GW sues Chapterhouse

[HsojVvad]

http://207.41.16.133/rfcViewFile/10cv8103.pdf

Saw this on the Warseer thread. Would this be the same Chapterhouse that came to this forum to show their bits for sale?

I thought I made a post saying they couldn't do this, and I guess the person got a bit offended and explained he could. Just thought it funny now they are being sued. Maybe that is why they are so quiet as of late.

[justsam]

here, i made this link (http://www.lounge.belloflostsouls.net/showthread.php?t=12287) for you

[Ubberdorc]

I for one would like to see Chapterhouse win.

If GW made the Howling Griffin pads I would have bought them. Not only does GW not sell them they do not even sell the Decals for them.

Chapterhouse filled a niche that GW did not. I have been playing 40k since 1993, I spent alot of money on GW products over the years.

If anything Chapterhouse increased GW sales. I had to buy more boxes of marines to put my shoulder pads on.

I am a big GW defender but not in this case.

Thomas

[Sister Rosette Soulknyt]

Hey i have worked with buying stuff from Chapterhouse, i think there miniatures, parts and add-ons are what GW are not ever going to do.
Tehy dont have the time, it would cost to much for small gains, would require staff to just make bits, and frankly i cant see them worrying about little things, where they will make money on new box sets.

ChapterHouse, filled the gap of parts, yeah well they may have made a mistake in naming parts, but i think GW is trying to be forceful and shut everyone out of there business.
I just saw some other company (cant remember the name now) doing exactly what Chapterhouse did, but instead of alternate names, they went straight to the point.

Maybe instead of sueing them, they should hire them, atleast they gain more creative designs.

[TheBitzBarn]

Chapterhouse opened themselves up for this by using the GW names such as Salamaders and Howling Griffins. If they had use little more generic names would have been harder to push this but GW seems really focused on the Super Heavy Walker wich has alsmost NO GW look alike parts and uses a VERY generic name. Good Luck on this

They are also suing Paulson Games and they are gonna have a uphill battle there as he used generic names and they are fresh sculps inspired by GW art work and IP but you cannot own a Riding Wolf and GW does not even make one.

Reading this lawsiut is fun Thay have Chapterhouse on 38 by using the GW copyrighted names sucg as Salamanders and such but Point 39 who actually belives that Chapterhouse is working for GW NO ONE


GW has almost no case against Paulson Games as they use generic names and the parts could be used for a dozen other games and with a couple other mini's. This would be like sueing Avatars of War becuase they used Chaos in a Models name and the Mini could be used in Warhammer NO CASE.

Against Chapterhouse they have a cause of the IP infrginement with the use of their names and for deceptive and fraudulat business practices they have a No Case there. They even say that Chapterhouse does not trying to seperate themselves from GW look at the disclaimer THEY are VERY clear.

GW is demanding a JURY trial wow I do not think this will work out good for them as they will look like and overbearing Mega Corp shutting down a smal guy who is trying to fill a niche they do not.

Biggest mistake by Chapterhouse is they USED GW names and some imagery is too close to GW but some is so generic that you cannot copyright like the Maltse Cross for Empire and BTs and the Saw Blade for Flesh Tearers.

This will be interesting filed the suit on 12/21/10 wonder why it took so long to come to light?

[Brass Scorpion]

News about GW suing Chapterhouse has been on the gaming forums since within a week of the court filing, including on this very forum. This is "old" news, which therefore is contrary to the meaning of the word, "news".

Here are links from roughly three weeks ago on this topic, including a link to a topic on this forum:
- http://dockets.justia.com/docket/illinois/ilndce/1:2010cv08103/250791/
- http://www.dakkadakka.com/dakkaforum/posts/list/336131.page
- http://www.belloflostsouls.net/2010/12/wargames-legalwatch-games-workshop-vs.html
- http://www.lounge.belloflostsouls.net/showthread.php?t=12287&highlight=chapterhouse

[DarkLink]

Not only did Chapterhouse ask for it, but they practically demanded it. Talk about bully companies all you want, GW needs to protect it's trademarks. If it lets Chapterhouse make all the 40k models it wants, then in the future other companies will be able to do the same thing and GW wouldn't be able to stop them, as they'd've let it happen for so long. Then GW is no longer in charge of 40k, and the entire hobby likely disintegrates.

