or first aid.
Similarly Apple can trademark apples for their electronic gear and Games Workshop can trademark GW.
What's required is you show you've used it as an identifying mark and that no one else has been using it longer.
It's not 'insanely stupid' it how trademarks have always worked.
The Red Cross symbol is something different. It enjoys special protection in military conflicts, granted by international treaties. No private company can gain this as a trademark to paint on their houses and cars and gain that special protection.
Another case is Smokey Bear (symbol of US Anti-Forest-Fire campaign) who is not protected by copyright but by a special law.
Kroothawk wrote: The Red Cross symbol is something different. It enjoys special protection in military conflicts, granted by international treaties. No private company can gain this as a trademark to paint on their houses and cars and gain that special protection.
Another case is Smokey Bear (symbol of US Anti-Forest-Fire campaign) who is not protected by copyright but by a special law.
Yeah both are special cases, the Red Cross is halfway between an NGO and an international organization, recognized by treaties.
Normally the US government cannot hold copyrights and trademarks so Smokey the Bear needed special protection.
Point remains any symbol can be trademarked, so long as it the unique symbol of a brand.
My understanding of trial by jury is that it can go in any direction, and that juries often do things that make no sense to anyone, especially the law.
It just seems to me like a trial by jury is kind of like rolling the dice, and whoever rolls higher gets to determine the rules...
My understanding of trial by jury is that it can go in any direction, and that juries often do things that make no sense to anyone, especially the law.
It just seems to me like a trial by jury is kind of like rolling the dice, and whoever rolls higher gets to determine the rules...
My understanding of trial by jury is that it can go in any direction, and that juries often do things that make no sense to anyone, especially the law.
It just seems to me like a trial by jury is kind of like rolling the dice, and whoever rolls higher gets to determine the rules...
That's pretty accurate. Even if you picked a jury things can go against you in a big way.
My understanding of trial by jury is that it can go in any direction, and that juries often do things that make no sense to anyone, especially the law.
It just seems to me like a trial by jury is kind of like rolling the dice, and whoever rolls higher gets to determine the rules...
Sounds very cinematic.
I'm excited to see what sort of narrative GW will be forging with this.
Who do you suppose is using the 12 year old outdated codex? GW?
My understanding of trial by jury is that it can go in any direction, and that juries often do things that make no sense to anyone, especially the law.
It just seems to me like a trial by jury is kind of like rolling the dice, and whoever rolls higher gets to determine the rules...
Sounds very cinematic.
I'm excited to see what sort of narrative GW will be forging with this.
Who do you suppose is using the 12 year old outdated codex? GW?
I think so, even though they quit supporting it years ago. Haven't been able to get updated FAQs for their book with new artists contracts.
My understanding of trial by jury is that it can go in any direction, and that juries often do things that make no sense to anyone, especially the law.
It just seems to me like a trial by jury is kind of like rolling the dice, and whoever rolls higher gets to determine the rules...
The summary judgements still need to be addressed - though in all likelihood, it will still have the majority of the claims left for the trial.
One thing to keep in mind is that the request for the jury trial is largely a strategic move for pretrial than an actual desire for a jury trial on the part of either party. Jury trials are many, many times more expensive than bench trials. When GW filed their original paperwork, they put in the jury demand to intimidate both CHS and any legal representation that they might find. The local lawyer from down the street probably is not well suited to deal with a jury trial...let alone a jury trial relating to IP law. Quite often, the jury demand alone is enough to put off many of the smaller law firms.
When CHS received their pro bono representation from Winston & Strawn though - they called Folley and Lardner's bluff. They were basically saying - OK, we will fight your case...but you know what? Even if you decide to back away from the jury demand at a later date, we are going to demand a jury too...so make sure your clients are prepared to pay out the nose.
Once it goes to trial though, the jury is a wild card... Selection is key, as you want to make sure that the alpha of the jury is inclined to favor your case. People tend to follow, and if a strong voice is present who is skeptical of your opponents claims, then that can be enough to return a verdict in your favor or at least prevent a unanimous decision on the part of the jury. If you can manage to get one or two seated who have strong personalities and are favorable to your case - you are in a great position, the actual law becomes somewhat less relevant.
