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Well, just got done reading about 50 pages of emails going back and forth between the lawyers, and I have to say it reads a lot like half the threads in the OT section of Dakka, must be a special lawyer skill to say so much and yet so little.

George Spiggott wrote:I think it's this:

http://ia600405.us.archive.org/18/items/gov.uscourts.ilnd.250791/gov.uscourts.ilnd.250791.139.0.pdf

Plaintiff’s motion to compel:
(1) The Court was unable to address in full interrogatory 2 and document requests 7, 9, and 10 because
defense counsel was unaware of what documents are in the process of being produced. (2) Defendant is not
obligated to produce documents in the hands of its independent contractors / designers. (3) Defendant is to
comply in full with document request 9. (4) Document request 4 is overly broad as currently worded. (5)
The Court finds that defendant’s responses to the requests to admit were timely. Defendant must answer
interrogatory 15. (6) Defendant has failed to show that its list of outside contractors / designers is
appropriately designated as “attorney’s eyes only” under the protective order. (7) The Court declines to
enforce interrogatory 12. (8) The Court declines to enforce interrogatory 5. (9) The Court declines to order a
further response to document requests 14 and 17 based on defendant’s representation that it has responded in
full to these requests. (10) The Court directs defendant to produce documents pursuant to document request
15 as narrowed in plaintiff’s motion to compel. (11) Documents responsive to document requests 16, 18 and
19 are to be produced by 12/28/11. (12) Request 20 is overly broad as currently worded and must be
narrowed by plaintiff, as described at the hearing, to be enforceable. (13) Regarding document request 21,
defendant is to conduct further due diligence to determine whether it has responsive documents, and if so it
must produce them. (14) The Court declines to enforce document request 25.

Defendant’s motion to compel:
(1) Plaintiff must produce the best available exemplar of the works in question. (2) Plaintiff is to respond i
full to interrogatory 9 and document request 2. The Court declines to enforce document request 36. (3)
Plaintiff is to respond in full to interrogatory 16 to the extent its current response is less than complete. (4)
Plaintiff is to respond in full to document requests 8 and 11. The Court declines to enforce interrogatories 6
and 7 and document request 12. (5) Plaintiff has agreed to produce the documents referenced in paragraph 15
of its response and prelitigation correspondence with Jon Paulson as referenced in paragraph 16. Plaintiff is
directed to produce for in camera inspection by 12/29/11 its settlement correspondence and settlement
agreement with Paulson. Plaintiff is directed to respond in full to document request 28 now that the Court
has removed the attorney’s eyes only designation regarding the identities of defendant’s independent
designer

Anyone care to decipher this? Is there a list of these 'interrogatories'? We can then match them up with these rulings.

I am not a lawyer, so this is more a restatement of what is in other documents relating to the case. Some of these may be found at
http://archive.recapthelaw.org/ilnd/250791/

Docket number 121 summarises the defendants requests.

Document request 2: Documents concerning design, creation, or authorship of
alleged works.
GW must respond in full.

Interrogatory 9: Summary of Discovery Sought Sources consulted, used, reviewed or relied on in
creating alleged works.
GW must respond in full.

Document request 36: Instructions, guidelines, advice given to creators of
Warhammer 40,000 works.
Not enforced.

Interrogatory 16: Identify first publication of alleged works
GW must respond in full

Document request 36: Documents concerning trademark research
GW must respond in full

Document request 11: Specimens of first use in U.S. commerce
GW must respond in full

Interrogatory 6: Sources relied on re trademarks and names
Not enforced

Interrogatory? 7: Exemplar of use in U.S. commerce
Not enforced

Document request 12: Use of marks by others
Not enforced.


Docket number 117.x summarsies the plaintiff's requests.

Interrogatory request 2: Identify any and all sources consulted, used, review, or relied upon by Chapterhouse in creating each of the Accused Works.

Document request 7: Concerns communication between CH and Paulson games.

Document request 9: Separately for each of the Accused Works, any and all documents or
things in Chapterhouse’s possession, custody or control, setting forth or
referring to any sources consulted, used, reviewed or relied on by
Chapterhouse other than works of Games Workshop in creating each of
the said Accused Works.
Defendant must respond in full.

Document request 10: requests production of all mock-ups, drafts, drawing briefs or the like:
Separately for each of the Accused Works, any and all documents or
things in Chapterhouse’s possession, custody or control, setting forth or
reflecting any mock-ups, drafts, drawing briefs or the like concerning the
conception, development or creation of each of the said Accused Works.

Document request 4: Any and all documents and things in Chapterhouse's possession, custody, or control referring to Warhammer or Warhammer 40,000.
Overly broad.

