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Paulson,

Yea, you mentioned more than one way to defend alleged "conversion bits" infringement. However, what you said is that most conversion parts don't modify the "original" design enough to not infringe, thus defending infringement would be "difficult," and that an alternative way to defend infringement would be to challenge the asserted copyright, which also probably wouldn't work.

I interpreted that to mean you thought that based on the idea that a conversion part is in all liklihood a derivative work, the only other viable means of defense would be to challenge the asserted copyright. I think that is a reasonable way to interpret what you wrote. And, as I pointed out, your opinions were based on an eroneous interpretation of the law.

I think it is very unreasonable to flatly conclude that "As most conversion parts for gaming only modify one aspect of the design it likely wouldn't qualify as being substantially different and therefore be considered derivative of the original design." That's your opinion, but it doesn't square very well with the way US copyright law works. You stated said opinion with some authority, being until recently a co-defendant in the litigation that is the subject of this thread, so I thought it was important to help ameliorate the potential damage to peoples' understanding of US copyright law.

Simply put, no, I did not put words in your mouth. I reasonably interpreted what you wrote, disagreed with it, and explained why.

I'm curious, though, about where you came by the information that you relied on to form your opinions.

I'm just glad that Paulson is finally off the hook in this case... since it was completely incorrect on GW's part to include him.

I do think the view you posted is not totally accurate, though Paulson... but that's why this case is in the courts, right?

weeble1000 wrote:I'm curious, though, about where you came by the information that you relied on to form your opinions.

Weeble, we may find that out once GW produces all the relevant papers as instructed by the court.

Cheers

Andrew

paulson games wrote:
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?

http://en.wikipedia.org/wiki/Visual_Artists_Rights_Act

Exclusive rights under VARA

VARA exclusively grants authors of works that fall under the protection of the Act the following rights
right to claim authorship
right to prevent the use of one's name on any work the author did not create
right to prevent use of one's name on any work that has been distorted, mutilated, or modified in a way that would be prejudicial to the author's honor or reputation
right to prevent distortion, mutilation, or modification that would prejudice the author's honor or reputation

Additionally, authors of works of "recognized stature" may prohibit intentional or grossly negligent destruction of a work. Exceptions to VARA require a waiver from the author in writing. To date, "recognized stature" has managed to elude a precise definition. VARA allows authors to waive their rights, something generally not permitted in France and many European countries whose laws were the originators of the moral rights of artists concept.
In most instances, the rights granted under VARA persist for the life of the author (or the last surviving author, for creators of joint works).

Covered works

VARA provides its protection only to paintings, drawings, prints, sculptures, still photographic images produced for exhibition only, and existing in single copies or in limited editions of 200 or fewer copies, signed and numbered by the artist. The requirements for protection do not implicate aesthetic taste or value.

This is under a subset of copyright law known as "moral rights" it's more broadly protected in the EU than in the US.... It's how I think GW gets away with claiming that conversions are a major infringment, Unfortunaltly that doesn't fly as well, under US law.

Lanceradvanced wrote:"produced for exhibition only"

That means if a piece is made for sale it invalidates all those rights.

That law entry is for pieces that are on display as a public work or gallery, not for items which are being sold or transferred.

paulson games wrote:
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.

I find this very difficult to believe. Just because someone makes something that infringes on you doesn't mean you now own it. While you can bar them from producing more, and sue them for all sorts of damages, you can't take their stuff for yourself. The other company still own the infringing sculpt, they just can't produce and sell it. It's still their unique expression, their sculpt.

Where a company makes something similar to something else (and Tyranid bits are all fair generic, GW don't own the 'aesthetic') but uses a name belonging to that other company - then the main issue is that the other company could demand they change the name, and they could in theory sue for losses if they could prove that the public was being misled or their brand name was misappropriated. Often the infringing company would just make up a different name for their product and stop using the copyrighted term, this occurs amicably often enough. Because lots of products look similar and sometimes people accidentally tread on the copyright term of someone else.

There's no way that the main company could say "Ah, you have a model that looks a bit like one of our drawings, and you have used the same name! Now we own your sculpt and will recast it for ourselves!"

This is rubbish. Nobody can recast other people's sculpts, even when they are infringing. You can be forced to cease production, but not hand your stuff over for someone else to profit from. By this logic, GW own your photographs if you take pictures of their stuff. No, you own the photographs but you may not be able to publish them without permission because the content in them is copyright.

