The IP of Michael Moorcock is not a trademark and doesn't consist of games.

Apple the music business had trademarked the name Apple in the music business. That's why Apple computer could trademark it for computers but not use it for music. They had to do a deal with The Beatles' Apple when they wanted to put midi into their computers.

That said, I am not convinced GW can trademark an eight-pointed star as a minor element of a collection of games and make it stick. It's the "all of everything belongs to us" approach.

That is part of what this suit is about.

agnosto wrote:

NAVARRO wrote:

loki old fart wrote:Any news on case yet

Dont know but Kilkrazy is still a damn nice jap gal

He's not bad for an otsubone (おつぼね).

I mean his not denying it, so I think its agreed!

So long as we all understand that Squiqsmasher has first dibs on asking him/her out.

Kilkrazy wrote:The arrow design is also in Aleister Crowley's work dating from the 1930s.

Actually the design idea is older (example from 1504):

Michael Moorcock wrote:The origin of the Chaos Symbol was me doodling sitting at the kitchen table and wondering what to tell Jim Cawthorn the arms of Chaos looked like. I drew a straightforward geographical quadrant (which often has arrows, too!) – N, S, E, W – and then added another four directions and that was that – eight arrows representing all possibilities, one arrow representing the single, certain road of Law. I have since been told that it is an "ancient symbol of Chaos" and if it is then it confirms a lot of theories about the race mind. … As far as I know the symbol, drawn by Jim Cawthorn, first appeared on an Elric cover of Science Fantasy in 1962, then later appeared in his first comic version of Stormbringer done by Savoy

Kroothawk wrote:

Kilkrazy wrote:The arrow design is also in Aleister Crowley's work dating from the 1930s.

Actually the design idea is older (example from 1504):

Is that newer or older then an eight point compass (compass rose) http://en.wikipedia.org/wiki/Compass_rose?

Kilkrazy wrote:The IP of Michael Moorcock is not a trademark and doesn't consist of games.

Except it does. GW used to make a series of Elric models back in the day, at least until the contract expired and they were forced to stop manufacturing them.

Michael Moorcock hasn't taken a trademark on the Chaos Star for either books or games.

GW claim to have taken a trademark (it isn't registered) on the Chaos Star for games.

The Elric figures aren't the Chaos Star. They are a sculptural work.

BTW does anyone know who licenced the Elric figures to GW? I had a set, but I threw away the box decades ago.

biccat wrote:

Orlanth wrote:

Kilkrazy wrote:The arrow design is also in Aleister Crowley's work dating from the 1930s.

Fine, make as many eight pointed arrowheaded stars as you wish and trademark them. If they symbolise Chaos then you are treading on the IP of Michael Moorcock.

This is why Apple Computers and Apple studios both existed, the word apple is generic just like a star is. however Apple computer company could not call their new technology related to the music industry apple because of Apple studios. Everything else they did was Apple, until iPod.

A slight nit to pick with this.

I acknowledge your below point and part clarification as valid:

biccat wrote:
Trademarks cover what is referred to as a "class of goods." For example, the Apple (computer) trademark covers "computers and computer programs recorded on paper and tape" (among others covered by later registrations).

Apple (music) trademark covers "gramophone records featuring music; pre-recorded audio tape cassettes featuring music; audio compact discs featuring music; pre-recorded video tape cassettes featuring music".

Since the class of goods covered by the computer registration is different than the music registration (lawsuits between the two notwithstanding), both can operate independently.

Switching to the Moorcock/GW case, Moorcock may claim a trademark in the use of the star to sell books while GW can claim a trademark in the use of the star to sell miniatures. Without more, the two wouldn't have any problems.

Note that there's a lot more involved in trademark law, I'm just trying to give a quick overview.

It is hard to simplify that which is a very complex and arbitrary condition in law into a couple of sentences without sacrificing accuracy to some extent, but the gist of the dilemma is easy to broadly cover on the terms given. IP law is very difficult as it is hard to properly word legislation, easy to give non determinate answers to legislation and difficult to prove. Case in point Chapterhouse was counting on the first and third points, GW was trying to count on the second.

Also to muddy your own waters GW uses the Chaos Star in relation to miniatures gaming and published materials. Even a codex, let alone a black library novel treads on the toes of Moorcocks domain in relation to the Chaos Star. This point soils GW's entire claim to trademark.

Kilkrazy wrote:Michael Moorcock hasn't taken a trademark on the Chaos Star for either books or games.

GW claim to have taken a trademark (it isn't registered) on the Chaos Star for games.

The Elric figures aren't the Chaos Star. They are a sculptural work.

BTW does anyone know who licenced the Elric figures to GW? I had a set, but I threw away the box decades ago.

Not at home or could pull my box out and see, all I remember is they done in '86 and the Elric model was my favourite

Kilkrazy wrote:BTW does anyone know who licenced the Elric figures to GW? I had a set, but I threw away the box decades ago.

I believe it was Chaosium Games. IIRC they had a licence to produce a RPG out of the Melnibonean series and took it a bit too far, sub licensing out to figures.

However, I have been wrong in the past and will be wrong in the future and this may be one of those occasions.

Cheers

Andrew

PS Does anyone know what the court calendar's like? I thought there was a conference meeting on Monday?

GW published the UK edition of the Chaosium Elric RPG.

Kilkrazy wrote:GW published the UK edition of the Chaosium Elric RPG.

And now we know where they(GW) got the idea from and how....

Moorcock said a few years back that he'd received no royalties or even communication from Chaosium in years, incidentally:

http://www.multiverse.org/fora/showthread.php?t=959

That thread may be of interest to anyone wanting more info as to why he's not that bothered about GW using his IP. Certainly in the days before gaming was big business, he took a very laid-back attitude to people making games based to a greater or lesser extent on his IP.

Very interesting.

The status hearing is held and continued until the 21st.

Games Workshop has made a motion to compel Chapterhouse Studios to answer its interrogatories, specifically No. 1 and 2.

No. 1:

Identify each Games Workshop publication, including (without
limitation) copies of any of the works identified in paragraphs 12-
14 of the Amended Complaint and/or any Games Workshop
newsletter, and/or any Games Workshop miniatures and/or gaming
accessories, that has ever been in Chapterhouse’s possession,
custody or control.

No. 2:

Identify any and all sources consulted, used, reviewed or relied on
by Chapterhouse in creating each of the Accused Works.

Chapterhouse Studios objected to those interrogatories and has not responded to them to date, as alleged by the Plaintiff. Games Workshop is asking the court to compel the Defendant to respond, or prohibit the Defendant from making an "independent creation" defense based on its failure to respond.

Games Workshop believes that the interrogatories are well founded, arguing that they are "reasonably calculated to the discovery of admissible evidence."

Games Workshop further argues:

"To the extent that Chapterhouse continues to refuse to identify the sources it relied upon in creating the accused works, it should be precluded from using any of the information that should have been provided in its interrogatory answer as evidence to meet any of its burdens of proof in this case, including in support of its defense of independent creation."

And cites as precedent Holiday Inns, Inc. v. Robertshaw Controls, Co., 560 F.2d 856 (7th Cir. 1977) (ruling that the exclusion of evidence requested in the interrogatories not in error).

I'm not crystal on Chapterhouse's objections to these interrogatories at the moment, but I'll look into the issue. I'm not sure why Games Workshop should be allowed to seek discovery prior initial pleading of the case, or even that it expects to be able to. There might be a matter of procedure that I'm not aware of. My guess is that Chapterhouse is generally objecting to the interrogatories to the extent that it believes they are a fishing expedition seeking information beyond the scope of reasonable discovery, or are in some kind of violation of procedure, in addition to its specific objections to No. 2. I'll need to take a closer look.


The Motion will be presented in person to the Court on the 21st and, understandably, the status hearing is held and continued until that time.

weeble, for the benefit of those of us who don't understand legalese, what were the "works identified in paragraphs 12-14 of the Amended Complaint" and are they the same as the "Accused Works" mentioned in number 2.

Request 1 seems massively intrusive - is this related to the point that was summed up as "CH knows which material of ours it used as a source, so we don't need to identify them"?

Without knowing which the Accused Works are, it is harder to comment on request 2. Have they gotten to specific items yet, or are they still claiming anything under the sun?

Dysartes wrote:
Request 1 seems massively intrusive - is this related to the point that was summed up as "CH knows which material of ours it used as a source, so we don't need to identify them"?

This was my thought as well. It seems like Games-Workshop isn't even trying to comply with the judge request that they identify their own material they think was used, constituting their alleged infringement.

Dysartes wrote:Request 1 seems massively intrusive - is this related to the point that was summed up as "CH knows which material of ours it used as a source, so we don't need to identify them"?

GW basically says:" We are not able to say exactly what Chapterhouse did wrong, so we demand Chapterhouse to help us with our accusation."

Next thing you know GW will try to sue the NFL and the Indianapolis Colts for this.

weeble1000 wrote:

No. 1:

Identify each Games Workshop publication, including (without
limitation) copies of any of the works identified in paragraphs 12-
14 of the Amended Complaint and/or any Games Workshop
newsletter, and/or any Games Workshop miniatures and/or gaming
accessories, that has ever been in Chapterhouse’s possession,
custody or control.

No. 2:

Identify any and all sources consulted, used, reviewed or relied on
by Chapterhouse in creating each of the Accused Works.

I understand little enough of US law so can someone clarfiy this please:

It looks to my laymans eyes that GW is demanding Chapterhouse provide the court with a shopping list of self-incrimination. If so isn't this directly contrary to the Fifth Amendment rights? Even if it isn't a Constitutional breach its not specificity in any form. It looks like Games Workshop has hired bargain basement lawyers.

The status hearing is held and continued until the 21st.

Yay!
Happy Anniversary to me! LOL

Dysartes wrote:Request 1 seems massively intrusive - is this related to the point that was summed up as "CH knows which material of ours it used as a source, so we don't need to identify them"?

They're saying, "CHS needs to tell us what works inspired their designs, so we can tell you what works of ours they violated IP on."
LOL

Orlanth wrote:It looks to my laymans eyes that GW is demanding Chapterhouse provide the court with a shopping list of self-incrimination. If so isn't this directly contrary to the Fifth Amendment rights? Even if it isn't a Constitutional breach its not specificity in any form. It looks like Games Workshop has hired bargain basement lawyers.

It looks to me that you hit the nail on the head, re: shopping list.
Not a lawyer, but I doubt that a company can invoke the 5th amendment.
I don't know about "bargain basement," so much as "willing to do anything they think they can get away with."

Eric

Orlanth wrote:
I understand little enough of US law so can someone clarfiy this please:

It looks to my laymans eyes that GW is demanding Chapterhouse provide the court with a shopping list of self-incrimination. If so isn't this directly contrary to the Fifth Amendment rights? Even if it isn't a Constitutional breach its not specificity in any form. It looks like Games Workshop has hired bargain basement lawyers.

5th ammendment doesnt apply. Thats criminal law, no civil law.

However, I'm not sure that chapterhouse has to provide it, but thats for more law minded folks to chime in on.

Re-reading that last part, 'in their possession or control'... is pretty damn generic, and if they really wanted to, CHS could just respond with http://lmgtfy.com/?q=warhammer+40k. Also send them a pack of greenstuff and a sculpting tool, as they are GW miniatures accessories . Most of CHS's stuff is generic enough that it could be sculpted from internet reference pictures, with the exception of getting the dimensions right for stuff like shoulder pads and rhino doors, which is legal. It does seem like GW is being extremely lazy and asking CHS to incriminate themselves....

Orlanth wrote:I understand little enough of US law so can someone clarfiy this please:

It looks to my laymans eyes that GW is demanding Chapterhouse provide the court with a shopping list of self-incrimination. If so isn't this directly contrary to the Fifth Amendment rights? Even if it isn't a Constitutional breach its not specificity in any form. It looks like Games Workshop has hired bargain basement lawyers.

The concept of interrogatories & the general discovery process inherent to US civil litigation is very strange to most foreigners.

No, the 5th Amendment doesn't apply here; the Bill of Rights protects individuals from governmental action, and this is civil litigation between two entities.

Yes, interrogatories and discovery can cause you to disclose things you'd rather your opponent didn't know; that's part of the purpose, actually, to ensure that cases are decided on all the relevant information. But in this case, it's very strange, as GW has yet to really disclose what pieces they claim are infringing; that might be the source of CH's objection to the interrogatory, as it reads like "Tell us every GW item you've ever been exposed to, in any way," which is pretty broad.

Personally, I'd send them a copy of the (now somewhat dated) Citadel Catalog, complete with the broken spine.

From what I understand, an independent development defense depends on lack of access to the allegedly accused work. Unlike patents, copyright law allows for the exact same work of art to be created independently, that is, two people on opposite sides of the world can make the same work of art without knowing about the other and that's okay.

Therefore, a claim of copyright infringement always requires access to the allegedly infringed work. In this case, access doesn't seem like something that will be difficult to establish. The accused works (anything and everything made or not made by Games Workshop relating to the Warhammer and Warhammer 40,000 fictional universes) are widely available and well known to the Defendants.

I expect that Games Workshop is trying to do anything it can to get a dog in the hunt. If, for example, Judge Kennelly grants the Plaintiff's motion, Chapterhouse would essentially be barred from claiming independent development (at least that's one way the Judge could rule). I think the idea is that if the Defendant fails to furnish such evidence during discovery, the Defendant would not be allowed to present a defense relying on said evidence at trial because it would violate the Plaintiff's right to review it and prepare a response, or something to that effect.

Now, what this motion comes down to, as far as I can tell, is that Games Workshop made some interrogatories. Chapterhouse objected to them and failed to respond, Games Workshop attempted to contact Chapterhouse and work it out without bringing the matter to the Judge, but now that those good faith efforts have failed, a motion has been presented to the Court.

However, there is likely a flip side to that coin. Chapterhouse doesn't want to respond to improper interrogatories, and thus furnish the Plaintiff with information beyond the reasonable scope of discovery. The Defendant has already accused the Plaintiff of using the lawsuit as a fishing expedition. Furthermore, Chapterhouse might argue that the Plaintiff was not being reasonable and did not make a genuine good faith effort to resolve the issue. After every contact regarding this matter, even as alleged by Games Workshop, the Plaintiff demanded the information by the end of the following business day. This might be argued to place an unreasonable burden on the Defense given that the Defendant is 1,000 miles away from the Court.

This is just a little spat. A more seasoned litigator would likely better understand whether an exchange like this was common or uncommon within the scope of the suit, but it seems to me like Games Workshop is trying to sink its teeth into, well, something. Ultimately, this is a minor issue within the scope of the lawsuit. Independent development is not a truly viable defense on the part of Chapterhouse studios, and I think it is also plain that Games Workshop is indeed attempting to force the -Defendant- to narrow its claims, rather than providing that clarity itself. And all of this prior to pleadings.

I don't think that Winston and Strawn would be sloppy enough to either willfully defy the Court's order or bungle procedure and wind up losing the ability to claim independent development. This issue will likely be resolved without substantively impacting the case. Although for a Plaintiff that can't make a satisfactory allegation of infringement or make sure all of its allegedly infringed marks are in use, this is a bit like the pot calling the kettle black. And that's without mentioning the relative refusal of the Plaintiff to be reasonable at any step of this trial process thus far.

I don't really think GW interrogatories here are that unreasonable.

In No. 1:

Identify each Games Workshop publication, including (without limitation) copies of any of the works identified in paragraphs 12-14 of the Amended Complaint and/or any Games Workshop newsletter, and/or any Games Workshop miniatures and/or gaming accessories, that has ever been in Chapterhouse’s possession, custody or control.

GW is basically asking CHS to name every GW book it has ever owned. What exactly they think this will prove, I don't know. I'm not sure if a model based on an old picture, or a description in a book, is an infringement or not?

And:

No. 2:

Identify any and all sources consulted, used, reviewed or relied on by Chapterhouse in creating each of the Accused Works.

Here GW is definitely trying to set CHS up, by implying that there were no independent sources relied upon for the models, outside of GW's materials.

Someone with more of an IP background please address this, but my understanding is that a derivative or pseudo-derivative work does not necessarilly translate from one medium of expression to another. Particularly when you are going from words or pictures to a sculpture.

This may be a case of trying to pre-empt the independent development argument. It seems somewhat of a stretch again because of the inherent artistic license taken by translating a work from one medium of expression to another. In this instance there is no direct copying, but rather there is an inherent interpretation based on a prior picture or description. Again, if someone with more IP background would address this?

Eldanar wrote:I don't really think GW interrogatories here are that unreasonable.

In No. 1:

Identify each Games Workshop publication, including (without limitation) copies of any of the works identified in paragraphs 12-14 of the Amended Complaint and/or any Games Workshop newsletter, and/or any Games Workshop miniatures and/or gaming accessories, that has ever been in Chapterhouse’s possession, custody or control.

GW is basically asking CHS to name every GW book it has ever owned. What exactly they think this will prove, I don't know. I'm not sure if a model based on an old picture, or a description in a book, is an infringement or not?

Quick, by the end of business tomorrow, provide me a list of every GW miniature you've ever owned (or borrowed). Oh, and every White Dwarf you've ever read, every codex you've ever had (all editions), and don't forget those old copies of Talisman, Space Hulk, and/or Battlemasters you might have played with 15+ years ago....

Can't do it? I doubt I could.

Janthkin wrote:Quick, by the end of business tomorrow, provide me a list of every GW miniature you've ever owned (or borrowed). Oh, and every White Dwarf you've ever read, every codex you've ever had (all editions), and don't forget those old copies of Talisman, Space Hulk, and/or Battlemasters you might have played with 15+ years ago....

Can't do it? I doubt I could.

I've been playing for about 15 years now, and beyond the first few models I bought, I don't remember most of the stuff in specifics between then and now. Hope GW never tries to sue me and ask that question.

If the judge does require CHS to do what GW want in terms of disclosure, I am sure they'll have a whole lot of fun naming practically every SF and fantasy and horror and modern war DVD, videogame, and novel any of their staff own in Part 2.

Could it be that GW lawyers deliberately try to get this case dismissed by court just to get out of this unwinnable case without setting precedence?

Just out of interest, how do you make an accessory for something without first looking at it? To make Salamander inspired shoulder pads, you would need to know about the Space Marines & Salamanders. Perhaps someone should be asking the GW Tyrant design team to hand over any material that inspired them to come up with such an "original" idea?

Ian Sturrock wrote:If the judge does require CHS to do what GW want in terms of disclosure, I am sure they'll have a whole lot of fun naming practically every SF and fantasy and horror and modern war DVD, videogame, and novel any of their staff own in Part 2.

The amusing thing, is that GW's works tend to be so derivative of already existing concepts and franchises (Alien, Lord of the Rings, Dungeons and Dragons, Greek mythology, etc), that CHS can basically list the same stuff that GW originated from. I mean, especially with the Tyranid stuff.

GW counsel: 'Milord, I believe that this CHS Mycetic spore/Tervigon kits are direct rips from GW'.
CHS counsel: 'Actually, you'll find they look just like that movie 'Alien'. Where did you get your Tyranid concept from by the way?'

Do you think that CHS could source 'Dynasty' as their inspiration for oversize shoulder pads?

On a serious note, how can GW reasonable expect 'access to their publications' be a justifiable means to prosecution when they make their money by selling to the public? It's not exactly trade secrets is it.

Cheers

Andrew

Eldanar,

I think it is probably a dig at the independent development argument, (apart from just being annoying and difficult) but I don't think that argument was going to fly in the first place.

However, I don't think No. 2 is a proper discovery issue. In terms of independent development, it makes no difference what sources were relied on, other than that they were not the allegedly infringed works.

An artist is technically not required to rely on inspiration from any source in order to create a work of art. Independent development, as far as I understand, simply relies on not having had access to the allegedly infringed work. If the author did not have access to the allegedly infringed work, the author could not have copied that work. This, again, is the heart of copyright law: copying. One must have access to a work in order to make a copy of it. Otherwise, the accused work is simply "independently created" and thus not a copy of the allegedly infringed work, even if it is exactly the same thing.

Now, I believe it is Games Workshop's burden to demonstrate that Chapterhouse Studios's products copy its allegedly infringed works. Question No. 2 is framed in such a way that it both inherently assumes Games Workshop's works were relied on by Chapterhouse Studios and essentially asks the Defendant to identify which of the Plaintiff's works it believes it has infringed.

This question has been objected to as being vague and ambiguous, which makes a great deal of sense. If Games Workshop's complaint does not sufficiently specify specifically which of the Defendant's works are accused of copying which of the Plaintiff's alleged copyrights, a response to this question could amount to inappropriately forcing the Defendant to identify, for the -Plaintiff-, how to appropriately satisfy Rule 8. Hence, the Plaintiff is using discovery to go "fishing" in order to define its claims instead of presenting appropriately defined claims and then seeking reasonable discovery related to said claims.

I think that's the general idea behind the specific objection to No. 2.

"Chapterhouse objects to this interrogatory as vague and ambiguous. Chapterhouse further objects to this interrogatory as unduly burdensome, oppressive, and seeking information outside the scope of discovery. Chapterhouse further objects specifically to the word “sources” as vague and ambiguous, and overbroad and unduly burdensome. Chapterhouse further objects to the string of participles “consulted, used, reviewed, or relied on” as vague and ambiguous, and overbroad and unduly burdensome."