Interrogatory 15: Separately for each admission request in Games Workshop’s First Set of
Requests For Admission, if the answer is anything but an unequivocal
admission, identify each third party work on which Chapterhouse relies
in support thereof, and set forth the date on which and source from which
Chapterhouse originally located or acquired the same.
Defendant must respond.

Interrogatory 12: Instances in which consumers have referred to Games Workshop's products
Declined to enforce

Interrogatory 5: Methods or plans used by Chapterhouse in selecting new products.
Declined to enforce

Document request 14: Documents sufficient to identify and and all websites or other business or venues where any of the accused works has ever been offered for sale or sold.
No further response required from defendant

Document request 17: Documents sufficient to identify and and all websites or other business or venues where any of the accused works has ever been advertised or promoted.
No further response required from defendant

Document request 15: Any and all documents in Chapterhouse's possession, custody, or control concerning the sales of Chapterhouse's products on eBay or in any other secondary market.
Defendant must produce documents.

Document request 16: Any and all documents in Chapterhouse's possession, custody, or control showing any advertising or promotion of any or all of the accused works.
Defendant must produce documents.

Document request 18: Any and all documents in Chapterhouse's possession, custody, or control concerning the creation of the disclaimer of affiliation with Games Workshop that now appears on CH website etc... (paraphrased)
Defendant must produce documents.

Document request 19: Any and all documents in Chapterhouse's possession, custody, or control concerning the creation of the banner at the top of CH website (paraphrased)
Defendant must produce documents.

Document request 20: Any and all documents in Chapterhouse's possession, custody, or control concerning changes in CH website since Dec 22, 2010 (paraphrased)
Overly broad

Document request 21: (paraphrased) metrics of CH website
Defendant must see if they have such documents, and if so produce them.

Document request 25: Any and all documents in Chapterhouse's possession, custody, or control concerning consumer perception of CH or any of its products.
Declined to be enforced.

Awesome. I''m glad CH came out ahead so far. I'm really hoping they win.

On a personal level, I own GW stock so I have a vested interest in their continually being able to successfully bully smaller competitors since the more money they have, the more in dividends I'll see. Nothing good will come of this if CH wins, GW will just stop adding extra units in armies or doing what they did with the Ogre Kingdoms release and have everything ready in one shot; however, this doesn't detract from the belief I hold that what they are doing is legal. I won't purchase any of their products unless they produce something of higher quality than they currently do and that is how I vote, with my wallet. I don't run my mouth/fingers and do the usual internet tough-guy act and state a belief that someone should go out of business just because I don't like what they do. GW does a number of things I don't like so I bought stock and voted with my wallet; I have access to communicate my displeasure with those in charge and a more real chance to affect change than mouthing off. To each his own I suppose but I just believe it's wrong to wish others ill, the courts will decide what is legal and what isn't.

Xelkireth wrote:Awesome. I''m glad CH came out ahead so far. I'm really hoping they win.

I am no legal eagle, but it is not my impression that CH got the better side of the current ruling.

I assume that GW has no documents that state such things as we are basing Space Marines off of Starship Troopers and that GW are not going to say that they did so. Thus, I assume that document request 2 and interrogatory 9 are not of great importance. (There may be other sources of such information, but I assume that GW will not provide such ammo.) Requests pertaining to first use and sale in USA are easily obtained from other sources. The documents pertaining to the trademark research may be very useful to CH and are their big win in this ruling.

On the GW side, document request 10 is very important in establishing that CH stuff is derived from GWs. I think I recall there being mock ups involving the use of GW parts. Those parts were later resculpted, or worse recast, and then integrated into the CH product. GW will still need to prove that such derivation is a violation of IP. I assume that document requests 18 and 20 lay the foundation for showing that CH violated GWs IP on CH's site. All three of these rulings are very good for GW.

"(1) Plaintiff must produce the best available exemplar of the works in question."

There's your big win spaceelf

This case still has a long way to go.

LOTS of OT stuff deleted. The topic is pretty focused here, folks ,and doesn't include ethics, morals, or words like "parasite." This is a business dispute involving complex legal issues between two corporate entities; that's what's under discussion

Janthkin wrote:LOTS of OT stuff deleted. The topic is pretty focused here, folks ,and doesn't include ethics, morals, or words like "parasite." This is a business dispute involving complex legal issues between two corporate entities; that's what's under discussion

That being said, is there, in fact, a difference between what CH is doing and what many other companies in many other industries are doing regarding making parts that are compatible with said "1st" party producers? As has been mentioned before you have the auto industry with upgrade and replacement parts, the cell phone industry with cases and "bling" and many other industries as well that basically do what CH is doing. I am not referencing the individual models that they have now produced and neither is this case really. It was started well before either of these models had been produced. So is there really a legal difference in what so many others are already doing?