Howard,

Paulson was referring to derivative works, and yes, I believe he was correct about that. I disagree with how he imagines one determines if a work is derivative, and I think that this is why his example assaults your sense of equity.

A derivative work, as I mentioned earlier in my text wall, is a -separate- copyright from the work that it was derived from. However, as the copyright holder has the exclusive right to prepare derivative works, control of the derivative work belongs to the holder of the root copyright. I'm fairly certain that's correct.

Your point is well taken though Howard, because it doesn't seem half fair in Paulson's example. It does seem fair when one considers the purpose and limitations of derivative works. Should an author of a novel not control a translation of that novel? It doesn't seem fair at all for an author to lose control of a novel because the words are transformed into a different language, hence where derivative works come in.

Similarly, should I be able to gain control over a narrative by creating a Readers' Digest version of it? Again, that doesn't seem fair, and derivative works comes to the rescue.

Derivative works again comes to the rescue with regard to motion picture adaptations. Should Spielberg control War Horse by adapting it for the silver screen? Should the author of that novel have no control over his unique narrative? I should hope not.

Those are all specific examples of derivative works as the law defines the term. Thus we see the scope and purpose of the derivative works concept.

First question to this case is? Has Games workshop Copyrighted the model in question, in the US, in a correct manner and if so before the lawsuit?

We do not know this nor all of the information concerning the lawsuit.

This is going to be a long case.

I personally believe that because of this case right or wrong, Games Work will be reworking all of their IP paperwork to insure that they have properly filed all of their works in a correct manner here in the US and perhaps abroad.

Adam LongWalker wrote:First question to this case is? Has Games workshop Copyrighted the model in question, in the US, in a correct manner and if so before the lawsuit?

We do not know this nor all of the information concerning the lawsuit.

This is going to be a long case.

I personally believe that because of this case right or wrong, Games Work will be reworking all of their IP paperwork to insure that they have properly filed all of their works in a correct manner here in the US and perhaps abroad.

One question I would like to ask. All these companys that have been put under by GW sending them C&D letters, would they be able to go after GW if it's proven gw didn't own said copyright/ IP / -insert legaleese term here- that they threatened to sue them over?

Would they be allowed to sell said models if they still had the molds for them?

We're unable to answer your question, Adam, because GW has not specified what was copied. I believe the court has required their attorneys to produce something in support of the defendant's motion to compel.

FabricatorGeneralMike wrote:One question I would like to ask. All these companys that have been put under by GW sending them C&D letters, would they be able to go after GW if it's proven gw didn't own said copyright/ IP / -insert legaleese term here- that they threatened to sue them over?

No. Anyone can threaten to sue anyone else. Anyone receiving a C&D letter who did not "take it to court" CHOSE to stop producing the item(s) in question.

FabricatorGeneralMike wrote:Would they be allowed to sell said models if they still had the molds for them?

They're allowed to sell them now. Just because a C&D was sent, that does not mean they can no longer sell the models. It means that, presumably, GW will sue them if they do. Regardless how the CHS suit ends up, anyone else can still continue doing what they're doing. One side or the other will use the CHS ruling as basis for it's side, however.
Even if CHS wins, that won't mean GW can't turn around and sue someone else for doing the same thing. It just means (a) they better have their ducks in a row this time and (b) you can expect their lawyers (presuming they fight GW) to try to lean on the CHS verdict as much as possible. If they lose, the same is true, except that it would be GW leaning on the CHS verdict.

Eric

MagickalMemories wrote:

FabricatorGeneralMike wrote:One question I would like to ask. All these companys that have been put under by GW sending them C&D letters, would they be able to go after GW if it's proven gw didn't own said copyright/ IP / -insert legaleese term here- that they threatened to sue them over?

No. Anyone can threaten to sue anyone else. Anyone receiving a C&D letter who did not "take it to court" CHOSE to stop producing the item(s) in question.

Not exactly. A C&D trying to enforce copyrights that GW knows it can't establish ownership over would be abuse of process.

This wouldn't help previous recipients of GW's C&D letters, but it would stop future letters.

I didn't say it wouldn't be an abuse. I just said they could do it.
I do hope a CHS victory here will stop (unnecessary) future C&D letters to aftermarket bits manufacturers. But, surely, you agree that it doesn't mean they literally cannot sent them?