Janthkin wrote:

Eldanar wrote:I don't really think GW interrogatories here are that unreasonable.

In No. 1:

Identify each Games Workshop publication, including (without limitation) copies of any of the works identified in paragraphs 12-14 of the Amended Complaint and/or any Games Workshop newsletter, and/or any Games Workshop miniatures and/or gaming accessories, that has ever been in Chapterhouse’s possession, custody or control.

GW is basically asking CHS to name every GW book it has ever owned. What exactly they think this will prove, I don't know. I'm not sure if a model based on an old picture, or a description in a book, is an infringement or not?

Quick, by the end of business tomorrow, provide me a list of every GW miniature you've ever owned (or borrowed). Oh, and every White Dwarf you've ever read, every codex you've ever had (all editions), and don't forget those old copies of Talisman, Space Hulk, and/or Battlemasters you might have played with 15+ years ago....

Can't do it? I doubt I could.

I could probably do it in an hour, and get 97-99% of it. I've owned and/or read, and probably still own, every book GW has put out for 40K, WHFB, BB, BFG, and a couple other game systems from about 1990-2008. In 2008, I quit getting WD's, and I stopped buying WHFB stuff, except for the armies that I own, HE's and Chaos. I also only have a couple of the Apoc books.

I remember having to respond to a request like this in a lawsuit back when I was still green behind the ears. And we sent them everything. When someone makes a request like this, you just white wall them.

I'm sure there is a website out there that lists evey publication GW has ever made. Just go copy and paste it, and then clean it up some, and then submit that back.

The time constraint might be an issue, but I don't recall that being mentioned (and I have not seen these documents yet).

weeble1000 wrote:Eldanar,

I think it is probably a dig at the independent development argument, (apart from just being annoying and difficult) but I don't think that argument was going to fly in the first place.

However, I don't think No. 2 is a proper discovery issue. In terms of independent development, it makes no difference what sources were relied on, other than that they were not the allegedly infringed works.

An artist is technically not required to rely on inspiration from any source in order to create a work of art. Independent development, as far as I understand, simply relies on not having had access to the allegedly infringed work. If the author did not have access to the allegedly infringed work, the author could not have copied that work. This, again, is the heart of copyright law: copying. One must have access to a work in order to make a copy of it. Otherwise, the accused work is simply "independently created" and thus not a copy of the allegedly infringed work, even if it is exactly the same thing.

Now, I believe it is Games Workshop's burden to demonstrate that Chapterhouse Studios's products copy its allegedly infringed works. Question No. 2 is framed in such a way that it both inherently assumes Games Workshop's works were relied on by Chapterhouse Studios and essentially asks the Defendant to identify which of the Plaintiff's works it believes it has infringed.

This question has been objected to as being vague and ambiguous, which makes a great deal of sense. If Games Workshop's complaint does not sufficiently specify specifically which of the Defendant's works are accused of copying which of the Plaintiff's alleged copyrights, a response to this question could amount to inappropriately forcing the Defendant to identify, for the -Plaintiff-, how to appropriately satisfy Rule 8. Hence, the Plaintiff is using discovery to go "fishing" in order to define its claims instead of presenting appropriately defined claims and then seeking reasonable discovery related to said claims.

I think that's the general idea behind the specific objection to No. 2.

"Chapterhouse objects to this interrogatory as vague and ambiguous. Chapterhouse further objects to this interrogatory as unduly burdensome, oppressive, and seeking information outside the scope of discovery. Chapterhouse further objects specifically to the word “sources” as vague and ambiguous, and overbroad and unduly burdensome. Chapterhouse further objects to the string of participles “consulted, used, reviewed, or relied on” as vague and ambiguous, and overbroad and unduly burdensome."

This goes back to GW's theory that they own their universe and everything derived from it. And that is what I was kind of trying to get at. From what those of you with more IP background have said, this is not a valid argument; yet this continues to be the theme that GW appears to keep trying to go back to.

And from what you are saying, GW also appears to be trying to apply a burden shifting maneuver, which also seems a little odd; but is understandable if they want to minimize expenses, time and effort. Based on your analysis, as well as general principles of jurisprudence, this does not appear likely to happen.

AndrewC wrote:Do you think that CHS could source 'Dynasty' as their inspiration for oversize shoulder pads?

On a serious note, how can GW reasonable expect 'access to their publications' be a justifiable means to prosecution when they make their money by selling to the public? It's not exactly trade secrets is it.

Cheers

Andrew

1980's pop culture reference, FTW.

It seems clear to me that GW have to demonstrate they have genuine ownership of copyrights they are accusing CH of violating. If they make a reasonable looking claim on something, the Chaos Star for instance, CH can then attempt to disprove it.

They should respond with the Starship Troopers novel.

They should respond with Blizzard's Starcraft game.

It looks like round 3 of GW just rephrasing its same question without ever really getting back to the questions posed by the court to GW.

aka_mythos wrote:It looks like round 3 of GW just rephrasing its same question without ever really getting back to the questions posed by the court to GW.

It really does, doesn't it?

I'm surprised the judge didn't have something rather pointed to say about that...

Alpharius wrote:

aka_mythos wrote:It looks like round 3 of GW just rephrasing its same question without ever really getting back to the questions posed by the court to GW.

It really does, doesn't it?

I'm surprised the judge didn't have something rather pointed to say about that...

I wonder if he will on the 21st.

Were any questions directed to Paulson, weeble?

Alpharius wrote:I'm surprised the judge didn't have something rather pointed to say about that...

He might have something to say on Tuesday when the motion is presented in open court. Anybody live in Chicago?



Automatically Appended Next Post:

Dysartes wrote:Were any questions directed to Paulson, weeble?

Not that I know of. Paulson did disclose that Paulson Games is a sole proprietorship, if anyone actually finds that interesting.

Dysartes wrote:Were any questions directed to Paulson, weeble?

Maybe what GW books Paulson has used when ... not... designing the Chapterhouse walker

Kroothawk wrote:Could it be that GW lawyers deliberately try to get this case dismissed by court just to get out of this unwinnable case without setting precedence?

@weeble: Any idea on this?

Kroothawk wrote:

Kroothawk wrote:Could it be that GW lawyers deliberately try to get this case dismissed by court just to get out of this unwinnable case without setting precedence?

@weeble: Any idea on this?

I thought they were beyond this? As I understood it from earlier comments, now that the court has issued directions on explanatory investigations and discoveries the opportunity to dismiss without apportioning guilt had passed.

There was also an earlier post in which it was explained that the decision of this court wouldn't actually set a precedence as it was a 'local' court as opposed to a 'higher' court. (Sorry my knowledge of the American court 'ranks' is abysmal) It may be the case then that GW could not continue all the way and just accept thier fate and not appeal upwards as the decision, should it go against them, would then become a basis for a precedent. Yes/No?

Now remember in light of the recent case here in the UK, NO DISCUSSING THE CASE ON FACEBOOK!

Cheers

Andrew

AndrewC wrote:

Now remember in light of the recent case here in the UK, NO DISCUSSING THE CASE ON FACEBOOK!

Cheers

Andrew

??? What was that facebook case about?

If they did atempt to appeal to a higher court it probly wouldnt be accepted thus the ast decsion stands. but any way GW should just shut up and let them do it. Its not like a lot of people buy their stuff.

warboss wrote:??? What was that facebook case about?

I believe a juror in a case added the defendant as a Friend, causing a conflict of interests. Said juror has been jailed for eight months, I believe - the BBC should have the story on there, as it went up on there this week.

Dysartes wrote:

warboss wrote:??? What was that facebook case about?

I believe a juror in a case added the defendant as a Friend, causing a conflict of interests. Said juror has been jailed for eight months, I believe - the BBC should have the story on there, as it went up on there this week.

Here is the link for the case in question.


Automatically Appended Next Post:
The woman involved must be completely stupid, incidentally.

Tantras wrote:

Dysartes wrote:

warboss wrote:??? What was that facebook case about?

I believe a juror in a case added the defendant as a Friend, causing a conflict of interests. Said juror has been jailed for eight months, I believe - the BBC should have the story on there, as it went up on there this week.

Here is the link for the case in question.


Automatically Appended Next Post:
The woman involved must be completely stupid, incidentally.

Thank you both for the link and info... and, yes, she's about as smart as a box of rocks... wow.

There is a thread to discuss that juror already:

http://www.dakkadakka.com/dakkaforum/posts/list/376548.page

weeble1000 wrote:The status hearing is held and continued until the 21st.

Games Workshop has made a motion to compel Chapterhouse Studios to answer its interrogatories, specifically No. 1 and 2.

No. 1:

Identify each Games Workshop publication, including (without limitation) copies of any of the works identified in paragraphs 12-14 of the Amended Complaint and/or any Games Workshop newsletter, and/or any Games Workshop miniatures and/or gaming accessories, that has ever been in Chapterhouse’s possession, custody or control.

I don't see anything wrong with this part. Chapterhouse is more knowledgable about what works it had access to than GW would be, and so this doesn't seem improper. CH may argue that it is unduly burdensome, and may simply admit that they had access to the works idenfied by GW.

No. 2:

Identify any and all sources consulted, used, reviewed or relied on by Chapterhouse in creating each of the Accused Works.

"To the extent that Chapterhouse continues to refuse to identify the sources it relied upon in creating the accused works, it should be precluded from using any of the information that should have been provided in its interrogatory answer as evidence to meet any of its burdens of proof in this case, including in support of its defense of independent creation."

This is just absurd. GW is basically saying "Tell us what you used to infringe our work. If you don't tell us, then you can't claim you came up with it on your own." But if CH really did independently create the infringing work, then they wouldn't be able to satisfy this element... Hmm.

However, I expect CH probably won't be asserting independent creation as to most of their products, and therefore it would be easier for them to simply acknowledge that there was no independent creation than to comply with the discovery request.

Note that I have no idea how this would play into CH's legal strategy. It might be a really terrible idea, or it might not affect them at all.

also:

From what I understand, an independent development defense depends on lack of access to the allegedly accused work. Unlike patents, copyright law allows for the exact same work of art to be created independently, that is, two people on opposite sides of the world can make the same work of art without knowing about the other and that's okay.

Yes. Although in some cases, access may be presumed (although rebuttable) if the two works are strikingly similar.

The problem with these interrogatories is that GW still really hasn't pointed out specifically which CH products are infringing of which GW products. Until the scope of the copyrights asserted has been determined, it's almost impossible for CH to adequately respond to these interrogatories.

Surely it would be simpler to say that chapter house had no GW material in it's possession and any materials in the possession of the sculptors/designers was for the sole purpose of personal pursuits. Unless chapter house bought GW materials on there business account surely this could not be disproved muddying the waters by blurring the boundaries between awareness and deliberate copying of said materials found in the possession of any chapter house sculptors/designers.

Except that it would be a bald faced lie and CHS is better than that.
Early on, CHS was very open about their creation process. Even now, they'll tell you. All of their add-ons are created with specific measurements to fit GW kits (which, in many cases, Forgeworld doesn't even do!).

Eric

MagickalMemories wrote:Except that it would be a bald faced lie and CHS is better than that.
Early on, CHS was very open about their creation process. Even now, they'll tell you. All of their add-ons are created with specific measurements to fit GW kits (which, in many cases, Forgeworld doesn't even do!).

Eric

Yeah, it is pretty clear because original threads showed they used GW doors for prototyping and only later did they shift to autocad blanks. They also show how they used 3d models of GW vehicles for designing add-ons. Even recently they show pictures of their new releases attached to GW models and designed for GW models.

They made no effort to hide any of this and bragged for years by getting in troll-fights with anyone asks 'Are you sure this is legal?' So there is plenty of evidence out there of CH's development process and intent. While they can argue they are making legal add-ons with generic IP, I don't think they can claim to have developed their stuff in a vacuum and it is all coincidental.

GW counsel: 'Milord, I believe that this CHS Mycetic spore/Tervigon kits are direct rips from GW'.
CHS counsel: 'Actually, you'll find they look just like that movie 'Alien'. Where did you get your Tyranid concept from by the way?'

How do you claim the tervigon kit wasn't based off GW tyranids when it requires parts from GW tyranids to be made into a tervigon and is called a tyranid? It isn't like it is a whole, complete standalone model that could have been made independently like the Tau walker or the Lamassu.

I mean, that is insulting to the intelligence of the court to make that argument.

nkelsch wrote:

MagickalMemories wrote:Except that it would be a bald faced lie and CHS is better than that.
Early on, CHS was very open about their creation process. Even now, they'll tell you. All of their add-ons are created with specific measurements to fit GW kits (which, in many cases, Forgeworld doesn't even do!).

Eric

...They made no effort to hide any of this and bragged for years by getting in troll-fights with anyone asks 'Are you sure this is legal?' So there is plenty of evidence out there of CH's development process and intent. While they can argue they are making legal add-ons with generic IP, I don't think they can claim to have developed their stuff in a vacuum and it is all coincidental.

Bragging about the methodology isn't the same as bragging about unfair IP use, as you imply. I wouldn't argue its generic IP, more just that IP law doesn't protect the dimensioning of the models used to create the add-on kits.

Claims to a "coincidental vacuum," in the strictest sense... that is coming from GW trying to eliminate one of the acceptable defenses to infringement, if the court rules against CH.

nkelsch wrote:
How do you claim the tervigon kit wasn't based off GW tyranids when it requires parts from GW tyranids to be made into a tervigon and is called a tyranid? ...

You can claim it because GW has no physical 3d depiction of a tervigon, identical or near identical to CH's; that CH isn't selling the GW parts so the fact that you need those is actually irrelevant to whether CH has violated GWs rights. CH is selling an arm-less, leg-less body... does just a torso/head and bits represent a complete depiction of GW's IP?-No. Next it is strictly acceptable for one company to use the trademarked name of another companies' product when necessary in describing compatibility and use... no different than the countless un-licensed companies making an "iPad-2 case."

nkelsch wrote:

They made no effort to hide any of this and bragged for years by getting in troll-fights with anyone asks 'Are you sure this is legal?' So there is plenty of evidence out there of CH's development process and intent. While they can argue they are making legal add-ons with generic IP, I don't think they can claim to have developed their stuff in a vacuum and it is all coincidental.
.

I've seen many CH threads and never got the impression they were bragging about their legality. In fact, I think they practically begged users to keep comments limited to the release in question....and not show the Internet their extensive, arm chair IP attorney credentials. They usually said "hey we've checked and according to our counsel we are ok----let's move on".

AgeOfEgos wrote:

I've seen many CH threads and never got the impression they were bragging about their legality. In fact, I think they practically begged users to keep comments limited to the release in question....and not show the Internet their extensive, arm chair IP attorney credentials. They usually said "hey we've checked and according to our counsel we are ok----let's move on".

While I personally fully agree with their opinion and have bought some of their stuff, they were a more brash and vehement than they perhaps should have been when defending against the trolls initially a few years back. They've mellowed out since but I can definitely see how their old responses could have been seen as bragging when heatedly responding to the blatant trolling in their early threads.

Anyway, that is off the topic.

I am looking forwards to the next instalment from the actual case.

Kilkrazy wrote:Anyway, that is off the topic.

I am looking forwards to the next instalment from the actual case.

Yeah me too

Isn't the next part of the case scheduled for today? Or has it been postponed for some reason?

East coast time is about 5 hours behind, so it still miight be today.

Alright, i've waited patiently all day, is there any progress as of today? Or at all that anyone knows about?

Status hearing held and continued until 7/6/11. The motion to compel was entered and continued until the status hearing date. Status reports are to be filed with the Court by 6/29/11.

Welcome to the world of litigation.

LOL. Thanks Weeble....more waiting in our future it looks like.

No wonder people hate our justice system, it just takes soooo long to even get to trial.

"Let's have a meeting about the meeting during which time we'll meet about the meeting that we plan to meet about."

Thanks weeble.

Now .... erm .....how can I put this, translation please?

Basically it translates to GW did what it said it intended to do... it requested the court demand CH answers those two questions. The court will now think on it.

Thank you my good man.

I do not consider myself to be thick, but some of these terms are just too easy to misinterpret.

aka_mythos wrote:Basically it translates to GW did what it said it intended to do... it requested the court demand CH answers those two questions. The court will now think on it.

I take it any objections from CH would be raised at the same time?

agnosto wrote:LOL. Thanks Weeble....more waiting in our future it looks like.

No wonder people hate our justice system, it just takes soooo long to even get to trial.

"Let's have a meeting about the meeting during which time we'll meet about the meeting that we plan to meet about."

you dont actually always want to get to trial either mate, you will be *amazed* with how many cases are settled out of court. Don't rely on television for your education.

Dysartes wrote:

aka_mythos wrote:Basically it translates to GW did what it said it intended to do... it requested the court demand CH answers those two questions. The court will now think on it.

I take it any objections from CH would be raised at the same time?

After GW files a motion CH is given a chance to respond. Weeble would probably know better about those types of deadlines.

The judge will probably decide the issue based on these filings and not a formal hearing. An order granting or denying the motion won't necessarily be published (although they usually are).

agnosto wrote:LOL. Thanks Weeble....more waiting in our future it looks like.

No wonder people hate our justice system, it just takes soooo long to even get to trial.

"Let's have a meeting about the meeting during which time we'll meet about the meeting that we plan to meet about."

Not familiar with american system, or with corporate side of things, but things are more or less the same. The following is a butchered summart: After a statment of claim is filed, you wait for the counter claim, and then carry on have to find your relevant material and evidence. Both parties produce it to the other party, and then carry on out-of court to see if you can settle... My experience says both sides have the chance to review the others' evidence and question them on it, and have them produce more relevant material. If there is no progress (favourable or otherwise) then they apply to take it before a judge, the court decides if it will see the case or if it compells the adversaries to sort their gak out before they come back....

The point is to dedicate 30 minutes or an hour or whatever to see if its worth going through 5 days of trial. spend a day weeding out the chaff, it seems like it slows the court system down, but it actually speeds things out by tossing out crap that shouldnt be there.

I am glad that I am walking away from studying law......

weeble1000 wrote:Welcome to the world of litigation.

It's rubbish, I've been brought up on a diet of CSI and was expecting this to be like the O J trial.

Howard A Treesong wrote:
It's rubbish, I've been brought up on a diet of CSI and was expecting this to be like the O J trial.

If the parts don't fit you must acquit!-Is that what you're trying to say?

aka_mythos wrote:

Howard A Treesong wrote:
It's rubbish, I've been brought up on a diet of CSI and was expecting this to be like the O J trial.

If the parts don't fit you must acquit!-Is that what you're trying to say?

Forgeworld parts rarely fit. I don't know how that helps though...

weeble1000 wrote:Status hearing held and continued until 7/6/11. The motion to compel was entered and continued until the status hearing date. Status reports are to be filed with the Court by 6/29/11.

Welcome to the world of litigation.

Dang, this is going to take a while.

So, current status is that the court hasn't yet decided if CHS has to give them a list of every GW product that they've ever seen in their life?

Also, it still looks like GW is trying to get CHS to tell them which of their products is infringing on GW copyrights. Really? I mean, that just looks like a hideous misunderstanding of the law, and I can't believe that the court is considering it at all.


Although, if this case isn't going to go their way, they might be trying not to set a precedent for other lawsuits in the future.

Is anyone else amused by the argument that GW is making, that CH has to tell them what sources they used to come up with their ideas and if they don't do that they can't claim they made it up themselves?

So in other words, anything that they don't have a source for (IE they made it up themselves) they aren't allowed to claim they made it up themselves.

TBH, I think this case is moving kind of fast in relative comparison to the typical legal action. We are only 6 months in, and that is infancy for most cases.

Eldanar wrote:TBH, I think this case is moving kind of fast in relative comparison to the typical legal action. We are only 6 months in, and that is infancy for most cases.

That's infancy for most people too.

I'd worry if a legal case ever got old enough to drink.

I'm re-posting this from Warseer. I went through the Motion to Compel and took a look at the rules of civil procedure. This is what is going on:

Games Workshop sent interrogatories Nos. 1-2 on March 25th, 2011 at which time Chapterhouse Studios had a pending motion to dismiss based on lack of specificity.

"Chapterhouse’s refusal to comply with its obligations under the Federal Rules of Civil Procedure leads to the current Motion. Games Workshop served Interrogatory Nos. 1-2 on March 25, 2011, at which time Chapterhouse was seeking leave to move to dismiss on grounds that the Complaint purportedly did not contain sufficient information regarding the works Chapterhouse is alleged to have infringed. Because Chapterhouse’s entire business is devoted to trading on the success of Games Workshop’s extensive portfolio of copyrighted works devoted to its popular WARHAMMER and WARHAMMER 40,000 games, Games Workshop believed it was most efficient as an alternative to possible motion practice simply to determine at the outset which Games Workshop copyrighted works defendant had in its possession and whether it even purported to claim as inspiration for its accused products any other works of any third parties. Although the Court did not permit Chapterhouse to proceed with the motion, Games Workshop’s initial limited discovery requests remain highly relevant to the basic issues in this action." - GW Motion to Compel paragraph 1

The idea here is that GW sent those questions supposedly to clarify its claims, shifting the burden of that clarification onto the Defendant. Judge Kennelly denied the renewed motion to dismiss, but stated in open court that Games Workshop would be required to respond to early discovery from Chapterhouse aimed at clarifying the copyright infringement claims. Games Workshop is arguing that its interrogatories, objected to for good reason by the Defendant considering the nature of GW's claims and the motion to dismiss, are still relevant at this time.