Good think I like Warmachine, too:D.

[Lexington]

Not only did Chapterhouse ask for it, but they practically demanded it.
Indeed. GW's got a mean legal machine - believe me, I've been on the bad end of it - but they're entirely justified in this case. The only mystery to me is why it didn't happen sooner.

[Brass Scorpion]

I've seen Chapterhouse say some fairly disparaging things about GW on forums before the lawsuit began. They freely bit the hand that fed them at times. That combined with what might be some dubious practices concerning GW's IP does make it appear they "were asking for it".

[Sorrowshard]

Whilst the models are lavish , the rules are very weak , given the advent of the caestus bein borken then balanced and the still utterly ridiculous Achilles , I was expecting/hoping for something a little more avant garde for the eldar release *sigh* the spectres are insanely squishy for a 35 point model , a single non ap 1 shot is nothing major , currently i think I'd still opt for linked prisms , they dont die when sneezed on ....

if they were less points and in fast attack MAYBE they would be viable.

The rules for the warp hunter are stupid , look at that GUN, just look at it , its not more dangerous than the mini support wep version ? whilst the next size up fires a bin lid sized pie plate that murders everything it touches and ignored sheilds (surely a hot contender for top apococrap AT gun)

It should have rules between the two (duh) would it really kill them to give it a big blast and maybe fix the d wep rules so they were actually good , how on earth is it more dangerous (comparatively) to a land raider than it is to a rhino .... its really just a giant haywire grenade , bleh

I wrote a letter to forgeworld , first time ever, seems some of the warseer lot have too , only FW support for Eldar ever,they could at least do the stunning models justice with solid rules that at very least compete with imperial equivalents, technologically D waps should surpass the destructive potential of imperial weps to a terrifying degree.

more lame pandering to the imperial demographic

[Brass Scorpion]

I wrote a letter to forgeworld , first time ever... Wrong topic thread I'm afraid. This one has nothing to do with Forge World. LOL.

[HsojVvad]

I guess Cease and Desist orders were given, but were not listened too. Well I wish Chapterstuidos best of luck.
The only people who is going to win out of this is the lawyers though.

Sorry if this is old news, it was new to me, and I didn't see it on the forums. Just trying to scroll through BoLS, is a bit of a hassel for me. For some reason, it takes a long time to load on my laptop while other sites are fast.

Again, I apoligze for brining this up.

[Unzuul the Lascivious]

If it's new information to you, then it is news to you. It is subjective. There is no official time limit on when news becomes 'old news'. Pedants...
Anyway, Chapterhouse, I reckon it's those people you upset with your mycetic 'vagina' that grassed you up...

[Laodamia]

Chapter House is in deep with this one...:(

But I guess it is kind of normal. I didn't know CHS before, and when I checked their website, I literally thought this company was a subsidiary of GW like Forge World.
They literally STATED in their website that their models were based on the W40K universe; and they used GW's trademarks (Space marines, tyranids, ...) to define their products, as well as displaying some of GW's models along their own products for scale and display purposes!:confused:
They should have seen this one coming. I hate to say this, but GW is probably right to start legal actions against CHS.

Finally, I really don't like the fact that CHS came asking for money on this forum. I know legal fees are frigging expensive, but I think it's wrong to ask for donations to fans.


Anyway, Chapterhouse, I reckon it's those people you upset with your mycetic 'vagina' that grassed you up...

Hey, at least we should give credit to CHS for creating this awesome space mycetic vagina! This model really made me laugh, FW should release this model! :p

[gcsmith]

I doubt u can really copy right the term space marine.

Wouldnt then GW be able to sue the usa when they make a space branch of the marines?
Or is copyright based on context.

[TheBitzBarn]

News about GW suing Chapterhouse has been on the gaming forums since within a week of the court filing, including on this very forum. This is "old" news, which therefore is contrary to the meaning of the word, "news".