Eric

MagickalMemories wrote:I didn't say it wouldn't be an abuse. I just said they could do it.
I do hope a CHS victory here will stop (unnecessary) future C&D letters to aftermarket bits manufacturers. But, surely, you agree that it doesn't mean they literally cannot sent them?

Eric

Fair enough.

But that does mean aftermarket suppliers could "go after" GW for sending a C&D letter as FabricatorGeneralMike suggested.

Laws against murder don't mean I can't literally set my neighbor on fire either. It just means there are consequences for doing so.

Waiting eagerly the result of this courtcase , as a matter of interest more than anything else /subscribed


a redshirt took exception to me recommending a CHS tervigon (because it's the best unit in the 'dex and GW does not produce it). It is their store and I am a guest but... there were 3 carnifexes to be bought at Australian prices.

Talk about cutting off your nose to spite your face... I know the staff are paid to defend and market GW as the only universe in existence, but a savvy salesperson would have said, "that's still before the court, remember, and GW's position is that it's copyright infringement. That's an aside though, buy the carnifexes and get started on your conversion of the best unit in the 'dex" better to appreciate the reality of your customer and appear on their side rather than to hector or lecture them.

(and yes, in my area some still wear red shirts)

biccat wrote:But that does mean aftermarket suppliers could "go after" GW for sending a C&D letter as FabricatorGeneralMike suggested..

Understood and agreed.

biccat wrote:Laws against murder don't mean I can't literally set my neighbor on fire either. It just means there are consequences for doing so.

Pics or it didn't happen. Please? LOL


Eric

severedblue wrote:a redshirt took exception to me recommending a CHS tervigon (because it's the best unit in the 'dex and GW does not produce it). It is their store and I am a guest but... there were 3 carnifexes to be bought at Australian prices.
(...) better to appreciate the reality of your customer and appear on their side rather than to hector or lecture them.

If GW finds out, he will be fired, simple as that.
Better keep your job than appreciate the reality of your customer

biccat wrote:
But that does mean aftermarket suppliers could "go after" GW for sending a C&D letter as FabricatorGeneralMike suggested.

Unfortunately, most of those small pop companies (since they probably can't afford mom also!) can neither afford financially to defend themselves against a GW lawsuit nor go after GW for any inappropriate actions. GW has pretty much been relying on the small scale nature of the businesses they bully out of existence.

Hm... What are the rules for a "Class Action" suit? There seem to be a number of these small companies that GW has threatened out of existence. Would they be able to pull together?

My legal inexperience keeps me from knowing what the liklihood of that scenario.

Kanluwen wrote:Please refer me to the cases of third party companies manufacturing shoulderpads for toy soldiers which actually are relevant to the case..

How about Lego's 11 year battle to trademark their bricks, which they ended up losing, once that happened, there was a explosion of 3rd party stuff made to be compatable with Lego bricks, and Minifigs, among which are a number of companies, making.....

Shoulderpads...

Imagine millions of third party shoulder pads forcing GW to sell millions of Space Marines. The horror!
GW will end as LEGO: Prospering and making millions of profit!

Kroothawk wrote:Imagine millions of third party shoulder pads forcing GW to sell millions of Space Marines. The horror!
GW will end as LEGO: Prospering and making millions of profit!

That's what kills me about this whole thing. GW is making money off of CHS's work hand over fist. Why would you want to shut down a company that is making you money?

Because GW hates money.

I’ve always found that fact rather odd. None of the CH products are true replacement models outside of maybe the newer Eldar stuff released recently (Doom and the Tau superheavy doesn’t count as there is no GW counterpart models). Most of the CH products need a GW product anyway in order to work, thus generating the sale of the actual GW kit anyway. HBMC for example who is famous on Dakka for his well written criticisms of GW actually bought 2 Storm Raven kits just to make use of CH’s True Scale kit.

GW has always been perversely overprotective of their IP and most likely this is clouding their judgement.

GW secretly fears the whole company being found out as a bit of a fraud. "What, you ripped this bit off Nemesis the Warlock, this bit off Elric, this bit off Dune, and these bits from... a wide variety of popular 1980s genre movies, which leaves you with... hmm... Eisenhorn as the sole original idea in all of 40K?" So there's a massive, God-Emperor's New Clothes issue. The legal department has spent the past twenty-odd years frantically popping smoke, every turn, in the hope of making cover save after cover save, all the while desperately wanting no-one to spot the rule that you can only pop smoke once per game.