Following the jury trial itself though, appellate courts are reluctant to overturn decisions which favor the defendant - though not so reluctant to overturn decisions which favor the plaintiff. Roughly 33% of appeals on behalf of the defendant are won, while only about 10% of plaintiff appeals win.
odinsgrandson wrote: So, trial.
My understanding of trial by jury is that it can go in any direction, and that juries often do things that make no sense to anyone, especially the law.
It just seems to me like a trial by jury is kind of like rolling the dice, and whoever rolls higher gets to determine the rules...
Good luck for GW to find a jury that accepts that GW invented the skull and arrow and that second market is illegal per se and that GW doesn't have to prove copyright to unworthy underlings to win this case.
odinsgrandson wrote: So, trial.
My understanding of trial by jury is that it can go in any direction, and that juries often do things that make no sense to anyone, especially the law.
It just seems to me like a trial by jury is kind of like rolling the dice, and whoever rolls higher gets to determine the rules...
Good luck for GW to find a jury that accepts that GW invented the skull and arrow and that second market is illegal per se and that GW doesn't have to prove copyright to unworthy underlings to win this case.
A juror who has aftermarket parts on their truck or car could make a real difference. That's an easy narrative to sell to folks even if they don't get the little toy soldiers part. For the conversion parts at least.
Yeah. Really, I can only see GW being on top if the alpha juror is either a professional artist who likes big abusive companies (Since any artist who finds out about GW's reprinting without it being in the contract will be turned off by that) or some managerial-type person who supports big companies over little ones. And even then, I think it'll be a long shot for them.
Following the jury trial itself though, appellate courts are reluctant to overturn decisions which favor the defendant - though not so reluctant to overturn decisions which favor the plaintiff. Roughly 33% of appeals on behalf of the defendant are won, while only about 10% of plaintiff appeals win.
So only 43% of appeals have a resolution?
Or do you mean that when a defendant appeals they win 33% of the time and when a plaintiff appeals they only win 10% of the time?
Following the jury trial itself though, appellate courts are reluctant to overturn decisions which favor the defendant - though not so reluctant to overturn decisions which favor the plaintiff. Roughly 33% of appeals on behalf of the defendant are won, while only about 10% of plaintiff appeals win.
So only 43% of appeals have a resolution?
Or do you mean that when a defendant appeals they win 33% of the time and when a plaintiff appeals they only win 10% of the time?
I'd give anything to be in this jury.
Some Stats for you:
Outcome
1  Trial recorded as plaintiff win, no appeal 29.01%
2  Plaintiff wins at trial, defendant appeals and wins appeal 1.44%
3  Plaintiff wins at trial, defendant appeals and loses appeal 2.83%
4  Plaintiff wins at trial, defendant appeals and no decision on appeal 5.00%
5  Trial recorded as plaintiff win, plaintiff appeals and wins appeal 0.75%
6  Trial recorded as plaintiff win, plaintiff appeals and loses appeal 1.37%
7  Trial recorded as plaintiff win, plaintiff appeals and no decision on appeal 2.11%
8  Defendant wins at trial, no appeal 41.75%
9  Defendant Wins at Trial, plaintiff appeals and wins appeal 1.13%
10  Defendant Wins at trial, plaintiff appeals and loses appeal 8.05%
11  Defendant wins at trial, plaintiff appeals and no decision on appeal 6.56%
Total:
The plaintiff win rate on appeal is 16.57 percent while the defendant win rate on appeal is 33.72 percent.
Nevertheless, our earlier work, Eisenberg and Farber (1997), provides a possible expla- nation for why plaintiffs tend to lose at trial. The short answer is that this results from the systematic selection of cases by plaintiffs for litigation. Our model is based on the idea that potential plaintiffs vary in their cost of litigation (or their litigiousness) and where the merits of a potential claim is distributed independently of the cost. Only those plaintiffs whose expected value of claim exceeds the litigation cost file a suit. Potential plaintiffs with the lowest litigation costs (most litigious) are those who file lawsuits, and these plaintiffs are willing (on average) to file relatively low quality cases. This is in contrast to defendants who, as the targets of plaintiffs, are selected close to randomly with regard to their litigation costs. The result of this asymmetric selection is a relatively low success rate in District Court for plaintiffs, and, as we show here, a relatively low success rate on appeal. [emphasis added]
Basically, they are arguing that the most likely explanation for the discrepancy is an excess of low quality suits filed by litigious idiots rather than systematic bias by trial or appellate courts.
