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I'm really suprised with how this whole story has progressed. I guess I always expected GW to have a fleet of untouchable lawyers that could never be bested in combat. While its still in the early goings its looking more like GW's case was built on the hope that the fear of trial would be enough to get CH to fold. I'm glad CH got some big guns of there own to do some pro bono work as I like the idea of this case being settled based on the laws in question and not settled due to the total costs

Before this many people had said as much, that GW relied more on its size and weight to bully its notions of the law on to others who couldn't afford to fight GW's assertions. Whether their is or isn't enough for this to go in their favor, it really shows how much of GW's claims are bark and not bite.

Kroothawk wrote:. . .citing the rulebook as a technical manual . . .

I almost died choking on my coffee reading that.

Can I sue?

(I think I did ruin my mouse pad)

Did they play RAI instead of RAW?

Kroothawk wrote:BTW here another comment by weeble1000:

While I respect weeble1000 for posting these updates, I think his analysis in this latest post is a little off.

My suspicion is that you can refer to discrete parts of a work in certain instances, as prior rulings and treatises on copyright law have stated a requirement to specify which part of which works have been infringed, but you are still running into the problem of medium. A drawing is different from a sculpture, and both are different from a story. If you draw a picture and call it a Tervigon, and I design a sculpture that is very similar to the drawing and call it a Tervigon, my impression from the precedent I am aware of is that these would be considered different works and that the sculpture does not infringe the drawing. The labeling of the works is also irrelevant.

See Rogers v. Koons, a nice case that is directly on point. Sculptures can infringe a drawing. See also the AWCPA.

If you drew a "Tervigon" and I drew a "Tervigon" that was very similar, one could argue that my drawing is a distinct work. Almost any difference is significant, and all I have to do to create an original work is to have contributed more than a "mere trivial" variation. As Chapterhouse argued in its motion to dismiss, "Even if it were assumed, for the sake of argument, that Chapterhouse Studios’s products were “inspired by” Plaintiff’s alleged works, inspiration is not infringement."

Now, to the extent that the idea of the "Tervigon" is itself unique, this might raise the standard for what is considered a "mere trivial" variation a slight bit as opposed to a drawing of a very common object like flowers or a skull. However, ideas are not protectable. Only expressions of ideas are protectable. This means that the concept of a "Tervigon" is entirely unprotectable, but a drawing of a "Tervigon" is protectable. Even so, my drawing of a "Tervigon" is also protectable so long as I have made a meaningful variation.

I own the Chapter House "Alien Spawning Queen" conversion kit.

To the extent that it has to join to the GW Carnifex(tm) kit, it is similar to the illustration in the Tyranid book, as it has the six spiracle vents on top of the carapace. It has half vents which join to the corresponding half of the Carnifex vents.

Whether that is enough to condemn it I have no idea. That is why we have courts, etc.


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ironicsilence wrote:I'm really suprised with how this whole story has progressed. I guess I always expected GW to have a fleet of untouchable lawyers that could never be bested in combat. While its still in the early goings its looking more like GW's case was built on the hope that the fear of trial would be enough to get CH to fold. I'm glad CH got some big guns of there own to do some pro bono work as I like the idea of this case being settled based on the laws in question and not settled due to the total costs

Many of the older observers of the wargames scene have been surprised for decades that GW has never been challenged on its claimed copyrights, many of which would seem to be built on very shaky ground.

It has always been assumed that a small company would have no stomach to fight the £100 Million+ GW in court in order to establish that the IoM Aquila, for example, is not an original work. Consequently, no-one would find it worthwhile to challenge GW in court for a lot of the stuff they claim.

GW have used this effect in reverse to squash fan sites. I don't know to what extent they have squashed small companies producing add-ons and conversions.

Their move against Chapter House has gone off track because Chapter House obtained significantly expert pro bono legal help, and don't need to worry about money. It seems that many of GW's copyright claims are genuinely weak, as they are unable to state them clearly in the filings.

If ultimately things go badly for GW, it will be because they have been hoist by their own petard.

I don't know what legal effect that would have on after market conversion sellers.

biccat,

Roger vs Koons isn't exactly what I would call "directly on point." Koons admitted to intentionally copying the photograph, but claimed fair use as a parody. The court did find that the average person would recognize the copying, but ultimately we're talking about a work of art that copied that which made the Plaintiff's work a unique artistic expression. The meaning was copied, and there was direct evidence of that.

It does demonstrate that a protectable work can be copied in another medium, but the circumstances are very particular in that the sculpture was specifically designed to copy the postcard in terms of design, layout, etc. "In his "production notes" Koons stressed that he wanted "Puppies" copied faithfully in the sculpture. For example, he told his artisans the "work must be just like photo — features of photo must be captured;" later, "puppies need detail in fur. Details — Just Like Photo!;" other notes instruct the artisans to "keep man in angle of photo — mild lean to side & mildly forward — same for woman," to "keep woman's big smile," and to "keep [the sculpture] very, very realistic;" others state, "Girl's nose is too small. Please make larger as per photo;" another reminds the artisans that "The puppies must have variation in fur as per photo — not just large area of paint — variation as per photo." (emphasis supplied)."