So, these interrogatories from Games Workshop remain intimately tied to the inherently flawed nature of the first amended complaint. Judge Kennelly did deny the motion to dismiss, but his reasoning implicitly supported the inherent validity of the motion, i.e. Games Workshop's claims were too vague.

Games Workshop is asking the Court to compel Chapterhouse to respond to these interrogatories in spite of Chapterhouse's objections to them.

The motion indicates that "Pursuant to Rule 33 of the Federal Rules of Civil Procedure, Chapterhouse’s answers to Interrogatory Nos. 1-2 were due on or before April 28, 2011."

Rule 33(b)(2) reads: "(2) Time to Respond.

The responding party must serve its answers and any objections within 30 days after being served with the interrogatories. A shorter or longer time may be stipulated to under Rule 29 or be ordered by the court."

So, what Games Workshop means is that, not by order of the Court, but simply by the 30 day time limit, Chapterhouse Studios was required to respond. However, Chapterhouse Studios objected to the interrogatories under 33(b)(3) and (4)

"3) Answering Each Interrogatory.

Each interrogatory must, to the extent it is not objected to, be answered separately and fully in writing under oath.

(4) Objections.

The grounds for objecting to an interrogatory must be stated with specificity. Any ground not stated in a timely objection is waived unless the court, for good cause, excuses the failure."

So, Chapterhouse Studios is not required to answer interrogatories that it objects to. Games Workshop is asking Judge Kennelly to compel an answer over the Defendant's objections, as far as I understand.

This seems like a pie in the sky request given that Judge Kennelly denied the motion to dismiss but implicitly agreed with the merits of the motion, i.e. that Games Workshop's claims were insufficiently specific. I don't expect Judge Kennelly will grant this motion.

Thanks again, Weeble.

Just to flesh out what Weeble has said.

CH has properly objected to the interrogatory, which means that they do not have to respond. CH doesn't actually have to prove that they have a good objection. Making the objection is sufficient to absolve them of the responsibility to respond.

In response, GW can ask the court [Rule 37 motion] to order CH to respond to the interrogatories (provided that they communicated with CH and attempted to resolve the dispute). At this point the judge will hear the merits of both sides: CH's objection and GW's reason for demanding the answer.

I disagree that this is a "pie in the sky" request, because the motion to compel is really accomplishing two things: First, it forces CH to defend their objection; second, they could win the motion and get the information requested.

However, on further reflection, I think that the "options" GW gave CH really sets up a problem for Games Workshop.

The purpose of this round of early discovery is to enable Chapterhouse and GW to share information that will lead to CH learning:
1) which products are infringing
2) which copyrights they infringe.

If that basic knowledge can't be satisfied, then we go back to Chapterhouse's motion to dismiss which would be granted.

GW has basically said "if you don't tell us which products you infringe, then you can't claim independent creation."

The problem with this is that independent creation is a defense to a charge of copyright infringement, it is not something that must be proven (or disproven) by the plaintiff. If GW can't meet their burden to show infringement, then the existence or nonexistence of CH's defense is irrelevant.

As an example: if the state accuses you of murder and you claim self defense, if the state fails to prove you were the murderer, the issue of whether you acted in self defense or not is irrelevant.

So GW may be shooting themselves in the foot with this demand. They appear to be giving Chapterhouse an easy way to not respond to the interrorgatory and get the case dismissed.

Note that I don't know what else was discovered during this pre-discovery period, so GW may be able to satisfy their burdern on pleading to defeat CH's original motion to dismiss.

Thanks for that biccat.

Strategically, I can see why Games Workshop filed the motion to compel. I think you're right that it could walk the Plaintiff into trouble, but what I meant by a pie in the sky request was simply that I don't think Judge Kennelly will be disposed to grant the motion. Whether he grants it or not, it puts the issue before the Court once again and, as you've said, forces Chapterhouse to defend its objections. Thus the motion is potentially useful regardless of the outcome.

I could also be stretching a bit in saying that Judge Kennelly will not be disposed to grant the motion. We don't know what else has gone on in discovery. I do think that it is awkward for Games Workshop to voluntarily put this issue before the Court once again, that is, the definition of its claims. I think it is clear that up to this point Judge Kennelly has been leaning towards the Defendants on this issue. This would be especially problematic for the Plaintiff if Games Workshop was not very forthcoming in its responses to Chapterhouse's interrogatories.

At the end of the day, I think the Court is interested in seeing this case narrowed down to a manageable level. Unfortunately for Games Workshop, the impetus for narrowing the scope of the claims falls on the Plaintiff, or at least it should. My personal speculation is that Judge Kennelly feels the responsibility should lie with the complaining party, and I'm guessing that he will be willing to dismiss the case if Games Workshop continues to insist that the Defendant is the only party able to provide this definition.

Granted, this case is in its very early stages, but Games Workshop hasn't seemed to budge from the position it took in the original complaint; that any particular accused work infringes a melange of copyrights inherent in a wide variety of disparate works too vast and intertwined to be individually distinguishable. In spite of how much as Games Workshop keeps insisting on this argument, I don't think it has much merit and I don't think it will be sufficient to satisfy the Court. Moreover, I think the Court has thus far not been satisfied with this argument, and so continuing to emphasize it seems to be a good way to get the case dismissed, but then that might be Games Workshop's ultimate goal.

.... I have yet to encounter a legal situation where a plaintiff believes that the defendant has the power to specify how the plaintiff was grieved.... this is absolutely nuts! What was GW's legal team smoking, and where can I get some???

weeble1000 wrote:Strategically, I can see why Games Workshop filed the motion to compel. I think you're right that it could walk the Plaintiff into trouble, but what I meant by a pie in the sky request was simply that I don't think Judge Kennelly will be disposed to grant the motion.

I may not remember much from my civil procedure class, but I do recall that motions to compel are usually filed when an opponent objects to responding to a discovery request. Unless it's an assertion of privilege, I expect the court would entertain the motion.

weeble1000 wrote:I could also be stretching a bit in saying that Judge Kennelly will not be disposed to grant the motion. We don't know what else has gone on in discovery. I do think that it is awkward for Games Workshop to voluntarily put this issue before the Court once again, that is, the definition of its claims. I think it is clear that up to this point Judge Kennelly has been leaning towards the Defendants on this issue. This would be especially problematic for the Plaintiff if Games Workshop was not very forthcoming in its responses to Chapterhouse's interrogatories.

I don't know if it's stretching to say he won't grant the motion, but calling it "pie in the sky" is a bit much . The evidence GW is seeking isn't any type of regularly kept documentation or information, in fact, it looks more like a request for admission of infringement coached as an interrogatory. Presumably GW's lawyers realize that a request for admission to satisfy pleading requirements wouldn't go over very well with the Judge.

Otherwise, yeah, GW's position seems to be "you infringe, pay up" without even a minimum level of particularity. If they keep this up, they're going to get a dismissal. I have no idea why GW's attorneys aren't hammering this home with their client.

GW: "We accuse Chapterhouse!"
Judge: "Of what?"
GW: "If we told you, we would have to kill you."

Guess GW is so used to secrecy, they won't stop this habit in court

So if a case gets dismissed because of bad "tactics" (for want of a better word) before trial I take it that no precedent is set? So, if GW have bitten off more than they can chew then being obtuse to the point of dismissal is actually an effective strategy?

fullheadofhair wrote:So if a case gets dismissed because of bad "tactics" (for want of a better word) before trial I take it that no precedent is set? So, if GW have bitten off more than they can chew then being obtuse to the point of dismissal is actually an effective strategy?

I actually mentioned a couple of months ago that GW might find it a good idea to try to get the case dismissed without prejudice if they can. It's possible that they weren't prepared for the type of vigorous defense they've gotten, and being given the opportunity to regroup, prepare a better case, and try again might be the best thing they could hope for.

Kroothawk wrote:GW: "We accuse Chapterhouse!"
Judge: "Of what?"
GW: "If we told you, we would have to kill you."

Shouldn't that be "We can't tell you. But if you place an order now, you can receive our complaint when it is released."

fullheadofhair wrote:So if a case gets dismissed because of bad "tactics" (for want of a better word) before trial I take it that no precedent is set? So, if GW have bitten off more than they can chew then being obtuse to the point of dismissal is actually an effective strategy?

Depends on what you mean by "precedent." But generally losing a case is not an effective strategy. If GW thought they would lose they would offer to settle with CH with a royalty-free license. Then again, maybe they did and CH refused.

If the case is dismissed, the issue of CH infringing GW's copyrights with their current works will be settled (likely, there are circumstances where it wouldn't), GW couldn't raise the issue again against Chapterhouse for the same works.

For other companies, it's more complicated. They can't use the case against GW unless they're essentially copying Chapterhouse's products. However, because of the fact sensative nature of copyright cases, even a full decision on the merits wouldn't necessarily be a huge benefit to smaller companies. Here's some possible outcomes (assuming CH wins):

The best case would be if the court actually struck down some of Games Workshops copyrights. I think this is unlikely to happen.

A lesser case would be the court limiting the scope of some of GW's copyrights. For example, GW can claim exclusivity to arrows on shoulderpads, but not arrows on helmets (or something). This would allow those companies to avoid some of GW's copyrights by staying outside of the limited scope.

The worst case would be where the court determines that CH's products don't infringe GW's products. This doesn't tell the infringers anything, but really it is within the proper role of the court. The court doesn't decide for all defendants against GW, they should only decide the case before them (GW v. CH). If CH wins on a technicality, this is essentially the result that you can expect.

However, actually reaching a conclusion in this case will have the advantage of emboldening further bits producers. If they see CH getting out with a small amount of legal fees, they might be more willing to resist GW's attempts to shut them down. Even if GW knows they're going to lose, if they draw out the case, it will serve as an incentive to future defendants to settle early.

It might also mean that they can come back and sue CH again, hopefully without the benefit of pro-bono defense. Of course, I have no idea how this will affect the counter from CH's legal team.

Would a dismissal also negate CH's claim for legal fees?


Edit: spelling. I is smart.

agnosto wrote:It might also mean that they can come back and sure CH again, hopefully without the benefit of pro-bono defense. Of course, I have no idea how this will affect the counter from CH's legal team.

Only if the case is dismissed without prejudice, which is pretty darn unlikely at this point in the case.

agnosto wrote:Would a dismissal also negate CH's claim for legal fees?

Probably not. Might make it stronger.

Note that the judge could dismiss the entire case, including CH's claim for legal fees, but (more likely) he might only dismiss GW's claims and grant CH's claim for legal fees. IIRC, the claim was for a frivilous lawsuit, so a dismissal of the claim would tend to support CH's assertion that there was no factual basis for GW's complaint.

Kroothawk wrote:GW: "We accuse Chapterhouse!"
Judge: "Of what?"
GW: "If we told you, we would have to kill you."

Guess GW is so used to secrecy, they won't stop this habit in court

OH GAK ME SIDEWAYS!!! THIS IS HILLARIOUS! Theory:
GW used secrecy to design sculpts for their upcoming releases. Investigation determined that CH produced parts already, and likely at cheaper cost to customers. GW cannot produce any evidence in court because a.) it shows to public what they wanted to keep secret and b.) because the papertrail will make it look more like a copy of the CH stuff because it post-dates CH.

oh man, if that is true....

Kroothawk wrote:GW: "We accuse Chapterhouse!"
Judge: "Of what?"
GW: "If we told you, we would have to kill you."

Guess GW is so used to secrecy, they won't stop this habit in court

I think the reality sounds a lot sadder...

GW: "We accuse Chapterhouse!"
Judge: "Of what?"
GW: "Trust us, they know what they did."
CH: "No. We don't."
GW: "Come on... come on... you know."
CH: "Errr... no. No we don't."

I, personally, don't believe GW ever really had a case... but I think many companies have done better jobs of pursuing cases with even fewer merits; they aren't really helping themselves.

The lawyers running GW management despise their customers and call them geeks and sheep. They never expected and prepared themselves for sheep that defend themselves. Guess now they have to face the consequences of that arrogance.

GW has many times in the past used its money and slap suit tactics to bully potential / actual competitors around into doing what they wanted. Now it seems that the competition is up to defending themselves and that leads them into the murky toxic swamp of where did GW borrow or plagiarize their alleged IP's and model designs. I wonder if it will turn out similarly to what went down with White Wolf in their suit against the the makers of the Underworld movies where in they accused the film company of taking their story from VTM and a novel published by them. The Judge however ruled in favor of the film company in such a way that White Wolf was left in a position that it could not really defend any of their other same themed works. Thusly they stopped publishing those anymore and moved to a new area of IP's. If things go badly for GW's case the collateral damage to the rest of their product line / IP's could be catastrophic.

a motion to dismiss (for whatever reason the lawyer can pull out of his butt) is always the first part of every legal defense.

It comes right between the judge saying "What is your defense" and "Motion denied."

This one is going all 15 rounds.

Yes, but I think we've already come to that conclusion in the previous 33+ pages.

Additionally, this 'motion to dismiss' actually yielded some fairly interesting results, beyond any sort of rubber stamp legal equivalent to 'whatever - we're continuing!" response.

A lot of times attorneys are required by the rules of civil procedure to file motions and request specific rulings because they raise affirmative actions that are required for an appeal, or might want to be addressed again later in the case. Failure to take an affirmative action means you lose that right on an appeal or to raise the issue later. This is why you will almost always see motions for directed verdict, motions to exclude certain things, motions to dismiss, etc., early on in a case, even when they are somewhat specious; because failure to ask for certain things at certain points in a trial means you lose the right to ask for them later down the road in a potential appeal, or even later in the case.

I'm reading the joint status report now. It is very interesting and more than a little amusing. I don't have time to summarize its content today (at least not until this evening). The document and attached exhibits is available on Pacer and download of such should cost something in the neighborhood of 4 dollars if anyone is interested in accessing it directly.


Chapterhouse Product
Tactical Rhino Doors with Skulls Kit

Games Workshop
Games Workshop sells products decorated with piles of skulls

That is an example of Games Workshop's response to this interrogatory from Chapterhouse Studios:

"Identify each infringement of your copyrights for which you claim Chapterhouse is liable, by identifying (a) the copyright infringed; (b) the allegedly infringing product or products; (c) the exclusive right or rights of the copyright owner, as set forth in 17 U.S.C. Section 106, that you claim has been infringed; and (d) the specific conduct that constitutes the infringement."

I think Chapterhouse is right to argue that this is non-responsive.

I'll go into detail about the status report this evening or tomorrow.

Well, weeble, we're all waiting with bated breath.

Zakiriel wrote:....If things go badly for GW's case the collateral damage to the rest of their product line / IP's could be catastrophic.

Ok, White Wolf's case was pretty bad. Seriously. And you don't sue a film production studio that just put eighty million dollars into a movie and expect them not to defend themselves.

I doubt that that is a direction that this case will go. Rather, I think that GW will simply have to start allowing conversion kits to be produced openly by third parties.

Now, I honestly don't get a lot of the dubious legal claims on GW's website. For example, the statement that converted miniatures are a sever violation of their IP- but they're so benevolent that they'll let you do it anyway... yeah.

weeble1000 wrote:I'm reading the joint status report now. It is very interesting and more than a little amusing. I don't have time to summarize its content today (at least not until this evening).

We'll be waiting!

And, of course, thanks for doing this - the summarizes into Layman's English are greatly appreciated!

I'm looking forwards to a good assessment of the docs.

@KK: Congratulations on making the 1000th reply on this thread. Who would've thought it would have lasted 3+ months and 1000+ posts without being locked.

Back on topic:

@Weeble: Is that really how GW answered the interrogatory? I'm no legal expert, but even I can see that this response is so absurdly vague and generalized as to be meaningless. Could this be a case that the lawyers representing GW right now really do not have a particularly strong understanding of what it is that GW does?

Well, it's often been said that GW is all about the skulls...Thus they are claiming copyright on anything decorated with skulls

The jokes write themselves at this point...

I can't help myself. I guess I'll be missing dinner tonight. Back to the grindstone!

To bring us up to speed, GW filed its complaint and CHS submitted a motion to dismiss. The Court required GW to amend the complaint and GW filed the First Amended Complaint, adding 4 paragraphs to the original complaint. CHS made another motion to dismiss. The Court denied the motion but required GW to respond to early discovery aimed at clarifying its copyright infringement claims. Accordingly, CHS sent interrogatories to Games Workshop, which included:

"Identify each infringement of your copyrights for which you claim Chapterhouse is liable, by identifying (a) the copyright infringed; (b) the allegedly infringing product or products; (c) the exclusive right or rights of the copyright owner, as set forth in 17 U.S.C. Section 106, that you claim has been infringed; and (d) the specific conduct that constitutes the infringement."

Meanwhile, GW had sent interrogatories to CHS requesting information regarding all GW products in the possession, control, etc. of CHS. GW also requested discovery regarding any and all sources relied on, etc. by CHS to produce the accused products.

These interrogatories were objected to by CHS on grounds that they were overly burdensome, unduly vague, etc. GW submitted a motion to compel to the Court requesting that CHS answer the interrogatories that were properly directed to CHS affirmative defense of independent creation.

The status conference is intended find a way to move the case forward efficiently. i.e. how the heck is this case going to go forward when the claims are so broadly unspecific and the parties have heretofore be quite unable to amiably find a solution to this problem.

GW's position is that it wants CHS to respond to its interrogatories because CHS is making an affirmative defense of independent creation. GW argues that "Chapterhouse has not provided any specific sources that Games Workshop believes will confirm direct copying and which might bear on Defendant’s independent creation defense." (emphasis added) GW feels that the case cannot move forward until it receives responses from CHS.

CHS position is that it cannot, in all fairness and with respect to moving the case forward efficiently, respond to GW's interrogatories until CHS receives adequate responses its interrogatories from GW. CHS intends to file a motion to compel later this week in this regard.

CHS feels that many of the accused products are simply not similar to the allegedly infringed works, and therefore believes that summary judgement by the Court will be sufficient to effectively narrow the claims or eliminate the case in its entirety once the Court is able to compare the accused products with the allegedly infringed works. Responding to Plaintiff's discovery prior to this judgement would be inefficient and unduly burdensome because it would effectively be a waste of everyone's time and money to proceed with discovery on claims regarding accused products that bear no similarity to the allegedly infringed works.

"While Defendant anticipates that Plaintiff will argue it requires discovery regarding all of Defendant’s influences in creating its works, such discovery is irrelevant if Defendant’s products are not similar to the products Plaintiff claims are infringed."

CHS further does not contest access to GW's works, so discovery regarding GW's interrogatory No. 1 (what GW works CHS has had access to) is unnecessary at this time. Further, CHS argues that GW is using this status report to re-argue its motion to compel. Not only is this improper and not directed to the purpose of the status conference, but such information regarding GW's interrogatory No. 2 (what sources were relied on, etc.) is irrelevant to a defense motion on the grounds that CHS's works are not similar to GW's allegedly infringed works.

CHS argues that "independent creation" is an affirmative defense and therefore discovery related to it is irrelevant to the question of substantial similarity, which is the purpose of the CHS interrogatory and its current position in the case (that the Court should compare the accused works with the allegedly infringed works and render summary judgement). As an affirmative defense, it is only relevant after the Plaintiff has established a case, i.e. after there is an open question of substantial similarity.

"Independent creation," as an affirmative defense, rebuts the Plaintiff's inference of copying. It works like this: The Plaintiff says that Defendant's work is a copy of Plaintiff's work. Access is required in order to prove copying but copying can be inferred if Defendant's work is substantially similar to Plaintiff's work. In other words, if the two things are the same, you can infer that one is a copy of the other. Once this is established, the Defendant can rebut this inference by proving that it did not have access to Plaintiff's work, i.e. that what looks for all the world like a copy was in fact "independently created," which is perfectly legal under copyright law.

Therefore, CHS argues discovery related to "independent creation" is irrelevant prior to the Court finding that substantial similarity survives as an issue of fact.

"Here, given how dissimilar Defendant’s products are, Plaintiff cannot raise an inference of copying. If Defendant does not prevail on its forthcoming dispositive motion, it will agree to promptly further supplement its response to this interrogatory to identify any sources it intends to rely on for purposes of arguing independent creation. Plaintiff will not be prejudiced by this timing, and in light of the number of products at issue, it will save Defendant significant burden in responding if it turns out no response is necessary."

The idea is that it isn't worth the time and effort, on the part of the Court and the Defense, to proceed with potentially irrelevant discovery.

Now, my opinion about all of this is that GW has not budged from the position it first took in this case: that CHS is copying its Warhammer and Warhammer 40,000 fictional universes and that because these universes are so broad and are embodied in so many disparate works, only the Defendant knows what works it infringed. This lack of specificity and strategy of burden shifting has not, in my opinion, been well received by the Court. Chapterhouse's position is that the case can be easily narrowed or even eliminated if the Court simply looks at what is accused of infringement and compares it to what it is supposed to be a copy of. Right now, this is impossible because GW has at all points evaded providing this specificity and attempted to shift the burden onto the Defendant. The key here is that I believe the Court is also striving to get some clarity on these issues. Therefore, Chapterhouse's position is, I believe, consistent with the Court's position whereas Games Workshop's position is stubbornly adverse to what the Court wants it to do. Judge Kennelly seems to wants this case to be over quickly. I don't think he wants it fouling his docket. All discovery is supposed to be completed by October 11th this year! That's pretty darn fast, but it aint gonna happen if the parties continue to be stuck at the same impasse that has existed basically from day 1. I predict that this status conference will go poorly for Games Workshop.

