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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?