Shepherd23 wrote: So is there really a legal difference in what so many others are already doing?

I am not a lawyer, this is not legal advice but I'd spent a lot of time on this subject to say the least.

Yes there is a significant legal differance, stuff like car parts and cell phone cases are functional items, they are protected by design patents which do not include coverage for acessories. A company could also patent a cell phone carrier for instance, but only that highly specific design would be covered, all a 3rd party would have to do is change some basic measurements and their compatible design wouldn't violate that protected design. The only way they could protect their acessiories market would be to have a mounting system with a unique feature that only their products could make use of. (it'd also require a design patent for that mounting device) specialized prongs or screws for instance

Gaming models depending on how it's spun are considered sculptural artistic works which are protected by an entirely seperate set of laws.

Laws dealing with art are in their own category, and design patents don't apply. You can take an exsisting piece or art and legally modify it, but it has to meet the criteria of it "substantially transforming" the original work. As most conversion parts for gaming only modify one aspect of the design it likely wouldn't qualify as being substantially differant and therefore be considered derivative of the orginal design.

For example if you have landraider and switch out the doors is it no longer reconizable as a landraider? In most cases I doubt anyone would see it as anything other than a modified landraider, thus why it'd be labeled as a derivative work.

If you swap out just a marine heads for does it still look like a marine, or has it been transformed into a galactic jousting man from mars and is unreconizeable from a marine?

If you can defend it as a new and unique work (and get the jury to believe that) then you have a chance, but that will likely be tough if your product only grants the user minor superfical modifications.


For various reasons that may be difficult and another option to defend a design is to prove that the sueing company does not actually have a right to that design as they themselves derived it from another source. If a design pre-exsists theirs they cannot legally claim any ownership.

For example if I make a funky alien model and a company comes after me for some design they have that's a couple years older, if I can prove that the design closely mirrors one from a 50 year old star trek episode then the plantifs claims may be found to be void. The danger is of course you are on public record stating that you based your design on star trek, and if paramount found out they could sue you for deriving from their design and they'd have a pretty striong case as it's from a legal record not just speculation.

So I take it that model aircraft and vehicle manufacturers just do not have the same sense of "MINE!" that GW displays? I know that some stuff has been pursued in the past, but I also know that there are A LOT of 3rd party companies producing everything from interior kits and brass etched detail sheets to entirely new guns and turrets that are more detailed than the originals. It is fairly standard practice in the military model hobby to replace bits of kit with better detailed 3rd party bits and no one freaks out like I have seen in this case. So what is the difference in this situation?

Tanks and planes are representations of real world functional items so they cannot be protected as a sculptural work.

It'd be legal for a company to make parts compatible with a Tamiya german tiger tank for instance as Tamiya doens't own the design. (even berlin motorworks who owns the patents cannot own the image of that tank as images of funtional items cannot generally be protected) Likewise any modelling company can sell their own versions of german or american infantry, ford trucks or whatever else that you could find in the real world.

However stuff like a Mobile Gundam model is protected as it is a fictional work and exsists only in drawings and sculptural works, so any renditions of it can be protected; provide the design is found to be unique enough.

Make better sense?



.

paulson games wrote:Tanks and planes are representations of real world functional items so they cannot be protected as a sculptural work.

It'd be legal for a company to make parts compatible with a Tamiya german tiger tank for instance as Tamiya doens't own the design. (even berlin motorworks who owns the patents cannot own the image of that tank as images of funtional items cannot generally be protected) Likewise any modelling company can sell their own versions of german or american infantry, ford trucks or whatever else that you could find in the real world.

However stuff like a Mobile Gundam model is protected as it is a fictional work and exsists only in drawings and sculptural works, so any renditions of it can be protected; provide the design is found to be unique enough.

Make better sense?



.

And yet, there is a thriving market for 3rd party Gundam parts as well. http://mechacatalogue.com/2011/11/21/0003-third-party-products/

There exists two fronts when talking about the general response to the third-party scene — the franchise-holders and the fandom/community — each having a different take on the matter. Ideally, this should be big NO for the companies owning the rights to these huge franchises. But surprisingly, there hasn’t been any serious legal action taken against these third-party groups. Whether its Transformers or Gundam, these third-party products are good at sticking in the gray area of the spectrum, minimizing any possibilities of instigating direct competition to the major companies. This is because third-party products often cater to the other half of the market base as mentioned previously — the collectors (the niche market). Take for instance most of third-party Transformers products, upgrade kits usually cost more than $20 and full-on transforming figures are often at the $50 to $100 price range. Looking at this perspective, a typical mainstream consumer can already purchase a Voyager Class figure for $20, which is a tad more in the value-price sense than a small upgrade kit, the same sense that parents use when children ask them to buy a figure.