GW really is shooting itself in its foot by not getting its act together on this one. It almst feels like the lawyers have better things to do thatn steep themselves in nerdism, or are trying to keep GW's uncharted seas covered up, which is an excercise in futility. Then again, they could also be trying to cover their own ass in case it should crop up that the vast majority of their own IP is heavilly borrowed from other places too and are seeking to avoid any potential legal action from those they borrowed from themselves???

The way this is going, I see the judge getting right hacked off, and awarding costs to CHS?

Thanks for the input Weeble and for translating the legalese for us. It's a bit odd for GW's counsel to be stubbornly averse to the court's wishes; I would think this would only hurt their case.

I don't understand all the legal jargon however the basic point seems to be that GW are still complaining that "All of your base are belong to us".

I should have thought that the defence to the Rhino door with skulls on is that anyone in the world can make an octagonal plate of dimensions XYZ and put skulls on it. In other words, the "original" work (GW's is of such unoriginality that it does not merit any copyright.

Have GW actually identified a Rhino door with skulls on as a copyrighted work that has been copied? Are they just sort of claiming that no-one except them is allowed to put skulls on anything?

Kilkrazy wrote:I don't understand all the legal jargon however the basic point seems to be that GW are still complaining that "All of your base are belong to us".

I should have thought that the defence to the Rhino door with skulls on is that anyone in the world can make an octagonal plate of dimensions XYZ and put skulls on it. In other words, the "original" work (GW's is of such unoriginality that it does not merit any copyright.

Have GW actually identified a Rhino door with skulls on as a copyrighted work that has been copied? Are they just sort of claiming that no-one except them is allowed to put skulls on anything?

Seems to be more the latter (bolded)

Basically if i've been following this right GW is claiming most everythign CH does is infringing on thier IP but are refusing to specify exactly what and how... instead they are looking liek 5 year lods calling CH a big fat cheaty face and saying "they know what they stole and need to tell on themselves because we won't".

and definatly a bgi thank you to weeble for giving us all this info and wording it where even a feeble minded civil servant like myself can understand /salute

Kilkrazy wrote:

Have GW actually identified a Rhino door with skulls on as a copyrighted work that has been copied? Are they just sort of claiming that no-one except them is allowed to put skulls on anything?

Well, one can assume that's what GW means. There has been no specific product alleged to have been infringed by the "Tactical Rhino Doors with Skulls Kit." If GW's response is taken at face value, it essentially means that Chapterhouse created the accused product by copying GW's "products decorated with piles of skulls." I bet we could start a thread where folks post pictures of every single GW product that is "decorated with piles of skulls" and the "Tactical Rhino Doors with Skulls Kit" would not be substantially similar to any of them.

Note that "products decorated with piles of skulls" does not specifically mention that the kit is a copy of the Rhino tank model, or any part of it. The same is not true for other CHS Rhino conversion kits accused of infringement. Some reference #79 which states: "A Rhino is a Space Marine vehicle used by the Space Wolves Chapter." #33 also says: "Rhinos, Land Raiders, Drop Pods, and Land Speeders are Space Marine vehicles." But #96 includes no such reference to the Rhino vehicle. Neither does #97 which lists the CHS product "Rhino Tank Conversion Kit for Iron Snakes." The Games Workshop column states: "The three components on the top row have Iron Snakes icons. See product 17." Product 17 makes no mention of the Rhino vehicle.

So GW isn't even consistent. One Rhino conversion kit is based on the GW Rhino Space Marine vehicle and another isn't.

Weeble, thank you so much for that breakdown. That was a seriously interesting read Please, for the sake of us little people keep up with the translations.

weeble1000 wrote:
So GW isn't even consistent. One Rhino conversion kit is based on the GW Rhino Space Marine vehicle and another isn't.

Would it even matter if they did reference GW's Rhino door for their conversion kit? They didn't literally make a copy of a GW part, or even make a very similar rip-off. It's a distinct part that GW does not make, even if it does fit in the same place as their own Rhino door. Isn't this the idea behind aftermarket parts in a wide range of other industries?

It wouldn't take much to find images of items that were decorated with skulls long before GW adopted the motif.

Now that is a cool hat.

Down with GW!! Down with GW!! Down with GW!!

Alright I gotta go, need to grab a few more boxes of marines.

PS: This lawsuit is a joke. GW is a bully picking a fight with a MAA fighter. They won't win this one, and the ruling will be used for anyone to make GW parts.

I cannot believe that GW is this stupid.

I always thought the GW were a bunch of bullies to cover up how shaky their legal position was, but this really seems to be beyond the pale.

We use piles of skulls in our work so you can't nah na na nah nah!

I hope that their laywers had their fees paid up front!

Weeble, I would like to add my thanks to all the others, and I hope your dinner wasn't too spoiled/burnt/cold.

Cheers

Andrew

G00fySmiley wrote: a big fat cheaty face

Precisely this. Says everything one ever needed to know about GW.

So GW contend that only CH can identify what they have "stolen"? Surely the only response needed to that is: If you can't show what they have stolen, how do you know it IS stolen?

Kilkrazy wrote:It wouldn't take much to find images of items that were decorated with skulls long before GW adopted the motif.

I guess GW will just have to fire up the ol' finecast flux capacitor so they can time travel and sue long gone societies like pre-Inca South American ones who used decorative skulls in their art. Obviously, they willfully infringed on GW's IP.

Even if GW wanted to cut the ancient pre-columbian civilizations some slack for using their completely original IP, there is no question that they came up with decorative skulls on armored tracked military vehicles, right?



Crap... nope, they didn't come up with that either.

So let me get this straight...

GW: "CHS copies our stuff!"
CHS: "What stuff?"
GW: "All of it!"
CHS: "How are we supposed to respond to this?"
Judge: "CHS is right, WHAT are they copying?"
GW: "All of it!"
CHS: "Judge?"
HW: "All right, all right. YOU tell us what you are copying, okay?"
CHS: "Are you serious? Our position is that we don't copy. That's why we are HERE!"
GW: "You have skulls! Also, tell us what you are copying! JUDGE!!"

^thanks for that. I needed a good laugh.

If I was to boil all of this down to the simplest statement possible, I might say that CHS is arguing that GW hasn't yet demonstrated a case.

I don't think there's any substantive question that the specific works alleged to be infringed have not yet been identified. Games Workshop says that the Defendant knows what works it infringed and Chapterhouse Studios says that it is the Plaintiff's responsibility to plead a colorable claim of infringement.

Given the untenable nature of this position, I had assumed Games Workshop would eventually move away from it. To some extent it has, although Chapterhouse is still arguing that nothing is really different. Its arguing, for example, that the Plaintiff's response to interrogatory No. 1 is non-responsive. And it is quite clear that nobody yet knows what specific works the accused products are accused of infringing.

We'll see what happens when Judge Kennelly rules on these motions. As for upcoming developments, look for Chapterhouse's motion to compel and the Court's ruling on both the Plaintiff's and the Defendant's motions to compel.

Hopefully we'll see Chapterhouse's motion upheld and then motions for summary judgement. Those should be very interesting, especially if we get a written opinion from Judge Kennelly.

So... wait a minute...

GW are suing CHS without saying what they are suing them for?

That makes TOTAL SENSE.
Well played GW. <comment redacted; some words are not to be used on Dakka as pejoratives --Janthkin>

Korraz wrote:So let me get this straight...

GW: "CHS copies our stuff!"
CHS: "What stuff?"
GW: "All of it!"
CHS: "How are we supposed to respond to this?"
Judge: "CHS is right, WHAT are they copying?"
GW: "All of it!"
CHS: "Judge?"
HW: "All right, all right. YOU tell us what you are copying, okay?"
CHS: "Are you serious? Our position is that we don't copy. That's why we are HERE!"
GW: "You have skulls! Also, tell us what you are copying! JUDGE!!"

Judge: "sigh.... " *facepalm* "FML"

Could GW make a legally sound argument that CHS is infringing copyright by making a product that both is intended to fit GW's models and is definitely in the GW style?
Because that's the only thing I can see them moving towards-it's a Rhino door, and GW makes stuff that looks like that.

weeble1000 wrote:

So GW isn't even consistent. One Rhino conversion kit is based on the GW Rhino Space Marine vehicle and another isn't.

Wait, so you're saying that GWs lawyers have been writing their rules?! Now it all makes sense!!!!

don, what I think is being said is that GW isn't being consistent even with their own lawyers.

Best of luck to them, I think they're going to need it! (The lawyers, and I hope they get their fees prepaid!)

Cheers

Andrew

Ordznik wrote:Could GW make a legally sound argument that CHS is infringing copyright by making a product that both is intended to fit GW's models and is definitely in the GW style?
Because that's the only thing I can see them moving towards-it's a Rhino door, and GW makes stuff that looks like that.

GW would have to define the GW style. The issue at the moment is the lack of definition of the copyrights that CH has allegedly violated.

GW need to make a specific claim so that CH can defend it.

Zakiriel wrote:GW has many times in the past used its money and slap suit tactics to bully potential / actual competitors around into doing what they wanted. Now it seems that the competition is up to defending themselves and that leads them into the murky toxic swamp of where did GW borrow or plagiarize their alleged IP's and model designs. I wonder if it will turn out similarly to what went down with White Wolf in their suit against the the makers of the Underworld movies where in they accused the film company of taking their story from VTM and a novel published by them. The Judge however ruled in favor of the film company in such a way that White Wolf was left in a position that it could not really defend any of their other same themed works. Thusly they stopped publishing those anymore and moved to a new area of IP's. If things go badly for GW's case the collateral damage to the rest of their product line / IP's could be catastrophic.

As much as I like to beat down on White Wolf for the decesion to drop the WoD for the nwod. The announcement that the WoD was coming to an end, and would be replaced by something else had already happened long before the whole White Wolf v's Underworld began.

Also the judge didn't rule anything, it was settled out of court. Rumour is White Wolf would have suffered if it had gone to the Judges call, but it didn't happen. No one really knows what the settlement is, but the fact neither side has made a big thing of it, I doubt White Wolf got what they wanted.

I personally have my own reasoning to why the WoD ended, and I think it has a lot more to do with Mark Rein-Hagen and royalties, than any other factor.

An out of court settlement normally involves a gagging clause on both parties. That is part of the point of it. Settlements in court are on the public record.

The other point about settling out of court is that no legal precedent is established.

KK, would it come to that though?

Lets face it, CHS hasn't exactly been reticent about their opinions on the matter, would they actually back down when they seem to have a good chance of beating GW?

Yes I can see GW wanting a settlement, but I think that the only way CHS would take a settlement is if they get some serious compensation either in licence to produce add-ons to kits or financial restitution. And lets also face it, if CHS continues to trade, we all know that they "won".

The stated aim of the GW court case was to smash CHS as a company and concept, their doggedness in clinging to the same mantra doesn't seem to allow them to back down, and a settlement is exactly that.

Precedent or not, a settlement is a tear in the paper tiger.

I would be inclined to anticipate a court decision rather than a settlement.

Cheers

Andrew

(I am not a lawyer.)

I do not think CH want to settle out of court. I think they and their lawyers want a clear legal decision in favour of CH.

I could see GW being very anxious to settle out of court, if things keep going badly for them. A tear in the paper tiger is not as bad as the whole mask being torn off.

An out of court settlement probably favored White Wolf, and probably consisted of something along the lines of "we'll give you the amount of money this would cost to beat you in court if you just leave us alone." Or something along those lines.

AndrewC wrote:KK, would it come to that though?
Lets face it, CHS hasn't exactly been reticent about their opinions on the matter, would they actually back down when they seem to have a good chance of beating GW?

Well, the problem there is that GW has left them no choice. In order to avoid a court case, CHS would have to cease production of everything it does and go out of business completely.

Especially with the Pro-Bono representation, CHS literally has nothing to lose by waiting for the judge's decision.

I don't think they should get a license to do what they've been doing. I don't think they need a license legally, though. But if they obtained one, then they'd have to stop when the license agreement ran out (because at that point, they've acknowledge that it is required for their business practices).

Yeah, granting a license would be a long term win for GW.

I agree odin, CHS has no choice but to continue with this and press every advantage they have. Weeble opined that the best outcome for GW is a settlement, but I really don't see CHS, or their lawyers, buying into that.

Because of the all or nothing approach by GW, I can also see CHS demanding such a high level concession from GW such as a 'life' licence so that

1, GW gets to try and protect its IP and
2, CHS has the licence to produce within (or without) reason, products marketed explicitly, which its competitors don't.

Which would GW take, loss of IP rights or being forced to licence without restriction to a third party firm with no end date?

Cheers

Andrew

Chapterhouse Studios should settle the case out of court. It is in its best interests to do so.

I would love to see this case go to trial, but Chapterhouse Studios would be best served by an amiable out of court settlement, assuming Games Workshop is willing to be reasonable in negotiations.

Taking this case through trial doesn't serve much purpose for Chapterhouse Studios, unless Games Workshop is completely unwilling to negotiate a reasonable settlement. I believe that Chapterhouse Studios wants to stay in business and be allowed to freely continue in that business for the foreseeable future. I'm willing to bet that Chapterhouse Studios also doesn't want any more grief from Games Workshop and doesn't want to sacrifice creative control over any future products.

All of this can theoretically be achieved in an out of court settlement. There's no rational reason for this case to go to trial. Games Workshop filed it irrationally and has stubbornly refused to budge from what is apparently a losing position. Chapterhouse Studios is defending itself, but if a fair and reasonable settlement can be negotiated, there's no rational reason for Chapterhouse Studios to waste good time and money going through the stress and hassle of an ultimately unpredictable jury trial.

I think Nick has already suffered enough from this screwed up situation. I don't think it is fair for Games Workshop to have abused Chapterhouse Studios and our legal system by filing this lawsuit and I'd like to see the company pay for that abuse, but I can't in good conscience say that it is the responsibility of Chapterhouse Studios to do it. This case should never have been filed in the first place and ultimately I think the best thing for Nick is to be rid of it so he can get on with his life.

The best thing our community can do for Chapterhouse Studios is to offer whatever support we can and hope for a good result for Nick. In terms of Games Workshop we can use this lawsuit as a wake up call to the kind of deplorable action Games Workshop is willing to perpetrate on its fans and customers. We can work to help out any other victim of Games Workshop's legal abuse, and we can communicate to the company that as a community we won't tolerate this kind of behavior. What we shouldn't be doing is sitting back and hoping that Nick does it all by himself.

That's just my personal opinion about this issue. Obviously, not everyone would agree with me, but I think those people that do believe there's something wrong with this situation should realize that the best way to do something about it is to get involved in any capacity, even if its just talking about the lawsuit. It sounds cheesy, but Chapterhouse Studios didn't bump into pro-bono representation by accident. I think we need to recognize our own agency in this situation because that is the best way to stop it from happening in the future, even if Chapterhouse Studios decides that settling out of court is in its best interests.

Kicker: what kind of jury is really going to be worked up about plastic toys?

And no, I dont think anything about license issue will be involved unless its in an out of court settlement. The claim is just about copy-right infringement and orders to cease and desist, so as romantic of a view we have that some sort of a license deal might be forced in court, the judge's only responsibility is to answer to the issue before him as written on paper, which doesn't have anything to do about allowing the defendant to carry on doing what they please while making them pay a lump sum and royalties to the plaintiff.

If GW doesn't fix its position, it stands to reason that CHS has a good chance in court, and while not necessarily in their own interest, as KK pointed out, tearing the face off the tiger is going to have wide-reaching impacts across the states. Since the british commonwealth more or less share the same precedent based system as with the states, this could see a surge of other daredevils rear their heads if CHS wins, and that could begin to spell: a.) the doom of GW, or b.) the smartening up of GW. I am looking at a 20 year timeline for this to happen if CHS wins...

...allow me to explain GW's problem with investment and how it treats consumers: I found out that when the molds for the necron monolith first popped up, GW stores globally were instructed to sell 10 each in the first year, in order for the molds to have paid for themselves. Factor in that they were already counting on web and FLGS sales too, and their goal is to see the molds pay themselves off in the first year. Problem? No long-term goals, everything is targeted for immediate payoff. In this case it looks like they want to do everything they can to shut down the "after-market" goods dealers for their lines of products so they can continue abusing their customer base.

Granted, I am raging at GW, but I still buy their stuff now and again. I can also see from their perspective with regard to others profiteering from their IP as well, but there are better ways of going about reclaiming that lost profit than what GW is doing here. I agree with OP over in the Letter to Mark Wells thread, that GW left themselves open by leaving holes in their product line for others to exploit. Just because a Casio and a Spare Parts watch look similar does not make one a ripoff of the other...

GW is in a tougher spot than most think though: after the bad rep over the past few years, how well does everyone think the public will respond to GW with a ruling in their favor? And then we will have a week and a half of threads popping up about people raging about GW beating on the little man if they reach an out of court settlement, and then a ruling in CHS' favor will stab holes in GW's IP ship in the states, which could have interesting ramifications on the prices of their product line, or their continuity in north america....

poda_t wrote:Kicker: what kind of jury is really going to be worked up about plastic toys?

This isn't a jury trial, surely? Its not a criminal case...

filbert wrote:

poda_t wrote:Kicker: what kind of jury is really going to be worked up about plastic toys?

This isn't a jury trial, surely? Its not a criminal case...

It's up to the Court (and IIRC, the Defendant/Plaintiff if either requests it) to decide. However, from what I understand(which isn't too much, mind), these types of cases tend to be Judge decisions unless it's larger companies involved(ie. Microsoft, Sony, Walmart, etc.).

In this matter, I don't see the Court itself requesting a jury. It seems to me doing so would be a waste of time and money, especially since everything points to the Judge wanting this over quickly.

filbert wrote:

poda_t wrote:Kicker: what kind of jury is really going to be worked up about plastic toys?

This isn't a jury trial, surely? Its not a criminal case...

US law not UK. Civil and Criminal cases can be handeld by Juries.

Edit: Ninja'd!

Same in canada, people are shocked and stunned when they realize that if they go to court they won't get a jury for a civil claim (incredibly rare to do so)...

It isn't likely that its going to jury at all, i was just commenting on Weebl's remark about going before a jury. It's not like either party wants to go before a jury because who are you going to populate it with? The goal is to get as many sympathisers to your cause on that jury, so what you end up with are pro and contra GW gamers, and yet both will likely be in favor of keeping a wider range of products available, so.... as far as i can tell, its not in GW's favor to get a jury, nor is it sensible for any party involved to do so.

Games Workshop has rights to a jury trial and has made that demand. If Judge Kennelly does not toss the case it will go before a jury.

My impression is that for a case like this to be a bench trial, both parties would have to agree to it as each has rights to a jury trial.

JURY DEMAND
Pursuant to Federal Rule of Civil Procedure 38(b), Plaintiff demands a trial by jury as to
all issues so triable in this action.

That's from the First Amended Complaint

(b) Demand.
On any issue triable of right by a jury, a party may demand a jury trial by:

(1) serving the other parties with a written demand — which may be included in a pleading — no later than 14 days after the last pleading directed to the issue is served; and

(2) filing the demand in accordance with Rule 5(d).

As to whether a jury demand was a good idea on Games Workshop's part, juries are by nature less predictable than judges but they also tend to be less discriminating. In a case where Games Workshop's claims are spurious at best, I don't think they'd want to be at the sole mercy of a Federal Court Judge. I'll also speculate that a jury demand is potentially more favorable in terms of the inevitable dispositive motions given that with issues as complicated and subjective as copyrights, it is easy for a Judge to simply pass the buck to the jury and stay away from ruling on copyright issues as a matter of law. I don't think Games Workshop was thinking that far though.

In terms of who you'll see on the jury, Chicago jurors tend to be fairly well educated. I doubt you'd find anyone that knows much about wargaming in the jury pool unless someone has a child that plays. Questions about wargaming would likely make it through into juror questionnaires and voir dire, and I'd expect that Foley and Lardner would be smart enough to strike anyone that knows anything abut wargaming. I don't think knowledge about wargaming would be good for Games Workshop. I also don't think that the jurors would be predisposed to give a crap about little plastic men, but jurors have an amazing ability to be serious about a case when they're sitting in the jury box. Courtrooms are designed to be intimidating and impressive for a reason, although I've never personally been in Judge Kennelly's courtroom.

What you'd likely see is jurors making decisions abut the issues based on broad themes and pre-conceived biases. In this case you've got a large, foreign corporation trying to put a small, American business owner out of business. It helps that Nick Villacci is a nice guy with a young daughter that works out of his garage, etc. etc. On Games Workshop's side you'd have intellectual property rights. Games Workshop is the Plaintiff, and you could expect that artists, photographers, musicians, small business owners, and the like would tend to favor a Plaintiff attempting to defend itself from someone copying its ideas. However, there's a wrench here because Chapterhouse Studios is also made up of creative, hard-working artists, and these artists have a decided underdog advantage. There's also the apparent pointlessness of the whole thing. There's functionally no damages and for most of the accused works, the customer has to purchase the Plaintiff's product to use it. Given that the jurors will likely not give two craps about plastic men, they very well might be disposed to wonder what all of the fuss is about and be upset at GW for bringing the case in the first place.