Kroothawk wrote:

severedblue wrote:a redshirt took exception to me recommending a CHS tervigon (because it's the best unit in the 'dex and GW does not produce it). It is their store and I am a guest but... there were 3 carnifexes to be bought at Australian prices.
(...) better to appreciate the reality of your customer and appear on their side rather than to hector or lecture them.

If GW finds out, he will be fired, simple as that.
Better keep your job than appreciate the reality of your customer

The manager of the store is a cool dude, he's been around for a while and I respect him because his opinion on many matters is very reasonable. I don't think he'd fire his staff member.

If the staff gave the standard disclaimer then said, "buy three carnifexes!"

- buy three carnifexes and convert into tervigons

does not intersect with

- buy three CHS tervigon kits



Semantics I know, but lecturing people doesn't really convince them to buy product.

It's amusing the "GW hate money quote."

That's the thing that amuses me most about this whole piece you have to buy the marines to buy the shoulderpads.


I remember there was one GW staffer who was a real gun... gun painter, gun gamer, cool guy. He gave one of the veteran sculpters / hobbyists at the hobby table magic putty to bake and make moulds for pre-heresy thousand sons helmets / shoulderpads. The sculptor wasn't copying an existing kit, he had had sculpted a shoulder pad out of green stuff and needed 30 of them.

Maybe that's why I don't see that GW staffer anymore... but of all of them I have met over the years, I respect him the most.

Another case... another veteran gamer recommending Tamiya colour stains for the Prism Cannon plastics and getting admonished by a staffer... now that gamer is a GW staffer as well lol. I wonder now if he chokes every time he has to sell something....



All as an aside of course.

Kroothawk wrote:

severedblue wrote:a redshirt took exception to me recommending a CHS tervigon (because it's the best unit in the 'dex and GW does not produce it). It is their store and I am a guest but... there were 3 carnifexes to be bought at Australian prices.
(...) better to appreciate the reality of your customer and appear on their side rather than to hector or lecture them.

If GW finds out, he will be fired, simple as that.
Better keep your job than appreciate the reality of your customer

Interesting thing is that this behaviour is what I'd expect in any store. Fairly normal situation as example. I go to a store to get product X which the store should have. If they don't have it (either don't sell that particular item or out of stock) I tend to ask which store around here should then carry it. I've never encountered a situation where I wouldn't get a proper answer to this.

GW does seem to hate money, why else wouldn't they let retailers have forge world stuff other than the books (and there was a huge snafu with that)?

But we digress, did the holiday season slow the battle down? If I recall GW likes to push legal action around this time.

http://investor.games-workshop.com/2012/01/06/copyright-litigation-settlement/

Copyright litigation settlement

JANUARY 6, 2012

Games Workshop and Paulson Games are pleased to announce the settlement of the copyright litigation commenced by Games Workshop in federal court in Chicago. Paulson Games and Games Workshop have agreed on the range of products Paulson Games is permitted to sell without violating Games Workshop’s claimed rights in its Warhammer 40,000 characters and have agreed to terminate the litigation between them. Games Workshop’s case against Chapterhouse Studios continues.

I almosted gagged when I read the charmans preamble ugh

What does this mean btw to all those who understand this 'legalesse' ;

Since the last annual report the Group has changed its accounting policy for recognition of royalty income. Previously royalty income was recognised by spreading the guarantees and advances receivable over the term of the licence agreement until it was virtually certain that the level of income from the licence would exceed those guarantees and advances. At this point all guarantees and advances received under the licence were taken immediately to the income statement. All other income receivable was recognised in the income statement by reference to the underlying licensee performance, after allowing for expected returns and price protection claims. Under the new policy royalty income is recognised in the income statement when it can be reliably measured by reference to the underlying licensee performance, after allowing for expected returns and price protection claims, as notified to the Group by the licensee and following validation of the amounts receivable by the Group. Cash received as guarantees and advances are deferred on balance sheet whilst it is considered probable that future royalty earnings will at least equal the amounts received. Such amounts are recognised in the income statement at the point at which they are earned as royalties. In the event that it is no longer considered probable that future royalty earnings will at least equal the guarantees and advances received, the guaranteed and advance payments are taken to the income statement on a straight line basis over the remaining term of the licence agreement. Comparative amounts have been restated for each prior period presented as if the new accounting policy had always been applied (see note 3). The Group believes that the new policy results in a fairer reflection of licensee performance in the Group income statement.