Surviving in the grey area, filling in gaps in the product lines that the manufacturers do not, catering to collectors... Sounds familiar.

Indeed it does. Thank you for the input. Despite the opinions of others, I still believe there is room in the industry for 3rd party producers. GW has a history of rules without models and armies without accessory representation. FW does little to actually support this as well and this is why the 3rd party market has grown so fast. I have always felt that what you and others do is great for the "hobby". This is something that GW fostered themselves for decades and only recently stiffled into non existence within their own company. It was only natural that enthusiastic hobbyist would take this up and run with it. GW has created this monster themselves and now want it dead. This is really the biggest crime being commuted here as I see it. I hope that you (Paulson) and the rest are able to continue producing the items you produce as I lI've the variety that I now see on the tabletop and it is only because of people like you that we are seeing it.

While Bandai is the largest producer of Gundam products they are not an exclusive liscense holder for the Gundam line. There are a number of smaller companies that also produce items under lisc, several companies also legally produce convention only kits.

There are also a staggering number of hong kong based pirate companies producing 3rd party items of questionable legallity.

Remember what is legall or illegal in one country may not apply in another, even if it does the enforement of those laws may differ as well.

Bandai has been involved in a huge number of lawsuits, and won th majority of them. They are a HUGE company and what they've dropped on a few cases going after companies in China could fund GW's entire yearly opperating budget. Just because there are 3rd party parts out there doesn't mean they are legit or that Bandai isn't doing their letter best to corn hole knock off companies.


Even the largest companies can't afford to go after everybody, hiring lawyers and filing suits is a huge drain on a company even when they have a massive bankroll. The grey area exsists because it's not affordable to go after everybody. Some companies also see fan created works as a boon for free product promotion and it helps fosters the fan communities. They will go after the largest and most damaging knock off companies to use as examples and to protect their line as best as possible, but chances are they won't go after the small guy who puts together a half dozen fans kits a year as it's just not a target that has a proper level of pay off.

Every companies attitude is differant, some might turn a blind eye to a 3rd party market, some might actually promote it, other companies will do their best to shut it down. The smart ones IMO use it to promote their products and grow their business. Companies that foster a closer relationship with their customer base tend to do surprisingly well. that why there's been such a huge upswing in independant companies promoting on forums and facebook it gives them a loyalty connection and product attunement that dinosaur companies lack. It's one of the reasons Privateer Press has grown so rapidly, they embrace the customer relationbship that GW does it's best to kill.

paulson games wrote:While Bandai is the largest producer of Gundam products they are not an exclusive liscense holder for the Gundam line. There are a number of smaller companies that also produce items under lisc, several companies also legally produce convention only kits.

There are also a staggering number of hong kong based pirate companies producing 3rd party parts as well of questionable legallity.

Remember what is legall or illegal in one contry may not apply in another, even if it does the enforement of those laws may differ as well.

Bandai has been involved in a huge number of lawsuits, and won th majority of them. They are a HUGE company and what they've dropped on a few cases going after companies in China could fund GW's entire yearly opperating budget. Just because there are 3rd party parts out there doesn't mean they are legit or that Bandai isn't doing their letter best to corn hole knock off companies.


Even the largest companies can't afford to go after everybody, hiring lawyers and filing suits is a huge drain on a company even when they have a massive bankroll. The grey area exsists because it's not affordable to go after everybody. Some companies also see fan created works as a boon for free product promotion and it helps fosters the fan communities. They will go after the largest and most damaging knock off companies to use as examples and to protect their line as best as possible, but chances are they won't go after the guy who puts togetehr a half dozen fans kits a year as it's just not a target that has a proper level of pay off.

I am not versed on the Gundam lawsuits, but with some google searching, I only found the case where Bandai sued Chinese/Hong Kong companies 2 times who were making direct copies of Bandai models. My google-fu does not come up with any examples of Bandai suing anyone making their own models either in different scale, accessory bits that go on a Gundam model, or filling in gaps that Bandai does not produce themselves.

Years ago, I almost got into collecting Japanese figures/Gundam kits, instead I started buying more armies for 40k. Bringing up the Gundam kits, which are sculptural works, and third party manufacturers/hobbyists making parts for sale for those kits, or making entire new kits where there was none before has a lot of similarity with third party manufacturers/hobbyists making models and add on/replacement parts for model kits for GW products.