Not sure where GW fits into their model - their initial suit was a full on strategic / predatory / nuisance, lawsuit, filed in Chicago, Paulson included as a plaintiff, jury trial, filed right before christmas, vague cause of action etc... Expected litigation cost would be low.
But since CHS didn't fold, their litigation costs have to be high and their hopes of recovery are pretty much nil (even if they win CHS won't have enough assets to pay them any damages). All those depositions must have cost a fortune and the motion practice around the evidence exhibits is going to expensive.
I don't understand why they didn't use their opportunity to amend their complaint to focus in on 2 or 3 absolutely winnable claims as soon as Winston and Strawn showed up. Now even if they win on some things they risk a judgement saying 'aftermarket bits are okay' or 'you can't copyright giger's art style". Maybe the upside of intimidating other 3rd parties was seen as being enough.
Following the jury trial itself though, appellate courts are reluctant to overturn decisions which favor the defendant - though not so reluctant to overturn decisions which favor the plaintiff. Roughly 33% of appeals on behalf of the defendant are won, while only about 10% of plaintiff appeals win.
So only 43% of appeals have a resolution?
Or do you mean that when a defendant appeals they win 33% of the time and when a plaintiff appeals they only win 10% of the time?
I'd give anything to be in this jury.
Czakk well and good covered it - I don't recall where or when I had heard the stat...though it seems to either have changed a little or the numbers are a bit different from what I remember.
Remember though - a trial has three basic outcomes (many more variation there of...but each count can generally break down to one of the three). The court can rule for the plaintiff, they can rule for the defendant or they can not come to any ruling at all. No ruling can be retried in the case of the original case, though if an appellate court comes to no ruling it generally means that they concur with the lower courts rulings - it doesn't count as a win or a loss directly (in terms of the appeal).
So...
GW could have a count of a copyright on Skulls:
1) The jury might agree with them that they own all skulls.
2) The jury might disagree and say CHS can freely use skulls.
3) The jury might be split where half think that GW owns all skulls and the other half thinking that CHS can freely use skulls. This is effectively a win for CHS, however GW can sue again the very next day.
On appeal for each of those cases, the appellate court might decide that the jury decision was right or wrong on a number of different reasons. They may also agree in part, for example that GW might own skulls...however they might disagree with the specific penalty tied to that (damages for example). Gets to be a bit of a mess - but generally speaking, the defendant is favored on appeal.
odinsgrandson wrote: So, trial.
My understanding of trial by jury is that it can go in any direction, and that juries often do things that make no sense to anyone, especially the law.
It just seems to me like a trial by jury is kind of like rolling the dice, and whoever rolls higher gets to determine the rules...
Good luck for GW to find a jury that accepts that GW invented the skull and arrow and that second market is illegal per se and that GW doesn't have to prove copyright to unworthy underlings to win this case.
A juror who has aftermarket parts on their truck or car could make a real difference. That's an easy narrative to sell to folks even if they don't get the little toy soldiers part. For the conversion parts at least.
Any juror who hasn't ever gone specifically to their dealer for an oil change, tire, stereo, tune-up... any not OEM parts. "How many of the jury have Goodyear tires? Then you are breaking the law according to Games Workshop."
odinsgrandson wrote: So, trial.
My understanding of trial by jury is that it can go in any direction, and that juries often do things that make no sense to anyone, especially the law.
It just seems to me like a trial by jury is kind of like rolling the dice, and whoever rolls higher gets to determine the rules...
Good luck for GW to find a jury that accepts that GW invented the skull and arrow and that second market is illegal per se and that GW doesn't have to prove copyright to unworthy underlings to win this case.
A juror who has aftermarket parts on their truck or car could make a real difference. That's an easy narrative to sell to folks even if they don't get the little toy soldiers part. For the conversion parts at least.
