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Over the years GW has used several version of the double headed eagle. The ones on SM chest armor is different from the one used on IG vehicles. All of them are similar to historical items. So much so that to claim theirs is unique, is just silly, IMHO. If you do a Google search for Double headed eagle icon, you will go through 96 images of historical ones before you finally get to a GW one. A lot of them can be used easily on non GW produced models and still get the point across.

I love the blatent lies and distortions in GWs response. It is funny how they blame the copyright office for failing to notify them on time while in the same sentence tell the court that they "missed" the e-mail notifying that their stuff got rejected. Moskin seems really desperate.

Unfortunately, the employee simply neglected the matter until November 7, 2012, when,
in response to a telephone call by Games Workshop’s counsel to one of her colleagues, she sent a
further email that included her prior message from June.

Mohoc wrote:
Moskin seems really desperate.

It was a pretty big deal for CHS to call him a liar and say he deliberately deceived the court. On top of that, if this blows up in his face and the judge goes back on the shoulder pads, all the blame is squarely on him. He didn't follow up with the copyright office, he forgot to tell the judge about it, he gave CHS the opportunity to get it reconsidered.

The worst worst case scenario for him is ---> judge reverses his decision on the shoulder pad (says can't be copyrighted) ----> judge says, GW I agree with your argument that this shoulder pad is pretty much identical to the other shoulder pads you've mentioned, they can't be copyrighted either.

I think CHS is allowed a short reply, it should be interesting to see.



Also, GW used 'sound and fury' in a filing again. Someone needs to buy them the Oxford Book of English Verse so they can venture out a bit from Macbeth. It's a good line but not one someone adhering to rules on comity should use because it has an implied 'told by an idiot' in front of it, and also it is uttered by a paranoid tyrant who ascends to power through regicide, right after Seyton tells him his wife is dead, and right before he is defeated so it says a lot about the speaker too.

Oh, I am fully aware that CHS called him a liar in open court. There are some other gems in the filling. Including the fact that GW seems to think that they have a copyright on the "character" of Space Marines, as if each and every Space Marine is akin to world famous characters like Spiderman, Mickey Mouse, Superman and Batman.

Moreover, the entire
dispute over the independent copyrightability of the Space Marine shoulder pad also misses the
broader point that it is undisputed that the Space Marine character as a whole is copyrightable,
and Chapterhouse’s copying of the shoulder pad design is an infringement of part of that overall
design.

The exhibits and declaration that go with GW's filing are up on recap for free now (scroll down to the bottom):

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


Exhibit H is Bob Naismith's deposition by Mr. Moskin, some good stuff in there. Expect to see bits of it, and stuff in in CHS's questions to him in future filings.

http://ia600405.us.archive.org/18/items/gov.uscourts.ilnd.250791/gov.uscourts.ilnd.250791.301.9.pdf

"I do remember reading EE Doc's 13:58:58
24 Linesmans series, as a kid, and I do remember reading 13:59:01
25 about Space Marines,"

They are going to put this and some of the statements about helmets and star wars together with Grindley's testimony for sure.


There is also a very awkward series of questions where Moskin is trying to lead Naismith on a bit:

Q Can you describe what design elements 13:00:41
17 are in the Space Marine helmet that are also found in 13:00:43
18 the Roman Legionary helmet? 13:00:47

19 A The Roman Legionary is again a 13:00:50
20 functional object. So its first function is to 13:00:52
21 protect the skull. So you have a helmet bowl, which 13:00:55
22 is common to all helmets, and a Space Marine has that 13:00:58
23 too. It has a neckguard to protect any attacks that 13:01:02
24 the soldier or Space Marine might receive. Our Space 13:01:09
25 Marine had such a thing. The cheek guards are the

.....................

3 Q You say there was a function to a 13:53:22
4 helmet. In the Space Marine, does the helmet have any 13:53:24
5 actual function? 13:53:29

6 MR. COOPER: Objection to form. 13:53:31

7 A Well, it has to protect the head. It 13:53:32
8 has to make sure that the individual inside can 13:53:34
9 survive in hazardous environments. So it has to be 13:53:38
10 sealed, it has to be all one, you know. I think that 13:53:41
11 is probably where that idea of the Space Marine helmet 13:53:49
12 is kind of unique, I suppose, because we borrowed from 13:53:53
13 the Roman soldier to make the bowled helmet and we 13:53:58
14 took the goggles and we took the mask but we made it 13:54:03
15 all into one piece, so it was a kind of consistent 13:54:06
16 whole. I don't recall a design which was like that. 13:54:11
17 There are other designs of all enclosing helmets, like 13:54:16
18 a Star Wars Storm Trooper helmet, but it is not a 13:54:20
19 Space Marine helmet. 13:54:24