The Gundam line is solely owned by Sunrise, which is a subsidiary of Bandai. Much like Black Library and Forgeworld are subsidiaries of GW. This is an interesting line of thought, and I look forward to this being hashed out by people more knowledgeable about it than myself.

(I seem to remember seeing a $50 model kit for a Gundam that had a really neat $150 upgrade kit that did a peel away of the internal structure as being one of the reasons I got into GW instead)

The TT Hongli mecha do have some differances, I have no clue how Chinese/Japanese international law handles their definitions. (the court decided in favor of Bandai)




]


Personally I can see a few areas where the design was copied/inspired, but then it was covered pretty heavily in pure crap. ugh

It looks like they took an original model as a base, awkwardly covered some areas with new details.... almost like a 3rd party conversion.






Not really on topic but there's a video of that design which I can only summerize as robot seeks topical ointment after back-door encounter. (best watched with sound off as it's really annoying)

http://youtu.be/NJ1Fqi3Cf4M
.

Paulson, CH and other 3rd parties, in your opinion, is there a middle ground to be had here as GW sees things? Can there be a world were GW is happy and we are still getting 3rd party products to add variety to our armies?

I cannot see how a company that is producing items that require you to purchase GW models to use is damaging to the GW bottom line. Despite what others have said, I see the quality of most of these items as just as good or in some cases better than what GW currently produces so diluting the market is not really a valid concern. I understand that items that replace a GW model/kit is potentially an issue, but GW has also brought that upon themselves with their poor release history.

I want to see the variety that I currently get. I would hate if every army out there was a duplicate of every other one. Again, GW made this mentality in the hobby. They need to stop fighting it and start looking for ways to make it work for them. Can that happen?

paulson games wrote:Laws dealing with art are in their own category, and design patents don't apply. You can take an exsisting piece or art and legally modify it, but it has to meet the criteria of it "substantially transforming" the original work. As most conversion parts for gaming only modify one aspect of the design it likely wouldn't qualify as being substantially differant and therefore be considered derivative of the orginal design.

For example if you have landraider and switch out the doors is it no longer reconizable as a landraider? In most cases I doubt anyone would see it as anything other than a modified landraider, thus why it'd be labeled as a derivative work.

If you swap out just a marine heads for does it still look like a marine, or has it been transformed into a galactic jousting man from mars and is unreconizeable from a marine?

The problem I see with that though is that I am not selling a landraider (to use your example) I am selling a door designed to fit it. In the exact same way I can design a head to swap out.

If I am not selling the complete item, then how can you be considered to be selling a deriviative work? I am selling a functional part to be swapped.

Cheers

Andrew

The third party producers that aren't getting bothered are the like of Maxmini and Kromlec etc who don't just take GW artwork and slap it on a door/pad/whatever. Whether its legal or not we'll find out, but you would be very surprised to see how many GW staff aound have 3rd party products that are original in nature and not essensially plaguristic in style. There always have and will be 3rd party manufacturers (thank the lord because I have some peculiar armies built that I couln't have without them), but the issue curently is how close to the sun you can get before the wax on your wings melts!

paulson games wrote:
Gaming models depending on how it's spun are considered sculptural artistic works which are protected by an entirely seperate set of laws.

I would assume that the lawyers for CH are trying to spin gaming models in another light. One may be able to argue that they are functional pieces in a game.

We should also ask ourselves why this is ending up in court. Many other industries have more than their fair share of similar works. Take a look at TV shows, comics, and toys. There are tons of them. Thundarr the Barbarian and He-man. Aquaman and Namor the Submariner. Stone Protectors and Battle Trolls. I think that GW is simply being a bully. They are already by far the biggest player in the miniature market. They are just picking on the little guys. If GW spent their time listening to customers and making models then CH would not have beat GW to the punch with producing the Tervigon.

paulson games wrote:Laws dealing with art are in their own category, and design patents don't apply. You can take an exsisting piece or art and legally modify it, but it has to meet the criteria of it "substantially transforming" the original work. As most conversion parts for gaming only modify one aspect of the design it likely wouldn't qualify as being substantially differant and therefore be considered derivative of the orginal design.

For example if you have landraider and switch out the doors is it no longer reconizable as a landraider? In most cases I doubt anyone would see it as anything other than a modified landraider, thus why it'd be labeled as a derivative work.

If you swap out just a marine heads for does it still look like a marine, or has it been transformed into a galactic jousting man from mars and is unreconizeable from a marine?

The issue of this assertion is the laws dealing with "art" explicitly restrict the number of directly reproduced instances. Produce too many of something that was created as "art" and its no longer given the legal protections of an artistic work. The law has a particular number of copies in the instances of open ended releases, but allows for an artist to produce a greater number of copies if the number is predetermined and limited to that, but there are limits to that as well.

spaceelf wrote:

paulson games wrote:
Gaming models depending on how it's spun are considered sculptural artistic works which are protected by an entirely seperate set of laws.

