Merrett:
Q And you agree that not a single one of the three hammers
that Chapterhouse sells are a literal copy of any of the Games
Workshop products on the right-hand side?
A No. We feel that it contains elements copied from the
Games Workshop thing -- images shown on the right-hand side of
the claim chart.
Q But the overall shape of each of the hammers varies from
those shown in the Games Workshop side of the chart?
A To a lesser or greater extent, yes.
Q So you're really concerned that Chapterhouse has used the
idea of an impossibly sized hammer?
A It's a product called thunder hammer.
Q You may recall that yesterday we talked about --
THE COURT: I don't think he finished his answer.
MS. HARTZELL: Sorry.
THE WITNESS: Yes. This is a product that
Chapterhouse calls thunder hammer, and it shares the salient
characteristics of the Games Workshop thunder hammer. It's a
long-handled hammer with a very large business end, if you
like. The business end -- the hammer end of it is
fantastically enlarged. And it has -- carries --
The Games Workshop thunder hammers carry iconography,
and then the Chapterhouse ones are picking up some of those
same design cues like the aquilla on the left-hand hammer.
On the central and the right-hand hammer on the
Chapterhouse chart, side of the chart, it's picking up the
cues of the snarling lizard come dragon icon that we used for
our Salamanders.
That's what I think I testified yesterday. Was it
yesterday? Yesterday.
Still can't decide if it is a copyright or trademark claim.
I've only seen a handful of Chapterhouse products
kind of in the flesh, as it were.
Q So as the individual testifying on behalf of Games
Workshop about your copyright infringement claims, you have
only seen a handful of the physical products sold by
Chapterhouse?
A I've reviewed all the work that my team have done over the
last however many years on this five years, is it, that we
have been going.
A Yes. I said they're like giant turbines.
Q And these turbines are a rather standard shape for a
turbine, aren't they?
A Well, that's irrelevant. Their standard shape is being
combined to create something distinctive and unique in the
illustration.
Q But do you agree that the individual objects that you have
identified as turbines are a pretty standard shape for a
turbine?
A Well, it was irrelevant because you can take perfectly
normal, common or garden items and combine them in new
creative ways to create a new work, a new creative work.
Q Whether it is relevant or not, the question I'm asking you
is if the shape -- if the elements that you have identified as
turbines are a standard turbine shape?
A I don't know what a standard turbine shape would be. But
these are big round things attached to a backpack and depicted
on a fantastical future warrior.
So, yes. They're not -- there's no -- you could
describe them in lots of different ways, huge barrels, but I
said they were turbine-like. But turbines come in all
different shapes and sizes, don't they?
Q So which portion of those weapons is supposed to represent
obsidian?
A Well, you can't quite see it in the pictures, in all of
the pictures, but the big round thing on the top, the figure
on the left is wielding, and the two other figures have got
gold bands, obsidian heads on their axes.
We had other illustrations on our claim chart, on the
side-by-side comparisons, the illustrations of those weapons.
Q And those demonstrated that they were made of obsidian
stone?
A The illustrations of the weapons to represent them, yes.
Q And you have already testified that Games Workshop does
not claim to own a copyright on the idea of lizardmen,
correct?
A That is correct. Not on --
Well, we claim a copyright on our expression of the
Lizardman idea.
Q Correct. But you don't own the entire idea of Lizardmen?
A Nobody owns the entire idea of Lizardmen because that's --
the ideas are not ownable.
Q And that's because Lizardmen as an idea is wildly used in
science fiction and fantasy?
A No, it's not because of that. It's because it's the basic
rule of copyright, isn't it, that you can't own an idea but
you own the expression of the idea.
Q That's exactly right. You cannot own an idea in
copyright.
