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PhantomViper wrote:

weeble1000 wrote:Lots of interesting and pertinent stuff

Thanks for your reply weeble.

So, in your opinion, what does GW have to gain by making this a trial by jury? Is their case really so weak from a technical standpoint that at this point they are willing to throw it all on a "roll of the dice" so to speak?

A bit late but:
Sort of like how GW suggests players should resolve rules disputes during games?

There are a few new documents available on recap 189.1 was an interesting read and shows how tired the judge is of the wrangling; it was dated in Feb...the newer documents, after that, aren't available for free so I don't know what happened at the early April phone meeting...

H.B.M.C. wrote:

GW Lawyer: Juror Number 7, do you have any feelings either way towards the world miniature gaming?
Juror #7: BLOOD FOR THE BLOOD GOD! SKULLS FOR KHORNE!
GW Lawyer: We'll take him.

Now that made me laugh.

On Topic: Is this not similar to aftermarket car parts? I don't think Honda and Toyota run around suing everyone making different bumpers for their cars.....

SickSix wrote:

Now that made me laugh.

On Topic: Is this not similar to aftermarket car parts? I don't think Honda and Toyota run around suing everyone making different bumpers for their cars.....

You might want to search the topic as that comparison has been brought up dozens of times in this thread. The majority of people say yes but there are some very vocal holdouts who disagree. YMMV.

warboss wrote:

SickSix wrote:

Now that made me laugh.

On Topic: Is this not similar to aftermarket car parts? I don't think Honda and Toyota run around suing everyone making different bumpers for their cars.....

You might want to search the topic as that comparison has been brought up dozens of times in this thread. The majority of people say yes but there are some very vocal holdouts who disagree. YMMV.

Because the majority of people know nothign about copyright law:

"The first exception applies to spare parts which must be of a particular shape to fit another article, such as certain types of integrated circuits which must have a certain type of connector so that they can be installed in a computer.  The rationale is that spare parts should be freely available at a reasonable cost, otherwise manufacturers might be able to develop a monopoly over spare parts and charge excessive prices."

http://www.inbrief.co.uk/intellectual-property/unregistered-design-right.htm

They are absoultly not the same thing. There are specific legal exceptions sorounding the production of many spare parts with cars ( and computers) to prevent monopolystic behaviour in many parts of the world.

In the US it is more complex.
http://www.ficpi.org/library/lisbonForum/Synopsis1-7_Chambers.doc

Car makers can, and do, take legal action to stop people making parts for their cars when they go too far: http://www.autoblog.com/2012/03/23/daimler-crushes-unauthorized-mercedes-benz-300-sl-body/

It is a matter of where this line lies, and also the matter of trading on someone elses work and name. If a car parts manufaturer implied that there parts were genuin or in some way endorsed by the manufactrer there would be all sorts of hell to pay.

Electro wrote:
It is a matter of where this line lies, and also the matter of trading on someone elses work and name. If a car parts manufaturer implied that there parts were genuin or in some way endorsed by the manufactrer there would be all sorts of hell to pay.

Because that would potentially be trademark infringement, which has nought to do with copyright.

UK law has the so-called must fit and must match exemptions for copyright infringement, specifically, as you said, to protect the production of aftermarket accessories. US copyright law has no such exemptions. The issue has not really been raised in US courts with any frequency, at least not to my knowledge. Even so, US copyright law exempts useful articles from copyright protection. Were an accessory designed to fit with a useful article, it could not infringe a copyright as the work would not be protected in the first place.

On the flip side, works of art are protected as exactly that, unique works of authorship fixed in a tangible medium of expression. An accessory for a work of art, protectable only in terms of its aesthetic value and only to the extent that such aesthetic value is unique, would have to unfairly appropriate those protectable aesthetic elements in order to infringe.

I encourage you to roll that around in your mind. If you are talking about an accessory for a useful article, like as not you won't see infringement, unless said accessory copies the protectable aesthetics of the useful article, such as say a car door. UK law says that the public has an interest in allowing such accessories that emulate the aesthetics of the original product because were it otherwise the manufacturer would potentially be able to stifle competition. Hence must fit and must match.

If you are talking about a work of art that is not a useful article, what is the accessory intended to do? Certainly it cannot alter the function of the work, as the work has no function. If it is designed to alter the aesthetics of the work, well, then to infringe a copyright it must be substantially similar to the work it is allegedly a copy of. If it is allegedly a copy of the work it is an accessory for, surely it is designed to be different from that work, otherwise it would have no value. It would not be an accessory; it would merely be a copy of one portion of the work.

