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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).



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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.



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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.


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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.




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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.