And yet Merrett repeatedly testified that Chapterhouse products infringed because they copied an idea. His words. So he has now testified that he knows ideas are not ownable. So in testifying that Chapterhouse copied a Games Workshop idea, was Mr. Merrett willfully making a malicious litigation claim? Clearly he knew at that time that ideas are not ownable, and yet he testified that the sole basis of several copyright infringement claims was an idea.
Q So when you talked about the unique flexible nature of the
cord connecting the backpack to the lasgun, that is not
something that Games Workshop has claimed as being infringed
here?
A Sorry. What claim is being infringed here is that
specific design of a sort of -- the lasgun -- I said lasgun
myself -- the lasgun being attached to a backpack with that
flexible pipe or those cabling or whatever they are supposed
to represent, a power conduit or something.
Q But that feature is not something that Games Workshop has
used in a miniature that is identified?
A It is, yes. We just haven't got them on this claim chart,
but that's an illustration of the 1995 iteration of the idea.
Q And you had the opportunity to indicate in this claim
chart every product that you contend that Chapterhouse
infringed?
A Yes, I know we did. Well, the ones there that we should
have gotten in there. But the illustration is dated 1995
which is I think when we introduced the idea to the Imperial
Guard.
Idea, idea, idea, idea.
A It says "the three ammos designed to fit on the heavy
bolter and the psybolter components."
So ipso facto, they must be that size if they have
been designed to fit there.
Q So the fact that they are designed to fit Games Workshop
products does not itself constitute infringement because
you're not asserting copyright infringement on this product,
right?
A I'm not sure those things follow. I don't know if they do
fit. They're designed to fit, but I don't know if they do fit
because I've not personally tried to fit them on the
components.
Q But it's correct that these are designed or are marketed
as designed --
A They're marketed that way, yes.
Q And you are not asserting copyright infringement on this
product?
A No. We're not claiming copyright infringement on this because
there is very little -- because we don't think there is any
copyright in them.
Q So even though they take into account in the design the
size and shape of the Games Workshop product, there is nothing
copyrightable about that?
A Yes, except I think it's irrelevant because -- I don't
think there is any aspect of them that would be pertinent to
the size of the Space Marine -- of the Games Workshop
products.
Q So for purposes of copyright infringement, it's irrelevant
if they are designed to fit the Games Workshop product?
A I didn't say that because that might be a -- that might
not be an appropriate use of our trademarks and all sorts of
other things.
Which expressly and directly contradicts Mr. Merrett's earlier testimony that sizing to fit on a games workshop product is an element of copyright infringement claimed by Games Workshop.
Q And you testified yesterday about the helmet of the Eldar.
Do you recall that?
A Yes.
Q And you said that the helmet was merely defining of the
Eldar? Do you remember that?
A Correct.
Q Do you recognize this?
A That's a very, very old copy of White Dwarf magazine.
Q Do you recognize this document?
A This is a very -- this is a very old White Dwarf magazine.
Yes, I do recognize it.
Q At sometime Games Workshop was licensed to sell products
by Michael Moorcock, is that correct?
A No. The products --
We had a license to produce some miniatures based on
Michael Moorcock's fiction.
Q And based on the universe created by Michael Moorcock in
his fiction?
A Well, on the works. On the works of Michael Moorcock,
yes.
MS. HARTZELL: I move to enter into evidence the
document identified by the witness as Defense Exhibit 421.
THE COURT: I'm going to admit it. It's admitted.
(Brief interruption.)
BY MS. HARTZELL:
Q The line of miniatures that were licensed from Michael
Moorcock's Fantasy were sold under the Eternal Champion name,
correct?
A These particular ones were, yes.
Q And because they were based on Michael Moorcock's fiction,
these products do not depict Eldar, correct?
A That's correct, they do not depict Eldar. Those depict
Melniboneans, I believe.
Q So their helmets are not Eldar helmets?
A These are Melnibonean miniatures.
Q And, in general, you would agree that there are Space
Marine chapters and color combinations including blue, white,
red, green, gray, black, purple, yellow and, I assume, others?
A Yes.