Further, the copying was identified through a two-dimensional image of the sculpture: "A friend of Scanlon's, who was familiar with the photograph, called to tell him that what she took to be a "colorized" version of "Puppies" was on the front page of the calendar section of the May 7, 1989 Sunday Los Angeles Times. In fact, as she and Scanlon later learned, the newspaper actually depicted Koons' "String of Puppies" in connection with an article about its exhibition at the Los Angeles Museum of Contemporary Art."

"Puppies" was found to be original due to the artistic creation in composing the photograph:

"Elements of originality in a photograph may include posing the subjects, lighting, angle, selection of film and camera, evoking the desired expression, and almost any other variant involved. See Burrow Giles, 111 U.S. at 60, 4 S.Ct. at 282. 1 Nimmer, § 2.08[E][1]. To the extent that these factors are involved, "Puppies" is the product of plaintiff's artistic creation. Rogers' inventive efforts in posing the group for the photograph, taking the picture, and printing "Puppies" suffices to meet the original work of art criteria. Thus, in terms of his unique expression of the subject matter captured in the photograph, plaintiff has established valid ownership of a copyright in an original work of art."

Koons's "String of Puppies" was found to copy that which constituted the artistic creation inherent in a photograph. Additionally, summary judgement was particularly easy given that there was direct evidence of copying:

"Here, the trial court found original elements of creative expression in the copyrighted work were copied and that the copying was so blatantly apparent as not to require a trial. We agree that no reasonable juror could find that copying did not occur in this case. First, this case presents the rare scenario where there is direct evidence of copying. Koons admittedly gave a copy of the photograph to the Italian artisans with the explicit instruction that the work be copied. Moreover, the importance of copying the very details of the photograph that embodied plaintiff's original contribution -the poses, the shading, the expressions- was stressed by Koons throughout the creation of the sculpture. His instructions invariably implored that the creation must be designed "as per photo." This undisputed direct evidence of copying is sufficient to support the district court's granting of summary judgment."

"We recognize that ideas, concepts, and the like found in the common domain are the inheritance of everyone. What is protected is the original or unique way that an author expresses those ideas, concepts, principles or processes. Hence, in looking at these two works of art to determine whether they are substantially similar, focus must be on the similarity of the expression of an idea or fact, not on the similarity of the facts, ideas or concepts themselves. See Durham Industries, Inc. v. Tomy Corp., 630 F.2d 905, 912 (2d Cir. 1980). It is not therefore the idea of a couple with eight small puppies seated on a bench that is protected, but rather Roger's expression of this idea — as caught in the placement, in the particular light, and in the expressions of the subjects — that gives the photograph its charming and unique character, that is to say, makes it original and copyrightable."

"Because of Koons' extensive use of the same expression of the idea that Rogers' created, it was properly held that he "copied" the protected features of the original. No genuine issue of material fact exists with respect to this finding; "String of Puppies" was copied from the photograph "Puppies" based either on the direct evidence of copying or on proof of access and substantial similarity. In light of this summary judgment was properly granted on this issue."

You will see here that the issue was that which is of particular artistic value in a photograph. Composition was clearly considered to be of paramount importance, as well as the expressions of the subjects, etc.. "String of Puppies" was found to have copied those aspects of the original work, and significantly, there was direct evidence in support of this. Although the image was rendered into a different medium, in this case a three-dimensional sculpture, it copied almost everything that gave the photograph meaning and was even designed to be viewed from the same angle as the photograph.

This is a very, very particular case of infringement across mediums and it demonstrates that "substantial similarity" is limited to the expression, not the idea. Koons went out of his way to copy the expression as faithfully as possible. In my example of a Tervigon eating a Space Marine and a Tervigon destroying a building, the expression is different. If Koons's sculpture had the two people drowning the puppies and the sculpture was called "Drowning Puppies," there would have been no finding of infringement, even if the the puppies, the people, and the bench had all been designed to represent the same people, puppies, and objects in the original photograph. If the "Drowning Puppies" sculpture had the people with mad faces looking down at the slowly dying puppies, I could likely create a sculpture with the people smiling and looking at the viewer in a cheerful manner while drowning the puppies and call it a unique artistic expression. The change in attitude is not only an aesthetic change, but it would significantly alter the meaning and impact of the work. I doubt very much that the "ordinary observer" would think that the two were the same.

An expression of a Tervigon eating a Space Marine does not allow you to copyright the idea of a Tervigon, and just because the two images have a very similar alien beast in them doesn't mean that one is copied from the other.

Let's look at another example. What if you had a drawing of a Tervigon eating a Space Marine and I had a drawing of a Tervigon ice skating? Would you then argue that one copies the other? If you feel that the two images are different on the basis that a Tervigon wouldn't be ice skating, you're considering the idea of what a Tervigon is, and not comparing the two expressions. A Tervigon destroying a building is not necessarily less distinct from a picture of a Tervigon eating a Space Marine than is a picture of a Tervigon ice skating.