I would assume that the lawyers for CH are trying to spin gaming models in another light. One may be able to argue that they are functional pieces in a game.

We should also ask ourselves why this is ending up in court. Many other industries have more than their fair share of similar works. Take a look at TV shows, comics, and toys. There are tons of them. Thundarr the Barbarian and He-man. Aquaman and Namor the Submariner. Stone Protectors and Battle Trolls. I think that GW is simply being a bully. They are already by far the biggest player in the miniature market. They are just picking on the little guys. If GW spent their time listening to customers and making models then CH would not have beat GW to the punch with producing the Tervigon.

the fundamental problem with your argument is that it breaks down when you look at ownership. You'll find that once you look into the types of shows and who owns the rights and the production crews.... things are all in the same hands.. NOW! that said, an analogous argument from the world of television would be Walt Satan--whoopsies, I mean Walt Disney. They are the GW of cartoons/fairytales. Notice how Warner Brothers is no longer in the cartoon industry? Funny that, is this the first time Walt Satan-ah, i did it again--Disney has come up in this thread?

I'm a GW stock holder. At every board meeting, (not that I own enough to make a different, but I want to rep the "gamer"), I grab the floor and talk about what I feel needs to be done to serve the gamers, namely, all units come out quickly (not Dark Eldar quick) after a codex release and that artwork shows up in the codex, so it can be copy written.

I point out that the competition (GW only feels that PP is near their level), does more with less and does it better (that said, I hate the models, but like the rules).

I want CH to win.

I own a bunch of CH models. I think their models are inferior to GW's. But, CH released models that GW did not.

I want the board of GW to understand that they messed up. That another company read the description and made a model that is the logical implementation of that text and that this blocks GW from making that model.

I want GW to understand in a bottom-line way that it is not ok to do releases in the manner they have done in the past.

I want GW to understand that if they don't quickly execute on their ideas that somebody will enter that vacuum

I believe GW will write these units out of the codex in the future.

I don't think they will take away the correct lesson.

aka_mythos wrote:The issue of this assertion is the laws dealing with "art" explicitly restrict the number of directly reproduced instances. Produce too many of something that was created as "art" and its no longer given the legal protections of an artistic work. The law has a particular number of copies in the instances of open ended releases, but allows for an artist to produce a greater number of copies if the number is predetermined and limited to that, but there are limits to that as well.

Care to provide the source for that? Are you a IP specialist lawyer or like most everyone else just speaking from an arm chair posistion on something you don't have any formal background in?

If it were that simple then the case wouldn't still be in court. Under US federal law (which this case is being tried under) It doesn't matter how many copies of something is sold, art is protected under US law even if it's "art for the masses". Otherwise you'd see people doing whatever they wanted with Star Wars or Harry Potter, whos movies, toys, and statues etc have sold millions of copies and they are certainly still protected.

There is so much BS in this thread that uninformed people just toss in when they have NO IDEA what they are talking about.


Also there is nothing legally that prevents GW from putting out one of their models that's based on their concept art. Their art is out first, a 3rd party may copy that but it does not invalidate the original copyright by any means, so if GW decides to make a Tervigon kit for example the Chapterhouses version does nothing to impeed that. The only part where that could potentially matter is if they did a direct recast. Which I really doubt they'd do as GW has a certain aesthetic it holds it's models to.

Legally if GW can confirm their ownership of the Tervigon design they can not only bar CH from producing that kit anymore, they could recast the CH kit if they chose to as they own all rights to it. Even if CH did create their own model design GW could assume full rights over it as they own the original root concept. Conversely if an item is proven to not to have ownership by anyone (public domain) then anyone can produce models based on that design. So if it's fought out in court and GW can't prove it owns the design, then any company could legally make their own versions tervigons and GW could do nothing to sue over that.

That's what "dirty hands" refers to, you prove the plantif's rights to their design as invalid as they were derived from an earlier product.


If GW really wants to shut out 3rd party stuff all they'd need to do is release their own models and that'd kill the majority of the demand for 3rd party products. It won't eliminate it entirely as there's always people who want something differant, but the majority of people will use offical GW product if it's available. If the demand is elminated there's not a lot of profit in it and ultimately even 3rd party companies need a solid demand to keep their doors open.

I would expect that in the future GW will perhaps release all armies as a single wave with each slot supported asit'd be the simplest way to lock out any disputes.But who knows they seem to have their own "unique" mindset in how they approach doing business so there's no way to guess what they'll do.