Q And you are asserting that no one else can paint their
figures using these color schemes?
A No, we're not asserting that.
Next time
GW gives anyone crap about a paint scheme, there you go.
A I'm aware of one novel that used the title -- used "space
men" in the title.
Q And what novel was that?
A It was a novel called "Spots, the Space Marine," I think.
Q And that's the only time you have ever heard the word
"Space Marine" used in fiction outside of the Games Workshop
universe?
A Yes, I think so; to the best of my knowledge it is. I
can't recall another occasion where anybody has used that term
in a novel.
Q Games Workshop --
Although you testified that at the time that you
created Warhammer
40K, Games Workshop did not maintain a
library of reference materials; you currently have reference
materials at Games Workshop, correct?
A We have -- well, in the 25 years subsequent to that, yes,
we have accumulated all kinds of reference materials, yes.
Q And many of those are not published by Games Workshop?
A Many of those are not published by Games Workshop, that's
correct.
Q And those books include books about military history?
A Yes.
Q And about heraldry?
A Yes.
Q And about weapons?
A Yes.
Q Many designers at Games Workshop have access to those
books?
A Yes.
Q Going back to our discussion of the term Space Marine,
never seen it used in connection with the role playing game?
A I don't know if the thing I saw was a role playing game.
Q What is the thing you saw?
A A game book that was published in the late 70s possibly.
I don't know when -- exactly when it was published.
Q So you're aware of the use of Space Marines in connection
with some type of game in the 70s at least?
A Yes. I became aware of that quite recently.
Q You've been handed a book that's marked as Defense Exhibit
DX 615. Is that the book that you referenced?
A It doesn't have a mark on it.
Yes. I've never seen one in the flesh before.
Q But that's the book that you testified you were aware of
that used the name Space Marine?
A Yes, became aware -- I became aware of this, gosh, about
two months ago.
THE COURT: Okay. The objection is lack of
foundation. Can you describe to me how you think the
foundation has been laid at this point?
MS. HARTZELL: Based upon the fact that the witness
testified that this is the book that he was talking about.
THE COURT: I'm going to overrule the objection.
It's admitted. (LOL - terrible witness)
Q Mr. Merrett, this is the book that you mentioned that you
became aware of that was -- that used the name Space Marines?
A Yes.
Q And the title of that book is Space Marines Science
Fiction Miniature Rules Tactical Ground Combat; is that
correct?
A Yes.
Q Is this the book that you testified you became aware was
from the 70s?
A Yes.
Q You've not testified about any sales that you lost to
Chapterhouse, correct?
A I've not testified to that at all, no.
Q And Games Workshop hasn't changed the pricing of any of
its products as a result of Chapterhouse's business, correct?
A That would be correct.
You talked a little bit about concerns about your
licensees. You have not lost a single licensee as a result of
Chapterhouse's business, correct?
A We don't know whether we have or not. No licensee has
ever -- potential licensee has cited that as a reason for not
signing a license with us but --
Q And no current licensee has ever broken their license or
refused to renew their license based upon the existence of
Chapterhouse?
A That's not been the reason that any of them have cited for
breaking a relationship with us, no.
Q And you were asked yesterday about harm that Chapterhouse
might do to your business. You responded, "I can't give any
evidence of the harm they might do to, say, ourselves because
that would be impossible to track down." Do you recall that?
A I do.
Q So you haven't had documents over the course of the five
years that Chapterhouse has been in business showing any harm
to Games Workshop resulting from Chapterhouse's existence?
A Not my area, so I don't know. We may have had some, but,
I mean, other witnesses may testify to that.
Q So you as the head of intellectual property at Games
Workshop are not aware of any documents over the course of the
five years that Chapterhouse has been in business showing any
harm to Games Workshop resulting from Chapterhouse's
existence?
A Personally I'm not aware of that, no.
Q And the release of Chapterhouse's products has had no
business impact on Games Workshop?
