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GW isn't seeking statutory damages for copyright infringement, just CHS's profits.

For ex: Page 35, proposed jury instructions on damages: http://ia700405.us.archive.org/18/items/gov.uscourts.ilnd.250791/gov.uscourts.ilnd.250791.349.0.pdf


It's been a while since I looked at their claims, but you need to have actually registered your copyrights in order to get the crazy statutory damages.

 Aerethan wrote:
So those values exist regardless of any reported/perceived loss of revenue?

So if GW says "They cost us $1,000,000 in sales" but the cap on statutory damages is $500,000, the balance is negated?

To the same degree, GW could claim no damages, yet be awarded them?(strictly as an example, I don't imagine this case to be anywhere near that point).

It's an either/or scenario. You can go for actual damages & infringer's profits or ask for statutory damages; you won't get both. But as czakk noted, it's inapplicable here - seeking statutory damages requires federal copyright registration, which isn't involved here.

czakk wrote:
GW isn't seeking statutory damages for copyright infringement, just CHS's profits.

For ex: Page 35, proposed jury instructions on damages: http://ia700405.us.archive.org/18/items/gov.uscourts.ilnd.250791/gov.uscourts.ilnd.250791.349.0.pdf


It's been a while since I looked at their claims, but you need to have actually registered your copyrights in order to get the crazy statutory damages.

All correct. We were off on a tangent, which is bad of us.

Best wishes chapter house

 Janthkin wrote:
We were off on a tangent, which is bad of us.

Not much of a tangent. GW has been all over the map and statutory damages can lurk in the weeds right up until the final judgement:

http://www.law.cornell.edu/uscode/text/17/504

(1) Except as provided by clause (2) of this subsection, the copyright owner may elect, at any time before final judgment is rendered, to recover, instead of actual damages and profits, an award of statutory damages for all infringements involved in the action

But (as already mentioned) to get access you need to be registered:

http://www.law.cornell.edu/uscode/text/17/412

....no award of statutory damages or of attorney’s fees, as provided by sections 504 and 505, shall be made for.....any infringement of copyright commenced after first publication of the work and before the effective date of its registration...

Which sort of begs the question, why didn't GW register? I might be asking that if I was a shareholder. I'd also be scratching my head about the risk / reward calculation on this lawsuit. CHS is a small business. A focused lawsuit on a few clearly identifiable bits of infringement would have shut the business down (and likely not attracted pro-bono representation because it wasn't a sexy case).

Maybe there is some sort of issue estoppel or limitation period problem I'm not thinking about that made them want to lump everything into a super case. Some reason other than intimidation by amount of products.

Even if GW had registered their stuff, the questions here are what is copywrightable. Can GW even claim copyright on the things they're claiming infringement on in the first place?

And Copyright does expire in the US- it's just that it doesn't expire for, like, centuries after the death of the original holder.

czakk wrote:
Which sort of begs the question, why didn't GW register? I might be asking that if I was a shareholder. I'd also be scratching my head about the risk / reward calculation on this lawsuit. CHS is a small business. A focused lawsuit on a few clearly identifiable bits of infringement would have shut the business down (and likely not attracted pro-bono representation because it wasn't a sexy case).

Wild speculation? They began with the assumption that a small company could not defend their entire range simultaneously, and would quickly fold. (It's not a bad assumption, really; you see the same approach taken by litigation-savvy companies in patent disputes at times, too.)

By the time it became clear that this wouldn't happen, it had also become clear that they couldn't properly formalize copyright registration for a fair number of the asserted works; they were, of course, trying for some of them (e.g., the Copyright Office on the shoulder pad design).

Maybe there is some sort of issue estoppel or limitation period problem I'm not thinking about that made them want to lump everything into a super case. Some reason other than intimidation by amount of products.

Honestly, I think that's all there is to it: one giant case had the best chance to put an end to CH quickly, without incurring much extra cost. They did file that second case later, but the judge rolled it back in.

Anvildude wrote:
Even if GW had registered their stuff, the questions here are what is copywrightable. Can GW even claim copyright on the things they're claiming infringement on in the first place?

And Copyright does expire in the US- it's just that it doesn't expire for, like, centuries after the death of the original holder.

Well, therein lays a tale:

GW's copyright was taken out originally in England (IIRC). Under US and international law, they can't extend their copyright past the time frame set in the original copyright. GW's copyright runs out in the US the moment it runs out in England. Which is, IIRC, 25 years from the date of first publication for a corporation. (English copyright law treats 'real' people and corporations separately, real people it's their life + 70 years).

Hrm... Maybe that's why GW's being so balls out here? They're trying to shut down people who will possibly be legitimate competition for the American market? After all, GW does have something of a home-turf advantage in Britain, being better known, selling most of their product from company stores- while North American gamers tend to gather in non-GW stores that have other games and products on display.

 BaronIveagh wrote:

Anvildude wrote:
Even if GW had registered their stuff, the questions here are what is copywrightable. Can GW even claim copyright on the things they're claiming infringement on in the first place?

And Copyright does expire in the US- it's just that it doesn't expire for, like, centuries after the death of the original holder.