Any juror who hasn't ever gone specifically to their dealer for an oil change, tire, stereo, tune-up... any not OEM parts. "How many of the jury have Goodyear tires? Then you are breaking the law according to Games Workshop."
This irks me every time it is brought up.
The parts for your car are not manufactured solely by the company selling you the car. They buy from companies like Good Year or Firestone for tires, and companies like Sirius or Bose for the parts for your stereo.
Also: oil changes and tune-ups are not "parts". They are "services". In any case, your example is not applicable to this situation.
A juror who has aftermarket parts on their truck or car could make a real difference. That's an easy narrative to sell to folks even if they don't get the little toy soldiers part. For the conversion parts at least.
Any juror who hasn't ever gone specifically to their dealer for an oil change, tire, stereo, tune-up... any not OEM parts. "How many of the jury have Goodyear tires? Then you are breaking the law according to Games Workshop."
This irks me every time it is brought up.
The parts for your car are not manufactured solely by the company selling you the car. They buy from companies like Good Year or Firestone for tires, and companies like Sirius or Bose for the parts for your stereo.
Also: oil changes and tune-ups are not "parts". They are "services". In any case, your example is not applicable to this situation.
I'd agree that a tune-up is a service, and the act of doing an oil change is a service, but the oil could be viewed as an after-market component, given it isn't part of the good originally supplied.
Non-OEM parts might be an applicable comparison for the case, but unlicensed after-market mods such as body kits, which are made to fit with the existing chassis, certainly seem to be an applicable one - but I'm sure one of the IANYLs who turn up in here regularly might be able to cover similar scenarios from case law.
judgedoug wrote: Any juror who hasn't ever gone specifically to their dealer for an oil change, tire, stereo, tune-up... any not OEM parts. "How many of the jury have Goodyear tires? Then you are breaking the law according to Games Workshop."
This irks me every time it is brought up.
The parts for your car are not manufactured solely by the company selling you the car. They buy from companies like Good Year or Firestone for tires, and companies like Sirius or Bose for the parts for your stereo.
Also: oil changes and tune-ups are not "parts". They are "services". In any case, your example is not applicable to this situation.
Prepare to be irked continually.
I wonder who manufactured my Mitsubishi Oil Filter for my old 1997 Mitsubishi 3000GT SL that was specifically stated to be the only oil filter to be used on the car? Actually, Mitsubishi specifically did. And if I went to a Mitsubishi dealer, they used that specific one (Mitsubishi-manufactured brakes, too). Go to any other service center and they will use generic parts.
Ever had a new car with a new car warranty? My 2011 Chevrolet Camaro 2LT/RS has a 56,000 mile bumper to bumper warranty provided that any serviced parts used are OEM. Now, GM manufactures most of it's own OEM parts. If I use non-OEM parts, my warranty is voided (at least I don't get sued)
And you are correct, the parts are not manufactured soley by the company. Like GW doesn't manufacture the plastics or the paper used in their products. Both GM and GW's product is the sum of it's parts. The analogy stands, as me buying a carbon-fiber hood from a third party manufacturer my old 3000GT is exactly the same as Chapter House manufacturing a shoulder pad with a blood drop for a GW Space Marine. And the analogy works brilliantly in a courtroom to a pile of jurors, no matter how much it irks you. There will definitely be an "Ahhhhh... now I understand." moment from that jury.
GW may not "manufacture the plastics"(I'm assuming you're referring to the actual plastic) they use, but they do practically all the casting in house.
Here is the fun part of a jury, they don't always care about what YOU think applies to the case.
If someone gives the car part analogy to a group of people who have never heard of GW or understand this market, it will be quite convincing to the other jurors.
And every mechanical part of ANY car can usually be found by a 3rd party company. You think AC Delco is the only company that makes spark plugs that fit in GM cars?
The fact remains that none of CHS's products are 1:1 copies. They are made to fit with another product, just like every company that makes 3rd party peripherals for any product: game consoles, cars, computers etc.
Dell can't start suing people for using HDMI connectors any more than GW can(successfully) sue someone for making shoulder pads for toy soldiers. And the evidence in the case clearly shows that CHS's shoulder pads are quite different from GW's.