I personally think it would be easy to build a profile of a juror disposed to be adverse to Chapterhouse Studios and then strike them. I don't think you'd find a great many jurors predisposed to favor Games Workshop, so my guess is that the Defense would have an easier time getting a favorable jury. After that, its a matter of controlling the narrative. There's few opportunities to put a black hat on Chapterhouse Studios and too many ways to mitigate the damage. There is a wondrous variety of ways to put a black hat on Games Workshop simply from the facts as they exist now. discovery very well might produce some particularly damning thematic evidence, such as e-mails about destroying competition. Hell, Games Workshop's financial reports are enough to start coloring the company as a bunch of D-bags that want to dominate the industry. Fortress Wall? That would only play well with jurors that already thought Games Workshop was justified in defending its rights. It would likely really piss off any adverse jurors. And then there's always the possibility that Games Workshop will make big mistakes like denigrating the quality of the Chapterhouse Studios products. They might do the job of making GW look like a bully without help from the Defense.

As to the issues, Chapterhouse has a problem with the trademark and copyright claims. Jurors would tend to conflate the two and it would look bad for Chapterhouse. There's certainly ways to repair such damage and at the end of the day, I think the thematics strongly favor the Defense. The themes are frankly more important the the factual issues. I could find that I'm wrong after a little research, but I would be surprised if that's the case.

Games Workshop's current argument rests on the idea that the Chapterhouse Studios products fit within the context of Warhammer 40,000. The problem with that position is that the jurors will know basically nothing about the Warhammer 40,000 universe. So to them, a Rhino tank is just another tank like any other tank in the world. A combi-melta is a weird-looking space gun. They won't likely look at a Chapterhouse combi-melta and think, "oh, that's clearly a melta." It'll be a grey plastic space gun and a white metal space gun bit. They might look similar, but one will not look like a copy of the other. Then again, Games Workshop could spin this more favorably by saying that Chapterhouse used its trademarks. Like I said, that's the worst fact for Chapterhouse. But, it doesn't necessarily smack of a knock off because it is labeled "for use with X" and "for X players." This could look less like a knock off than a "Space Knight" that looks for all the world like a Space Marine.

I see, well thanks for the elucidation.

poda_t wrote:Same in canada, people are shocked and stunned when they realize that if they go to court they won't get a jury for a civil claim (incredibly rare to do so)...

It isn't likely that its going to jury at all, i was just commenting on Weebl's remark about going before a jury. It's not like either party wants to go before a jury because who are you going to populate it with? The goal is to get as many sympathisers to your cause on that jury, so what you end up with are pro and contra GW gamers, and yet both will likely be in favor of keeping a wider range of products available, so.... as far as i can tell, its not in GW's favor to get a jury, nor is it sensible for any party involved to do so.

Actually, it's probably MORE in favor of GW to go with a Jury(and it appears they have requested such). Here's why: Juries can be instructed all day on Copyright and IP laws and the like, the problem is them actually understanding it. With only a minimal understanding of the laws involved(many people may have a base working knowledge of criminal laws, but business law and the like is very niche for people not involved in it every day), for the jury it would probably come down to "Does this product(by CHS) look like it was made by GW? Would it be easy for Product A to confuse a consumer as Product B(by GW)?" more than just the merits of the arguments made by both side's lawyers. I have a feeling this is what Weeble was getting at when he said that it's in CHS best interests to settle.

weeble1000 wrote:Chapterhouse Studios should settle the case out of court. It is in its best interests to do so.

I would love to see this case go to trial, but Chapterhouse Studios would be best served by an amiable out of court settlement, assuming Games Workshop is willing to be reasonable in negotiations.

Taking this case through trial doesn't serve much purpose for Chapterhouse Studios, unless Games Workshop is completely unwilling to negotiate a reasonable settlement. I believe that Chapterhouse Studios wants to stay in business and be allowed to freely continue in that business for the foreseeable future. I'm willing to bet that Chapterhouse Studios also doesn't want any more grief from Games Workshop and doesn't want to sacrifice creative control over any future products.

Absolutely. You don't take "bet the company"-style cases to trial, unless you have no other choice.

As one of my more cynical colleagues once put it, "why would you put the future of your company in the hands of 12 people who weren't smart enough to get out of jury duty?"

It's called aftermarket. JC Whitney car catalog would be a prime example. They do not manufacture the car but they make parts that fit the car...fair use. GW will lose this case as the precedent has already been set. If they won the case then all of the manufacturers could sue the aftermarket manufacturers for infringing on their IP. It doesn't make sense there is no real need to argue than simply out of semantics. I mean since you ahve to buy the product from GW in order to USE the product that CH makes is simple free market economics in a shining example of fairness, one market subsists on and boosts the other. In many ways the free market unregulated is a cesspool of greed this is ONE OF THE FEW areas that shines. GW is greedy simply stated. They make their own aftermarket parts with FW so in essence that industry can have competition allowing places like CH to exist, even though they may not be officially licensed. Like MadCatz making controllers for the various video game consoles; they are not endorsed or supported by Microsoft, Sony, or Nintendo, but with fair use laws they are allowed to make things that work with the system. I've shot my wad on the subject. Carry on.

weeble1000, what do you think Chapter House should look for in an out of court settlement?

What I don't clearly understand is that it is legal to make parts for goods in other industries that clearly fit in the exact spot that they are supposed to. If CHS made a whole rhino that they called a rhino and looks similar to a rhino... ok now we have an issue, but in this case it is a door for a Rhino so I can't see that as being a clear copy. A jury I can imagine would see the shape of the door as an issue as they would be match in the place they can go in.

That said, their latest editions like the warlock bikers, farseer, etc... ok those are asking to get sued.

Seems an odd position for GW to take. They are claiming to have had their products copied, but not specifying what has been copied?

I have no legal background, but wouldn't it have made sense to establish this beforehand?

"We'll say they've copied our products."
"Which ones?"
"Oh, I don't know. We'll work something out."

I had assumed GW would be arguing that CHS are infringing their IP, by making products consistent with their universe and products, arguably a messier and more complex case to prove.

So maybe this is a longshot - "Well, if we can get them to slip up and admit to something, it'll make things a lot easier."

And if CHS have made a point of making components distinct from GW products, then the copying issue is key to their position.

Out of interest, in what way is this different from, for example, a company making printer cartridges for others' printers, or components for others' computers, or parts for their cars?

Edit: Ninja'd on the last question.

doctorludo wrote:
Out of interest, in what way is this different from, for example, a company making printer cartridges for others' printers, or components for others' computers, or parts for their cars?

it's not really... most thier kits still require a base GW model.

You hit the nail on the head with the car parts or print cartrages. in a free market economy competition breeds quality improvments and variety. As an example I am overhauling my truck atm it is a nissan frontier (1998 230,000 miles and still strong with no major problems just clutch needing replacment ... excellent truck). replacing the pilot bearing, clutch, pressure plate and throwout bearing. In the GW world they seem to think that since my truck CAME with a Nissan Clutch I can only replace it with a nissan clutch or perhaps a nismo (nissan's performance line) for the sake of this argument nismo would be forgeworld. Now nissan wants about $500 for the listed components from the factory, or about $800 for thier nismo performance kit. OR I buy a Beck and Arley a wellknown good maker of components and they are generally better than factory for $200 ... Now is Nissan (GW) really losing out as i had to buy thier truck to begin with to install my aftermarket clutch (CH)?

The "after market parts" comparison is one of the most interesting legal questions about the case.

On the one hand, yes - there are plenty of examples of legal after market/replacement parts for things like cars. (There are also numerous examples of makers that went too far, and ended up infringing, but leave those alone for now.)

On the other hand, GW's figures aren't cars - they are individual sculptures, which are subject to copyright. Modifying them by adding "after market" parts is creating a derivative work of the original sculpture, a right usually exclusively reserved to the copyright holder.

Printer cartridges, replacement mufflers, and the like tend to be functional elements - as copyright law isn't intended to protect the function of an item, some of the "after market parts" caselaw has evolved along the lines of "you can't prevent someone from repairing their car using copyright." GW's figures don't have functional elements. But they are mass-produced, in pieces, by a company with a long history of encouraging users to swap bits around and/or sculpt things themselves, which could be interpreted as an implied license to the purchaser to make their own derivative works.

No, there's plenty of interesting legal stuff to discuss in this case. But I doubt we're going to get that far - GW doesn't seem to want to make it past Summary Judgment, given their behavior during the early stages.

Janthkin wrote:As one of my more cynical colleagues once put it, "why would you put the future of your company in the hands of 12 people who weren't smart enough to get out of jury duty?"

As much as that is a sad comment on the state of our judicial system, it is hilarious. Seriously though, jury duty is a civil responsibility. People should serve if they can...says the trial consultant that will never be on a jury...

That's not my fault though. I'd just never make it through selection.

weeble1000 wrote:

Janthkin wrote:As one of my more cynical colleagues once put it, "why would you put the future of your company in the hands of 12 people who weren't smart enough to get out of jury duty?"

As much as that is a sad comment on the state of our judicial system, it is hilarious. Seriously though, jury duty is a civil responsibility. People should serve if they can...says the trial consultant that will never be on a jury...

That's not my fault though. I'd just never make it through selection.

I've never been called, but I have a built in excuse if so: I don't actually live in my state of residence due to being a military spouse.

As Homer said:

"Getting out of jury duty is easy. The trick is to say you're prejudiced against all races."

Thanks for that guys.

So, this is (for GW) more like sampling music and making your own tracks, or creating a book based on another writer's fictional universe without their permission?

I can see why they would want to avoid this going too far. I imagine a lot of people would capitalise on CHS's success if the judgment goes in their favour.

weeble1000 wrote:

Janthkin wrote:As one of my more cynical colleagues once put it, "why would you put the future of your company in the hands of 12 people who weren't smart enough to get out of jury duty?"

As much as that is a sad comment on the state of our judicial system, it is hilarious. Seriously though, jury duty is a civil responsibility. People should serve if they can...says the trial consultant that will never be on a jury...

That's not my fault though. I'd just never make it through selection.

This is actually one of the reasons why I tend to feel that a jury trial would favor CHS, at least in the current economic/financial environment. Juries are notoriously able to be swayed by emotional appeals better than by factual education. I don't think it would be very difficult for CHS' lawyers to paint the case as one of the big, multinational company using strong-arm tactics to destroy an American small business. I think that this would resonate with most potential American jurors more than a dry explanation of IP and Copyright law.

weeble1000 wrote:

Janthkin wrote:As one of my more cynical colleagues once put it, "why would you put the future of your company in the hands of 12 people who weren't smart enough to get out of jury duty?"

As much as that is a sad comment on the state of our judicial system, it is hilarious. Seriously though, jury duty is a civil responsibility. People should serve if they can...says the trial consultant that will never be on a jury...

That's not my fault though. I'd just never make it through selection.

I was excited to get summoned for jury duty earlier this year, but I was never even called to come into the courthouse, much less questioned to be part of a panel. I would have loved to serve. (As a patent attorney, I have a slightly higher chance of getting empaneled, though not much - who wants another attorney sitting there in the box, judging you on your opening/closing statements?)

It is covered under fair use and aftermarket/OEM laws. Chapter house couldn't make an entire Rhino and sell it as such. They could make doors for said rhino, or a hatch, etc... Similarly they cannot make any other copyrighted item including Tyranid, Eldar, Space Marine, Ork, etc. But they can make pieces that work with them.

A company cannot for example make a Toyota Prius, they can however make a fender, or Tire, muffler, spoiler, trim piece for a Prius. It all falls into this category. There are officially licensed Toyota parts and there are not, but they both can legally exist without infringement. This carries into anti-trust laws as well.

If a company makes a product another company can with or without the endorsement of the Original Equipment Manufacturer (OEM) make a part that in the second companies standard is of equal or better quality than the original they can. This may void the warranty or contract the buyer may have with the OEM but it is entirely up to the customer to make that decision. GW, legally going after Chapter House is in effect trying t prevent it's market from going to another company and is thus may violate certain anti-trust precedents. In the end this may have major ramifications to end-users by saying that in order to play in GW endorsed Tournaments you can only have officially licensed modelling components in your army, but this would be very difficult to enforce and could also have a possible negative effect on their customer base. GW is beating their chest at the moment but in the end CH and other aftermarket companies will win. And we will all move on.

Janthkin wrote:The "after market parts" comparison is one of the most interesting legal questions about the case.

On the one hand, yes - there are plenty of examples of legal after market/replacement parts for things like cars. (There are also numerous examples of makers that went too far, and ended up infringing, but leave those alone for now.)

On the other hand, GW's figures aren't cars - they are individual sculptures, which are subject to copyright. Modifying them by adding "after market" parts is creating a derivative work of the original sculpture, a right usually exclusively reserved to the copyright holder.

That being said, there are many, many after-market car part manufacturers who create items that are of solely cosmetic value and have little to no functional purpose. Body kits, designer rims, mud-flaps, steering wheel covers, car seat covers, etc. are all marketed specifically for the vehicle that they are designed to fit. They change the physical appearance of the vehicle without changing the function.

Kilkrazy wrote:weeble1000, what do you think Chapter House should look for in an out of court settlement?

I don't know. That's really up to Chapterhouse, although I hope good advice is coming from Winston and Strawn. Personally, I would be happy with a licence to all current products and an assurance of global peace. I wouldn't want to get sued by GW again. Those terms would likely be unacceptable to Games Workshop, so there would need to be a way to work it out. But at the end of the day, if I owned Chapterhouse, I'd simply want assurance that GW would leave me and my company alone, however that was negotiated.

But I'm not Nick. I haven't built the company up from nothing and I don't know what his plans are for the future of Chapterhouse Studios. I don't doubt that settlement negotiations will be heated. But I think the last thing he wants is for GW to come back and sue him again or for GW to have control over what he sells.

In seeing some responses to the "aftermarket" dilemma, I agree their are certainly differences. We may see some precedents set in this case.

But all in all these companies exist for and because of one another. And they will be better off co-existing.

Well, this is all very interesting.... IT makes me wonder though if GW will tolerate companies like Blue Table Painting, who take their and other products, mix-match etc (I recall them distinctly going on for two weeks about WHFB Elves, and the tree-men or whatever were distinctly and clearly not GW line, and even said so). Technically they are profiteering off GW product, using GW IP, Parts with non-GW parts and their own personal sculpting skills, when painting and completing the models to whatever standard from GW, or creating their own derivative.

Makes me wonder about the intent of their price increases: if the models cost more, so does converting them, and that drives the cost up for any organizations geared toward selling painted and assembled GW product. I suppose that in turn stifles that company's development in creating its own line of war game.

weeble1000 wrote:

Janthkin wrote:As one of my more cynical colleagues once put it, "why would you put the future of your company in the hands of 12 people who weren't smart enough to get out of jury duty?"

As much as that is a sad comment on the state of our judicial system, it is hilarious. Seriously though, jury duty is a civil responsibility. People should serve if they can...says the trial consultant that will never be on a jury...

That's not my fault though. I'd just never make it through selection.

yea to be fair though most of my experience of being called for jury duty the people who make it through are the ones A) not trying to get out of it and B) the dumbest people there... I got cut on 2nd selection the 1st time i got called. they got rid of everybody who had a degree for step 1 and 2 anybody in college (me at the time). second time they didn't ask specifically about education but jobs. I was doign apt maintnance at the time and i almost made it to the final group when they decided to get rid of all the married people /shrug (they never asked, just everybody wearing a ring on thier left hand was released). I agree it is a civic duty to show for jury duty, but I do think the system kinda tries to make sure the people chosen are as mentally malliable as possible (at least from my experience and what i've heard)

Gents,

I never suggested that a licence would be awarded at a trial, but it could be one result that CHS could demand as a settlement.

It's perfectly true that neither party should seek a jury trial, as at that point, neither is in control of their destiny, in gamers parlance, roll for it.

But in this case GW has a greater height to fall, what 'payment' to CHS would they be prepared to make to ensure that they don't fall? That's why I suggested that CHS could demand an unconditional licence, GW has to look the other way for CHS but still has some control over their IP against other manufacturers. Could that be their worst case scenario?

But looking at their track records, despite urging by the court to be specific, sticking to a motion that the court is visibly antagonistic to;

Judge;"GW must be specific in their claims!"
GW;"Well, maybe, perhaps...."

They haven't, really, made their job any easier. From what Weeble has provided, although suing Paulson, he appears to have taken a backseat and is now just a bystander in this.

But I have to say, looking forward to any developments.

Cheers

Andrew

AndrewC wrote:
It's perfectly true that neither party should seek a jury trial, as at that point, neither is in control of their destiny, in gamers parlance, roll for it.

So, then wouldn't GW want that since that's their recommended and default way to resolve rules disputes?

Groan!

Maybe Chapterhouse should suggest that in mediation.

"Look, if we can't resolve this dispute we clearly just need to roll off. Let's say Games Workshop gives up rights to all claimed copyrights on a 4+ and Chapterhouse closes up shop on a 1, 2, or 3."

Because this disagreement is much more official than a 'friendly game,' one could say that the parties are doing the right thing in calling over a Judge to resolve the dispute. This is essentially what both parties have done with their motions to compel.

Unfortunately for GW, this isn't an official GW event and it will have to abide by the local rules.

I doubt GW will do that. I think if GW's attorneys have been so willing to allow GW to continue to push on such vague details, they're going to let GW say to fight it out till they win.

Janthkin wrote:The "after market parts" comparison is one of the most interesting legal questions about the case.

On the one hand, yes - there are plenty of examples of legal after market/replacement parts for things like cars. (There are also numerous examples of makers that went too far, and ended up infringing, but leave those alone for now.)

On the other hand, GW's figures aren't cars - they are individual sculptures, which are subject to copyright. Modifying them by adding "after market" parts is creating a derivative work of the original sculpture, a right usually exclusively reserved to the copyright holder....

The hole in that rational is this... first one could argue the artistic work put into designing the body style in the form of the clay or digital model is in fact a copyright work... but the law actually accounts for this, distinguishing artistic works from produced art by specifically defining "artistic works", most significantly as being limited in the number of reproduced instances. Both car and miniatures are covered by copyright but not for their physical form, in the same way as "artistic work." Artistic works have their physical form protected; production pieces the copyright protects the conceptual interpretations. A space marine miniature isn't protected because it looks like a space marine, but because it represents GW's interpretation of the concept of a space marine.

aka_mythos wrote:
On the other hand, GW's figures aren't cars - they are individual sculptures, which are subject to copyright. Modifying them by adding "after market" parts is creating a derivative work of the original sculpture, a right usually exclusively reserved to the copyright holder....

The hole in that rational is this... first one could argue the artistic work put into designing the body style in the form of the clay or digital model is in fact a copyright work... but the law actually accounts for this, distinguishing artistic works from produced art by specifically defining "artistic works", most significantly as being limited in the number of reproduced instances. Both car and miniatures are covered by copyright but not for their physical form, in the same way as "artistic work." Artistic works have their physical form protected; production pieces the copyright protects the conceptual interpretations. A space marine miniature isn't protected because it looks like a space marine, but because it represents GW's interpretation of the concept of a space marine.

"Both car and miniatures are covered by copyright but not for their physical form, in the same way as "artistic work." Artistic works have their physical form protected; production pieces the copyright protects the conceptual interpretations. A space marine miniature isn't protected because it looks like a space marine, but because it represents GW's interpretation of the concept of a space marine."

I don't quite understand the distinction you're making. Are you getting this from the copyright code or the case law?

I'm not sure this distinction is necessary. As far as I understand, there's nothing that limits a work of art to a set number of "reproduced instances."

Copyright only ever protects a work of art fixed in a tangible medium of expression.

(a) Copyright protection subsists, in accordance with this title, in original works of authorship fixed in any tangible medium of expression, now known or later developed, from which they can be perceived, reproduced, or otherwise communicated, either directly or with the aid of a machine or device.

Once the expression is fixed in a tangible medium, copyright protection exists (assuming the work is protectable). Copyright is inherent. There's no longer a registration requirement. In fact, an author has to take specific steps to "abandon" a copyright.

So, yes, copyright always and only ever protects the -tangible- expression, i.e. the "physical form" as you've called it. Copyright almost never extends beyond this. The highly contentious character copyrights are the only example I can think of that goes beyond tangible expression.

Copyright gives the author of a work the following exclusive rights:

Subject to sections 107 through 122, the owner of copyright under this title has the exclusive rights to do and to authorize any of the following:
(1) to reproduce the copyrighted work in copies or phonorecords;
(2) to prepare derivative works based upon the copyrighted work;
(3) to distribute copies or phonorecords of the copyrighted work to the public by sale or other transfer of ownership, or by rental, lease, or lending;
(4) in the case of literary, musical, dramatic, and choreographic works, pantomimes, and motion pictures and other audiovisual works, to perform the copyrighted work publicly;
(5) in the case of literary, musical, dramatic, and choreographic works, pantomimes, and pictorial, graphic, or sculptural works, including the individual images of a motion picture or other audiovisual work, to display the copyrighted work publicly; and
(6) in the case of sound recordings, to perform the copyrighted work publicly by means of a digital audio transmission.

