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MagickalMemories wrote:

rigeld2 wrote:
Still incorrect. Every time you see the word model you should be reading Citadel model - as the quote from page 3 shows. Which means that the rules *dictate* Citadel models only.
Not that everyone follows that, but the rules do say that.

Not everything in the rule book is actually a rule.
No where in the book does it say that you're required to use GW/Citadel models as part of the game rules.

Except it does. Everywhere the word model is used, it actually means Citadel model. The word model is used in a lot of places, including actual rules.

I think that implying functionality is different from "an intrinsic utilitarian function." In other words, a useful article's very nature is to have a specific utilitarian function that is "not merely to portray the appearance of the article or convey information." Again, as I mentioned previously, the ultimate point of the useful article exemption is to prevent copyrights from providing patent-like protection.

Rules cannot be protected by copyright, and they enjoy limited patentability. Most patents concern useful articles; things that have a utilitarian function, such as a hammer or a chair. Games are rather hard to patent, and are most commonly protected as an apparatus that performs a specific function, such as the Scrabble board. The Scrabble board with the insets for tiles was patented as an apparatus, the purpose of which, in conjunction with the tiles, was for placing the tiles in walled cells so that they would not shift. The form is specifically dictated by the function, as with most patented inventions.

Even the Magic: The Gathering patent has a strong relationship to a specific function dictated by form, specifically the cards. The patent claims methods of physically manipulating the cards, such as the so-called "tapping" method. The cards have a utility, but certainly the art on the cards can be cleanly separated from the intrinsic utility of the cards.

I think that to argue Citadel miniatures have an intrinsic utilitarian function, you'd have to show that the form is specifically dictated by function. In other words, that a given miniature is sculpted to have a specific physical functionality. Given this, can one say that the posing of an Imperial Guard Lord Commissar is specifically dictated by the function of the model? Even were the models considered to have a function in terms of their scale, I think you'd still have a strong argument that the aesthetics are separable from the utility.

Imagine the barest minimum that you would need to effect the utility of the Imperial Guard Lord Commissar model. The model is a 28mm heroic scale humanoid on a 25mm round base. It must be distinguishable from any other 28mm heroic scale humanoid model on a 25mm round base. That can be effected by a mere label, and yet this purpose is to convey information, isn't it? And it would be merely to convey information. What about WYSIWYG? Isn't that also to convey information? There is TLOS to consider, but I firstly think that TLOS does not create an intrinsic functionality. Secondly, the model could be completely featureless and merely roughly a consistent size in order to appropriately function within the rules. You might go so far as to say it must be humanoid in shape, and must be holding weapon-shaped things, but if you look at the Citadel range you'll see a wide variety of posing even among what is considered to be the exact same model within the rules. This suggests that at the very least, posing is separable from utility.

I'll go back to my hammer example. If the grip of my hammer is ergonomic and rubberized, that form has a specific utilitarian function, namely to make it comfortable to hold. The ergonomic shape may look really damn cool, and may have been designed to make the hammer look really cool, but it nevertheless has an intrinsic utilitarian function.

The useful article definition contemplates exempting aesthetics from protection so long as those aesthetics are tied to an intrinsic functionality, such as a handbag. Those are essentially "dressed up" utilitarian articles. It seems like what we're doing is the reverse: taking a sculptural work of art and trying to read into it an intrinsic utilitarian functionality with the liberal application of context.

I think the GW sculptors are most likely directed to sculpt to a certain scale, but don't they sculpt in 3-up anyway? So wouldn't that mean the sculptures aren't even created in the scale at which the game is played?

At the end of the day, I think the intention is for Citadel miniatures to be designed for the purposes of GW's games, but I don't think that this intention means that the aesthetic aspects of the models are inseparable from the intrinsic utilitarian functionality of the articles. At the very least, that is a hard hill to climb, and cuts across what are usually considered to be useful articles: articles that first have a utilitarian function whose utilitarian elements are manipulated for aesthetic impact. When you remove those aesthetic elements, the item no longer functions. Remove the cool-looking ergonomic rubberized handle from my hammer and it is a hammer with no handle. Remove the colorful stitching from a handbag and it falls apart. Remove the delicately carved legs from a chair and it doesn't stand up.

Remove the flame decal from the handle of my hammer and it is still a usable hammer. Remove carving from the back of a chair and it still has a back. Remove the printed design from the fabric of my wife's handbag and her girly things don't fall out. File the details off of an Imperial Guard Lord Commissar model and it is still a 28mm heroic scale humanoid wargaming miniature on a 25mm round base.