One must of course determine if the accessory is "substantially similar" to the work it is designed to function with, but does that which is similar constitute an unfair appropriation of the unique aesthetic value of the work it is intended to function with?

One issue may be the mating surfaces between the accessory and the work it is intended to function with. Forgetting the aesthetics, if the two pieces fit together, surely that indicates that some part of the work was appropriated by the accessory. But again remember to consider that the work of art is protectable to the extent that its aesthetics are unique. If this so-called mating surface were entirely not visible in the work, how then could it constitute any part of the protected aesthetics?

I think you will find that to a large degree, the so-called must fit and must match exemptions in UK copyright law are related to useful article exemptions. The car parts analogy is interesting, and very thought provoking, but the fundamental disconnect between it and the wargaming miniatures market is the useful article exemption issue. It remains to be seen whether the Courts view wargaming miniatures as useful articles, although I think it is far more likely that they will be considered discrete sculptural works of art. When you take out the useful article exemption, what you are left with is "normal" copyright law. Is one work substantially similar to another when the two works are considered side by side with a full and complete understanding of the extent of scope of the asserted copyright?

I take it that "useful articles" are those which perform some mechanical function that cannot be easily replaced.

It would seem that a wargame figure would not count since its function within the game could be as easily performed by a pawn or counter.

"A “useful article” is an article having an intrinsic utilitarian function that is
not merely to portray the appearance of the article or to convey information. An
article that is normally a part of a useful article is considered a “useful article”."

"the design of a useful article, as defined in this section, shall
be considered a pictorial, graphic, or sculptural work only if, and only to the
extent that, such design incorporates pictorial, graphic, or sculptural features
that can be identified separately from, and are capable of existing independently
of, the utilitarian aspects of the article."

weeble1000 wrote:
"A “useful article” is an article having an intrinsic utilitarian function that is
not merely to portray the appearance of the article or to convey information. An
article that is normally a part of a useful article is considered a “useful article”."

"the design of a useful article, as defined in this section, shall
be considered a pictorial, graphic, or sculptural work only if, and only to the
extent that, such design incorporates pictorial, graphic, or sculptural features
that can be identified separately from, and are capable of existing independently
of, the utilitarian aspects of the article."

Would miniatures be considered useful articles because 40k uses true line of sight?

There is clearly a sculptural element, in that some players use soda cans as drop pods.

...Might just being used in a game, make them be regarded as "useful articles?"

Interesting article today in the Denver post and while it does not appear to have direct merit to Chapterhouse, I think it would to "Chapterhouselike" companies not based in the US.

http://www.denverpost.com/nationworld/ci_20406900/high-court-steps-into-copyright-case

Here is the one sentence synopsis.

"The issue at the Supreme Court is whether U.S. copyright protection applies to items that are made abroad, purchased abroad and then resold in the U.S. without the permission of the manufacturer."

Again, the article is details lite, but seems to harbor the question...if GW (or anyone else) does not make the product in the US, and the product is purchased overseas (Maelstrom) can it be "resold" without the permission of the manufacturer as far as copyright is concerned. I can't see manufacturer's setting up production on ever continent, so that could potentially lead to mini-embargos?

Shotgun wrote:
Again, the article is details lite, but seems to harbor the question...if GW (or anyone else) does not make the product in the US, and the product is purchased overseas (Maelstrom) can it be "resold" without the permission of the manufacturer as far as copyright is concerned. I can't see manufacturer's setting up production on ever continent, so that could potentially lead to mini-embargos?

GW has manufacturing sites in the US, though.

kronk wrote:

Shotgun wrote:
Again, the article is details lite, but seems to harbor the question...if GW (or anyone else) does not make the product in the US, and the product is purchased overseas (Maelstrom) can it be "resold" without the permission of the manufacturer as far as copyright is concerned. I can't see manufacturer's setting up production on ever continent, so that could potentially lead to mini-embargos?

GW has manufacturing sites in the US, though.

But not everything is manufactured in the US, take older products that predate a US facility or FW products for example; the question is still valid.

Shotgun wrote:Interesting article today in the Denver post and while it does not appear to have direct merit to Chapterhouse, I think it would to "Chapterhouselike" companies not based in the US.

http://www.denverpost.com/nationworld/ci_20406900/high-court-steps-into-copyright-case

Here is the one sentence synopsis.

"The issue at the Supreme Court is whether U.S. copyright protection applies to items that are made abroad, purchased abroad and then resold in the U.S. without the permission of the manufacturer."