20 Q My question was a little different. 13:54:25
21 Maybe it was not clear. There is nothing inside the 13:54:27
22 head of a Space Marine figure that actually needs to 13:54:31
23 be protected, is there? 13:54:33

24 A Yes, there will be a human man's head. 13:54:35

25 Q In the models that actually get made...
the figures, they are made out of plastic. People are 13:54:43
2 not firing projectiles, there are not actually brains 13:54:47
3 inside the figures, the model heads. They are toys, 13:54:50
4 effectively? 13:54:53

5 MR. COOPER: Objection to form. 13:54:54

6 A Yes, the model that sits on the table, 13:54:56
7 there is no model of a head inside, but the premise is 13:54:57
8 that. 13:55:02

9 Q So it is a fictional premise? 13:55:02
10 A Yes. 13:55:04

11 Q So in that sense does the Space Marine 13:55:04
12 helmet on a fictional character have any real 13:55:06
13 function?

And so on. There are some big page jumps in that exhibit, so it could have gone on for a while until he got an answer he liked.

czakk wrote:
The exhibits and declaration that go with GW's filing are up on recap for free now (scroll down to the bottom):

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

Thanks.

I love this bit:

A. How dead does a horse need to be?
4 Q. Is that your answer?
5 A. Yes. Once a horse is dead, it is
6 needless to keep killing it.

On shoulder pads:

" Q So is the size and shape of the shoulder 12:57:10
4 pad related to that desire to add strength and 12:57:13
5 presence? 12:57:17

6 A The size certainly is. The shape is a 12:57:18
7 function of the area that they are covering was the 12:57:22
8 upper arm, so it is really an extension of the upper 12:57:28
9 arm. It is like taking the section of the arm and 12:57:31
10 just expanding it. "

That helmet nonsense is classic...so your trying to tell me that 40k is just a game?

Mohoc wrote:
Oh, I am fully aware that CHS called him a liar in open court. There are some other gems in the filling. Including the fact that GW seems to think that they have a copyright on the "character" of Space Marines, as if each and every Space Marine is akin to world famous characters like Spiderman, Mickey Mouse, Superman and Batman.

Moreover, the entire
dispute over the independent copyrightability of the Space Marine shoulder pad also misses the
broader point that it is undisputed that the Space Marine character as a whole is copyrightable,
and Chapterhouse’s copying of the shoulder pad design is an infringement of part of that overall
design.

That there is the core of the bollocks GW argument.

1. We assemble something from copied or redesigned parts and designs.
2. It becomes our unique creation.
3. Any of the parts it was assembled from are now our unique creation.

At any rater that argument looks like cobblers to me but perhaps it is perfectly good in legal terms.

I suspect the whole Space Marine "character" probably is contestable in terms of copyright if someone with enough money wanted to do it. No-one has because it isn't worth it.

Why don't GW go after Scibor and the other people making "Star Knights"?

 Kilkrazy wrote:

Mohoc wrote:
Oh, I am fully aware that CHS called him a liar in open court. There are some other gems in the filling. Including the fact that GW seems to think that they have a copyright on the "character" of Space Marines, as if each and every Space Marine is akin to world famous characters like Spiderman, Mickey Mouse, Superman and Batman.

Moreover, the entire
dispute over the independent copyrightability of the Space Marine shoulder pad also misses the
broader point that it is undisputed that the Space Marine character as a whole is copyrightable,
and Chapterhouse’s copying of the shoulder pad design is an infringement of part of that overall
design.

That there is the core of the bollocks GW argument.

1. We assemble something from copied or redesigned parts and designs.
2. It becomes our unique creation.
3. Any of the parts it was assembled from are now our unique creation.

At any rater that argument looks like cobblers to me but perhaps it is perfectly good in legal terms.

I suspect the whole Space Marine "character" probably is contestable in terms of copyright if someone with enough money wanted to do it. No-one has because it isn't worth it.

Why don't GW go after Scibor and the other people making "Star Knights"?

Because if they did, they would get laughed out of court. The standards for copyrighting a character are ridiculously hard for a very good reason and even then they are not all encompassing. You basically have to be able to show a picture or describe the character to a people all over the world and they must immediately know who you are talking about and be able to relate to that character. GW will never be able to argue that successfully in court unless the judge and/or jury are asleep.

GW are making that argument in court, I thought. Isn't that where the quotation comes from?

They are not in front of a jury yet, of course.

Re: Scibor -> based in Poland.

 Kilkrazy wrote:
GW are making that argument in court, I thought. Isn't that where the quotation comes from?

They are not in front of a jury yet, of course.