Ah, thanks, weeble, that does clarify things. Ignore all that stuff I was saying about visual info being inherently useful then. I guess the law may take a while to get around to taking such findings into account, if it ever does!

Anvildude wrote:

Shepherd23 wrote: Some models are never produced because after the book comes out, GW finds that no one is using said unit because the rules are crap or the points cost is to high, etc., so they never produce the model becaus it would not sell. The Ork Codex unit "Flash Gitz" are a perfect example. Horrible unit that only got a single "direct only" model. Others never even see that one model.

Would this not mean that GW is a Games company, then, and that the miniatures are only shaped and sized as they are in accordance with how they're meant to be used in the games?

I know that Flash Gitz might not be popular to use in games, but they're one of the favorite squads for Ork and non-Ork players to convert and paint. If GW made a Flash Gitz kit with decent detail and character, it'd sell like hotcakes just for the modeling and painting potential.

YES!!! GW may call themselves a miniatures company that sells games, but the reality of it is far from that thought. GW has spent decades fostering a cult-like following of "The Hobby". "The Hobby" is what they used to be loved for. The current incarnation, though, is far from what it was. This is why I no longer participate in "The Hobby". (The 3 nights in that hotel with the parents and that guy that screamed a lot had nothing to do with it. Honest!)

GW is a gaming/hobby company. They produce as much as possible to provide total support of that game/hobby. They have more in common with Micheal's or Jo Ann's Fabric (Hobby companies) than Reaper (A model company). Their denial of this fact is just a marketing tool designed to foster the belief that they produce the best models in the industry, something they mention often despite evidence to the contrary. I cite Finecast and Fantasy Minotaurs as examples to the contrary.

GW DO produce some of the most detailed models in the industry and DOES, generally, lead the way in gaming model technologies. However, GW did not invent the retractable pin used in injection molding, despite what some gamers may think. They did use it first though! The primary reason GW produces models with such high detail is not for the artist value, however. That is a secondary result, NOT the motivating factor. The high level of detail means that more models will be sold and more money earned. If more models are sold then, potentially, more rulebooks, paints, terrain, flock, etc. get sold and more money is earned. (I forgot to mention glue. Sell that glue, boys!) GW claiming that the models are produced for artist reasons and trying to use that defense is rather lame IMHO. (Ok. IMO as I am not real humble.)

I am not a lawyer and I know NOTHING about IP law. I am rather opinionated, though, that's why I fit in well here. IMO, if functionality vs. form is actually a viable argument, then GW is trying to backpedal 20+ years of history to get people to believe that their models are for artsy people. I hope that CH wins this. I hope that the other 3rd party companies that make a living off of supporting GW gamers say "Thank you" to CH for fighting the good fight for them. It could have been one of them instead. (No, I am not some CH fanboy. I own nothing from them and never will as I do not play GW games anymore. I just like what they and others do.) And, finally, I hope GW is able to get some of the former attitude they had instead of this new "ignore the customers" attitude they now have. Oh, and bring Paul "Fat Bloke" Sawyer back as the WD editor. It was best under his rule and watching him eat crabs is just good clean fun. (Not actually clean, but it is fun!)

Ready, set, argue!

FabricatorGeneralMike wrote:Actually no you are wrong, sorry to say it. GW's target audience is 10-16 year old children who will make a initial purchase starter box (AoBR, IOB, MoM) with supporting codex/army book, this customer will make some 'hobby' purchases like paint, tools, models and whatever else for the next 18 months or so. The plan is to get one or two big purchases like a birthday or christmas in there. After this the customer will drop out of the GW PLC Hobby.

That is GW's target audience. It's called churn and burn and it's been there MO for quite a while now. EVERYTHING else is just icing on the cake for them. I am shure if GW could ban vets they would as they make more money by churn and burn then they do from vets (according to them then again the GW higher ups live in LALA land so take that for what its worth). After the 18-24 months are up GW has made its target off of you and it's off to the next 'little timmy', get him a demo game and get him into the HHHobby.

Honestly have you read the 40k/Fantasy rules? They are terrible. The fluff is squarely aimed at kids/ teens now a days. The game mechanics are almost non existent. It is a good ruleset for what it is (beer and pretzels) but honestly, can you tell me the rules are anywhere near as good as they used to be? If they are so good why the huge threads on RAW vs RAI? Why do you have to roll a D6 to figure out who is interpretation is right? Why is it so complicated compared to complex?