Again, the article is details lite, but seems to harbor the question...if GW (or anyone else) does not make the product in the US, and the product is purchased overseas (Maelstrom) can it be "resold" without the permission of the manufacturer as far as copyright is concerned. I can't see manufacturer's setting up production on ever continent, so that could potentially lead to mini-embargos?

From reading the article, the case is about foreign edition text books which were imported to the US without permission of the publishing company. It will be an interesting case that will decide if manufacturers can fix the price of goods on a country by country basis. If Australia did not allow such practices, then GW would not be able to sell their stuff there so expensively.

[quote=spaceelfFrom reading the article, the case is about foreign edition text books which were imported to the US without permission of the publishing company. It will be an interesting case that will decide if manufacturers can fix the price of goods on a country by country basis. If Australia did not allow such practices, then GW would not be able to sell their stuff there so expensively.

susu.exp from Warseer wrote:Highlights:

- From 189.1, part 2:
THE COURT: So you're another group that are on my "once a week whether I really want to or not" schedule.

- GW note "The Star Fox is a fan created Space Marine Chapter.", but still maintain that they own the trademark "star fox". Aparently they now argue that if somebody names their army something, they gain trademark rights. That´s rather spectacular.

spaceelf wrote:

weeble1000 wrote:
"A “useful article” is an article having an intrinsic utilitarian function that is
not merely to portray the appearance of the article or to convey information. An
article that is normally a part of a useful article is considered a “useful article”."

"the design of a useful article, as defined in this section, shall
be considered a pictorial, graphic, or sculptural work only if, and only to the
extent that, such design incorporates pictorial, graphic, or sculptural features
that can be identified separately from, and are capable of existing independently
of, the utilitarian aspects of the article."

Would miniatures be considered useful articles because 40k uses true line of sight?

There is clearly a sculptural element, in that some players use soda cans as drop pods.

Think about it like this: If you can separate the aesthetic design from the utilitarian aspect of the object, that design is potentially protectable. The print on a piece of fabric is protectable, as you can separate it from the utility of the fabric, but the cut of the fabric in a garment is not protectable, as it has a utilitarian function that cannot be separated from the aesthetics. It may look pleasing, but the pleasing look is part of the utility.

One could argue that the function of a game piece is to be identifiable within the context of the game. So you make an interesting point that TLOS means that the overall size and shape of the game piece could be considered to be functional, as merely using a flat token would not have the same function.

But I think the question goes to the object itself. A garment is designed to be worn. That is its function, and one that is intrinsic in the object. You can use a shirt as a flag, but it is not considered a useful article because you could use it as a flag. One could possibly argue that the models are simply sculptural works of art with no intrinsic utilitarian aspects. You use the models in the game, but that is not their intrinsic function. I'm really just guessing here as I am not aware of any precedent that has addressed an issue like this.

Games Workshop does indeed say that it is a miniatures company, not a game company. I'd have to look into the nuances of making a useful article determination. My guess is that intent does not factor into it, considering the "intrinsic" language. The purpose of the useful article exemption is to prevent folks from getting patent-like protection from a copyright. I think the easiest question is, "should that be protected by a patent?" If the object in question was a cool-looking hammer that is shaped the way it is to maximize the application of force, I'd say "Yes, that should be a patent." So I would think that it would also be a useful article.

A hammer is a tool, and has an intrinsic use. Its form is almost entirely dictated by its function. So too with a sword. It may look cool, I may hang it on my wall, and there may be artistic things about it, but if those things cannot be separated from the function, they are not protectable by copyright. Think about a tsuba on a Japanese sword. They are often very artistic, but ultimately functional unless you can cleanly separate the design from the intrinsic utility.

weeble1000 wrote:
One could argue that the function of a game piece is to be identifiable within the context of the game. So you make an interesting point that TLOS means that the overall size and shape of the game piece could be considered to be functional, as merely using a flat token would not have the same function.

If you consider the entire form of the figure for TLOS, then alternative game pieces would need to be identical in form. Thus, this example seems to be very much like the cut of the fabric example that you provided. You cannot separate the form of the figure from its aesthetic. However, in practice gamers are almost never so finicky, hence soda can drop pods.

weeble1000 wrote:
But I think the question goes to the object itself. A garment is designed to be worn. That is its function, and one that is intrinsic in the object. You can use a shirt as a flag, but it is not considered a useful article because you could use it as a flag. One could possibly argue that the models are simply sculptural works of art with no intrinsic utilitarian aspects. You use the models in the game, but that is not their intrinsic function. I'm really just guessing here as I am not aware of any precedent that has addressed an issue like this.

weeble1000 wrote:Games Workshop does indeed say that it is a miniatures company, not a game company.