Well, therein lays a tale:

GW's copyright was taken out originally in England (IIRC). Under US and international law, they can't extend their copyright past the time frame set in the original copyright. GW's copyright runs out in the US the moment it runs out in England. Which is, IIRC, 25 years from the date of first publication for a corporation. (English copyright law treats 'real' people and corporations separately, real people it's their life + 70 years).

Do you happen to have a citation for the 25 year term? My very brief reading of the Copyright, Designs and Patents Act 1988 has the term of many works tied to life of the employee who created the work + 70 years.

Relevant sections: 4 (definition of artistic work), s. 9 (author is person who creates the work) s. 11 (employer owns work if author is employee) and s. 12 (duration of copyright for artistic works, death + 70 years).




Now, whether or not mass produced toy soldiers are copyrightable or are instead covered by design right / registered design in the UK is another issue, but I don't think it is a live one in the case any more.

czakk wrote:

Do you happen to have a citation for the 25 year term? My very brief reading of the Copyright, Designs and Patents Act 1988 has the term of many works tied to life of the employee who created the work + 70 years.

I misinterpreted the section on publication rights, which grants a 25 year copyright to the publisher of a work. Did not see anything re the lifetime of the employee.

Personally I think it's crazy how copyright seems to constantly get longer and longer. It's reaching the point it's doing the inverse of what copyright is supposed to do (protect the rights of writers from being exploited).

Near as I can tell, it is a confusion of the design right and the copyright. I can't recall any copyright on the books right now that would put it as low as 25 years. However, the full term of the design right (registered design plus extensions) can get to about 25 years IIRC. Even then, as you noted, the US court has chosen to apply copyrights, as that is the only law of the land to adjudicate the case under. And in that case, even if the copyright were to have expired overseas - the way US courts have interpreted US law...they would receive the benefit of US copyright durations for cases tried here.

The only other thing which might apply would be "works of applied art" which is 25 years from the date of creation. Normally that deals with things like photography and useful objects (other countries refer to it as industrial design), but I could understand how it might be applied to miniatures as well.

 BaronIveagh wrote:

czakk wrote:

Do you happen to have a citation for the 25 year term? My very brief reading of the Copyright, Designs and Patents Act 1988 has the term of many works tied to life of the employee who created the work + 70 years.

I misinterpreted the section on publication rights, which grants a 25 year copyright to the publisher of a work. Did not see anything re the lifetime of the employee.

Personally I think it's crazy how copyright seems to constantly get longer and longer. It's reaching the point it's doing the inverse of what copyright is supposed to do (protect the rights of writers from being exploited).

Long passed that point - like, Mickey Mouse singing Happy Birthday past that point.

Disney has had a huge involvement in why those copyright durations keep getting extended. They spend a *lot* of money lobbying on behalf of copyright law and entertain a lot of lawmakers in order to keep things rosey. Had those laws not been extended their rights on their characters would have expired many times over by now. (I think ti was something as short as 8 years back in the 30's) As it stands now it's 70 years past the life of the creator so Mickey's clock runs down in 23 years provide their constant lobbying to extend the copyright length doesn't push it out further.

Since Uncle George is still kicking it will give them a mighty long run with the Star Wars franchise as well.


Commerical works can extend from 95-120 years depending on the origin and subjetc type so brands like Coke or Pepsi have a very long run indeed.


However this isn't the case with international copyright, international copyright is only extended to a company/person based on the laws and duration of their native country where the work was first published. Which is why there's a large push from CH's side to examine the root ownership of who designed the models or logos etc and particuarly when those designs were created. Many areas of British copyright are only good for 15-25 years which means that the rights for some of the earliest works could be up for grabs as GW is over 25 years old now.

Interestingly we're coming up on (or past) the 15 year bubble on many of the specialist games and suddenly they are being stripped from GW's website, odd timing of that right?




.

Yeah, because IIRC the original creator of the Star Wars storm trooper helmets can legally sell them without Lucas permission due to the way UK copyright works.

I don't think it's a specifically British thing about copyright. It is due to a different decision by the English court rather than the US court.

 Janthkin wrote:

 BaronIveagh wrote:
Here's question for all you internet lawyers: My understanding is that GW has to prove some sort of damage to their bottom line in this case, correct?

Incorrect. Copyright law allows for statutory damages of up to a fixed amount.

Edit: already discussed. There are some nuances involved in the damages that I believe arise from local rules or case law, but ultimately it does not matter as the plaintiff has submitted no evidence to make a claim of lost profits, and is only seeking defendant's profits.

 BaronIveagh wrote:
Yeah, because IIRC the original creator of the Star Wars storm trooper helmets can legally sell them without Lucas permission due to the way UK copyright works.

This not not at all what happened in regards to Stormtroopers. In the UK, the Stormtrooper aesthetic was only granted design rights, which expire rather quickyl(something like 15-30 years). After that right expires, anyone can recreate the design commercially.