And then there is the glaring fact that GW failed to produce most documents that show any kind of ownership of copyrights or use of trademarks in commerce, and what they did produce they brought in well after the deadlines for it, which if I was a judge I'd throw out because it would piss me off.
Anyone here work a job with deadlines? Does your boss just brush it off when you miss important ones by days and days?
The simple arguments that can be made to a jury against GW will be used, whether or not YOU think they apply. And to most people those arguments will make perfect sense.
GW may not "manufacture the plastics"(I'm assuming you're referring to the actual plastic) they use, but they do practically all the casting in house.
Here is the fun part of a jury, they don't always care about what YOU think applies to the case.
Nor do they care what YOU think either.
If someone gives the car part analogy to a group of people who have never heard of GW or understand this market, it will be quite convincing to the other jurors.
You know that's why jury selection is such an important part of a jury, right?
If it does actually go to a jury trial, the likelihood of the jury containing people who will be swayed by that analogy alone is going to be fairly small. No matter how hard CHS' representation tries to make it certain.
And every mechanical part of ANY car can usually be found by a 3rd party company. You think AC Delco is the only company that makes spark plugs that fit in GM cars?
Of course not.
From my understanding, there are laws in place which prevent car parts such as spark plugs and tires cannot be patented/copywritten.
The fact remains that none of CHS's products are 1:1 copies. They are made to fit with another product, just like every company that makes 3rd party peripherals for any product: game consoles, cars, computers etc.
Except that argument stopped holding weight when CHS started selling Imperial Jetbikes, True Scale "Knight Praetorius", Dark Elf "Arch Torturess", etc.
Dell can't start suing people for using HDMI connectors any more than GW can(successfully) sue someone for making shoulder pads for toy soldiers. And the evidence in the case clearly shows that CHS's shoulder pads are quite different from GW's.
I love how every single argument in favor of CHS relies upon imperfect analogies or those which are just absolutely ridiculous.
Dell can't start suing people for using HDMI connectors, but if a company started up branding itself "The Source for Dell HDMI Connectors" and trading upon Dell's name--there almost would assuredly be issues.
And then there is the glaring fact that GW failed to produce most documents that show any kind of ownership of copyrights or use of trademarks in commerce, and what they did produce they brought in well after the deadlines for it, which if I was a judge I'd throw out because it would piss me off.
And if a judge behaved like that, there would be issues.
Anyone here work a job with deadlines? Does your boss just brush it off when you miss important ones by days and days?
Sure. However, my boss also realized that when you were dealing with outside entities you sometimes do not get contacted back with the information you required in a timely fashion.
The simple arguments that can be made to a jury against GW will be used, whether or not YOU think they apply. And to most people those arguments will make perfect sense.
No, they likely will not.
Maybe in the vacuum of GW not providing any kind of rebuttal they make perfect sense, but in a trial setting GW's representatives would be actively countering these arguments.
Unless of course the firm is just going to roll over and settle.
My understanding of trial by jury is that it can go in any direction, and that juries often do things that make no sense to anyone, especially the law.
It just seems to me like a trial by jury is kind of like rolling the dice, and whoever rolls higher gets to determine the rules...
Exactly, it's one of the main reasons the American justice system is viewed as such a joke by many. Often it is about whichever side is able to play the minds of the random bunch of people the best, instead of finding the actual facts & truth.
HDMI connectors are a poor analogy - they are standardized, licensed, and you can certainly be sued if you start using them without an appropriate license; but no, Dell doesn't control them.
After-market car parts, particularly body kits, are a pretty good analogy, or at least as good an analogy as there is in this case. There are some novel points of law at issue here, which is likely what made the case attractive to pro-bono counsel. (Spark plugs aren't - those are purely functional.)
For all the mocking of the US judicial system we hear, it is remarkable how well it does work. It's not perfect; it's just as close as anything we've seen.
And NONE of this is precisely on-topic. Let's stop rehashing the really old details; this thread is intended to cover ongoing news.
Except that argument stopped holding weight when CHS started selling Imperial Jetbikes, True Scale "Knight Praetorius", Dark Elf "Arch Torturess", etc.
Because none of those game console 3rd parties make controllers in the EXACT configuration as the OEM parts?
None of those items are direct copies of any product sold or any copyright owned.