I do not mean to be argumentative, but their About Us page on their US website says otherwise. To me they have always been a game company, as their name suggests. Citadel Miniatures is the model company.

weeble1000 wrote:
I'd have to look into the nuances of making a useful article determination. My guess is that intent does not factor into it, considering the "intrinsic" language. The purpose of the useful article exemption is to prevent folks from getting patent-like protection from a copyright. I think the easiest question is, "should that be protected by a patent?" If the object in question was a cool-looking hammer that is shaped the way it is to maximize the application of force, I'd say "Yes, that should be a patent." So I would think that it would also be a useful article.

A hammer is a tool, and has an intrinsic use. Its form is almost entirely dictated by its function. So too with a sword. It may look cool, I may hang it on my wall, and there may be artistic things about it, but if those things cannot be separated from the function, they are not protectable by copyright. Think about a tsuba on a Japanese sword. They are often very artistic, but ultimately functional unless you can cleanly separate the design from the intrinsic utility.

Thank you for the extensive reply. I am sure Chapter House's and GW's lawyers are hard at work on such points as we speak.

Thank you for the explanation.

I'm of the opinion that the wargame miniature would count as an aesthetic rather than a utlilitarian creation as it can be replaced in the game by various differently designed items such as counters or miniatures of different appearance, without affecting its function as a game piece. (Except for the LoS point mentioned by someone above.)

Again, I think that the significant issue is intrinsic utility.

A hammer is a hammer. A jacket is a jacket. A car is a car. A chair is a chair. These objects have an intrinsic utility. Although they may be put to other uses, their form dictates a certain function. You can beat a man to death with a baseball bat, but it was not designed to beat someone to death with. It was designed to hit a baseball. Its intrinsic utility is to strike a thrown baseball.

I would think that one could make a strong argument that wargaming miniatures are first and foremost sculptural works that may or may not be put to use in a game with a defined set of rules. Take the baseball bat example again. I can use it to hit a golf ball, or we could play a game that involved throwing grapefruit instead of baseballs. But the design of the baseball bat is expressly intended to effectively strike a thrown baseball, whether or not it is used in the context of a baseball game. You could take it to a batting cage, for example. You would not take a golf club to a batting cage because a golf club is ill-suited to striking a thrown baseball, regardless of the context in which the baseball is thrown.

You could play Warhammer with Infinity models, for example, or even with Tonka Trucks. I think you would have to show that the design of the models was expressly intended to have a deliberate, almost patentable interaction with the game mechanics, and that the aesthetics of the models are inseparable from that functionality. There are arguments one could make in favor of this, however, such as that the models are supplied with specifically-sized bases.

At the end of the day though, wargaming miniatures are not, in my opinion, what one would classically consider a utilitarian article. The root utility of a game piece is to be representational, but that utility is highly mutable and subjective, which means that it is difficult to quantify unless jurisprudence were to indicate that one must always consider the context of the rules a game piece is intended to function with in order to make a useful article determination.

As I said, this is a rather untested area of the law. We're off the edge of the map and here there be monsters. What I can say is that a ruling from a Court one way or the other could have interesting implications even beyond wargaming. My best guess would be that ruling in favor of copyright protection as a sculptural work of art would be the conservative way to go, and thus more likely.

Weeble, I'm sure I speak for the whole of Dakka when I say thank you for your insight on this. The examples and the definitions you give are easy for laymen to understand and they make a ton of sense.

That said, do you think that since much of this may not make sense to a jury, would it not be better(regardless of which side wins) that a judge who is well educated on this matter decide the outcome?

I know if I was on either side of this that I wouldn't want John Doe saying that I lost when he has zero experience or training with IP law.

Or is it that GW thinks that the average uneducated(on IP law, not in general) juror will side with them out of ignorance or pure luck?

Arguably WYSIWYG and true LOS mean that you *do* need to use miniatures of a particular form, in games. Or else there wouldn't be a problem of modelling for advantage, or issues where people don't like to play against counts-as armies because they're too confusing.

But I agree, it's an untested area. It's difficult to separate form from function, in the case of wargaming minis. Yes, you could argue that one could have the same function using counters -- but I could argue that that's not the same function at all, because that's not even a miniatures wargame any more, it's a counters wargame.

You could argue that there's no need for *any* physical components for games any more, since you could play any game you fancied on a computer -- but that ignores the reality of the situation, which is that there are qualitative differences between digital games and non-digital games. I think I could make a case (as a games designer and game studies academic, not as a lawyer) that there are also qualitative differences between the experience of playing a counters-based wargame and the experience of playing a miniatures wargame.