They are throwing it in there, hoping the judge and opposing council won't notice. That way they can make that argument in court. CHS will probably argue against it in their response. Then the judge can comment on the claim, either letting it go forward and be used at trial or be laughed at in his opinion. But then again, I am not a lawyer, I am just learning by osmosis.

Edit for grammar.

 Kilkrazy wrote:
GW are making that argument in court, I thought. Isn't that where the quotation comes from?

They are not in front of a jury yet, of course.

Yeah they are making that argument in front of a judge.


It sort of ties in to the questions they were asking Naismith - he was talking about utilitarian design choices (need room for a head, need a breather for harsh environments, bits of the body armour based on full plate, back pack based on Napoleonic soldier kit etc..) and they were trying to steer it away from that. The whole 'copyright the entire sculpture as artistic' is an attempt to stop the add ons from CHS from looking like aftermarket car add ons and more like knock off prada purses etc...

czakk wrote:
Re: Scibor -> based in Poland.

And more importantly (at least in as much as I understand the convoluted court systems of the greater Eurozone...) - Poland, as part of the European Union would actually defer to matters of settled case law to the home country of the company who is bringing suit against them...and can further site rulings made by courts like the British Supreme Court. Since LucasFilm v Ainsworth fairly well settled the matter of toy soldiers not being protected under copyright law and instead being protected under design rights, and further design rights being greatly limited in scope and duration (all of which would be expired for the Space Marines given that the first design was in 1985 and the maximum duration of a design right being 15 years) - it would be a major blow to the various things which GW claims as there own should they attempt to bring suit to any of the various companies in the Eurozone who are making "not-Space Marines" like Scribor, Anvil Industries, Hitech et al. Some are based in Eastern European countries - but at the very least one of them is based in GW's own backyard.


Automatically Appended Next Post:

czakk wrote:
It sort of ties in to the questions they were asking Naismith - he was talking about utilitarian design choices (need room for a head, need a breather for harsh environments, bits of the body armour based on full plate, back pack based on Napoleonic soldier kit etc..) and they were trying to steer it away from that. The whole 'copyright the entire sculpture as artistic' is an attempt to stop the add ons from CHS from looking like aftermarket car add ons and more like knock off prada purses etc...

Those lines of questioning were somewhat ammusing. When they were questioning the Professor, they tried to be very specific in terms of the actual use. He said he found a near exact copy of the Space Marine shoulder pad on a robot:

19 Q. All right, let's limit it to the size
20 and the shape and the banding, those three
21 elements.
22 Did you find any with all those three
23 elements?
24 A. Not the size, the shape and the banding
1 for anything other than the component part of the
2 robot.
3 Q. Okay, which you testified was not a
4 part of the powered suit of armor?
5 A. No, it's a robot, part of a robot.
6 Q. So a shoulder pad as a piece of armor
7 that a soldier would wear, you're not aware of any
8 shoulder pads that had those common elements of
9 the Games Workshop shoulder pad?
10 A. It also depends, I guess, if you define
11 the exterior skin of a robot as being --
12 exoskeletal as being part of the robot.
13 Q. Let me rephrase that again.
14 In searching for shoulder pads used on
15 future infantry warriors, a human wearing a suit
16 of power armor, you were not able to identify any
17 shoulder pads that had those three common design
18 elements of the Games Workshop, size, shape and
19 banding?
20 A. Correct.

But of course we all know - it isn't a real robot...only a fictional facsimile of what a robot might be. However, when they bring comparable questions to Bob and he says that there is a functional purpse to sizes and shapes (to cover a shoulder or head) they try to get him to back track and say that there is no purpose to the size/shape as there isn't really a person in the armor on the table.

 Acardia wrote:
I love this bit:

A. How dead does a horse need to be?
4 Q. Is that your answer?
5 A. Yes. Once a horse is dead, it is
6 needless to keep killing it.

Yeah, I loved that part. Best way to tell someone he's beating a dead horse without him actually getting it I've ever seen.

I just looked at the recap list.

Holy Cow that's a lot of billable hours for GW! Imagine if they lose and have to pay the other side's fees, as well as costs and their own lawyers fees.

Well, I guess we'll know why a squad of Space Marines shoots up to $80 US overnight. Lolz!

xraytango wrote:
I just looked at the recap list.

Holy Cow that's a lot of billable hours for GW! Imagine if they lose and have to pay the other side's fees, as well as costs and their own lawyers fees.

Well, I guess we'll know why a squad of Space Marines shoots up to $80 US overnight. Lolz!

In American civil litigation, each side pays their own legal cost. There is very few exemptions to this.

xraytango wrote:
I just looked at the recap list.