A Again, some of the other witnesses may have some testimony
about that, but --
I'm sorry. I've lost the thread there a little bit
about what the question was.
Q You as the head of intellectual property for Games
Workshop are not testifying about any harm to Games Workshop
resulting from any business impact on Games Workshop from
Chapterhouse's products?
A I am not testifying to that, no.
Q In the same conversation where you discussed
Chapterhouse's business and your concern about your licensees,
you acknowledged that there are things in Games Workshop's
range that you can't claim to be completely original. Do you
remember that?
A Yes.
Q And you said it would be insane and stupid of you to even
claim that?
A Yes. I'm not sure -- was that the language I used? Gosh.
Q I believe it was.
A Okay.
Q And you understand that copyright protection does not
extend to elements of your design that are not original?
A No, I don't. That's not how -- my understanding of how
copyright works. Copyright can be vested in original
combinations of standard or otherwise noncopyrightable
elements. It's possible to create a new work by combining
previously noncopyrightable elements and creating a new work
Q So you testified earlier that you understand that
copyright does not extend to ideas, correct?
A I can't say what my -- my humble understanding of the law
on these matters is, is that actually copyright is invested in
original creative work.
Q And it only protects that portion of the work that is
original, which may include combinations?
A Yes.
Automatically Appended Next Post: Merrett Re-direct:
Q And opposing counsel also showed you what was marked as
Defendant's Exhibit 615, and can you tell me how this came --
when did you first see or hear of this?
A I can't remember exactly who said, somebody at Games
Workshop, and I can't remember who it was, said, oh,
apparently there's a set of game rules called Space Marines
that were published in the 70s.
Q And when did that happen? When did you learn of that?
A It was about two months ago. I can't remember exactly
when it was, but it was recently. And it was brought to our
attention primarily because of this lawsuit, that someone at
the company went, perhaps you should know about this.
Q And are you aware that any copies of this book or any
board game associated with it have ever been sold anywhere at
any time?
A I'm not aware of any -- of any of that, no. I don't know
anything at all about it other than it was published in the
70s, at some point in the 70s, and that's all I know. I don't
know if it was sold. I have no -- I just don't know.
Q And were you aware of Exhibit 615 in the mid 1980s when
Games Workshop created its Space Marines?
A No.
MR. MOSKIN: Your Honor, I would move to exclude
Exhibit 615 as being irrelevant.
THE COURT: I think it goes to weight. The motion is
overruled. You'll argue at the appropriate point what weight
should be given to the exhibit, if any. It's up to the jury
to decide that.
The Judge might have been a little more forceful if he had known that
GW actually reviewed this particular game in an early issue of White Dwarf.
Automatically Appended Next Post: THE COURT: The next question is related. I suspect
it will be the same answer. Are customers able to buy
individual parts for the vehicles, or do they have to buy the
whole part? Is it the same answer basically?
THE WITNESS: No. That's probably more likely that
we do a lot more add-on or component kit, conversion kits or
component kits for vehicles.
So our Forge World division
produces a whole range of Rhino door kits and laminated door
kits and such like.
THE COURT: All right. Next question is about
playing the game. What happens in game play, according to the
codex, if a player introduces a unique modification of a
model, in other words, makes his or her own modifications to
it? How does that affect the game play under the codex?
THE WITNESS: It wouldn't affect it at all provided
they agreed with their opponent what that modification
represented.
THE COURT: All right. So you'd have to reach an
agreement?
THE WITNESS: Yeah. And typically someone would say,
oh, I've adapted this model in this way to represent this
option or this variant or this choice, and depending on the
players, they would reach an agreement about whether that was
acceptable.
Generally speaking, what we advise people to do is
not try to confuse their opponent when they're playing because
that would be kind of cheating, say. It's usually make it
really clear to your opponent what's going on.
8000pts.
7000pts.
5000pts.
on the way. 