And you can't say that CHS traded on GW's trademarks if GW can't prove ownership and use of the trademark, which they haven't.
And GW had months to provide the requested documentation and failed to. The argument about clients not responding in a timely fashion loses weight when you had months to prepare. When you say "the client took too long to reply" the first question is "when did you request the information?".
So whether the lack of timely documentation is GW's fault or their lawyers fault doesn't really matter to the court. If the case cannot abide by the rules set forth, it should be dismissed.
Of course at this point CHS doesn't want it dismissed, they want resolution, lest GW find lawyers who know wtf they are doing and come back with a proper suit.
Fanboy all you want, but GW will win this like Ron Paul will win the presidency. Sure it's possible, but it won't happen.
From my understanding, there are laws in place which prevent car parts such as spark plugs and tires cannot be patented/copywritten.
You are in fact quite wrong. There are several patents for spark plugs (Tesla has one along with a couple guys who's last names are Bosch and Champion who might sound familiar) and about everything that goes into a tire from the tread pattern to the compound can and are patented.
Janthkin wrote: For all the mocking of the US judicial system we hear, it is remarkable how well it does work. It's not perfect; it's just as close as anything we've seen.
I admire you for trying to defend the US justice system, but seriously now....
TBD wrote: I admire you for trying to defend the US justice system, but seriously now....
How about you get some first-hand experience with the U.S. legal system instead of getting it from television shows? By the way, didn't one of those "citizen judges" in the Breivik trial have to be replaced because he was biased? Or how about Italy where the court found scientists guilty of manslaughter because they didn't predict an earthquake?
TBD wrote: I admire you for trying to defend the US justice system, but seriously now....
How about you get some first-hand experience with the U.S. legal system instead of getting it from television shows? By the way, didn't one of those "citizen judges" in the Breivik trial have to be replaced because he was biased? Or how about Italy where the court found scientists guilty of manslaughter because they didn't predict an earthquake?
That last bit sounds like something that would happen in California.
After-market car parts, particularly body kits, are a pretty good analogy, or at least as good an analogy as there is in this case. There are some novel points of law at issue here, which is likely what made the case attractive to pro-bono counsel.
What about the totally legal aftermarket resin/brass-photo etch/pewter kits for Tamiya/Italeri/etc models made by other manufacturers?
I guess it's like Mattel trying to sue another manufacturer for making 1/6 scale clothes that are compatible with Barbie dolls, and then failing to ever find proof that they registered Barbie doll as a trademark?
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Kanluwen wrote: Except that argument stopped holding weight when CHS started selling Imperial Jetbikes, True Scale "Knight Praetorius", Dark Elf "Arch Torturess", etc.
...so Star Wars, Foundation, and Michael Moorcock models?
As far as I'm concerned, and from what I can tell as far as the judge will likely be concerned, the only claims that will make it through this will be the trademark claims, but then GW hasn't shown any registration or proof on those trademarks.
The copyright claims are all baseless accusations. Inspiration isn't infringement, and none of the items in question are direct derivative works of any GW "originals".
2D pictures hold no copyright over 3D sculpts as they are entirely different mediums, and even the design of the two items in question is significantly different.
The other models are only inspired by prior works. And GW's own testimony thus far has gone a long way to damaging their own claims.
TBD wrote: I admire you for trying to defend the US justice system, but seriously now....
How about you get some first-hand experience with the U.S. legal system instead of getting it from television shows? By the way, didn't one of those "citizen judges" in the Breivik trial have to be replaced because he was biased? Or how about Italy where the court found scientists guilty of manslaughter because they didn't predict an earthquake?
Or how about the killer in Norway who murdered 77 people and only got 21 years in prison because that is the maximum sentence? If you think the US legal system is corrupt feel free to travel in the Middle East, South America or Asia anytime.
Janthkin wrote: HDMI connectors are a poor analogy - they are standardized, licensed, and you can certainly be sued if you start using them without an appropriate license; but no, Dell doesn't control them.
After-market car parts, particularly body kits, are a pretty good analogy, or at least as good an analogy as there is in this case. There are some novel points of law at issue here, which is likely what made the case attractive to pro-bono counsel. (Spark plugs aren't - those are purely functional.)