GWs target audience is not at arguement, nor is their business model. I agree with what you write. However this is about the arguement whether GW can claim their models are pieces of art or funtional models in relation to a set of game rules, no matter how badly written. Weeble has provided some very useful information on how difficult it would be to claim that the models are completely functional in nature and design, but I think he would agree that there is sufficient, contrary, information to cast doubt on the claim that all models are artistic.

I am not trying to be a duche, honestly I love the 40k universe. It's a great place to set stories in. But please take a good look at the vehicle they use to sell models.

To be honest, you were missing the point I was trying to make, so I am tempted to reply 'Try harder' but I say it in jest. And again the vehicle you describe is the business plan, so I ask you, how do they package that vehicle? You said it above, get him playing a game and to buy the models to play that game at home. They didn't sell him the models as a piece of art, they sold them as game pieces.

Cheers

Andrew

weeble1000 wrote:I think that implying functionality is different from "an intrinsic utilitarian function." In other words, a useful article's very nature is to have a specific utilitarian function that is "not merely to portray the appearance of the article or convey information." Again, as I mentioned previously, the ultimate point of the useful article exemption is to prevent copyrights from providing patent-like protection.
...

Based on that... would you say GW's copyright on their models design does not extend to utilitarian functionality of the interfacing geometries? That is to say shape and design of tabs, holes, pins, gluing surfaces, etc necessary for the assembly of the model? That is to say while GW's copywrite might keep you from making something that looks like their work, it affords them no protection to prevent anyone from producing something that mates with those interfacing points.

aka_mythos wrote:

weeble1000 wrote:I think that implying functionality is different from "an intrinsic utilitarian function." In other words, a useful article's very nature is to have a specific utilitarian function that is "not merely to portray the appearance of the article or convey information." Again, as I mentioned previously, the ultimate point of the useful article exemption is to prevent copyrights from providing patent-like protection.
...

Based on that... would you say GW's copyright on their models design does not extend to utilitarian functionality of the interfacing geometries? That is to say shape and design of tabs, holes, pins, gluing surfaces, etc necessary for the assembly of the model? That is to say while GW's copywrite might keep you from making something that looks like their work, it affords them no protection to prevent anyone from producing something that mates with those interfacing points.

I do not want to comment specifically on the scope of GW's copyright claims. In terms of general copyright law, I have earlier expressed the viewpoint that copyright extends to the aesthetic elements of a work. From my understanding of US copyright law and the precedent that I am familiar with, it is what a viewer can perceive that defines a copyright. Copyright also has a great deal to do with meaning. What does a work of art convey? What impact does it have on the viewer? Considering this, I don't think that underlying mechanical elements in a work of art that are not perceptible to a viewer of said work would be protected by copyright, although I am not aware of any precedent that specifically addresses this question. There may be something, but I'm not a lawyer, so don't often go looking for specific precedent.

Even so, underlying mechanical elements of a work of authorship does not seem to be something that could be protected by copyright. If anything, it seems to be within the realm of patent protection. For example, copyright protection for a novel would not extend to the binding of the book would it? Nevertheless, the binding is an integral part of assembling the pages in the correct order. That I use gesso to prime a canvas for painting, which may be incredibly important to keep the paint on the canvas, would not be an element of the work protected by copyright. At the very least I think it would not be protectable on its own divorced from the context of the work.

Finally, in interpreting the law, if an answer to a question is found within the plain language of the code, Courts often weigh this more strongly than argument or even precedent. Take note of section 102(b) of the US copyright code:

102(b) In no case does copyright protection for an original work of authorship
extend to any idea, procedure, process, system, method of operation, concept,
principle, or discovery, regardless of the form in which it is described, explained,
illustrated, or embodied in such work.

Note that "in no case" does copyright protection extend to a procedure, process, system, or method of operation. The mechanism by which a copy of a work of authorship is assembled would seem to me to clearly fall into one or more of those categories.

This is going great!

Since I am now in college for paralegal this case is helping me touch up on my inference of how law works. I love it!

In about a week or so I willdrop a nice giant post on what I have seen in order to sumuraize what Weeble has been saying. IF he does not beat me to it first. . .

Mind you looking at the Combimelta from both companies they look nothing alike. . . .