Now, Janthkin wrote: "On the other hand, GW's figures aren't cars - they are individual sculptures, which are subject to copyright. Modifying them by adding "after market" parts is creating a derivative work of the original sculpture, a right usually exclusively reserved to the copyright holder...."

Here Janthkin is entirely correct, as you can see from the above section of the copyright code 106(2). Modifying a GW model by using an aftermerket accessory would create a derivative work. This, however, is not a problem for Chapterhouse Studios or the selling of aftermarket accessories.

The only way that this could cause the seller of an aftermarket accessory to infringe would be through inducement, i.e. the seller does not infringe, but induces the customer to do so by providing an aftermarket accessory and identifying its use. However, the owner of a legally purchased copy of a copyrighted work is freely able to use such work, modify it, display it, and even sell it. So, the simple act of a customer using an aftermarket accessory for its intended purpose would not be an act of infringement, therefore, the seller could in no way induce infringement simply through the sale of the product.

Now, if the customer modified the legally purchased model with an aftermarket accessory, made copies of it, and distributed those copies, that would constitute infringement because the modified model would be derivative of both any copyright inherent in the original model as well as any copyright inherent in the aftermarket accessory. This is because a derivative work is a -separate- copyright apart from the original work, but it is a copyright that is also owned by the author of the original work. So, making copies of it and distributing those copies would be infringing the -new- copyright inherent in the derivative work.

However, to reiterate, there would be no infringement until the customer makes and distributes copies of the modified work. Any customer is freely able to personally use, modify, display, and even sell a legally purchased copy of a protected work. The seller of an aftermarket accessory cannot be considered liable for any infringing actions of its customers that is quite beyond the intended or directed purpose of the product.

I gotta say, knowing next to nothing about law aside what I've seen on Law & Order ect, it's really interesting to read the conversations in this thread amongst the law types, especially Weeble.

Personaly I think it's about time Games Workshop use the carrot rather than the stick, license out their intellectual property to independent producers, and actively try to support their aftermarket industry.

As it it now,
Customer buys GW product: GW get money, customer buys aftermarket parts: GW gets no money. GW spends a lot of money on IP infringement lawsuits.

If they selectively licensed out their IP,
Customer buys GW product: GW get money, customer buys licensed aftermarket parts: GW gets a cut of that money too. Everyone is happy.

As long as direct copies of GW / FW stuff are a no-no, and the licenses are for aftermarket parts, not the figures/kits themselves, I can't see a downside other than a slightly increased cost of the aftermarket parts. It would generate otherwise inaccessible cash for GW, make things easier for indies, and arguably be good PR and generate some goodwill towards the company.

poda_t wrote:...allow me to explain GW's problem with investment and how it treats consumers: I found out that when the molds for the necron monolith first popped up, GW stores globally were instructed to sell 10 each in the first year, in order for the molds to have paid for themselves. Factor in that they were already counting on web and FLGS sales too, and their goal is to see the molds pay themselves off in the first year. Problem? No long-term goals, everything is targeted for immediate payoff. In this case it looks like they want to do everything they can to shut down the "after-market" goods dealers for their lines of products so they can continue abusing their customer base.

A 1-year payback period is not short-termist thinking given the nature of GW's business.

I happen to agree with your views on how they treat customers and that they think short-term, but your premise is wrong in this instance.

What I would like to see happen is GW come to some arrangement that allows CHS (and others) to produce accessories that are too "niche" like decals for lesser Chapters and conversion kits for things GW won't do. I personally don't want to see them producing stuff in the main range itself.

I see your logic, however I think it is unlikely because plenty of companies are already making add-ons or alternatives for GW without any problems.

See Scibor, BitsPudlo and others.

The main reason Chapter House were attacked seems to be because they used GW names on their web site.

Kilkrazy wrote:I see your logic, however I think it is unlikely because plenty of companies are already making add-ons or alternatives for GW without any problems.

See Scibor, BitsPudlo and others.

The main reason Chapter House were attacked seems to be because they used GW names on their web site.

The country in which those companies operate may well have had an impact as well. Some countries are more friendly to these types of cases than others... I'd love, for instance, to see GW try to file a case like this against some of the folks in Russia or China who make "GW-inspired" models. Don't know about Poland, Spain, or where ever else, the different aftermarket bits companies are based, but I'm willing to bet GW would likely feel a lot better about their odds filing in the US.

Valete,

JohnS

Daedricbob wrote:Personaly I think it's about time Games Workshop use the carrot rather than the stick, license out their intellectual property to independent producers, and actively try to support their aftermarket industry.

As it it now,
Customer buys GW product: GW get money, customer buys aftermarket parts: GW gets no money. GW spends a lot of money on IP infringement lawsuits.

If they selectively licensed out their IP,
Customer buys GW product: GW get money, customer buys licensed aftermarket parts: GW gets a cut of that money too. Everyone is happy.

As long as direct copies of GW / FW stuff are a no-no, and the licenses are for aftermarket parts, not the figures/kits themselves, I can't see a downside other than a slightly increased cost of the aftermarket parts. It would generate otherwise inaccessible cash for GW, make things easier for indies, and arguably be good PR and generate some goodwill towards the company.

The trouble with that is the Damnatus effect.

GW have a policy that sharing any amount of their IP is unthinkable, consequently they do not think.

weeble1000 wrote:...I don't quite understand the distinction you're making...

It wasn't so much a distinction I was trying to make as much as it was to say that a car's aesthetic design has just as much protection as GW's sculpture. We colloquially consider it a sculpture, but the government would likely consider both models.
As to what I was referring to you can see on the US Copyright Offices website...

US GOV wrote:
A “work of visual art” is —

(1) a painting, drawing, print or sculpture, existing in a single copy, in a limited edition of 200 copies or fewer that are signed and consecutively numbered by the author, or, in the case of a sculpture, in multiple cast, carved, or fabricated sculptures of 200 or fewer that are consecutively numbered by the author and bear the signature or other identifying mark of the author; or...
...
A work of visual art does not include —
(A)(i) any poster, map, globe, chart, technical drawing, diagram, model, applied art, motion picture or other audiovisual work, book, magazine, newspaper, periodical, data base, electronic information service, electronic publication, or similar publication;
(ii) any merchandising item or advertising, promotional, descriptive, covering, or packaging material or container;
(iii) any portion or part of any item described in clause (i) or (ii);
(B) any work made for hire; or
(C) any work not subject to copyright protection under this title.25

This is from the he Visual Artists Rights Act of 1990, which makes the distinction between "art" and the creative works done to support a production.

Here's an interesting question. If the case for copyright infringement fails, can they turn around and then sue for trademark infringement?

An example of "Art".

skyth wrote:Here's an interesting question. If the case for copyright infringement fails, can they turn around and then sue for trademark infringement?

I'm pretty sure they've already included that in their original filing for the lawsuit.

aka_mythos wrote:

weeble1000 wrote:...I don't quite understand the distinction you're making...

It wasn't so much a distinction I was trying to make as much as it was to say that a car's aesthetic design has just as much protection as GW's sculpture. We colloquially consider it a sculpture, but the government would likely consider both models.
As to what I was referring to you can see on the US Copyright Offices website...

US GOV wrote:
A “work of visual art” is —

(1) a painting, drawing, print or sculpture, existing in a single copy, in a limited edition of 200 copies or fewer that are signed and consecutively numbered by the author, or, in the case of a sculpture, in multiple cast, carved, or fabricated sculptures of 200 or fewer that are consecutively numbered by the author and bear the signature or other identifying mark of the author; or...
...
A work of visual art does not include —
(A)(i) any poster, map, globe, chart, technical drawing, diagram, model, applied art, motion picture or other audiovisual work, book, magazine, newspaper, periodical, data base, electronic information service, electronic publication, or similar publication;
(ii) any merchandising item or advertising, promotional, descriptive, covering, or packaging material or container;
(iii) any portion or part of any item described in clause (i) or (ii);
(B) any work made for hire; or
(C) any work not subject to copyright protection under this title.25

This is from the he Visual Artists Rights Act of 1990, which makes the distinction between "art" and the creative works done to support a production.

Thanks for that mythos. I will, however, direct your attention to "pictorial, graphic, and sculptural works"

"'Pictorial, graphic, and sculptural works' include two-dimensional and three-dimensional works of fine, graphic, and applied art, photographs, prints and art reproductions, maps, globes, charts, diagrams, models, and technical drawings, including architectural plans. Such works shall include works of artistic craftsmanship insofar as their form but not their mechanical or utilitarian aspects are concerned; the design of a useful article, as defined in this section, shall be considered a pictorial, graphic, or sculptural work only if, and only to the extent that, such design incorporates pictorial, graphic, or sculptural features that can be identified separately from, and are capable of existing independently of, the utilitarian aspects of the article."

It had seemed to me that you were saying that a work of art was not protectable if it was copied more than a set number of times. That's why I was confused. I appreciate the quote you supplied. I think we both agree that copyright extends beyond "works of visual art." So while the works at issue in this case are properly not considered to be "works of visual art" they are indeed potentially protectable as "pictorial, graphic, and sculptural works." Indeed, I believe the complaint refers to the accused products as "sculptural works."

But as we can see from the above quoted definition, functional elements are not protectable. These works are considered protectable works if, "such design incorporates pictorial, graphic, or sculptural features that can be identified separately from, and are capable of existing independently of, the utilitarian aspects of the article." That's basic copyright code and I've discussed functional elements previously.

I will add that regardless of whether a work is a "work of visual art," a "pictorial, graphic, [or] sculptural work," or indeed a motion picture or sound recording, the author of such work has the exclusive right to prepare derivative works. So, Janthkin's point is still relevant. Even so, as I mentioned previously, I don't believe the act of a customer using an aftermarket accessory for its intended purpose would induce infringement.

Now, one could theoretically argue that Games Workshop's models are entirely functional given their intended use in a game and the strict requirements of WYSIWYG. The 'aesthetic' of a melta weapon, for example, could be considered functional in the sense that its visual appearance serves the utilitarian purpose of making the rules associated with the wargear readily identifiable on the table top. Even though Games Workshop stresses that models can and should be modified by the customer it also has rather strict language concerning WYSIWYG. Models are even supposed to be used with the bases supplied in the kit.

weeble1000 wrote:I will, however, direct your attention to "pictorial, graphic, and sculptural works"
...
It had seemed to me that you were saying that a work of art was not protectable if it was copied more than a set number of times. That's why I was confused. I appreciate the quote you supplied. I think we both agree that copyright extends beyond "works of visual art." So while the works at issue in this case are properly not considered to be "works of visual art" they are indeed potentially protectable as "pictorial, graphic, and sculptural works." Indeed, I believe the complaint refers to the accused products as "sculptural works."

But as we can see from the above quoted definition, functional elements are not protectable. These works are considered protectable works if, "such design incorporates pictorial, graphic, or sculptural features that can be identified separately from, and are capable of existing independently of, the utilitarian aspects of the article." That's basic copyright code and I've discussed functional elements previously.

I will add that regardless of whether a work is a "work of visual art," a "pictorial, graphic, [or] sculptural work," or indeed a motion picture or sound recording, the author of such work has the exclusive right to prepare derivative works. So, Janthkin's point is still relevant. Even so, as I mentioned previously, I don't believe the act of a customer using an aftermarket accessory for its intended purpose would induce infringement.

Now, one could theoretically argue that Games Workshop's models are entirely functional given their intended use in a game and the strict requirements of WYSIWYG. The 'aesthetic' of a melta weapon, for example, could be considered functional in the sense that its visual appearance serves the utilitarian purpose of making the rules associated with the wargear readily identifiable on the table top. Even though Games Workshop stresses that models can and should be modified by the customer it also has rather strict language concerning WYSIWYG. Models are even supposed to be used with the bases supplied in the kit.

Ok... while it seem that I was speaking to the contrary... I did mean its protectable, just not for the specific reason of being "art." My small point of contention with Janthkin post was "GW's figures aren't cars - they are individual sculptures"... I took this as an attempt to make the distinction that we are buying something more artistic, a some how purer artistic work, and some how more protected. Both are protected for the same reason... they are the result of a sculptor, but the elevation of one over the other doesn't exist in the way Janthkin portrays it. You can make an argument that cars have a stronger utilitarian purpose, but when you separate the utilitarian aspect all you're left with is the body style of the vehicle and that is really on the same level as anything GW might do.

The induced infringement, is one of the biggest things I've thought puts GW on shaky ground. For 25 years, they endorsed strongly the idea of using their models to create our own unique works and interpretations... and sold kits on the sentiment, so its a strong reversal to say it isn't allowed.

I think you have a good point though, about the strong utilitarian aspect... to take that argument further, even the miniatures appearance aren't they merely for the sake of distinguishing pieces, in the same way chess pieces are?

weeble1000 wrote:The only way that this could cause the seller of an aftermarket accessory to infringe would be through inducement, i.e. the seller does not infringe, but induces the customer to do so by providing an aftermarket accessory and identifying its use. However, the owner of a legally purchased copy of a copyrighted work is freely able to use such work, modify it, display it, and even sell it. So, the simple act of a customer using an aftermarket accessory for its intended purpose would not be an act of infringement, therefore, the seller could in no way induce infringement simply through the sale of the product.

I'll readily grant you use, display, and resale; but where do you find a purchaser's right to modify a copyrighted work? (That was, for example, CleanFlicks' model - buy a copy of an unedited movie, edit it, and resell the edited version.) I don't think there's any question that if I take a CH "Spawning Alien" conversion kit, and apply it to a GW Carnifex kit, that I have prepared a derivative work, and preparation of derivative works is a right of the copyright holder (not just distribution of derivative works, as your post seems to imply). (It's a separate question, as to whether or not GW has already given me permission to make such a modification.)

aka_mythos wrote:Ok... while it seem that I was speaking to the contrary... I did mean its protectable, just not for the specific reason of being "art." My small point of contention with Janthkin post was "GW's figures aren't cars - they are individual sculptures"... I took this as an attempt to make the distinction that we are buying something more artistic, a some how purer artistic work, and some how more protected. Both are protected for the same reason... they are the result of a sculptor, but the elevation of one over the other doesn't exist in the way Janthkin portrays it.

Ah; there's a disconnect there. I was just separating out cars (with their many functional elements) from GW's products (which are without functional elements), as that's one of the places that the aftermarket comparison between industries starts to break down - it's not that GW miniatures are a "purer artistic work," it's that you can't use copyright to protect the shape of a printer cartridge, or a distributor cap. The shape of the car body itself is certainly more analogous, and has led to some interesting litigation & attempts at legislation over the years (although the more aerodynamic the car, the less protectable it's going to be under copyright - if function dictates form, than we're no longer talking about non-functional elements).

I think you have a good point though, about the strong utilitarian aspect... to take that argument further, even the miniatures appearance aren't they merely for the sake of distinguishing pieces, in the same way chess pieces are?

I think this argument's probably a non-starter: that chess pieces ARE distinguishable is the only utilitarian aspect; what shape they have, beyond distinguishing between pawns, rooks, etc., is certainly in the realm of copyright.

To play devil's advocate, paperhammer has pointed out that the aesthetics Gamesworkshop has developed are not necessary for one to play the game. Only the ability to distinguish each piece from another, as in the chess analogy.

Orlanth wrote:

Daedricbob wrote:Personaly I think it's about time Games Workshop use the carrot rather than the stick, license out their intellectual property to independent producers, and actively try to support their aftermarket industry.

As it it now,
Customer buys GW product: GW get money, customer buys aftermarket parts: GW gets no money. GW spends a lot of money on IP infringement lawsuits.

If they selectively licensed out their IP,
Customer buys GW product: GW get money, customer buys licensed aftermarket parts: GW gets a cut of that money too. Everyone is happy.

As long as direct copies of GW / FW stuff are a no-no, and the licenses are for aftermarket parts, not the figures/kits themselves, I can't see a downside other than a slightly increased cost of the aftermarket parts. It would generate otherwise inaccessible cash for GW, make things easier for indies, and arguably be good PR and generate some goodwill towards the company.

The trouble with that is the Damnatus effect.

GW have a policy that sharing any amount of their IP is unthinkable, consequently they do not think.

Thing is, Damnatus was a different kind of Banhammer. If I remember correctly, it was to do with German IP law, in that if the movie was released, then the rights belong inalienably to the film makers, and GW, to some extent, lose said rights. And indeed, said rights are non-transferable. This was only discovered late on in it's production, and I seem to recall the film makers confirming such. Plus the Damnatus guys actually asked if it was cool in the first place. Chapterhouse however do not appear to have sought any such permission. At least not to my knowledge.

Janthkin wrote:I think this argument's probably a non-starter: that chess pieces ARE distinguishable is the only utilitarian aspect; what shape they have, beyond distinguishing between pawns, rooks, etc., is certainly in the realm of copyright.

So you're saying that merely the fact that there is a consistent way to distinguish between pieces is utilitarian but the form that makes this distinction possible is not. I see your point. So you would say that the particular shape of a melta weapon can be "identified separately from, and [is] capable of existing independently of, the utilitarian aspects of the article," the utilitarian aspect being visual identification as a melta weapon? Going back to the rules, then, one could use any system of visual representation to identify a melta weapon, plasma weapon, power armor, etc.

As to your point about derivative works, I also see what you mean there. It is the exclusive right of the copyright holder to prepare derivative works.

I will agree with you that using an aftermarket accessory to modify a model would technically constitute preparing a derivative work, but I think any such use would fall within fair use, and thus not infringe. It would not constitute nonprofit educational use, it wouldn't be use of a very limited portion of the copyrighted work, but I think it would have little, if any, negative effect on the potential market value of the copyrighted work. It would in effect add value to the copyrighted work by expanding the scope of its usefulness to customers.

As to what effect this would have an an inducement argument, I'm not sure. I'm pretty sure that an argument for induced infringement must first prove an infringing act, so I expect fair use would still be an affirmative defense to such an argument of induced infringement. There's probably some case law related to this as there are certainly aftermarket accessories designed for aesthetic purposes only. I do think you are right about this case being an interesting example, however, because the asserted works (or what we can guess will eventually be identified as the asserted works) are much more "artistic" than, say, a car or other machine. By this I only mean that in any machine there are many parts that are incontestably functional whereas in this case, little if any of the likely-will-be-asserted works is clearly and incontestably functional. Indeed, Games Workshop also advertises itself as a model-making company and not a game company.

I wonder if there's any case law related to model cars. This question has been brought up before, but I haven't seen anything yet. I suspect, though, that most model companies acquire a license before making a model of a vehicle.

weeble1000 wrote:

Janthkin wrote:I think this argument's probably a non-starter: that chess pieces ARE distinguishable is the only utilitarian aspect; what shape they have, beyond distinguishing between pawns, rooks, etc., is certainly in the realm of copyright.

So you're saying that merely the fact that there is a consistent way to distinguish between pieces is utilitarian but the form that makes this distinction possible is not. I see your point. So you would say that the particular shape of a melta weapon can be "identified separately from, and [is] capable of existing independently of, the utilitarian aspects of the article," the utilitarian aspect being visual identification as a melta weapon? Going back to the rules, then, one could use any system of visual representation to identify a melta weapon, plasma weapon, power armor, etc.

Pretty much. And given that (in spite of GW's obvious preferences) there is no actual requirement to use their miniatures to use the ruleset, nor any requirement that if you buy the miniatures, you must then play the game, I don't think function/utility will stretch far enough to make a meltagun a "functional" element.

(I am curious what the patent office would do, if you submitted a design patent on the gun a particular toy soldier is carrying. Design patents are supposed to cover the non-functional or ornamental aspects of a functional device, e.g., the Coke bottle. I'll have to go digging & see if I can find design patents on game pieces.)

I will agree with you that using an aftermarket accessory to modify a model would technically constitute preparing a derivative work, but I think any such use would fall within fair use, and thus not infringe. It would not constitute nonprofit educational use, it wouldn't be use of a very limited portion of the copyrighted work, but I think it would have little, if any, negative effect on the potential market value of the copyrighted work. It would in effect add value to the copyrighted work by expanding the scope of its usefulness to customers.

As to what effect this would have an an inducement argument, I'm not sure. I'm pretty sure that an argument for induced infringement must first prove an infringing act, so I expect fair use would still be an affirmative defense to such an argument of induced infringement. There's probably some case law related to this as there are certainly aftermarket accessories designed for aesthetic purposes only. I do think you are right about this case being an interesting example, however, because the asserted works (or what we can guess will eventually be identified as the asserted works) are much more "artistic" than, say, a car or other machine.

Exactly! From a legal scholarship perspective, it'd be great to see this case play out - there's a bunch of interesting questions that the courts could address.

From CH's perspective, of course, you don't want to risk the legal outcome; if you can find an acceptable settlement position, you get out of this case as quick as you can.

weeble1000 wrote:
I wonder if there's any case law related to model cars. This question has been brought up before, but I haven't seen anything yet. I suspect, though, that most model companies acquire a license before making a model of a vehicle.

What is interest is that only in the last 2 yrs or so have airplane manufacturers been requiring fees/ licence to produce models of their aircraft. There was a big write up about it in several model magazines at the time. Considering the amount of after-market parts that are available for model cars and airplanes, which I am sure are made with out a licence from the company that original built the real plane/ car, I am curious as to how this case will impact them.