For all the mocking of the US judicial system we hear, it is remarkable how well it does work. It's not perfect; it's just as close as anything we've seen.
And NONE of this is precisely on-topic. Let's stop rehashing the really old details; this thread is intended to cover ongoing news.
How about we all re-read what Janthkin posted and get this thread back on topic?
Aerethan wrote: Since it got lost in the pages of nonsense, when is trial set to start?
By which I mean opening arguments and all that, not jury selection.
Specific date hasn't been set - though IIRC it should be mid December to begin the court procedures - though that will likely start off with the jury selection.
Outside of a pilot program, I don't think they televise many federal trials in the US. Court tv is mostly state stuff I think.
Our best bet would be some intrepid chicagoan (chicagan? chicago-ite?) taking an interest and sitting in with a notepad. I think transcripts are slow to go up and cost a ton of money to get via pacer as well.
czakk wrote: Court tv is mostly state stuff I think.
Mostly salacious stuff (or otherwise interesting to the various gossip distributors). Remember, Court TV is a commercial venture, so there has to be mass appeal to what they televise. IP cases, especially those regarding niche products will not likely make it to the level of interest to qualify.
Once the trial actually starts, it shouldn't take that long. Worse case scenario would be a month or so, but more likely half that. The way the transcripts are set up though, you can't normally access the transcripts while the trial is ongoing. Members of the legal teams can, as can certain media representatives - the rest of the public though doesn't normally get access to them for several months after the case has finished.
Having been to the federal building for the beginning of this circus, no the public cannot bring any type of recording device in unless the judge makes a specific allowance. Even taking out a standard cell phone in court can get you held for contempt and I believe you aren't even allowed to bring cell phones with camera functions into the building.
One of the dates I was there they had media present for the Blago trial and you needed a specific clearance for that. (his trial was in a differant section of the building)
We'll all have to wait for the recaps to be posted. Having been there several times it's incredibly boring and you won't be missing much.
The only thing I'd want to attend for is the "I want to hang myself" look on the juror's faces when they realise they are going to spend a week or more reviewing details of plastic men. derp.
Jurys are horrible, they are made up two groups: #1 those with nothing better to do #2 people too dumb to think up an excuse to get out of jury duty. Neither one has much to impress with IMO.
paulson games wrote: Jurys are horrible, they are made up two groups: #1 those with nothing better to do #2 people too dumb to think up an excuse to get out of jury duty. Neither one has much to impress with IMO.
I hate this attitude. I know it's and old joke, but come on. I do my civic duty every time I'm asked. Yes, it helps that my job allows me the time off and pays me for it, so I can understand that it can cause a hardship for people that don't have that option - but to me that's a valid reason. Just not wanting to be there isn't valid to me.
Agreed. I definitely don't see the 'juries are dumb' attitude in Australia. I've been called for jury duty once (though never made it on to the jury) and never once thought about attempting to get out of it.
Although it doesn't help that in America you can get juries for civil cases >< thats just weird.
I realize it's silly to look at a thunder hammer and read "star-viking war god's smashy stick," but if it'll protect bitz sites from GWs zealous legal team, why not do it?
EDIT: Unless of course GW just hasn't gotten to all the more clever sites yet*
Thats like AEM selling an "air sucky filter tube of awesome."
Trasvi wrote: Agreed. I definitely don't see the 'juries are dumb' attitude in Australia. I've been called for jury duty once (though never made it on to the jury) and never once thought about attempting to get out of it.
Although it doesn't help that in America you can get juries for civil cases >< thats just weird.
In the US, you do have to pay a jury fee if you desire a trial by jury in a civil case, most of the time. So its really more a service offered by the Court in settling civil disputes, in much the same way that courts will provide arbitrators.
paulson games wrote: Having been to the federal building for the beginning of this circus, no the public cannot bring any type of recording device in unless the judge makes a specific allowance. Even taking out a standard cell phone in court can get you held for contempt and I believe you aren't even allowed to bring cell phones with camera functions into the building.