But the problem arises that what we're dealing with here -- when we play games, or think about games -- is pure pleasure, not entirely distinct from the pleasure one gets from art. At that point, how can one distinguish wholly between the aesthetic pleasure of admiring a well-sculpted and well-painted miniature as a work of art, and enjoying a game partially because of the presence in said game , in the form of the game's components, of a number of well-painted, well-sculpted works of art?

I think on balance, I would argue that the aesthetic appearance *is* necessary for the gameplay experience -- it's an intrinsic part of the purpose of the miniature. We know from studies of people's reaction to the graphical content of videogames that said content is massively important to the gameplay experience (games studios spend enormous amounts of time and money getting the graphics right, and conduct their own studies to determine player reactions to particular graphics; Ryan & Rigby et al researched player reactions to graphics in a formal academic context and discovered, unsurprisingly, that graphical content is vital as a feedback mechanism, among other things). That's not just an aesthetic thing; graphics, like miniatures, allow experienced players to garner a huge amount of information at a glance, without having to read long descriptions or study complex charts.

Kroothawk wrote:

susu.exp from Warseer wrote:Highlights:

- From 189.1, part 2:
THE COURT: So you're another group that are on my "once a week whether I really want to or not" schedule.

- GW note "The Star Fox is a fan created Space Marine Chapter.", but still maintain that they own the trademark "star fox". Aparently they now argue that if somebody names their army something, they gain trademark rights. That´s rather spectacular.

Love that quote, kinda like a bad case of herpes here weather or not you like it it's there, and it's kinda hard to get rid of. =o[ Then again the Brits do love a valiant last stand where everyone gets wiped out.

Nintendo owns the trademark Star Fox.

You know, if this discussion of 'replacement parts' and Copyright being 'passable' for purposes of pure utility is all true, GW would actually want miniatures to be counted as objects d'Art- as if Wysiwyg, Tlos and all are intrinsic functionings of the models in pursuit of being tokens to play the game, that means that things like ''Space Knights" that are the same size, shape, and have interchangeable parts would be completely legal, and GW wouldn't be able to do anything to companies that create them.

And Killkrazy, Trade Marks are only protected when they are used specifically for the service they advertise or represent. This is why you can have an ACME Grocers, and an ACME Junkyard, with neither of them violating trademark.

The whole point to me, which I cant understand why GW doesnt seem to get, is that the majority of Chapterhouse stuff requires GW products to be complete. That causes/encourages people to buy GW stuff to go with CH stuff...OR...to buy more GW stuff, however you want to look at it.

In the end the result is sales for both companies, and I fail to see how GW can swing that as a bad thing.


If CH was selling full kit alternatives to GW products, that look exactly like GW products, that might be a bit of an issue. However, its common practice in the automotive industry, aftermarket collision repair parts are direct copies of original parts.

Mad4Minis wrote:However, its common practice in the automotive industry, aftermarket collision repair parts are direct copies of original parts.

ARGH. Seriously, they aren't the same thing. Read the last few pages of the thread at least.

One view that has to be decided is whether GW is a Games firm or a Model firm, I think then a conclusion as to whether the figures are utilitarian or aesthetic can be surmised.

GW have kind of shot themselves in the foot with the use of WYSIWYG, TLoS and modeling for advantage. Those three all require a practical functional element.

As an aside, do you think GW & CH read these threads?

Cheers

Andrew

AndrewC wrote:One view that has to be decided is whether GW is a Games firm or a Model firm, I think then a conclusion as to whether the figures are utilitarian or aesthetic can be surmised.

GW have kind of shot themselves in the foot with the use of WYSIWYG, TLoS and modeling for advantage. Those three all require a practical functional element.

As an aside, do you think GW & CH read these threads?

Cheers

Andrew

GW is a model firm first and foremost. The games are just there to help sell the models. GW is in the business of selling models to children aged 10-16.

Then you got Jervis blithing on about most of our customer's don't even play the games, and plastic space marine sales blowing him away that he things its a front for drugs... sighs I really miss the old Jervis.

FabricatorGeneralMike wrote:GW is a model firm first and foremost. The games are just there to help sell the models. GW is in the business of selling models to children aged 10-16.

Then you got Jervis blithing on about most of our customer's don't even play the games, and plastic space marine sales blowing him away that he things its a front for drugs... sighs I really miss the old Jervis.

But why are they selling those models? While I see your point, as the majority of their profits come from the models and not the rules, they do not seem to be selling the models as individual pieces but as part of the game. The last few times I have been in a GW store, I am always asked what system/army I play/own.

So yes, GW is in the business of selling models, but it is in the context of playing their games.

Cheers

Andrew