I think everyone is well aware of this fact, but I'm going to reiterate it for the record. I am not an attorney, nor do I hold degrees in any field related to the study of law. The views that I have expressed are not legal opinions, nor should they be taken as legal counsel or advice of any kind. The views that I have expressed are merely the way I prefer to interpret the law to the extent that I am aware of it. I think I have a pretty good handle on a few things, but that is just what I personally think and these views carry no authority of any kind.

Considering this, feel free to disagree with me about anything in particular. I could be very wrong. I may disagree with you right back, but that does not mean my interpretation inherently carries more weight than anyone else's. Folks should make up their own minds.

Shepherd23 wrote:

The primary reason GW produces models with such high detail is not for the artist value, however. That is a secondary result, NOT the motivating factor. The high level of detail means that more models will be sold and more money earned. If more models are sold then, potentially, more rulebooks, paints, terrain, flock, etc. get sold and more money is earned. (I forgot to mention glue. Sell that glue, boys!) GW claiming that the models are produced for artist reasons and trying to use that defense is rather lame IMHO. (Ok. IMO as I am not real humble.)

I do get a kick out of that statement above. Of course every company is guilty of this as well - every company wants you to buy their stuff. It keeps their lights on and their employees get a pay check as a result.

I've been lurking on this subject for a long time - IMHO if I'm going to sell my product by plugging in someone else's product, I should be paying a licensing fee/ royalty to that company. If I want to sell clothes and accessories for Barbie dolls, Matel would be all over me and would watch me like a hawk to make sure I didn't use their product to sell their product by showing pictures of their products next to mine. Why because they make similar looking accessories and they don't want you confusing their accessories with theirs. Now if you were to have an agreement in place such as a licensing/royalty agreement, then they would be compensated for the use of their product in their marketing and their would be a contract in place. Don't believe me when people confuse GW bits with CH bits, go on eBay and you will find a number of users who call their bits Forgeworld bits. Would my parents or wife know the difference between the bits? Not at all. Would I know the difference? Yes. Do I think CH should change their marketing of their product? Yes. Should they be allowed to sell their product? Yes. Just don't use GW references when you sell them and don't show a GW model when you're marketing the bits.

boyd wrote:Don't believe me when people confuse GW bits with CH bits, go on eBay and you will find a number of users who call their bits Forgeworld bits.

What 3rd parties call their wares isn't the responsibility of the original company. CH do not sell their accessories as Forgeworld/GW. If Joe Bloggs purchases a set of shoulder pads from CH and then resells them as Forgeworld/GW then it's Joe who has committed the crime, not Chapterhouse.

Cheers

Andrew

Update.

Yet another status hearing set for May 16.

boyd wrote:I've been lurking on this subject for a long time - IMHO if I'm going to sell my product by plugging in someone else's product, I should be paying a licensing fee/ royalty to that company. If I want to sell clothes and accessories for Barbie dolls, Matel would be all over me and would watch me like a hawk to make sure I didn't use their product to sell their product by showing pictures of their products next to mine. Why because they make similar looking accessories and they don't want you confusing their accessories with theirs. Now if you were to have an agreement in place such as a licensing/royalty agreement, then they would be compensated for the use of their product in their marketing and their would be a contract in place.

This why there are fair use laws. Weeble has explained it better than I could a few pages back, but I'll have a go:
Fair Use laws are designed to allow you to state factually what your product does in relation to another product. It is for cases when using anything other than the specific name of the target product is detrimental to users. Have a look at iPhone covers, which you don't need a license to produce. If you make an iPhone cover, it is factually incorrect to say 'compatible with smartphones', and would cause more harm than good as people buy the cover to use on their Razer or what have you. To prevent confusion to the customer, you must be able to say 'compatible with iPhones', or 'cover for iPhone', as that is the only way that you can completely and unambiguously tell people what your product does.
For Barbies, if you say your doll clothes 'fit dolls including Barbie', you are just stating a fact, and are legally allowed to do that. If done correctly (and with proper disclaimers) it does not confuse the customer or detract from the brand in question. Its questionable whether CHS's original terminology was ok, but their current names are perfectly ok. Even if the original names weren't ok, it would be extremely unlikely for any judgement against CHS because they sought legal advice on the matter before naming their products, and changed the names after the lawsuit was brought.