Here are links from roughly three weeks ago on this topic, including a link to a topic on this forum:
- http://dockets.justia.com/docket/illinois/ilndce/1:2010cv08103/250791/
- http://www.dakkadakka.com/dakkaforum/posts/list/336131.page
- http://www.belloflostsouls.net/2010/12/wargames-legalwatch-games-workshop-vs.html
- http://www.lounge.belloflostsouls.net/showthread.php?t=12287&highlight=chapterhouse


Wow just because you are on here and other forums WAY more than me does not mean you have to be so mean spirited in your reply. Sorry I do not have time to troll forums that much.

[Laodamia]

I doubt u can really copy right the term space marine.

Yes, I agree with you, I was just taking the term Space marine as an example. GW, as a plaintiff, stated that CHS had used several of its copyrights, among them were various space marine chapters (CHS offers various shoulder pads for SM chapters).

But still, if I was to summarise the situation, I would simply say that the W40K universe was entirely created and designed by GW. A such, other companies should not be allowed to release minis which are directly connected to this si-fi universe without GW's authorisation. I think the general situation is as simple as that.

The problem is that CHS and other companies have started to tread on GW's hunting ground. I don't think any of them poses a true threat to GW as a whole, but they are certainly annoying GW (a bit like a hormagaunt would annoy a warlord titan by biting its ceramite feet). Since CHS is the most vulnerable of these small companies at the moment, GW decided to smash this annoyance aside with a blast of its Volcanno Cannon: its copyright! (kaboom) ;)

[Soam]

You know, I guess I just don't understand the footing that GW is standing on. Look at the automotive industry, car companies don't sue part companies because they make parts that work with their cars. The part companies don't have to hide the fact that their part works with such and such car model. Maybe I understand because he used iconography that was copyrighted, but there's a huge paragraph at the bottom of the website that states there is no affiliation and he doesn't own any copyrights.

[Brass Scorpion]

Wow just because you are on here and other forums WAY more than me does not mean you have to be so mean spirited in your reply. Sorry I do not have time to troll forums that much. Most forums would have closed this thread within minutes as a duplicate since there's already a recent thread for this topic on this forum. It's only because things seem to be a bit "looser" here, maybe because there are less MODS than on most forums, that superfluous threads like this one continue to exist here.

"Trawling" as in fishing around for info or "trolling"? Trolling on forums has an entirely different meaning when used in regards to Internet forums. Here are two farily concise definitions from http://www.urbandictionary.com/define.php?term=forum+troll

1) Someone who gets pleasure by typing annoying/controversial/offensive words at strangers on internet forums, for them to read.

1) A forum troll is someone who actively watches a forum. Not to be confused with a lurker, or just a forum frequenter, the troll annoys, pesters, and generally insults any thread they open.

In other words, Trolls deliberately incite dischord by posting insults, baiting people with inflammatory comments on controversial topics, etc. Most Warhammer forums, including this one, do not allow "trolling" and have Moderators to enforce it.

[Baron Spikey]

You know, I guess I just don't understand the footing that GW is standing on. Look at the automotive industry, car companies don't sue part companies because they make parts that work with their cars. The part companies don't have to hide the fact that their part works with such and such car model. Maybe I understand because he used iconography that was copyrighted, but there's a huge paragraph at the bottom of the website that states there is no affiliation and he doesn't own any copyrights.

CHS didn't have to hide the fact that the parts they make could work with GW models, what they shouldn't have done is begin selling their products using GW Trademarks- it doesn't matter if you put a 'No Affiliation' declaration, that means bugger all really.

[Laodamia]

@ brass scorpion: We don't give a s*** if you think this thread sucks. If you don't like this thread, just deal with it, and stop bothering us with annoying (and almost agressive) comments. Let the mods decide if this thread needs to be moved elsewhere. You're not a mod, so stop criticizing this thread and the people that use it.
We use this thread because we think it's useful and interesting. Since we're not geeks like you, most of us did not know about this affair between GW and CHS, and did not have the occasion to discuss about it, so this thread is pretty useful.

By the way, we don't care either what a troll is. If you know the "geektionary" by heart, good for you, but we couldn't care less. We all got what TheBitzBarn meant in his post, including you, so stop being so patronising and condescendant.