As to derivative works, you're still talking about something based on a protectable copyright, which is limited to the specific artistic expression. A derivative work must recast, transform, or adapt the underlying copyright. You could argue that a picture of a Tervigon on ice is adapted from a picture of a Tervigon eating a Space Marine. However, you must first consider that a picture is not one of the examples cited in the statute. This necessarily means that you must now prove to the Court that the accused work is "recast, transformed, or adapted from" the copyrighted work, and you would likely need the guidance of precedent. I don't think you'll find that a picture of a similar subject matter can be accused of being a derivative work. If I took your picture of a Tervigon eating a Space Marine and changed the Space Marine to a bag of potato chips (or crisps even), you could argue that I "transformed" the underlying copyright by replacing the marine with chips even though you wouldn't be able to say that the two drawings were entirely the same. In this sense, the original work is taken as is and then altered. This is an explicit requirement in order for a work to be derivative.

Now I want a Tervigon model eating a Space Marine (of course with the Chapterhouse conversion kit and a GW Space Marine )

BTW welcome weeble1000 to actively posting on Dakka , maybe I don't have to quote your posts on other forums from now on.

Kroothawk wrote:Now I want a Tervigon model eating a Space Marine (of course with the Chapterhouse conversion kit and a GW Space Marine )

BTW welcome weeble1000 to actively posting on Dakka , maybe I don't have to quote your posts on other forums from now on.

I'll do my best to keep track of things here, but it seems that all my time wasting forum reading has become GW v Chapterhouse related these days. I barely have time left to ogle sweet IG scratch builds and Ork conversions.

Just quickly popping my head up to clarify a point raised on UK copyright law that I didn't see addressed concretely, apologies if it has and I missed it.

In the UK, you automatically own copyright on any IP etc you create. Registering your copyrights and trademarks makes it a LOT easier to have the legal system back you up in a dispute, but if you can prove to a court's satisfaction (or alternatively, convince the other guy that you can prove to a court's satisfaction) that you were doing it first you're sorted.

And, for the sake of completeness, GW employees (at least, when I was a redshirt) sign a contract giving over all IP they create on work time to GW.

lindsay40k wrote:Just quickly popping my head up to clarify a point raised on UK copyright law that I didn't see addressed concretely, apologies if it has and I missed it.

In the UK, you automatically own copyright on any IP etc you create. Registering your copyrights and trademarks makes it a LOT easier to have the legal system back you up in a dispute, but if you can prove to a court's satisfaction (or alternatively, convince the other guy that you can prove to a court's satisfaction) that you were doing it first you're sorted.

And, for the sake of completeness, GW employees (at least, when I was a redshirt) sign a contract giving over all IP they create on work time to GW.

It raises an interesting point. GW is a UK based company first, so is this case going to use American Copyright laws or UK?
I remember studying some bits at college and well English law is vairing in many places compared to Scottish law, for example.
Which country is this being decided in? Could make all the difference in the long run.

Thanks for showing up, I appreciate the feedback.

weeble1000 wrote:biccat,

Roger vs Koons isn't exactly what I would call "directly on point." Koons admitted to intentionally copying the photograph, but claimed fair use as a parody. The court did find that the average person would recognize the copying, but ultimately we're talking about a work of art that copied that which made the Plaintiff's work a unique artistic expression. The meaning was copied, and there was direct evidence of that.

I struggled with the 'directly on point.' But for the part I quoted (2d-3d work) it's on point. So what the heck.

weeble1000 wrote:It does demonstrate that a protectable work can be copied in another medium, but the circumstances are very particular in that the sculpture was specifically designed to copy the postcard in terms of design, layout, etc. "In his "production notes" Koons stressed that he wanted "Puppies" copied faithfully in the sculpture.

I think it is clear that CH wanted to capture the design/layout of the Tervigon. Specifically, with reference to the drawing in the 'nid codex.

weeble1000 wrote:Koons's "String of Puppies" was found to copy that which constituted the artistic creation inherent in a photograph.

Except remember, it's not the idea of the posed puppies that was copyrighted, it was the specific expression. Hypothetically, a photograph taken from behind the puppies would not directly infringe.

weeble1000 wrote:You will see here that the issue was that which is of particular artistic value in a photograph. Composition was clearly considered to be of paramount importance, as well as the expressions of the subjects, etc.. "String of Puppies" was found to have copied those aspects of the original work, and significantly, there was direct evidence in support of this. Although the image was rendered into a different medium, in this case a three-dimensional sculpture, it copied almost everything that gave the photograph meaning and was even designed to be viewed from the same angle as the photograph.

Which I think parallels well with the GW case. CH took the image GW provided and made a copy.

weeble1000 wrote:In my example of a Tervigon eating a Space Marine and a Tervigon destroying a building, the expression is different.

I see what you're saying. But in Koons, the puppies weren't a unique form. The image of a puppy is quite clearly in the public domain. In the case of GW, the Tervigon image isn't public domain, it's a copyrighted work.