Don't believe me when people confuse GW bits with CH bits, go on eBay and you will find a number of users who call their bits Forgeworld bits. Would my parents or wife know the difference between the bits? Not at all. Would I know the difference? Yes

To be honest with you, none of my family could tell the difference between an unboxed miniature of any kind. My girlfriend calls my Dystopian Wars stuff 'Warhammers'. I probably couldn't tell you outside of 3 or 4 manufacturers. But when you are buying a new product from the respective websites (or in store packaging) it is quite immediately obvious, and there is no confusion, and that is what is important. It is not the responsibility of CHS or GW to require secondhand sellers to use the correct terminology.

Do I think CH should change their marketing of their product? Yes. Should they be allowed to sell their product? Yes. Just don't use GW references when you sell them and don't show a GW model when you're marketing the bits.

They have (slightly) changed the marketing of their product since the suit was filed. If you think that their marketing should change further but they should still be allowed to sell the product, what do they change it to? Anything other than using the specific terminology is detrimental to consumers - as we see time and time again with Scibor et al with people asking 'are these shoulderpads for PA or TA'? Similarly, if CHS need to show how the Storm Raven conversion kit actually fits onto a Storm Raven, then the only way to do this that keeps consumers best interests at heart is to show an actual GW product - and if CHS does this with the correct disclaimers, there is absolutely nothing wrong with that.

boyd wrote:I do get a kick out of that statement above. Of course every company is guilty of this as well - every company wants you to buy their stuff. It keeps their lights on and their employees get a pay check as a result.

I've been lurking on this subject for a long time - IMHO if I'm going to sell my product by plugging in someone else's product, I should be paying a licensing fee/ royalty to that company. If I want to sell clothes and accessories for Barbie dolls, Matel would be all over me and would watch me like a hawk to make sure I didn't use their product to sell their product by showing pictures of their products next to mine. Why because they make similar looking accessories and they don't want you confusing their accessories with theirs. Now if you were to have an agreement in place such as a licensing/royalty agreement, then they would be compensated for the use of their product in their marketing and their would be a contract in place. Don't believe me when people confuse GW bits with CH bits, go on eBay and you will find a number of users who call their bits Forgeworld bits. Would my parents or wife know the difference between the bits? Not at all. Would I know the difference? Yes. Do I think CH should change their marketing of their product? Yes. Should they be allowed to sell their product? Yes. Just don't use GW references when you sell them and don't show a GW model when you're marketing the bits.

That's all well and good, provided you don't forget that your opinion does no = law.
I'm NOT insinuating you are doing that, just using that as a reminder for, well, everyone.

That said, you should look at the resin stuff being sold on feebay. The majority of people who are advertising the stuff as Forgeworld aren't necessarily doing it because they're confused about what it is. They're doing it because a lot more people search feebay for "Forgeworld" than "Chapterhouse." I've seen more than a few people hawking their OWN resin stuff (like one guy who makes resing models that look like demonic Vallejo paint droppers) as Forgeworld. That's not because they forgot that they're confused about who created it.

As for confusing GW pieces with Chapterhouse, you need to compare like to like.
"Mrs. Smith, do you see this plastic piece? It's called a 'Jump Pack.' Now, look at this resing piece. It's a 'Jump Pack,' as well. Do they look the same to you."
How many are going to say that they do? Really?

Eric

I'm pretty sure a company can't be held responsible for 3rd parties purposefully improperly labeling their product, when the reseller bought it knowing it wasn't what they then claim it to be. Even if the reseller doesn't know how does someone measure that confussion.

Damn! Today was the first time I found out about Chapter House too! I went and checked out their website and the first thing I thought was "Wow those wheeled Chimera conversion kits are insane and I want some" but the very next thing I thought was "Why haven't GW sued these guys? I cannot tell you why I thought the latter as I have no idea. It just seems like the kind of thing that would happen and now it has. I still want those Chimera wheels though.

If you want them, nightside, I'd suggest ordering them

nightside wrote:Damn! Today was the first time I found out about Chapter House too! I went and checked out their website and the first thing I thought was "Wow those wheeled Chimera conversion kits are insane and I want some" but the very next thing I thought was "Why haven't GW sued these guys? I cannot tell you why I thought the latter as I have no idea. It just seems like the kind of thing that would happen and now it has. I still want those Chimera wheels though.

You know I ask the same thing about alot of companies... not because I believe they've done any wrong, but because I believe GW has a history and reputation for being incredibly litigous, to such a degree they have brainwashed most of us through the forced capitulation of otherwise innocent organizations and parties into believing they are right more times than they are wrong.