Again, thanks to the time people have point into answering this and discussing scenerios. Very interesting to watch unfold. What is going on here reminds me of the Tom & Jerry cartoons where the cat has a large hammer and suddenly out of no where Jerry pulls out an unfeasable much larger hammer. This is what I think CH has managed to do to GW.

I know squat about Copyright law or cases involving model cars or planes. I worked in a model shop mid 2004 to 2007 and I was told that car manufacturers required licensing from model companies if they wanted to produce a model car by that manufacturer. Evidently this was not always the case and came about maybe late 80's early 90's.

Manufacturer's that produce Military hardware are unable to require a license from model companies making models of vehicles or planes because those are public domain from what I was told. That is the people of the US own the design of say an F-14 Tomcat.

I really don't know how this figures into this specific case, but Weeble asked about the model cars and I thought I'd share what I'd been told. Maybe someon has more specific information regarding it.

Scale Aircraft Magazine had to alter a regular feature about the British Air Arms due to licencing issues with the RAF over possibly the name but definitely the roundel iirc.

It caused concern over the use of roundels on kits and aftermarket markings. Since then there has not been any problems afaik.

Instances of aircraft manufacturers demanding licence fees are fairly rare. Will qualify that by saying I do not follow the new kits of current types that closely but have not heard of BAe demanding monies from models of Hawks or the Harrier GR9 for example.

If GW thought they had a good case against CH for encouraging infringement of the conversion kind, they should have made that plain in the first place.

The GW legal blurb specifically authorises players to modify their models as long as they aren't recast.

The great majority of players would I am sure be very surprised to think they are by law not allowed to convert individual models they own.

Chapterhouse's motion to compel went up on the docket yesterday. The content was already described in the joint status report, so there's really nothing new. As with all of the motions that have been coming out of Winston and Strawn, it is well-worded, succinct, and makes a clear argument. It will be presented to the Court on the 7th.

Some highlights:

Chapterhouse must have examples of the things it is accused of infringing so that
it can defend itself. A determination of substantial similarity—without which there is,
and can be, no copyright infringement—requires a side-by-side comparison of the
protectable elements of the works. This is impossible without actual examples of the
works themselves. Chapterhouse believes that most of Plaintiff’s copyright claims can be
disposed of on summary judgment or a motion for judgment on the pleadings solely on
the issue of substantial similarity, but in order to bring such a motion it must have copies
of Plaintiff’s allegedly infringed works.

During meet and confers on this issue,
Plaintiff indicated that Defendant should just wait and see what Plaintiff chose to
produce, and then decide if it was good enough. This is not sufficient. Defendant is
entitled to exemplars of the alleged works, not merely “documents identifying the
materials” Plaintiff has already identified.

(Just to note: Games Workshop objected to the word "exemplars" as being vague)

The information Defendant has requested about the copyrights, namely author,
date of creation, exclusive licensees if any, and U.S. copyright registrations if any, is
directly relevant to at least the following fundamental issues:

 Ownership. Plaintiff bears the burden of establishing ownership of its
copyrights.

 Scope of Plaintiff’s Copyrights. Much of Plaintiff’s claimed “universe” is
drawn from the vast reservoir of science fiction and fantasy ideas that came
before it, to say nothing of public domain elements taken from mythology,
heraldry, and religious iconography. Use of such common elements cannot,
as a matter of law, infringe Plaintiff’s alleged copyrights, which protect only
Plaintiff’s limited original contributions to these pre-existing works. See
FASA Corp. v. Playmates Toys, Inc., 869 F. Supp. 1334, 1348 (N.D. Ill. 1994)
(“copyright protection . . . is not extended to the preexisting material
employed in the work”). Information about the authors and the dates of
creation is necessary to allow Defendant to depose those individuals as to
what sources they themselves relied upon, which will allow Chapterhouse to
challenge the scope of Plaintiff’s copyrights because elements derived from
the public domain or other sources are unprotectable.

(I think this is the best bit. Note that CHS alludes to an intention to "depose those individuals as to what sources they themselves relied upon." It looks like CHS intends to depose the artists/sculptors/authors of Games Workshop's asserted copyrights.)

 Damages. Statutory damages are only available for copyrights registered
with the United States Copyright Office prior to the alleged infringement.

Many of the works identified by Plaintiff appear to be in books that have compiled
artwork from various sources without attribution of either the works’ ultimate sources or
their dates of creation.

IV. CONCLUSION
Defendant is entitled to copies of the works Plaintiff claims in this case, to
compare against its own products. Merely receiving “documents identifying” those
works is insufficient. Defendant is also entitled to basic information about the copyrights
Plaintiff claims, such as the author, the date of creation, and registration information.
Defendant must have this information in order to investigate basic issues such as
Plaintiff’s ownership of copyrights, the scope of those copyrights, and damages.
Plaintiff’s response, that Defendant must instead study the works produced to glean this
information for itself, is insufficient for the reasons stated above.
For these reasons, Defendant respectfully requests that the Court order Plaintiff to
produce exemplars of the works claimed, in response to Defendant’s Request for
Production No. 1, and to provide the information requested about the copyrights claimed,
in response to Interrogatories Nos. 1 and 2.

"Plaintiff’s response, that Defendant must instead study the works produced to glean this information for itself"

What is going on with GW's legal team?

Maybe their leagal team is busy smoking pot and playing Warmachine?

The way it reads to me is that CH's defense seemingly rests upon the idea that "It's not copyright infringement because GW doesn't produce a model to be copied".

It's all very strange, isn't it?

GW either need to state work which has been copied, and provide an example, or focus on the more generic issue of IP. They currently seem to be trying to run both approaches simultaneously. The idea that one could claim infringement of copyright without defining the work which has been copied is bizarre. Can anyone shed any light on this approach?

Is there a limit to speculation on this site? Would we be wise to keep our thoughts to ourselves (I've no ideas myself, just don't want to get dakkadakka into trouble).



Automatically Appended Next Post:

Kanluwen wrote:The way it reads to me is that CH's defense seemingly rests upon the idea that "It's not copyright infringement because GW doesn't produce a model to be copied".

Or, "It's not copyright infringement because we haven't copied any of GW's products."

Kilkrazy wrote:If GW thought they had a good case against CH for encouraging infringement of the conversion kind, they should have made that plain in the first place.

The GW legal blurb specifically authorises players to modify their models as long as they aren't recast.

The great majority of players would I am sure be very surprised to think they are by law not allowed to convert individual models they own.

KillKrazy is correct that Games Workshop has not made any claims of induced infringement, so while it is interesting to discuss, the issue isn't related to any claims that have been made in this lawsuit.

Rather, Games Workshop is accusing each Chapterhouse Studios product of either directly copying a work or works, or being a derivative work in and of itself. So the relevant question, as articulated in the Chapterhouse motion to compel, is whether or not each accused product is substantially similar to the work or works asserted against it.

So the question of aftermarket accessories creating a derivative work when used is irrelevant to the legal issues raised thus far in the lawsuit. However, this still leaves an open question of whether or not an aftermarket accessory is derivative of the work it is designed to function with.



Automatically Appended Next Post:

Kanluwen wrote:The way it reads to me is that CH's defense seemingly rests upon the idea that "It's not copyright infringement because GW doesn't produce a model to be copied".

I don't think that's quite correct. Chapterhouse's position is that none of its products is substantially similar to any work that Games Workshop could possibly assert. Thus, it is asking the judge to force Games Workshop to produce the asserted works in order to make dispositive motions possible. A secondary issue is that if Games Workshop cannot plead a colorable claim of copyright infringement, there is no case in the first place and thus the question of substantial similarity is moot.

In order to support its motion to compel, the Defendant has also argued that if it is wrong and claims against say, 50% of the accused products survive dispositive motions, the case would be significantly narrowed and thus be much easier for the Defense, the Plaintiff, and the Court to deal with. Therefore, what the Court should be doing now is forcing Games Workshop to produce the asserted works before any other discovery takes place.


Automatically Appended Next Post:

doctorludo wrote:It's all very strange, isn't it?

GW either need to state work which has been copied, and provide an example, or focus on the more generic issue of IP. They currently seem to be trying to run both approaches simultaneously. The idea that one could claim infringement of copyright without defining the work which has been copied is bizarre. Can anyone shed any light on this approach

What do you mean by that? There is no "generic issue of IP." There are copyright infringement claims and trademark infringement claims, nothing more or less than that, unless the Court finds that the Plaintiff has failed to plead a case. Copyrights, trademarks, trade dress, and patents are all different types of "intellectual property" in the United States. Other than being lumped together under the umbrella concept of property that is ultimately the product of one's intellect for which exclusive rights are given, there's little that connects them.

Much of Plaintiff’s claimed “universe” is
drawn from the vast reservoir of science fiction and fantasy ideas that came
before it, to say nothing of public domain elements taken from mythology,
heraldry, and religious iconography.

If GW had any brains at all, they'd settle right now. Thats one can of worms you do NOT want open, as its pretty much an inside joke on how much of GW's stuff is taken from, influenced by, or even some items as an inside joke, of their various IP background.....I mean really, black templars.......templars in history. The list is fairly long, and thats only one minor example.

weeble1000 wrote:

doctorludo wrote:It's all very strange, isn't it?

GW either need to state work which has been copied, and provide an example, or focus on the more generic issue of IP. They currently seem to be trying to run both approaches simultaneously. The idea that one could claim infringement of copyright without defining the work which has been copied is bizarre. Can anyone shed any light on this approach

What do you mean by that? There is no "generic issue of IP." There are copyright infringement claims and trademark infringement claims, nothing more or less than that, unless the Court finds that the Plaintiff has failed to plead a case. Copyrights, trademarks, trade dress, and patents are all different types of "intellectual property" in the United States. Other than being lumped together under the umbrella concept of property that is ultimately the product of one's intellect for which exclusive rights are given, there's little that connects them.

Nothing in specific legal terms. Was using lay language; I know very little about legal stuff. Only that it seems that there are two issues here: That of specific miniatures being copied, and the issue of borrowing too heavily from the GW universe, which I had also understood to be GW's IP (this is what I meant by "the more generic issue of IP"), and an issue at stake.

So, for example, two ways of infringing IP would be to make my own space marine and sell it, basing it very heavily on existing GW minis (the first issue I highlight), or to use the GW universe and make things GW don't, such as a race that is mentioned but not modelled or components that are described but not produced (the second issue).

I understand GW trying to force CHS to admit to the first issue.

I may have conflated two issues here. I may also have misunderstood the case so far, but I've read your last few posts with interest.

weeble1000 wrote:(Just to note: Games Workshop objected to the word "exemplars" as being vague)

Pot. Kettle. Black.....

As a question primarily for Weeble (only because he is the only one of the legally-trained contributors to the conversation that advised a settlement):

I know very little about the ethics of legal America, but is there any sort of conflicts raised by CHS potentially benefiting from an early settlement when it has been hypothesised that one of the reasons they got such quality of defence pro bono was because the firm was likely interested in setting a precedent from a decisive case victory?

Tantras wrote:As a question primarily for Weeble (only because he is the only one of the legally-trained contributors to the conversation that advised a settlement):

I know very little about the ethics of legal America, but is there any sort of conflicts raised by CHS potentially benefiting from an early settlement when it has been hypothesised that one of the reasons they got such quality of defence pro bono was because the firm was likely interested in setting a precedent from a decisive case victory?

No. When a firm agrees to take on a case pro bono, they're still obligated to act in their client's best interests.

Janthkin wrote:

Tantras wrote:As a question primarily for Weeble (only because he is the only one of the legally-trained contributors to the conversation that advised a settlement):

I know very little about the ethics of legal America, but is there any sort of conflicts raised by CHS potentially benefiting from an early settlement when it has been hypothesised that one of the reasons they got such quality of defence pro bono was because the firm was likely interested in setting a precedent from a decisive case victory?

No. When a firm agrees to take on a case pro bono, they're still obligated to act in their client's best interests.

I bet that'd feel like a kick in the balls for them, then. A prize in sight, but they need to steer their client in another direction and avoid precisely what they (could have) wanted from this case.

EDIT: There's no possibility of some sort of "We'll help you, on our dime, but if we do then we go all the way. Can we agree on this?" arrangement?

They are still bound to act in the clients best interest.

However, considering they 'hunted' this case I'm sure that they would be on the lookout for any further court actions from GW in the future.

And I'm optimistic that it would also be pro bono as well if the 'kudos' for this case is as big as some are making out.

Cheers

Andrew

Legal opinion please. Would it be fair to say that any discovery on the inspiration of GW works, regardless of where it was obtained, be acceptable in another country? IE, if during a court case it was established as a statement of fact, not as a court opinion.

EG if, using this case as an example, it is found that the GW inspiration for nids is from the works of Geiger or the Aliens franchise, would the discovery be legally binding/acceptable in the UK? or vice versa, if in a fictional case here in the UK an ispiration is stated as fact, is that fact legally 'binding' in the US?

Kanluwen wrote:The way it reads to me is that CH's defense seemingly rests upon the idea that "It's not copyright infringement because GW doesn't produce a model to be copied".

That's not it at all Kan.

It's closer to "It's not copyright infringement until GW shows us, in detail, exactly what it is they claim we are infringing.".

Scott-S6 wrote:What is going on with GW's legal team?

Mohoc wrote:Maybe their leagal team is busy smoking pot and playing Warmachine?

They are preparing to sue the internet for maliciously raising sales of GW products

AndrewC- A court in another country isn't bound by anything done/said somewhere else. However, everything said in pleadings are said under oath so there's a good chance that the statement could be used against that party. So, if in your theoretical example, GW said in the current pleadings that the inspiration of Tyranids came from Aliens. Then filed a suit somewhere else and said that they had developed the concept in house. They would have a problem with their credibility since usually other countries recognize what is said under oath as a truthful statement.

English courts can "take note" of some proceedings and precedents in US courts.

Leo, thats what I'm trying to get at, and why I specifically made mention of statements of fact rather than court rulings.

Everything that is listed as GW(USA) IP is copied from GW(UK) as the 'parent' company. So if the designer of nids', a UK Citizen makes a statement that his source of inspiration came from Aliens/Geiger, under a US Statement of Discovery, would that then land them in it should the same issue arise here in the UK.

KK, I was trying to avoid the issue of the case results and stick to what was accepted as fact in the case itself.

Cheers

Andrew

Also, bear in mind that CH's counsel is asking for "appropriate attorney's fees" so any possible out of court settlement with GW would include $$. Is GW willing to throw out a couple hundred thousand dollars to pay for CH's high-power legal defense without a court order?

AndrewC wrote:Leo, thats what I'm trying to get at, and why I specifically made mention of statements of fact rather than court rulings.

Everything that is listed as GW(USA) IP is copied from GW(UK) as the 'parent' company. So if the designer of nids', a UK Citizen makes a statement that his source of inspiration came from Aliens/Geiger, under a US Statement of Discovery, would that then land them in it should the same issue arise here in the UK.

KK, I was trying to avoid the issue of the case results and stick to what was accepted as fact in the case itself.

Cheers

Andrew

You can't get stuff accepted in fact in the case until it comes to a result.

doctorludo wrote:So, for example, two ways of infringing IP would be to make my own space marine and sell it, basing it very heavily on existing GW minis (the first issue I highlight), or to use the GW universe and make things GW don't, such as a race that is mentioned but not modelled or components that are described but not produced (the second issue).

I understand GW trying to force CHS to admit to the first issue.

I may have conflated two issues here. I may also have misunderstood the case so far, but I've read your last few posts with interest.

I don't think you've conflated two issues, because one of them isn't really an issue at all, or at least it shouldn't be. Games Workshop does not have intellectual property rights to the "GW universe." This specific issue was already argued in the FASA v Playmate case which has been heavily cited by Chapterhouse Studios. Games Workshop is attempting to argue that its fictional universes are protectable, and therefore has resisted defining its claims at every turn thus far. But I think you should understand that Games Workshop is making this awkward, clunky, and potentially untenable argument in a basackwards manner through claims that Chapterhouse's products are derivative works and by arguing that the accused products are based on innumerable disparate works embodied in the Warhammer and Warhammer 40,000 fictional universes.

The first argument is awkward and very likely to fail at the pleading stage. A derivative work must be transformed, recast, or adapted from a specific copyrighted work, thus embodying a great portion of that specific work in what is ostensibly an unaltered form, such as taking a Games Workshop horse model, cutting off the head, and sculpting on a human torso to make a centaur. In that example, the horse model itself was transformed into the centaur model and a significant portion of the model remains in an unaltered state. Thus, the resulting centaur model is a new copyright derived from the original copyright inherent in the horse model. It is not a copy of the horse model, because it is a new and different work of art, equally protectable in its own right, but the copyright code gives the author of a work the exclusive right to prepare derivative works. Therefore, preparing the centaur model is a violation of the author's rights and the new copyright is owned by the author of the original work.

Now, it is perfectly acceptable to be inspired by another author's work. This is largely how art has been developed since its inception. So, if I saw the Games Workshop horse model, really liked it, and was inspired by it to sculpt my own centaur model, borrowing some features from the horse model in the process, such as the attitude of the legs, or the muscle structure, that would most likely be a new protectable work that is not derived from the horse model. For the present example we can ignore the fact that the features of the horse model that I just described would most likely not be protectable in the first place (there's good precedence for natural forms like muscle structure not being protectable).

So, in order to make a colorable claim of infringment through a derivative work, Games Workshop would still first have to point to a specific work that is infringed. Also, Games Workshop would have to prove that the accused work transforms, recasts, or is adapted from that specific work.

As to the second argument, again, copyright infringement requires that the accused work be a copy of something specific. Now, this copying does not have to be exact in every detail, but the accused work must be "substantially similar" to the protectable elements of the asserted copyright, i.e. in a side by side comparison, the accused work must unfairly appropriate the protected elements of the asserted copyright and any differences must merely be insubstantial.

A corpus of disparate works, even if they are protectable in and of themselves, do not create a protectable concept. That is, the corpus of "Eldar" works do not create a copyright on the concept of the Eldar. Thus, Games Workshop cannot point to a product and say, "That's clearly an Eldar thing and we invented the Eldar." Instead, Games Workshop must prove, prove mind you, that any accused work is a copy of a specific work. Games Workshop can accuse the same work of being a copy of multiple works, but it bears a separate burden of proof as to each claim. The claims do not create a aggregate copyright to the "IP" of Eldar. Rather, the Eldar concept has been expressed in a vast array of works that have each been fixed in a tangible medium of expression, and are thus potentially protectable.

That last bit is particularly important: fixed in a tangible medium of expression. This means that copyright protection does not exist for anything that has not been fixed in a tangible medium of expression. So, Games Workshop cannot claim that an accused work is a copy of something that does not exist. I should think that this makes a huge amount of sense.

Neither does copyright protection extend to: "any idea, procedure, process, system, method of operation, concept, principle, or discovery, regardless of the form in which it is described, explained, illustrated, or embodied in such work."

This gives rise to the type of rulings that were made in the FASA v Playmate case. Those rulings were also largely based on the concept of the public domain. The exclusive rights of a copyright holder cannot take anything, anything, out of the public domain. This means that anything that is drawn from the public domain is not a protectable element of any extant work of art.




Automatically Appended Next Post:

AndrewC wrote:
However, considering they 'hunted' this case I'm sure that they would be on the lookout for any further court actions from GW in the future.

They did not "hunt" this case. They were hunted in the sense that the Defendant was seeking out any pro-bono representation. I guarantee that W&S had no idea this case existed until the firm was contacted by the Defendant or someone representing the Defendant's interests, possibly an acquaintance or not for profit organization like Lawyers for the Creative Arts.

My guess is that Winston and Strawn took this case because the IP group had some pro-bono time to fill, the issues seemed interesting, the case seemed winnable, and the attorneys likely felt some measure of personal moral imperative.

Well, I just learnt a lot. Thanks weebl.

After reading this thread as it has developed I actually feel myself getting a little smarter.

Thanks!

Reading some threads in 40k General or Background will compensate for that

Kroothawk wrote:Reading some threads in 40k General or Background will compensate for that

Ha!

weeble1000 wrote:They did not "hunt" this case. They were hunted in the sense that the Defendant was seeking out any pro-bono representation. I guarantee that W&S had no idea this case existed until the firm was contacted by the Defendant or someone representing the Defendant's interests, possibly an acquaintance or not for profit organization like Lawyers for the Creative Arts.

My guess is that Winston and Strawn took this case because the IP group had some pro-bono time to fill, the issues seemed interesting, the case seemed winnable, and the attorneys likely felt some measure of personal moral imperative.

Sorry I guess I misunderstood some of the, much, earlier comments when there was the various discussions on the aspects of IP law that the case was bringing to the fore. I was under the impression that there several firms interested in representing CHS.

Ah well my mistake, no harm done.

Andrew

AndrewC wrote:

weeble1000 wrote:They did not "hunt" this case. They were hunted in the sense that the Defendant was seeking out any pro-bono representation. I guarantee that W&S had no idea this case existed until the firm was contacted by the Defendant or someone representing the Defendant's interests, possibly an acquaintance or not for profit organization like Lawyers for the Creative Arts.

My guess is that Winston and Strawn took this case because the IP group had some pro-bono time to fill, the issues seemed interesting, the case seemed winnable, and the attorneys likely felt some measure of personal moral imperative.

Sorry I guess I misunderstood some of the, much, earlier comments when there was the various discussions on the aspects of IP law that the case was bringing to the fore. I was under the impression that there several firms interested in representing CHS.