Now if something as globally recognizable as a Stormtrooper only qualifies for such limited protection in the UK, you damn well know that Space Marines™ fall in that same category of design rights. So anything older than X(I can't remember the exact ages for rights expiration dates) that GW has made, any company in the UK could make and sell.

The issue here with CHS is that GW is using US jurisdiction to get things in their favor since the US grants copyrights forever minus a day(sarcasm there).

The Storm Trooper armour case is a not a design right, it is a copyright.

The case was lost in the US because the guy who designed the Storm Trooper armour was not rich enough to contest it, so Lucasfilm won by default.

However he did win the case in the UK because he got pro bono representation from UK barristers. The armour is protected everywhere except the US.

http://www.originalstormtrooper.com/copyright-battle.html

 Kilkrazy wrote:
The Storm Trooper armour case is a not a design right, it is a copyright.

The case was lost in the US because the guy who designed the Storm Trooper armour was not rich enough to contest it, so Lucasfilm won by default.

However he did win the case in the UK because he got pro bono representation from UK barristers. The armour is protected everywhere except the US.

http://www.originalstormtrooper.com/copyright-battle.html

Not strictly true as in the us it was a copyright issue however in the uk it was deemed to fall under design rights not copy right, as such it was deemed that mass produced toy soldiers also fell under design rights during the case.

Design rights last 10 years but can be renewed upto a maximum of 25 years.

Imho this is why alot of GW's rhetoric now refers to collectors and not gamers and no longer mentions being a toy soldier company. It is also why they went after a us based company rather than a European company who could refer to the uk ruling.

This would be because given the state of there copyrights I would bet my left testicle no design rights were extended and even if they were what celebrated its 25th birthday recently.

IMH

According to this solicitor's report on the case it was copyright.

http://www.originalstormtrooper.com/images/stories/sds/editorial/references/SimmonsCooperAndrew%20Press%20Release%2031%2007%2008.pdf

 Kilkrazy wrote:
According to this solicitor's report on the case it was copyright.

http://www.originalstormtrooper.com/images/stories/sds/editorial/references/SimmonsCooperAndrew%20Press%20Release%2031%2007%2008.pdf

Lucasarts attempted to sue under copyright laws, just like they tried to sue under trademark laws, and indeed any other laws they could think of that suited their purposes. The important part is that those arguments were thrown out by the High Court, and it was judged instead that designs made for the purpose of or which serve as the template for mass-market toy production fall under Design Rights laws.

Why does it not say that in the solicitor's report?

Why, since design right lasts only 25 years, is the UK producer still in control after 37 years?

 Kilkrazy wrote:
Why does it not say that in the solicitor's report?

Why, since design right lasts only 25 years, is the UK producer still in control after 37 years?

He's not "in control", he's able to continue making the suits in the manner he has because Lucasfilm aren't(in control). And it is covered in the letter you linked, on page two by the references to Sections 51-52 of the Copyright, Designs and Patents Act 1988. It is the fact that the judge ruled those Sections apply in this case, and that artistic or US-law copyright do not, which provide him with the "statutory defences" mentioned in the last paragraph of page 1. The judge actually accepted that if the items were artistically copyrightable, those rights would have belonged to Lucasfilm, since Ainsworth understood at the time of his commission that he was making them for the express purpose of use in the film.

Lucasarts sued Ainsworth for infringement of its copyright. The judge ruled that, providing the items are artistically copyrightable, the copyright would belong to Lucasarts. However, he ruled that regardless of artistic merit, the moulds and the products of them did not have artistic purpose, and so are not artistically copyrightable but rather are to be considered designs, and since any design rights that Lucasarts might have been able to enforce have long since run out, Mr. Ainsworth can continue to produce the suits and sell them as long as he never implies he is officially licensed by Lucasfilm. By the same token, so could anyone else. I could make my own sets of Stormtrooper Armour, cast them, and sell them, and I would have the same legal defence at my disposal as Ainsworth.

You mean that Lucasfilm doesn't own the copyright because there isn't any -- the armour is a design not a work of art -- so the UK guy can produce them without permission as the design right has expired.

Actually this is sort of on topic. This is something that COULD pop up in the actual trial IF CHS's attourneys can convey the fact that this applies to a reasonable amount to the judge. We covered this in paralegal class.

But it has been said at least once already in here.

 Kilkrazy wrote:
You mean that Lucasfilm doesn't own the copyright because there isn't any -- the armour is a design not a work of art -- so the UK guy can produce them without permission as the design right has expired.

If he obtained legal advice prior to producing them that told him about the limits on design right, it could be why he started selling them in 2004ish which would have been over the maximum(?) 25 year limit on design right from the first film.

Joint status report on prior use and other trademark issues. Not the claims chart report, I think that is due tomorrow.

Thanks Czakk.

A question for us non-lawyers. Is it usual in the US to ask for reconsideration of summary judgements? It didn't seem that Judge Kennelly was delighted about it last time round, but Chapterhouse are going for the same play again with the Trademarks.

Wow is this normal for lawyers? Seems like their going out of their way to piss the judge off.

So is GW's counsel asking to be able to sue over copyrights/trademarks that they don't have to prove they own? That doesn't seem right to me.