(Trademark aside) I can't copy Superman and put him in a different story (say, northern California) and claim that I'm not infringing the trademark. Superman is the expression.

weeble1000 wrote:An expression of a Tervigon eating a Space Marine does not allow you to copyright the idea of a Tervigon, and just because the two images have a very similar alien beast in them doesn't mean that one is copied from the other.

But when the appearance of the alien beast is the artistic expression, it doesn't matter what the environment is, you're still using the work.

weeble1000 wrote:Let's look at another example. What if you had a drawing of a Tervigon eating a Space Marine and I had a drawing of a Tervigon ice skating? Would you then argue that one copies the other?

Yes, because in both cases you're using the same expression: a Tervigon. Now, if you're arguing that the Tervigon image isn't protected, that's an entirely different position.

weeble1000 wrote:As to derivative works, you're still talking about something based on a protectable copyright, which is limited to the specific artistic expression. A derivative work must recast, transform, or adapt the underlying copyright. You could argue that a picture of a Tervigon on ice is adapted from a picture of a Tervigon eating a Space Marine. However, you must first consider that a picture is not one of the examples cited in the statute. This necessarily means that you must now prove to the Court that the accused work is "recast, transformed, or adapted from" the copyrighted work, and you would likely need the guidance of precedent. I don't think you'll find that a picture of a similar subject matter can be accused of being a derivative work. If I took your picture of a Tervigon eating a Space Marine and changed the Space Marine to a bag of potato chips (or crisps even), you could argue that I "transformed" the underlying copyright by replacing the marine with chips even though you wouldn't be able to say that the two drawings were entirely the same. In this sense, the original work is taken as is and then altered. This is an explicit requirement in order for a work to be derivative.

The original design for the Tervigon was (arguably) altered. CH took a 2D representation and expanded it into a third dimension.

biccat wrote:
I think it is clear that CH wanted to capture the design/layout of the Tervigon. Specifically, with reference to the drawing in the 'nid codex.

Of the Tervigon concept, or a specific protectable work? Even Games Workshop has failed to point to a specific work that has been infringed by the accused conversion kit. Koons admitted to attempting to copy the photograph. There was direct evidence and it wasn't in dispute. The dispute was over whether his work was original because of what he added to the composition and the alteration in artistic meaning. He also argued for protection as a parody.

When you place the accused conversion kit side by side with -whatever- specific work Games Workshop eventually accuses it of infringing, will evidence of copying meet the ordinary observer standard? I don't think it will. More specifically, I don't think Judge Kennelly will believe that a reasonable jury could find that it is a copy. The conversion kit is ripe for summary judgement.

Biccat, I think you're missing the point. If an expression of an idea is all that is protectable, a different expression is equally protectable if there is more than a marginal difference. What you've misinterpreted from Koons is that composition is indeed important. If the composition is altered, it's more than a marginal difference and the works are arguably not significantly similar. If you draw a Tervigon from the rear, and I draw it from the front, the composition is different, as you've pointed out with respect to the sculpture. Anything about a Tervigon that's not expressed isn't protectable and a work can only directly infringe a protectable work if it is "substantially similar." The Tervigon, divorced of the context of whichever expressions it is depicted in is just a concept.

If Games Workshop has 1,000 images of Tervigons, each expression must individually be asserted against the accused work in order for it to be infringed. Moreover, if Games Workshop knows that 1,000 expressions have been infringed, it owes a duty of fair notice to the Defendant to specify each one. Any that are not specified cannot be part of the suit and referring to them generally doesn't cut it as far as fair notice is concerned.

Do you see how this works? As far as copyrights are concerned, each and every work is a unique expression that has absolutely no relationship to any other expression except in the case of a derivative work. But, as I pointed out, a work is only derivative if it transforms, recasts, or is adapted from the specific work on which it is based. Derivative works are necessary to preserve, as the statute point out, translations of a novel. If there was no derivative work statute, words in a different language would constitute a unique expression.

It's time for Dark Heresy, so I'll address the rest of your post tomorrow.

weeble1000 wrote:Biccat, I think you're missing the point. If an expression of an idea is all that is protectable, a different expression is equally protectable if there is more than a marginal difference. What you've misinterpreted from Koons is that composition is indeed important. If the composition is altered, it's more than a marginal difference and the works are arguably not significantly similar. If you draw a Tervigon from the rear, and I draw it from the front, the composition is different, as you've pointed out with respect to the sculpture. Anything about a Tervigon that's not expressed isn't protectable and a work can only directly infringe a protectable work if it is "substantially similar." The Tervigon, divorced of the context of whichever expressions it is depicted in is just a concept.

You keep confusing "protectable" with "non-infringing."

Your drawing of a Tervigon might be a protectable expression, but that doesn't mean it doesn't infringe someone else's copyright.

Also, your idea that only the specific embodiment of a character/image is protected is directly at odds with existing law about characters. For example, Superman is a copyrighted "concept" in the same manner that the Tervigon is copyrighted. You can't draw Superman in a new environment and eating ice cream without infringing the copyright on the character. There is even case law on the idea of entirely written (novelized) characters enjoying some measure of copyright protection.