People constantly point out the flaws in GWs strategy and corporate character and yet so many are still willing to believe when it comes to GW interpretation of the law that they're somehow smarter or better and out perform, in this area, the rest of their company.

@Dysartes Definitely going to get on that quickly

@aka_mythos I can understand both sides of the story. On one side GW holds the rights to products associated with their game systems and would be losing out on a fair bit of revenue if third parties could make and sell embellishments and add-ons to those game systems. On the other hand, the very nature of 40k and the games systems and mythos GW have invented (for me in any case and I don't think I'm alone) gives rise to invention and creativity and it is these aspects of the hobby that I believe keep it alive and well. It would be interesting to see what Rick Priestly and Nigel Stillman think on this matter.


Automatically Appended Next Post:
hahahaha and yes I do tend to look at some things and think "you gonna get sued by GW"

GW's rights are limited just like everyone else's. They may have many rights that others do not relating to this issue, but in this case, the legal proceedings are not going as swimmingly as GW might like.

Look at the settlement with Paulson. Paulson Games was also named in the suit, negotiated their exit and still offers very appropriate parts for 40k conversions.

GW's rights are not as endless and far reaching as they'd like us to believe.

Essentially, the Giant believed itself invulnerable. This time, it went to step on a 'lesser' being, and found that creature not as amenable to destruction as it had thought. Even if GW manages to win this, they'll have learned that you can't just stride along on your reputation and size, but that you need to actually spend money on people who know what they're doing. This might force a re-structuring of the entire company, and a re-organization of their entire policy, especially if Chapterhouse wins the suit.

nightside wrote:
@aka_mythos I can understand both sides of the story. On one side GW holds the rights to products associated with their game systems and would be losing out on a fair bit of revenue if third parties could make and sell embellishments and add-ons to those game systems. On the other hand, the very nature of 40k and the games systems and mythos GW have invented (for me in any case and I don't think I'm alone) gives rise to invention and creativity and it is these aspects of the hobby that I believe keep it alive and well. It would be interesting to see what Rick Priestly and Nigel Stillman think on this matter.

Automatically Appended Next Post:
hahahaha and yes I do tend to look at some things and think "you gonna get sued by GW"

No one is disputing their rights, just the extent to which their legal team asserts it and through that assertion mislead people to believe GW's overreaching view. That view that GW should have control of all products associated with it may be a justifiable view, but it isn't reality. It isn't how the law is written or really intended. GW only gets to control what it creates and has a right to ensure what someone else creates isn't by design confused with their product.

rigeld2 wrote:

MagickalMemories wrote:

rigeld2 wrote:
Still incorrect. Every time you see the word model you should be reading Citadel model - as the quote from page 3 shows. Which means that the rules *dictate* Citadel models only.
Not that everyone follows that, but the rules do say that.

Not everything in the rule book is actually a rule.
No where in the book does it say that you're required to use GW/Citadel models as part of the game rules.

Except it does. Everywhere the word model is used, it actually means Citadel model. The word model is used in a lot of places, including actual rules.

This is rules lawyering- and that's a legal field that I have a lot of experience in. Ultimately, the "Citadel Only" rule is inconsistent with the practices of the company, and the legal GW store or GW sanctioned tournament rules.

Citadel is the main brand of miniatures that are allowed in GW games- but there are others. Forge World, is the currently produced brand, but Maurader used to make quite a bit of great minis that were legal in GW's games. Then there's Forge World USA, Armorcast and a few others (I have a titan in my back room that was GW sanctioned).

The truth is, GW has a standing policy that out dated minis are still legal- and no one will ever harass you for using the old Maruader Giant or Wyvern (they were featured in White Dwarf even).

odinsgrandson wrote:
The truth is, GW has a standing policy that out dated minis are still legal- and no one will ever harass you for using the old Maruader Giant or Wyvern (they were featured in White Dwarf even).

LOL, unfortunately you're wrong about that last part. Every once in a while, a thread gets posted on dakka asking about the legality of using OOP minis. The backstory usually involves a red shirt younger than the mini in question not believing its an official GW release.

GW only gets to control what it creates

M'learned friend informs me:

Under Copyright this is true. Under Trademark it is absolutely untrue. One need not create anything in order to Trademark it. Furthermore whilst Copyright exists de facto and continues to exist even if breached and undefended, Trademark is lost if it is not defended. trademark law is basically terrible but companies must act in ways that seem extreme to outsiders in order to defend it. In this case I suspect GW are defending both Copyright and Trademark which are terms easily confused by laymen anyway and thought to be pretty much the same, which they are not. You can throw in patent as another sort of 'company property' but it doesn't seem to have any bearing in this particular case. It however is differnet again both in protections offered, how violations are established and how it must be defended.