Ah well my mistake, no harm done.

Andrew

I don't think you misunderstood those posts. I do think that Winston and Strawn took this case partially because of the very interesting legal issues. However, I wanted to both clarify that the law firm most likely did not go looking for Chapterhouse Studios and emphasize that setting precedent is in all likelihood not the firm's primary objective in this case.

I wanted to emphasize the former because I think it is important for the wargaming community to recognize its agency in securing pro-bono representation for the Defendant. I assure you that had this community not existed, I don't believe Chapterhouse Studios would have found Winston and Strawn.

As to the second part, I think it is important because the attorneys at Winston and Strawn are, as far as I know, upright, ethical, and professional. Their ultimate goal in this case is to protect the interests of their client, as it should be and as others have indicated. I just wanted to head off the potential connotation that the firm is somehow using Chapterhouse Studios to effect some ulterior motive. I don't think that was your intent, but I thought this potential misconception was a possible interpretation. Were that true, I think it would reflect poorly on the firm. To be sure, the firm has personal interests in the case, such as filling up pro-bono time for example. It might have an interest in seeing a verdict come out of this case and it might not, but I believe that whatever interests there may be are secondary to the bests interests of Chapterhouse Studios.

That said, I also have a deep respect for Foley and Lardner. I don't think that this case has been handled very well thus far, and I think the actions of Mr. Moskin have reflected poorly on the reputation of his partners, but I do believe that like Winston and Strawn, Foley and Lardner is attempting to represent the best interests of its client.

Going back to the "Artistic Works" bit... this has to do not so much with copyright, but with what's generally termed "moral rights", which have to do with the right of an artist to be atributed when his work is shown, also his right not to have a piece destroyed, modified, etc without permission.

In the UK and other places, it's a broadly granted, hence GW's magnanimous grant of permission to convert models, which I believe they've stated would otherwise be a "major infringement" In the US, those rights are reserved for the pieces that fit that aforequoted bit of legalese, the "200 castings or less, signed by the artist" knocking GW minis out of the category of "artistic works"

Forgive me for being a newcomer to the news, but can someone give me a brief summary of what is going on? I tried to skim through the thread, but there are over a thousand posts.

I'm curious on if it's safe to order from them yet or not. In so much as them getting shut down, leaving my money in dreaded limbo.

Holy_doctrine wrote:I'm curious on if it's safe to order from them yet or not. In so much as them getting shut down, leaving my money in dreaded limbo.

If you mean Chapterhouse Studios, yea, it is perfectly fine to order from the company. I haven't personally ordered anything, but since I've started following this case I've met Nick, the owner, and business is chugging along perfectly well as far as I understand. Orders are being filled as usual and new products are still being released.

[Edit] I don't imagine that there's going to be an injunction, so nothing is stopping Chapterhouse from conducting business as usual. Since there also won't really be any damages, however the case turns out, it isn't as if Chapterhouse is expanding its potential liability by continuing to sell products. Now, releasing new products is a different story. So far, Chapterhouse has been releasing a few new products. I hope that these have been cleared by the company's counsel, but, again, it won't have a direct impact on customers. In fact, if you think the company will get shut down, now is the time to legally acquire the products that you want.

weeble1000 wrote:

Holy_doctrine wrote:I'm curious on if it's safe to order from them yet or not. In so much as them getting shut down, leaving my money in dreaded limbo.

If you mean Chapterhouse Studios, yea, it is perfectly fine to order from the company. I haven't personally ordered anything, but since I've started following this case I've met Nick, the owner, and business is chugging along perfectly well as far as I understand. Orders are being filled as usual and new products are still being released.

Thank you very much for the answer.

LumenPraebeo wrote:Forgive me for being a newcomer to the news, but can someone give me a brief summary of what is going on? I tried to skim through the thread, but there are over a thousand posts.

No problem. I'll give you the short, short version.

This is from my post on page 34:

To bring us up to speed, GW filed its complaint and CHS submitted a motion to dismiss. The Court required GW to amend the complaint and GW filed the First Amended Complaint, adding 4 paragraphs to the original complaint. CHS made another motion to dismiss. The Court denied the motion but required GW to respond to early discovery aimed at clarifying its copyright infringement claims. Accordingly, CHS sent interrogatories to Games Workshop, which included:

"Identify each infringement of your copyrights for which you claim Chapterhouse is liable, by identifying (a) the copyright infringed; (b) the allegedly infringing product or products; (c) the exclusive right or rights of the copyright owner, as set forth in 17 U.S.C. Section 106, that you claim has been infringed; and (d) the specific conduct that constitutes the infringement."

Meanwhile, GW had sent interrogatories to CHS requesting information regarding all GW products in the possession, control, etc. of CHS. GW also requested discovery regarding any and all sources relied on, etc. by CHS to produce the accused products.

These interrogatories were objected to by CHS on grounds that they were overly burdensome, unduly vague, etc. GW submitted a motion to compel to the Court requesting that CHS answer the interrogatories that were properly directed to CHS affirmative defense of independent creation.

The status conference is intended find a way to move the case forward efficiently. i.e. how the heck is this case going to go forward when the claims are so broadly unspecific and the parties have heretofore be quite unable to amiably find a solution to this problem.

Chapterhouse Studios just submitted a motion to compel asking the Court to require Games Workshop to respond to its interrogatories and request for production, basically asking for Games Workshop to show "exemplars" or copies of the works alleged to be infringed, specify the dates of creation and other relevant information, describe what is alleged to infringe these alleged copyrights and the manner of that infringement. All of this is directed towards requesting the Court to compare the accused products with the asserted works to see if any substantial similarity exists. Chapterhouse Studios believes that no substantial similarity will be found and the claims can therefore be disposed of.

That should get you up to speed. If you want some more detail about the joint status report, read the entirety of my post on page 34. The last few posts I've made also discuss copyrights generally as well as derivative works.

Eventually there will be a status conference and the Court will rule on the parties' motions to compel. The outcome of the status conference and the Court's rulings on the motions to compel will largely dictate how the case moves forward.

Wow... I think this is the longest conversation I've ever started on any forum. Should we be celebrating the 1000th post? I can't help but think that if the court system were as fast as it looks on TV we wouldn't have gotten past 10 or so.

weeble1000 wrote: I predict that this status conference will go poorly for Games Workshop.

I'm still wondering if GW wants to win this case at all. I mean, I think that CHS is in the right here, but at the same time I could make a 10x stronger argument than what they're making.

I mean, really. If they're going on with this case, they really do need to go through the whole CHS catalog and accuse each product in turn.

I actually think a good strategy might be to list hundreds of items infringed for each piece of infringing work- when you're accusing the salamander/dragon shoulderpads, bring up every instance of the Salamander shoulders in every painted miniature and every piece of artwork you've got out there.

The only thing I can think of is that they want CHS to divulge the works by GW that they've been exposed to first so that CHS cannot claim that they never actually saw the work they're accused of copying.

But Chapter House haven't been accused of copying anything.

That's the key flaw in the GW case so far.

odinsgrandson wrote:
I'm still wondering if GW wants to win this case at all. I mean, I think that CHS is in the right here, but at the same time I could make a 10x stronger argument than what they're making.

I mean, really. If they're going on with this case, they really do need to go through the whole CHS catalog and accuse each product in turn.

I actually think a good strategy might be to list hundreds of items infringed for each piece of infringing work- when you're accusing the salamander/dragon shoulderpads, bring up every instance of the Salamander shoulders in every painted miniature and every piece of artwork you've got out there.

The only thing I can think of is that they want CHS to divulge the works by GW that they've been exposed to first so that CHS cannot claim that they never actually saw the work they're accused of copying.

Well, there is a logical reason for GW to avoid specifying the claims. First, GW is arguing that its fictional universe has been infringed, and specifying the claims in the way that the Defense is fighting for would substantially undermine that position. Second, Games Workshop can always specify the claims at a later date if it is forced to by the Court. Third, Games Workshop could also be trying to get the case dismissed without prejudice.

I think the drawback to this strategy is the potential for it to antagonize the Court and strengthen the Defendant's position. Because the defense is pro-bono, drawing this fight out does not make it harder for Chapterhouse to defend itself, and Winston and Strawn has already effectively communicated that it is taking this case seriously and is going to advocate aggressively for its client, so I think Games Workshop has little to gain by waiting for Winston and Strawn to blink.

I wouldn't put Games Workshop's current position down to inept or careless advocacy (I think there's different indications of that). Instead, I would look at it as an awkward position that's being argued as well as it can be. My lawsuit experience is very focused on trial strategy (things like overall case narrative, jury selection, opening and closing arguments, witness prep, visual evidence, teaching technology, etc.) so I'm not the best best person to be commenting on the relative merits of Games Workshop's current strategy at this rather preliminary point in the case. So while I do think Games Workshop is making inherently flawed arguments, the Plaintiff's current position in the case probably has some strategic benefit.

As I stated above, I have some guesses about what Games Workshop may hope to gain from resisting definition of its claims, but there may be some strategic benefit that I haven't considered.

As far as Games Workshop throwing everything at Chapterhouse, I think there's at least two potential risks with that. First, because Judge Kennelly is trying to move this case along quickly and efficiently, he might find such an action frustrating. If Judge Kennelly gets really pissed off, he might end up dismissing the case with prejudice, but I think he'd have to be very, very pissed off to do that. Second, it would put a great deal of Games Workshop's copyrights at risk. The Court could, for example, rule that the Black Templar's heraldry is simply not protectable by copyright as a matter of law. Is that likely? Probably not as much as summary judgement as to non-infringement on the basis of substantial similarity, but it is a possibility.

odinsgrandson wrote:...I actually think a good strategy might be to list hundreds of items infringed for each piece of infringing work- when you're accusing the salamander/dragon shoulderpads, bring up every instance of the Salamander shoulders in every painted miniature and every piece of artwork you've got out there...

I don't believe the court would be happy with that. If anything it helps the defense show that their concept for their shoulderpad isn't in and unto itself based on any one work, if any. The copyright protects the individual interpretation present in the work, not necessarily the variation on a theme.

Could it be that Games Workshop is just so used to people folding to it's bullying that it doesn't know how to prosecute an actual case?

skyth wrote:Could it be that Games Workshop is just so used to people folding to it's bullying that it doesn't know how to prosecute an actual case?

Yepp, that's the point.

Kilkrazy wrote:But Chapter House haven't been accused of copying anything.

That's the key flaw in the GW case so far.

Yeah, I'm really not sure how GW is expecting to win this case without actually making a substantial claim. But then again, they probably don't.

If they are trying to win this case, then they're probably trying to hold off as long as they can on making some particular claim of infringement.


Now, in order to keep the courtroom happy, could they make the case that "we have hundreds of pieces of artwork like this?" That way, when the defendant makes the case that he never saw that particular artwork of a salamander, GW has plenty of room to pull up another one (and another one, and another one).


On the other hand, if they do make a specific claim against each and every work by CHS, it is entirely possible that the court will have to look at them on a case by case basis (ultimately, that means that they can rule that one or two are copies, and other works are fair game). And their goal was to bury CHS forever, right?

Yeah... it is just a really bad position to take. I mean, come on!

odinsgrandson wrote:Now, in order to keep the courtroom happy, could they make the case that "we have hundreds of pieces of artwork like this?" That way, when the defendant makes the case that he never saw that particular artwork of a salamander, GW has plenty of room to pull up another one (and another one, and another one).

No, because copyright infringement has to be of a specific copyrighted work. There are basically 4 ways you can respond to a charge of copyright infringement:

1 - It's not a valid copyright. (validity)
2 - We didn't see it, so we couldn't copy it. (access)
3 - If we did see it, we didn't copy it. (infringement)
4 - If we did copy it, it was fair use. (fair use)
(note that there are others).

In order for CH to be able to adequately respond, they have to know what they are being accused of copying. Once they know, then they can make their case and the court will determine (1) if it's a valid copyright; (2) whether defendants had access to the work; (3) whether the work is a copy; and (4) whether the defendant has proven fair use.

Otherwise, you're asking the court to take GW's word for the fact that they copied, and placing the burden of proving noninfringement on CH.

Thnak you for that summary!

You can almost start to see the reasoning behind GW's hesitancy...

Precisely Biccat. This is why I don't think Games Workshop's current position is tenable. The Defendant really isn't in a position to evaluate the Plaintiff's claims and cannot intelligently respond to them. This business of, "only defendant knows which of the foregoing works (including the twenty works identified in the complaint) defendant accessed and consulted as inspiration for his 106 works in issue…." is bordering on absurd.

I sincerely hope that the Court will require Games Workshop to define its claims. I also think that the Defendant is reasonable in arguing that the Plaintiff's discovery requests should be delayed until after the Defendant's request for production has been fulfilled and its interrogatories answered.

At the end of the day, the Plaintiff's position can be boiled down to essentially "I don't know what has been infringed, but it is clear that something has been infringed." How can the Plaintiff, for example, state that the Tyranid Codex has been infringed? What part? Is the Defendant accused of infringing one, some, or all of the works of art included within the Tyranid Codex? If so, how have they been infringed? How can the Defendant begin to evaluate the validity of the asserted works when the Tyranid Codex does not provide any of the relevant information with regard to most, if not all, of the works of art reproduced in the book? When were the works created? By whom? Were they in the employ of Games Workshop at that time?

All of that information is essential to both proving and defending a claim of copyright infringement. And I do not think the Defendant should be burdened with tracking that information down when the Plaintiff has not even provided a sufficient starting point, let alone actually specified a claim. And all of this is taking place while the Plaintiff is attempting to get access to the private records of the Defendant. If that isn't a fishing expedition, I don't know what is.

"I don't know what has been infringed, but it is clear that something has been infringed."

If this is the case, surely it is not enough of a basis to take a claim to court?
Appreciate that the last umpteen pages have been pretty much devoted to the ambiguity of GW's postion but it seems astonishing that someone can clutter up the courts with,"We want to sue someone, and btw we will let you know the specifics anon when the defendant lets us know what he did wrong."

Chibi Bodge-Battle wrote:

If this is the case, surely it is not enough of a basis to take a claim to court?
Appreciate that the last umpteen pages have been pretty much devoted to the ambiguity of GW's postion but it seems astonishing that someone can clutter up the courts with,"We want to sue someone, and btw we will let you know the specifics anon when the defendant lets us know what he did wrong."

Obviously Judge Kennelly thinks that the case has some sort of merit as he was unwilling to dismiss it out of hand. That said, it isn't unusual for the Court to allow a Plaintiff a few cracks at amending a complaint. Judge Kennelly opted to allow early discovery presumably in lieu of giving Games Workshop a second chance to amend the complaint. At this point, we haven't seen any other substantive rulings by the Court, so everything that has gone on between the denial of the renewed motion to dismiss and now is basically Games Workshop's second crack at amending its claims. Chapterhouse's motion to compel has in effect asked the Judge to make another ruling on this issue. Now we're waiting to see how Judge Kennelly rules.

The GW lawyers remind me of Ash on the graveyard: "Klatou Berada cough mumble." Only that they get a second and third chance to actually do it right.

Kroothawk wrote:The GW lawyers remind me of Ash on the graveyard: "Klatou Berada cough mumble." Only that they get a second and third chance to actually do it right.

Ash Ketchup?
Or Asherian?

Do you really not know who "Ash" is in relation to that quote?

For shame!

Time to see some classics, and quick.

Opinions will vary, but I still say the theatrical cut of "Army of Darkness" is the best of the bunch!

On topic - no way the next meeting before the Judge goes well if GW doesn't deliver what's asked...

Kroothawk wrote:The GW lawyers remind me of Ash on the graveyard: "Klatou Berada cough mumble." Only that they get a second and third chance to actually do it right.

No kidding. Imagine if Microsoft or Apple tried this approach when defending their stuff.

Anyone else wondering if GW hire their lawyers the same way they hire their writers?

"Don't worry about consistency, guys, or little errors. This is a beer and pretzels game. If any disputes arise, the players can just roll off, or ask a redshirt. Wow, nice use of washes on your Ultramarines army! You're hired."

Ian Sturrock wrote:Anyone else wondering if GW hire their lawyers the same way they hire their writers?

"Don't worry about consistency, guys, or little errors. This is a beer and pretzels game. If any disputes arise, the players can just roll off, or ask a redshirt. Wow, nice use of washes on your Ultramarines army! You're hired."

Did you see the job requirements for their IP Lawyer job opening? It was posted here quite a while a go. It was fethin' hilarious. Having been in the position to hire and fire employees, the job description/requirements were quite laughable. I could have done a better job at writing stoned.

Could GW lawyers be trying to get CH to establish a position that they might contradict in the future.

So CH do not specify their inspirations, then later on when GW specify their claims and CH points to a GW source, their position is undermined. I.e. making CH look less trustworthy?

In such a grey legal area as this, where it appears that opinion seems to hold so much sway this sort of manoeuvring could be advantageous.

Does it work like that? Have I been watching too much Rumpole of the Bailey? Tune in next month for .........The GW vs CH legal deathmatch special!

Rumpole would sort this mess right out, as long as he wasn't having his time purloined by 'she who must be obeyed'.

notprop wrote:So CH do not specify their inspirations, then later on when GW specify their claims and CH points to a GW source, their position is undermined. I.e. making CH look less trustworthy?

Inspiration isn't against the law. It only undermines their position if they point to the piece they're alleged to have copied or something too similar.

It isn't a legal grey area.

The lawyers commenting in this thread have pointed out that Chapter House cannot be expected to defend itself against an accusation of copyright infringement when their accuser cannot name the copyright he claims they have infringed.

True, but I was suggesting that if they commited to a position which they later recounted on it may diminish their standing in the eyes of the judge.

Really I was just trying to put logic into GWs prevarication over actually calling them on something, since I do not suppose that GWs lawyers are fethwits or that GW would persue a legal course without having something solid in mind.

Xelkireth wrote:

Ian Sturrock wrote:Anyone else wondering if GW hire their lawyers the same way they hire their writers?

"Don't worry about consistency, guys, or little errors. This is a beer and pretzels game. If any disputes arise, the players can just roll off, or ask a redshirt. Wow, nice use of washes on your Ultramarines army! You're hired."

Did you see the job requirements for their IP Lawyer job opening? It was posted here quite a while a go. It was fethin' hilarious. Having been in the position to hire and fire employees, the job description/requirements were quite laughable. I could have done a better job at writing stoned.

Must have link!

Oh, here's a great little Q&A that Tabletop Gaming News did a little while ago. In it, the TGN guys ask a lot of questions about Intellectual Property law.

Kilkrazy wrote:It isn't a legal grey area.

The lawyers commenting in this thread have pointed out that Chapter House cannot be expected to defend itself against an accusation of copyright infringement when their accuser cannot name the copyright he claims they have infringed.

this is a great point

notprop wrote:Could GW lawyers be trying to get CH to establish a position that they might contradict in the future.

So CH do not specify their inspirations, then later on when GW specify their claims and CH points to a GW source, their position is undermined. I.e. making CH look less trustworthy?

In such a grey legal area as this, where it appears that opinion seems to hold so much sway this sort of manoeuvring could be advantageous.

Does it work like that? Have I been watching too much Rumpole of the Bailey? Tune in next month for .........The GW vs CH legal deathmatch special!

I wondered something similar, which is what I was driving at in my earlier posts. GW may well know that some CHS staff own certain GW products (seeing as GW/FW sell them). If CHS's response conflicts with GW's own evidence...

doctorludo wrote:

notprop wrote:Could GW lawyers be trying to get CH to establish a position that they might contradict in the future.

So CH do not specify their inspirations, then later on when GW specify their claims and CH points to a GW source, their position is undermined. I.e. making CH look less trustworthy?

In such a grey legal area as this, where it appears that opinion seems to hold so much sway this sort of manoeuvring could be advantageous.

Does it work like that? Have I been watching too much Rumpole of the Bailey? Tune in next month for .........The GW vs CH legal deathmatch special!

I wondered something similar, which is what I was driving at in my earlier posts. GW may well know that some CHS staff own certain GW products (seeing as GW/FW sell them). If CHS's response conflicts with GW's own evidence...

They haven't denied access to the products.

notprop wrote:True, but I was suggesting that if they commited to a position which they later recounted on it may diminish their standing in the eyes of the judge.

No, GW can't do that. If you want the technical reasons, see above. Or I can elaborate some more if you want.

notprop wrote:Really I was just trying to put logic into GWs prevarication over actually calling them on something, since I do not suppose that GWs lawyers are fethwits or that GW would persue a legal course without having something solid in mind.

Don't underestimate them. They may really have no idea what the hell they're doing. Or, and this is more likely IMO, they didn't look into the issue before filing suit against CH. Then when CH got legal representation, GW realized they were in a fix and they're trying their hardest to preserve their case.

They should have amended the claim initially, or withdrawn the claim, gotten their gak together, and filed a new claim.

biccat wrote:No, GW can't do that. If you want the technical reasons, see above. Or I can elaborate some more if you want.

I'll take a side order of elaboration, biccat, if you don't mind - the explaining of some of the legal issues in plain English (or American) has always been interesting thus far

Still, a lawyer filing a suit against someone else should be able to express within 3-4 months, what exactly the accused did wrong.
Failing to do that is just a sign of incompetence and wasting everybody's time.