I can't wait to hear what Janthkin has makes of this. Him and Polonius are the only two I actually listen to in threads like this.

The strangest thing is I've not met many GW employees who even realise there ARE other companies out there, even in their head office. I've used models from heartbreaker, Harlequin (now Black Tree), Gamezone etc in their stores and simply because the staff know not to try to hard sell me I've been playing 20+ years they don't question is it a GW mini.
Personally I remember 20th century fox tapping GW on the shoulder and them VERY quickly changing a certain tyranid sculpt. Would love to see them defend their chaos character who was doomed never to die and serve the chaos gods and imagary of the 8 pointed star, use of orcs, elves in the tolkien/D&D style etc. Rick Priestly even stated in an interview people came up to him, pointed out similarities with certain things to say for example a range of fantasy books by Michael Moorcock and he always replied yeah thats where the ideas came from.
I'm hoping that chapterhouse pull through but certain lines were edging on GW trying something like this. To be safe think I might get an order in quick.

I don't think GW will see this as competition. Best example of this is a GW staff member at head office stating GW has no competition, and hence the prices are set to keep rising instead of falling. You'd think with the way the economy has went they'd use some sense. Instead they'll probably up the prices to get the money back from the 10 year olds' parents from what they spent in the law suit. Sad fact, Video gaming is now much, much cheaper overall

Alpha
With the legal posse on the thread I risk goofing here but I assumed that as the trial is going to be held in the USA, American juristiction will be used.

That was iirc GW's decision

Not so much GWs decision as a necessity. Chapterhouse is an American company, they can be ordered not to sell things in the UK by UK courts, but unless they actually go there other decisions can't really be enforced. A US court can enforce the law, since they can get US cops to throw them in jail for contempt if CH doesn't comply.

Biccat,

This is from a 2006 article published in the Vanderbilt Journal of Entertainment and Technology Law:

"The issue of separate protection for literary characters arises
when the character is removed from the original work, so that the
character leads a new and independent life in a separately written
piece. Characters that are capable of leading independent lives are
those who are especially memorable, such that they stay in a reader’s
imagination long after the original storyline is forgotten. An author
seeking to write a new adventure for Superman, Tarzan, or Sherlock
Holmes, must be aware of the legal considerations involved. When the
character is separated from his original copyrighted work, the
determination of the legal protection to which the character itself is
entitled is difficult to determine."

"It is clear that there is a need to strike a balance between
giving authors enough incentive to create remarkable characters and
leaving enough raw materials in the public domain upon which
authors can build. Courts have tried to formulate tests for determining when a character deserves independent copyright
protection that keep in mind the need for balancing, but much
uncertainty still exists regarding the protection of literary characters."

"Literary characters are especially hard to protect because they
have a “tangible existence only in the specific words, pictures, and
sounds created by [their] author.”14"

"The “distinctly delineated” test rests on the principle that the
more developed a character is, the more it embodies protectable
expression and less a general idea...Only if the
character is sufficiently developed so that it constitutes more than just
an idea, and therefore is worthy of copyright protection, should one
move on to the next step."

"Perhaps, because of the lack of guidance, courts have begun
overprotecting characters by considering only whether they are
copyrightable, and not whether there has been actual infringement.
By considering whether a character is sufficiently delineated to
receive copyright protection, and then automatically finding
infringement without comparing the two works to determine whether
one is substantially similar to the other, these courts seem to
concentrate exclusively on the first part of the Nichols test."

"As explained above, the tests for determining protection of
literary characters under copyright law are confusing, difficult to
apply, and often yield unpredictable results. The difficult application
of the “distinctly delineated” and “story being told” tests has led legal
scholars to examine alternate grounds for offering protection to
literary characters. Trademark and unfair competition are the
primary alternatives to copyright suggested by scholars.78"


Before you start telling me that I'm confusing things, you might want to do a little research, Biccat. Superman is not a protected "concept." Copyright law specifically prohibits the protection of concepts:

Copyright Act 1973 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. (emphasis added)

Superman, like other well-defined characters such as Tarzan and Sherlock Holmes, has been considered protectable because, by the "distinctly delineated" test, they are considered protectable works in and of themselves instead of mere concepts. "The “distinctly delineated” test rests on the principle that the more developed a character is, the more it embodies protectable expression and less a general idea"

Are you saying that the Tervigon is as "distinctly delineated" as Superman, Tarzan, and Sherlock Holmes? Even if it were, such tests are confusing, difficult to perform, often misleading, and a poor way to protect literary characters. As the above author suggests, a fairer and more proper way to protect literary characters is a combination of copyright and trademark law already extant.

And further, Biccat, if a work infringes a copyright, it is not itself protectable. If a work is found to be a copy of a protectable work, it cannot be considered anything other than a copy of the work which it was found to be a copy of. It is therefore not original. If it were original, it would not be a copy. I will entertain the notion that I could be wrong about this, but If you are going to maintain that I am wrong, I'd like to see some evidence of that. Do you know of any relevant precedent? Can you point to scholarly discourse on the subject? I simply can't see how a copy of something can be considered to be a unique work of authorship in and of itself distinct from that which it is a copy of.