This is why I still use an iPad 1. Those blessed devices have no camera so you are often allowed to have them in a courtroom.
paulson games wrote: Having been to the federal building for the beginning of this circus, no the public cannot bring any type of recording device in unless the judge makes a specific allowance. Even taking out a standard cell phone in court can get you held for contempt and I believe you aren't even allowed to bring cell phones with camera functions into the building.
This is why I still use an iPad 1. Those blessed devices have no camera so you are often allowed to have them in a courtroom.
they do have microphones though, which makes them a no-go in court over here too, sadly (found out the hard way, not having a physical notepad with me )
paulson games wrote: Having been to the federal building for the beginning of this circus, no the public cannot bring any type of recording device in unless the judge makes a specific allowance. Even taking out a standard cell phone in court can get you held for contempt and I believe you aren't even allowed to bring cell phones with camera functions into the building.
This is why I still use an iPad 1. Those blessed devices have no camera so you are often allowed to have them in a courtroom.
I do the same thing. It is the reason I would never get a newer version of the Ipad if I can avoid it.
What's the current timeline look like? They're getting close to having an actual trial by jury for this (something I really would not have expected to happen).
Jury selection can take anywhere from a few hours to a few days, depending on the number of people that the judge thinks they need and also based on the number of people each side throws out.
GW asked for a trial by jury though so I don't think they can change on that at this stage. It's what they wanted, though it was suggested elsewhere that this was another tactic to intimidate opposition by making things even more expensive to mount a defence.
Iirc both sides requested trial by jury so unless one party drops out trial by jury it shall be. As for the postulated date iirc going back a year now it was mooted for the dec 7th ish.
paulson games wrote: Jurys are horrible, they are made up two groups: #1 those with nothing better to do #2 people too dumb to think up an excuse to get out of jury duty. Neither one has much to impress with IMO.
I hate this attitude. I know it's and old joke, but come on. I do my civic duty every time I'm asked. Yes, it helps that my job allows me the time off and pays me for it, so I can understand that it can cause a hardship for people that don't have that option - but to me that's a valid reason. Just not wanting to be there isn't valid to me.
I'll parrot this point. Each and every time I've received a summons I've reported for jury duty and performed my civic responsibility. I don't particularly enjoy the interruption to my normal routine, but I do it nevertheless as it's essential to make sure the system continues to work as intended.
If I were to be summoned for jury duty, I would go, but I would inform the court that I intend to exercise my right to practice jury nullification if I deem it necessary. And that I would explain to my fellow jurors what their rights are related to jury nullification as well.
I can't imagine a prosecutor who would ever let me sit as part of the jury after hearing that.
I definitely don't support juries for civil cases. The people deciding those need to be experts on the applicable law, not just whomever can be swayed by either side's narrative the most.
Pacific wrote: I thought the informed comment made above said that a trial by jury almost certainly wouldn't happen?
I don't recall any informed comment that would lead to that conclusion. Barring a settlement of some form prior to the trial - the jury trial will happen. GW may or may not be inclined to offer an attractive settlement depending on the outcome of the summary judgement motions. It is unlikely that CHS will be inclined to accept it though without it being an extremely attractive settlement at this point though as the primary motivating factors which would make them inclined to seek a settlement are negated through pro bono representation.
Again though, if GW were to throw up a 7 figure number...CHS would be hard pressed to reject the offer no matter how principled they might be in seeing this through and if things look badly for GW based on the judges comments during the summary judgement, GW counsel may well recommend that as the cheaper option in the long run.
A small pile of money to prevent a judgement being actually issued against them will allow them to more or less maintain the existing status quo of GW using C&D letters combined with various other legal tactics (DMCA take down orders and what not) to keep their particular lock in place. However, should the court issue a judgement that breaks their lock (especially if the court ruled on the potential Design Right issue) would cost GW 7 figures plus a year in losses - not to mention the damage to their licensing potential and other long term losses.
Pacific wrote: I thought the informed comment made above said that a trial by jury almost certainly wouldn't happen?
I don't recall any informed comment that would lead to that conclusion.
OK my bad! Read through again and it was to do with the reasons why GW originally requested a trial by jury, rather than it not being likely to happen.
Can't imagine GW offering a settlement to be honest. That would require them to make a concession or acknowledgement of some sort, which I don't think is within the vocabulary of their company culture.
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