Holy Cow that's a lot of billable hours for GW! Imagine if they lose and have to pay the other side's fees, as well as costs and their own lawyers fees.

Well, I guess we'll know why a squad of Space Marines shoots up to $80 US overnight. Lolz!

The CH guys are all working pro bono right? Does that mean they don't get paid or do they still get paid if their side wins and GW are forced to pay CHs leagal fees?
Never mind, Mohoc cleared that up.

They are working for free. If they somehow get a costs award they are entitled to it though. For example, part of the motion to reconsider that's going on right now is a request for sanctions / costs involved in tracking down GWs communications with the copyright office.

302 - GW's MEMORANDUM IN OPPOSITION TO DEFENDANT’S SECOND MOTION FOR SUMMARY JUDGMENT is up. Again, have to wait for recap for all the attachments.

You can always make a request for relief, even if you are the defendant.

"Hey, these guys are picking on me, if I win I want them to pay my costs as well as a token punitive sum because they're jerks."

Doesn't mean you'll get it.
No holds are barred in this sort of thing IIRC
Remember, civil law isn't.

I.A.N.A.L.

xraytango wrote:
Remember, civil law isn't.

Ah, so civil law is the same as friendly fire in that regard?



I wonder if there's a list of Murphy's Laws of Court...

They describe the shape and banding on Marine shoulder pads as though its consistent on their own range. It isn't, they've changed quite a bit over the years, and some things like the Blood Angel and Deathwatch pads are entirely ornamental and not pad-shaped at all. The only remotely similar thing is the cup shape on the inside designed to fit on the arm, and if we're going to be picky, in the case of metal pads that I've had from GW in the past, that can be variable making it more of less snug a fit.

GW multipart kits are good for variation, but it means there's no one true space marine shape, there's many different variations on each part. All they can argue for is the most generic of underlying shapes.

 Sean_OBrien wrote:

And more importantly (at least in as much as I understand the convoluted court systems of the greater Eurozone...) - Poland, as part of the European Union would actually defer to matters of settled case law to the home country of the company who is bringing suit against them...and can further site rulings made by courts like the British Supreme Court. Since LucasFilm v Ainsworth fairly well settled the matter of toy soldiers not being protected under copyright law and instead being protected under design rights, and further design rights being greatly limited in scope and duration (all of which would be expired for the Space Marines given that the first design was in 1985 and the maximum duration of a design right being 15 years) - it would be a major blow to the various things which GW claims as there own should they attempt to bring suit to any of the various companies in the Eurozone who are making "not-Space Marines" like Scribor, Anvil Industries, Hitech et al. Some are based in Eastern European countries - but at the very least one of them is based in GW's own backyard.

Is this really the outcome of Lucasfilm vs Ainsworth? If it were the outcome, why aren't there half a dozen Star Wars miniatures manufacturers springing up in the UK?

Maybe no-one is interested. They couldn't be sold in the USA which is probably a larger market.

Trasvi wrote:

 Sean_OBrien wrote:

And more importantly (at least in as much as I understand the convoluted court systems of the greater Eurozone...) - Poland, as part of the European Union would actually defer to matters of settled case law to the home country of the company who is bringing suit against them...and can further site rulings made by courts like the British Supreme Court. Since LucasFilm v Ainsworth fairly well settled the matter of toy soldiers not being protected under copyright law and instead being protected under design rights, and further design rights being greatly limited in scope and duration (all of which would be expired for the Space Marines given that the first design was in 1985 and the maximum duration of a design right being 15 years) - it would be a major blow to the various things which GW claims as there own should they attempt to bring suit to any of the various companies in the Eurozone who are making "not-Space Marines" like Scribor, Anvil Industries, Hitech et al. Some are based in Eastern European countries - but at the very least one of them is based in GW's own backyard.

Is this really the outcome of Lucasfilm vs Ainsworth? If it were the outcome, why aren't there half a dozen Star Wars miniatures manufacturers springing up in the UK?

Truely creative people want to make their own work

Real crooks can make more cash knocking off designer handbags etc

and even if you did set one up it could never go into mass shop/online retailer distribution even within the EU as disney (and their licence partners) could and would, quite legally, refuse to supply any of their stuff to stores/websites that stocked your stuff (so you'd never get in places with high prices like Toys R Us or Argos, you'd be stuck with places like the local poundshop at best)

303 is up.

Lots of exhibits and stuff as well, but have to wait for recap for that.

Doc 302, page 15 wrote:Each such design decision has been copied so as to make the Chapterhouse product immediately recognizable to Games Workshop’s fans,

To make this point would require GW to show examples of their product VS CHS' product with "Games Workshop fans".
That boys and girls, would turn into a gakshow that I would fly to Chicago to see personally.