Modifications of infringing work are both infringing and protected (IE, DC can't publish a Superman fanfic without the writers permission).

Also, why all this focus on copyright law? Merchandizing rights are done via trademark law.

Ketara wrote:I can't wait to hear what Janthkin has makes of this. Him and Polonius are the only two I actually listen to in threads like this.

This seems to me, pardon me for saying so, a rather peculiar appeal to authority. I don't think you should conflate the fact they have legal backgrounds with the fact they are necessarily right: After all, both GWS and CHS have lawyers giving them completely opposing opinions on how they are sure to win, and there is 100% certainty one side is going to be wrong and lose (unless they settle).

weeble1000 wrote:...
Superman is not a protected "concept." Copyright law specifically prohibits the protection of concepts:

Copyright Act 1973 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. (emphasis added)

I just wanted to expand on this, and point out how this can all become confusing to lay people because of the 3 distinct types of Intellectual Property in the US;

-Copyright, which protects expressions (the individual fixations of concepts),

-Patent, which protects inventions (which includes things like a "procedure, process, system, method of operation"),

-Trademark, which are intended to identify origin in trade (the easiest way to think about it is the mark on a bag of flour, intended to identify which mill it comes from).

It's important to understand that no form of IP in the US can protect a pure idea or discovery, although patent law can come close (for example, the scientific principles that explain how to transmute lead into gold could not be patented, but you could conceivably have a patent that covered all practical ways of using that discovery, subject to drafting issues).

Beyond that, it should be understood that one reason for litigation is because in IP, we often don't know what we really have until it's tested in court.

For example, consider the words "Space Marine";

Games Workshop lists this as one of the terms that are "either (R), TM and/or (c)" of GW. But what does that really mean?

As its Wiki page demonstrates, the concept of a space marine predates GWs use of the term by decades. Beyond that, the term "marine" is almost purely descriptive (see Merriam-Webster, "2: one of a class of soldiers serving on shipboard or in close association with a naval force"). That's a problem for trademark purposes: you cannot trademark purely descriptive marks, as it could potentially become something close to the forbidden protection of an idea. Imagine, for example, someone attempting to trademark the term "athletic shoe".

So, why does GW list something that realistically could never be asserted on its IP listing? Well, because it gives them an excuse/compulsion to brush back people that might intrude on their territory, as it were. If someone asserts a registered mark against you, you have to undergo process, and as we see in this particular case, that process needs lawyers, and lawyers need money.

Put another way, try and imagine a circumstance where you would expect GW to assert their TM on "Space Marine" against a company that has some money. For example, Blizzard Entertainment, whose Marines were at least sometimes referred to as "Terran Space Marine mk 2"?

This is no idle thought: Blizzard does, after all, make a table top miniatures game for World of Warcraft, it's not such a stretch to imagine them branching into the area with StarCraft. Suppose that they do: can anyone here really imagine GW asserting their TM on Space Marines against Activision/Blizzard?*

Requia wrote:Modifications of infringing work are both infringing and protected (IE, DC can't publish a Superman fanfic without the writers permission).

Also, why all this focus on copyright law? Merchandizing rights are done via trademark law.

GW's motivation seems to be a general concept that no-one is allowed to make anything for 40K except them.

This cannot be asserted by trademarks, so it is being asserted by copyright.

I believe there are some trademark complaints involved too, however Chapter House stopped using any GW trademarks last year.

I just wanted to expand on this, and point out how this can all become confusing to lay people because of the 3 distinct types of Intellectual Property in the US;

-Copyright, which protects expressions (the individual fixations of concepts),

-Patent, which protects inventions (which includes things like a "procedure, process, system, method of operation"),

-Trademark, which are intended to identify origin in trade (the easiest way to think about it is the mark on a bag of flour, intended to identify which mill it comes from).

It's important to understand that no form of IP in the US can protect a pure idea or discovery, although patent law can come close (for example, the scientific principles that explain how to transmute lead into gold could not be patented, but you could conceivably have a patent that covered all practical ways of using that discovery, subject to drafting issues).

Beyond that, it should be understood that one reason for litigation is because in IP, we often don't know what we really have until it's tested in court.

For example, consider the words "Space Marine";

Games Workshop lists this as one of the terms that are "either (R), TM and/or (c)" of GW. But what does that really mean?

As its Wiki page demonstrates, the concept of a space marine predates GWs use of the term by decades. Beyond that, the term "marine" is almost purely descriptive (see Merriam-Webster, "2: one of a class of soldiers serving on shipboard or in close association with a naval force"). That's a problem for trademark purposes: you cannot trademark purely descriptive marks, as it could potentially become something close to the forbidden protection of an idea. Imagine, for example, someone attempting to trademark the term "athletic shoe".