And finally, you don't like this forum? Then get the hell outa there!

[addamsfamily36]

@ brass scorpion: We don't give a s*** if you think this thread sucks. If you don't like this thread, just deal with it, and stop bothering us with annoying (and almost agressive) comments. Let the mods decide if this thread needs to be moved elsewhere. You're not a mod, so stop criticizing this thread and the people that use it.
We use this thread because we think it's useful and interesting. Since we're not geeks like you, most of us did not know about this affair between GW and CHS, and did not have the occasion to discuss about it, so this thread is pretty useful.

By the way, we don't care either what a troll is. If you know the "geektionary" by heart, good for you, but we couldn't care less. We all got what TheBitzBarn meant in his post, including you, so stop being so patronising and condescendant.

And finally, you don't like this forum? Then get the hell out

To be honest, maybe you should calm down.

I don't recall him Saying the thread sucks.

Firstly he posted links to all the relative information and discussion on the matter. I would take that as a helpful re-direction to a conversation and debate to the GW vs CHS lawsuit. Which is old news which he was redirecting the OP towards.

He was then "trolled" with scarcastic comments.

One poster posted onto the wrong thread, i read it last night and laughed myself because was obviously a simple mistake, but was quite funny. Brass just said wrong thread, again notifying the poster (you know so that they can re-post their comment in the thread they intended)

Don't take everything so personally. Text often doesn't give across the intention that you would say if you was in a conversation face to face. What i saw as helpful links provided by brass, has been interpreted as a criticism. Maybe it was, maybe it wasn't. Did you ask?

Besides it is a duplicate thread that would normally get closed or redirected by MODs. Instead of having duplicate threads (because the mods are human after all they can't always catch everything), the thread could be changed to discuss a different aspect of the CHS vs GW situation, for example. It just prevents multiple threads all on the same topic. (which would make the forum pretty boring tbh)

[Xas]

@ brass scorpion: We don't give a s*** if you think this thread sucks. If you don't like this thread, just deal with it, and stop bothering us with annoying (and almost agressive) comments. Let the mods decide if this thread needs to be moved elsewhere. You're not a mod, so stop criticizing this thread and the people that use it.
We use this thread because we think it's useful and interesting. Since we're not geeks like you, most of us did not know about this affair between GW and CHS, and did not have the occasion to discuss about it, so this thread is pretty useful.

By the way, we don't care either what a troll is. If you know the "geektionary" by heart, good for you, but we couldn't care less. We all got what TheBitzBarn meant in his post, including you, so stop being so patronising and condescendant.

And finally, you don't like this forum? Then get the hell outa there!

I find greendhorns with 39 posts telling others what to do on a forum they joined not much more than a month ago very funny.

keep up the good work entertaining me! :D

[TheBitzBarn]

Most forums would have closed this thread within minutes as a duplicate since there's already a recent thread for this topic on this forum. It's only because things seem to be a bit "looser" here, maybe because there are less MODS than on most forums, that superfluous threads like this one continue to exist here.

"Trawling" as in fishing around for info or "trolling"? Trolling on forums has an entirely different meaning when used in regards to Internet forums. Here are two farily concise definitions from http://www.urbandictionary.com/define.php?term=forum+troll

1) Someone who gets pleasure by typing annoying/controversial/offensive words at strangers on internet forums, for them to read.

1) A forum troll is someone who actively watches a forum. Not to be confused with a lurker, or just a forum frequenter, the troll annoys, pesters, and generally insults any thread they open.

In other words, Trolls deliberately incite dischord by posting insults, baiting people with inflammatory comments on controversial topics, etc. Most Warhammer forums, including this one, do not allow "trolling" and have Moderators to enforce it.

Are you kidding me this is exactly what I mean spending a lot of time on a forum you win you are the better Poster I did not gonna waste my time. Too many mods makes for Fascist board.

Have a Day

[Soam]

Are you kidding me this is exactly what I mean spending a lot of time on a forum you win you are the better Poster I did not gonna waste my time. Too many mods makes for Fascist board.

Have a Day

Wait... What?