Paulson,

I don't know where you've gotten your information. Maybe it was independent research. Maybe you're regurgitating what you heard from your lawyers, or even what you heard in settlement conferences. But wherever your information came from, it isn't entirely correct. Even if your source were reliable, it seems that you've managed to muddle it into some kind of inaccurate amalgam.

"Legally if GW can confirm their ownership of the Tervigon design they can not only bar CH from producing that kit anymore, they could recast the CH kit if they chose to as they own all rights to it. Even if CH did create their own model design GW could assume full rights over it as they own the original root concept." (emphasis mine)

Copyright does not protect concepts, merely expressions. Under US copyright law, no one can control a concept. That's pretty fundamental. You'll find it right under the section titled Subject Matter and Scope of Copyright.

You're right that nothing a third party does after an author produces a work of art vacates the copyright inherent in that work. Yet what applies to one author applies to all others. It seems that you're very hung up on the concept of derivative works. The holder of a copyright has rights to all derivative works. A derivative work is a separate copyright from the "root" work, but one that is controlled by the holder of the "root" copyright, because part and parcel to the rights of a copyright holder is the right to prepare derivative works. So you've got that concept down.

What you seem to be having problems with is how one determines if a work is derivative of another work. First, a work must be derivative of a protectible expression; not a concept, aesthetic, idea, etc. Second, it is in fact more difficult to establish that a work is derivative than it is to establish that a work is a copy, especially in terms of works of visual art as the definition of derivative work and much of the case law deals specifically with written expressions in a narrative form.

The "Tervigon design" as you call it, will never really be in the public domain Paulson, unless GW specifically puts it there, and that is becoming increasingly difficult to do deliberately. Many elements of the one extant expression produced by Games Workshop were drawn from public domain sources, but that does not mean the work is not entitled to copyright protection. As long as an author contributes something new to that which is in the public domain, that artistic contribution is protectible. The only salient issue is the scope of the copyright. The more minimal the artistic contribution is, the more narrow the copyright. Copyright should in any case only allow one to control copies of a work, not works that are similar, even if they are inspired by protectible expressions. "Substantial similarity" only exists to prevent would-be copiers from circumventing infringement by making insignificant alterations.

Derivative works must recast, transform, or adapt the root work, meaning that you start with the root work and then change it, literally. And I mean quite literally. Thus, an author controls derivative works because they essentially reproduce, in exactness, some fundamental essence of the root work, such as in the example of a translation, specifically mentioned in the definition of derivative work. The language of a translation is different, but the story is the same and the translation started with the entirety of the original expression. Similarly, an abridgment starts with an expression in its entirety and removes parts of it that are not essential elements of the core narrative. Compilations are derivative for obvious reasons. The law recognizes the artistic expression inherent in an arrangement or compilation, but that work does not allow one to control the protectible expressions of which it is composed. These are the issues that lead to the genesis of the derivative work concept. They are specifically referred to in the definition, and they guide one in determining what the definition means and how it should be applied.

"Dirty hands" just means that you can't sue me for doing something wrong that you've already done. Its an equity concept. If your work infringes another work, you can't sue me for infringement of that work. But in the context of copyright law, you wouldn't even have standing to bring a suit in the above example because you would have no protectible expression in the first place. A defendant in a copyright infringement suit is allowed to test the validity of a copyright, but it is also incumbent on the Court to define the scope (if any) of a copyright after a suit has been filed.

Did GW spook you in a settlement conference or something? I'm curious about where all of these GW favorable misconceptions came from.

In an earlier post you also concluded that useful articles were only covered by narrow design patents and not subject to copyright protection. This is quite untrue. US copyright code states that copyright protection does not extend to "useful articles" but only so far as the appearance is functional. To the extent that a useful article has non-functional aesthetics, those are protectible under copyright. Then there's always Trade Dress.

Now, you seemingly would have everyone believe that defending an accusation of copyright infringement based on the fact that the accused works were designed as accessories would go nowhere because this would implicitly be an admission that the accused works were derivative of the asserted work. I do not at all think that your conclusion is in any way absolute. You have stumbled upon an area of limbo in US copyright law. The United Kingdom has fixed the inherent problem with the so-called must-fit and must-match exemptions. No such exemptions exist in US copyright law, but you are mistaken to believe that just because those exemptions do not exist, an "accessory" designed to be compatible with a protectible work of art must automatically be considered a derivative work, and thus the only defense is to prove that no copyright exists in the asserted work.

Those are rather bold assumptions Paulson, and I don't think they would hold a candle in US Federal Court. The essential problem is that gaming models are in a sort of between space between a useful article and a work of art. I agree with you that they will likely be considered works of art protectible under copyright to the extent that they are protectible. Copyright law must therefore control, but as I pointed out, there's no exemption for must-fit and must-match.