So, why does GW list something that realistically could never be asserted on its IP listing? Well, because it gives them an excuse/compulsion to brush back people that might intrude on their territory, as it were. If someone asserts a registered mark against you, you have to undergo process, and as we see in this particular case, that process needs lawyers, and lawyers need money.

Put another way, try and imagine a circumstance where you would expect GW to assert their TM on "Space Marine" against a company that has some money. For example, Blizzard Entertainment, whose Marines were at least sometimes referred to as "Terran Space Marine mk 2"?

This is no idle thought: Blizzard does, after all, make a table top miniatures game for World of Warcraft, it's not such a stretch to imagine them branching into the area with StarCraft. Suppose that they do: can anyone here really imagine GW asserting their TM on Space Marines against Activision/Blizzard?*

Really nicely explained post. I know as much about cricket as I do about IP law.
Thanks

Buzzsaw wrote:I just wanted to expand on this, and point out how this can all become confusing to lay people because of the 3 distinct types of Intellectual Property in the US;

Just a quick note, to point out that there are (at least) 4 categories of IP law - Trade Secret belongs in there, too. But that's pretty tangential.

For example, consider the words "Space Marine";

Games Workshop lists this as one of the terms that are "either (R), TM and/or (c)" of GW. But what does that really mean?

As its Wiki page demonstrates, the concept of a space marine predates GWs use of the term by decades. Beyond that, the term "marine" is almost purely descriptive (see Merriam-Webster, "2: one of a class of soldiers serving on shipboard or in close association with a naval force"). That's a problem for trademark purposes: you cannot trademark purely descriptive marks, as it could potentially become something close to the forbidden protection of an idea. Imagine, for example, someone attempting to trademark the term "athletic shoe".

So, why does GW list something that realistically could never be asserted on its IP listing? Well, because it gives them an excuse/compulsion to brush back people that might intrude on their territory, as it were. If someone asserts a registered mark against you, you have to undergo process, and as we see in this particular case, that process needs lawyers, and lawyers need money.

One of the perils of theoretical discussion versus a real-world scenario - the pesky facts sometimes get in the way.

GW HAS a registered trademark for "Space Marine," in the class of goods including "board games, parlor games, war games, hobby games, toy models and miniatures of buildings, scenery, figures, automobiles, vehicles, planes, trains and card games and paint, sold therewith" (No. 74186534). Moreover, they've had that mark since 1993. At this stage, it is incontestable. In practice, trying to argue the validity of the "Space Marine" trademark is a losing battle.

Blizzard wouldn't touch it; not only did Starcraft come out WAY later than GW filed their original trademark (and much later still, since the mark was first used in commerce), odds are pretty good that there are still old contracts lying around from the pre-Warcraft days, when Blizzard & GW were considering doing business. It's common to include promises not to attack the validity of IP in such contracts, and common to have those terms survive the end of the contract.

Intrerestingly enough, GW would be compelled to respond if Blizzard made a Starcraft board game, and included "Space Marines." Undefended trademarks are a no-no. But I expect Blizzard would simply call them "Terran Marines," as is more common in the game & surrounding fluff.

Ketara wrote:I can't wait to hear what Janthkin has makes of this. Him and Polonius are the only two I actually listen to in threads like this.

Heh. Janthkin is frantically painting Skaven - he has to fly to Adepticon in about 32 hours.

As weeble & biccat have shown, there is room for reasonable disagreement on some of the underlying issues - there isn't an exact parallel. Myself, I'm actually less interested in the "can a sculpture infringe the copyright of a picture" question, and more interested in the "does GW's implicit license for owners to modify their 'sculptures' via conversion rise to a level where another company can create & market products intended to create derivative works of those sculptures" question.

I think the "amended" complaint is still defective, but this isn't exactly uncommon - it's not unusual for complaints to be amended multiple times, until the presiding judge is satisfied. I don't see this case being dismissed (with prejudice) anytime soon.

Ouze wrote:

Ketara wrote:I can't wait to hear what Janthkin has makes of this. Him and Polonius are the only two I actually listen to in threads like this.

This seems to me, pardon me for saying so, a rather peculiar appeal to authority. I don't think you should conflate the fact they have legal backgrounds with the fact they are necessarily right: After all, both GWS and CHS have lawyers giving them completely opposing opinions on how they are sure to win, and there is 100% certainty one side is going to be wrong and lose (unless they settle).

Aye, that is true, but considering one is a lawyer who makes his living on IP, and the other is a lawyer who readily admits when he might be wrong or mistaken on a point, I'll gladly take their opinions above those of unknown internet armchair expert #24. If Janthkin was no good at this, he wouldn't be able to put food on the table, so I'm pretty certain he must have a better idea of how the law works in these circumstances than most bods. Plus, unlike the legal counsel involved who pretty much HAVE to stick by their clients, Janthkin is under no such obligation, and can say what he freely and truly thinks of the affair.

Janthkin wrote:Heh. Janthkin is frantically painting Skaven - he has to fly to Adepticon in about 32 hours.