B&S, is your friend read up on the case? It sounds like this is a generic answer, given by someone with no background knowledge of the case, rather than a learned answer from someone who's, at least, read the specifics here.


Eric

Blood and Slaughter wrote:

GW only gets to control what it creates

M'learned friend informs me:

Under Copyright this is true. Under Trademark it is absolutely untrue. One need not create anything in order to Trademark it. Furthermore whilst Copyright exists de facto and continues to exist even if breached and undefended, Trademark is lost if it is not defended. trademark law is basically terrible but companies must act in ways that seem extreme to outsiders in order to defend it. In this case I suspect GW are defending both Copyright and Trademark which are terms easily confused by laymen anyway and thought to be pretty much the same, which they are not. You can throw in patent as another sort of 'company property' but it doesn't seem to have any bearing in this particular case. It however is differnet again both in protections offered, how violations are established and how it must be defended.

GW is claiming both trademark and copyright infringement, as well as other claims. This information can be found at

http://archive.recapthelaw.org/ilnd/250791/

Document 147.0 Second Amended complaint by Games Workshop Limited.

Much of this as been discussed earlier in the thread. There has been only a little commentary on GWs claims of unfair and deceptive trade practices, and unfair competition.

Under what conditions would a trade practice would be considered deceptive? Does there have to be any intent to deceive?

What is unfair competition and how does it differ from other violations of law such as a violation of copyright?

I think that this has been mentioned before, but I wonder if there will be a change of venue now that Paulson Games is not a defendant. There are no longer any participating parties in Illinois, and thus I would assume that the court does not have jurisdiction.

He used to specialise in Trademark law. He also used to post on Dakka but doesn't any more for various reasons.

Look at it this way: if GW are anywhere alleging a Trademark violation then that is an action they must bring regardless because if they do not they lose Trademark. Now if they are nowhere alleging Trademark violation, if it is pure Copyright infringement, then that would be different. But it seems to me from reading this thread that it's unclear whether it is copyright infringment solely or copyright and Trademark. tIt also seems to me that many posters confuse the two things in their mind and wrongly assume that 'original creation' is necessary for things to be protected.

As an aside, if I produce 'Millenium Falcon conversion kits', do you think Lucas Arts will smile upon that? Or if I produce something with Tolkien's name prominently displayed (as in 'based on the works of JRR Tolkien) that would be okay? (Because it isn't -- the (self-published, i think) book 'Mirkwood' ran into serious trouble from the Tolkien estate for both title and the use of Tolkien's name on the cover despite the content being entirely original).

EDIT: I did read the earlier discussion but it seems to me that people have not taken it on board. As GW are in fact alleging Trademark violation then the action is absolutely required by law. Trademark must be vigorously defended (unlike copyright) or lost.

As regards the other points about deceptive practices, etc, I'll ask Simon and get back to you. But you don't need to be deceptive in order to breach Trademark or copyright.

Vigorous defense of a trademark does not require the filing of a lawsuit, nor does it preclude out of court settlement.

It is a clearly discernible fact that Games Workshop has made both copyright infringement and trademark infringement claims against Chapterhouse Studios. A great deal of effort has been spent throughout this thread to call attention to the differences between copyright and trademark law.

At this point, I think most readers are fairly well aware that there are differences between the two.

Also, what an individual likes or does not like has no bearing on what a law is, how it has been interpreted in the past, and how it should be interpreted in the future. That Lucas Arts would not "smile on" another party's use of the phrase "Millennium Falcon" as a trademark has no bearing on whether or not Lucas Arts is obligated to defend said mark, nor the lengths it must go to in order to do so. And as I alluded to earlier, defending a mark does not implicitly require predatory litigation. It would be somewhat misleading to equate the lengths one is required to go to in order to maintain a distinguishable mark with the conduct of a stereotypically aggressive and litigious company. It would be like saying that the law requires the holder of a mark to defend it in the manner Louis Vuitton prefers defend its marks.

Now, it is true that a solid record of asserting a mark is one factor that can be weighed when considering factors associated with trademark infringement, but it is by far not the only factor to consider, nor is its presence, or lack thereof, dispositive.