In the absence of those exemptions, what you have, conceptually, is a work that has certain dimensions in common with -some- part of the asserted work as well as an aesthetic that is generally consistent with that work. First, general aesthetics are not protectible, specific expressions are separately protectible. Second, in order for the accused work to be a copy, it must be substantially similar to the asserted work. Without even going into any particular example, the purpose of the accused work, in our theoretical example, is to be different and unique - NOT the same. Thus I think that it must be concluded that the work is indeed different. Now, we then have a work accused of infringement that is both different from and similar to the asserted work.

Here's the rub Paulson: the accused work must unfairly appropriate that which is protectible in the asserted work. Which is to say that the accused work must be substantially similar to the asserted work. That which is the same or similar between the two works, based on a side by side comparison of the works -in their entirety- must copy that which makes the asserted work unique.

If we turn to the example of a Space Marine shoulder pad, the mating surface between the big shoulder pad bit and the marine arm bit has NO artistic value in the context of the sculptural work. It isn't even seen by the viewer.

Now, you were harping on about derivative works. As I said before, it should be -harder- to show that a work is derivative than it is to show that a work is a copy, not easier. The derivative work definition is not intended to loosen the bounds of copyright infringement. In order for a work to be derivative it must -copy- the fundamental essence of the root work, not merely an insignificant portion of that work which is altogether completely irrelevant to the artistic value of the work.

paulson games wrote:

aka_mythos wrote:The issue of this assertion is the laws dealing with "art" explicitly restrict the number of directly reproduced instances. Produce too many of something that was created as "art" and its no longer given the legal protections of an artistic work. The law has a particular number of copies in the instances of open ended releases, but allows for an artist to produce a greater number of copies if the number is predetermined and limited to that, but there are limits to that as well.

Care to provide the source for that? Are you a IP specialist lawyer or like most everyone else just speaking from an arm chair posistion on something you don't have any formal background in?

If it were that simple then the case wouldn't still be in court. Under US federal law (which this case is being tried under) It doesn't matter how many copies of something is sold, art is protected under US law even if it's "art for the masses". Otherwise you'd see people doing whatever they wanted with Star Wars or Harry Potter, whos movies, toys, and statues etc have sold millions of copies and they are certainly still protected...

Source, it's easy enough to look up online the US copyright and trademark office and see that an "artistic work" or piece of "art" as Paulson refers to it is a very specific category for protection. I'm not sayings this is all so simple, I'm just saying whatever type of protection GW has its not as a piece of "art". The art category explicitly excludes models and concept art used in the design of a product, which are still granted protection just not for their artistic merits. That should show the narrowness of the category.

Weeble, feel free to twist things how you want. Nowhere did I make any assertions about unclean hands being the only legal defense or tactic available. I'm not sure where you get that idea. It is one way of defending against those claims (and there's plenty of others) . I'm not going to speculate on how CH may go about launching a defense, nor do I care how their end of the case resolves.

So please don't try and put words in my mouth.

I'd have more respect for Chapter House if they at least partially veiled what they're doing... they just blatantly say 'Yeah, this stuff's for Space Marines'.

At least other companies make up stuff like 'Space Shock Troops' or something like that.


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I mean if GW's IP is being that blatantly assaulted, I think that they had to sue just to save face!

Henners91 wrote:I'd have more respect for Chapter House if they at least partially veiled what they're doing... they just blatantly say 'Yeah, this stuff's for Space Marines'.

At least other companies make up stuff like 'Space Shock Troops' or something like that.


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I mean if GW's IP is being that blatantly assaulted, I think that they had to sue just to save face!

I actually respect CH for being honest about what they are doing. The other companies are doing EXACTLY what CH is doing, except they try to hide behind veiled names that hint at their actually intended purpose. A shoulder pad sized to fit a GW Space Marine is what it is. Calling it a duck doesn't make it one or change its intended usage. CH, at least, had the balls to actually come right out and tell you what they do instead of hiding behind lame innuendo. Its not like the other 3rd party companies are making stuff and then going, "It works with a Space marine!?! Really!?! Wow! That's not at all what I intended when I designed it! Golly!"

If you are going to do something then I say come right out and do it. Damn the torpedoes attitude. CH has this attitude. Yes it has gotten them into hot water, but isn't over yet. And considering how this case may effect the entire 3rd party industry, I am surprised that none of the other guys have offered a helping hand to CH. Instead they just hide in their innuendos hoping to not get noticed until it is all over and they can reap the rewards of CH's endeavors. Kinda sad actually.