Ouch. How much have you got left to do?

weeble1000 wrote:This is from a 2006 article published in the Vanderbilt Journal of Entertainment and Technology Law

I'm familiar with the article, in fact. It's one of the references I cited when I covered the subject (image copyrights vs sculptures) in my thesis during law school. But the "character copyright" concept is an attempt to extend protection to a character who is moved out of his (or her) literary environment.

For example, a story about Huck Finn fighting aliens on a spaceship is taking him out of his literary environment.

A story about Huck Finn sailing down the Missouri river is substantially similar to the environment he originated in.

weeble1000 wrote:Before you start telling me that I'm confusing things, you might want to do a little research, Biccat. Superman is not a protected "concept." Copyright law specifically prohibits the protection of concepts:

Copyright Act 1973 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. (emphasis added)

I have done research. But you're applying too broad a definition to "concept." World-eating aliens are an unprotectable concept. Photographs of bridges are an unprotectable concept. But a Tervigon as shown in the GW illustration, or a specific bridge in a photograph, are protectable expressions of that concept.

weeble1000 wrote:Superman, like other well-defined characters such as Tarzan and Sherlock Holmes, has been considered protectable because, by the "distinctly delineated" test, they are considered protectable works in and of themselves instead of mere concepts. "The “distinctly delineated” test rests on the principle that the more developed a character is, the more it embodies protectable expression and less a general idea"

Distinctly deliniated characters are protected under copyrights.

weeble1000 wrote:Are you saying that the Tervigon is as "distinctly delineated" as Superman, Tarzan, and Sherlock Holmes? Even if it were, such tests are confusing, difficult to perform, often misleading, and a poor way to protect literary characters. As the above author suggests, a fairer and more proper way to protect literary characters is a combination of copyright and trademark law already extant.

No, not at all. But I do think that the Tervigon image contains protectable elements.

weeble1000 wrote:And further, Biccat, if a work infringes a copyright, it is not itself protectable. If a work is found to be a copy of a protectable work, it cannot be considered anything other than a copy of the work which it was found to be a copy of. It is therefore not original. If it were original, it would not be a copy. I will entertain the notion that I could be wrong about this, but If you are going to maintain that I am wrong, I'd like to see some evidence of that. Do you know of any relevant precedent? Can you point to scholarly discourse on the subject? I simply can't see how a copy of something can be considered to be a unique work of authorship in and of itself distinct from that which it is a copy of.

Sure. Here's a great example:

Suppose I propose to create a compilation of already existing works according to some formula. For example, it might be "Best works by contemporary authors." There is some effort of original expression in choosing which works I'm going to include. This compilation is protectable, although the original elements are not protectable. If I make my compilation without permission from one of the authors, then it's infringing. But that doesn't affect protection, the original expressive elements are still protected.

There can exist some copyrighted elements in a work that also incorporates other copyrighted works. Infringement and originality are not mutually exclusive.

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Lets imagine a hypothetical. I create a comic-book about a superhero, his appearance doesn't matter, but lets say he is entirely, 100% original. No derivation from any other works. But I only show his left side.

You decide that you want to copy the hero, and create a live-action film starring the hero doing what he does best (fightin' bad guys and kickin' butt!). In the movie, you incorporate every detail that I've ever drawn, only in real-life, showing all sides, and everyone knows exactly who the hero is supposed to be. But it's titled "Generic Hero Movie."

Would you say that this movie infringes a copyright in the original comic book? The impression I'm getting from you is that this would not infringe, and I don't think that squares with copyright law.

Janthkin wrote:GW HAS a registered trademark for "Space Marine," in the class of goods including "board games, parlor games, war games, hobby games, toy models and miniatures of buildings, scenery, figures, automobiles, vehicles, planes, trains and card games and paint, sold therewith" (No. 74186534). Moreover, they've had that mark since 1993. At this stage, it is incontestable. In practice, trying to argue the validity of the "Space Marine" trademark is a losing battle.

A registered trademark just means they filed extra paperwork with the government that allows them to get a higher amount of statutory damages if an infringment occurs. When a company claims a Trademark or registers one, the government only cares if anyone else has registered it, but just like a patent that doesn't gurantee that issuance is correct. Companies lose patents and trademarks often enough when someone comes in and shows the court of the common use or existing use within bounds of the claimed protection. The term Space Marine existed before 40k. The term "Space Marine" appeared in books and games before GW's use. The long list someone could generate given enough research would make GW's claim shaky and could invalidate their claimed TM.

It is interesting seeing all of the legal professionals chiming in. Although some foundation with the speakers' various backgrounds woud also be enlightening. While I am an attorney and feel somewhat comfortable discussing general legal matters, I know next to nothing about IP, and always considered it to be kind of a dry topic. Who knew it could be so interesting? Of course applying a topic that you know something about already to a set of laws always makes the law more interesting.

Space Marine, like many other terms in the gaming industry that have been argued over (like Army Builder) just seem so generic to me that it baffles the mind that they're in fact protected terms under law, or if they aren't that someone's lawyer has been able to convince a company that they are. I'm curious about the Superhero case now, because it again seems like such a generic term. I can understand specific "Superheroes" being protected, but not such a generic descriptor.