[Tynskel]

You know, I guess I just don't understand the footing that GW is standing on. Look at the automotive industry, car companies don't sue part companies because they make parts that work with their cars. The part companies don't have to hide the fact that their part works with such and such car model. Maybe I understand because he used iconography that was copyrighted, but there's a huge paragraph at the bottom of the website that states there is no affiliation and he doesn't own any copyrights.

you do not know if car companies sell plans to parts to subsidiaries. Also, many car companies make deals with groups of repair shops, ect.

This is a case where a company is blatantly using someone else's intellectual property for their personal gain. We are allowed to modify GW stuff as much as we want. We can resell, remake, even cast components for ourselves. But, the instant you try to use someone else's IP for profit, you are asking for a legal nightmare.

I don't care that Chapterhouse makes good stuff. It isn't hard to obey copyright laws like these. They were obviously using GW's name to move more goods.

[scadugenga]

Wait... What?

Just nod and smile...

[weeble1000]

There's been an active discussion about the legal issues related to the Chapterhouse suit down on the Wargames Corporate Discussion board. You can find a lot of opinions and answers regarding the questions that have been raised in this thread on the various threads related to Chapterhouse down there. I'll post a little bit here though for the benefit of folks following this thread.

First, I think it's important to remember that Games-Workshop is claiming both copyright and trademark infringement. Copyrights and trademarks are different kinds of intellectual property, so it is important to keep the distinction between them in mind when discussing Games-Workshop's attempt to enforce its claimed intellectual property rights.

Trademarks are registered whereas copyrights are not. For example, "Dark Angels" is not a registered trademark of Games-Workshop, but "Warhammer 40,000" is. "Dark Angels" is therefore only enforcible as a copyright.

Because copyrights aren't registered, you must claim a copyright in order to have it legally enforced. This basically means that you say you own exclusive rights to something and then ask the court to enforce your rights under the law. This aspect of copyrights leads to two significant implications that you may not have considered:

1 - Simply claiming a copyright does not mean that you actually own it.

2 - It is therefore incumbent upon the plaintiff to prove ownership of a copyright.

Generally-speaking, a copyright grants the individual that creates something unique (story, picture, sculpture, etc.) the exclusive right to copy or display it. The key thing here is that it must be something unique. No intellectual property rights can take something out of the public domain and you aren't allowed to copy something that has already been done by someone else. Broadly-speaking, the intention of the law is to protect an individual's work and creativity without stifling the creativity or work of others.

Intellectual property in general is a sticky issue because IP rights essentially amount to a legalized monopoly. Again, the general idea behind most IP laws is to promote unique and creative advancement by giving special privileges to people that make something unique.

Considering that copyrights are intended to promote artistic expression, copyrights don't cover concepts or ideas. They only cover specific expressions of those ideas. For example, the fact that I put a skull on a uniform does not give me the right to prevent anyone else from putting a skull on a uniform. I only have the right to prevent someone from putting the skull I drew on the uniform I designed, assuming of course that both the skull and the uniform were unique.

So what does all of that mean in terms of proving ownership of a copyright? Well, in order to have copyright protection you need to have done something unique, so a big part of proving ownership of a copyright is proving that what you've made is unique from anything else that's come before it.

Once you've shown that you have something unique, in order to prove copyright infringement you need to show that the accused product copies that which makes your product unique.

For example, if person A paints a landscape and person B comes right up and paints the same landscape, person B isn't infringing person A's copyright. Both people have created their own unique expressions of the same landscape. Person B can even look at person A's painting and be inspired to paint the landscape in a similar style from the same perspective. What person B cannot do is scan a copy of person A's painting and then display it or sell it without permission from person A, unless person A sold a legal copy of the painting to person B, in which case person B can display it and even sell it; he just can't copy it and then sell multiple copies of it. Person A has the exclusive right to copy his unique expression.

Okay, so Games-Workshop is saying that Chapterhouse is copying its unique stuff, right? Absolutely. Games-Workshop is claiming that Chapterhouse copied its unique artistic expressions. Let me break down my opinions about Games-Workshop's copyright infringement claims a little bit:

1 - Just because Games-Workshop claims a copyright does not mean that it actually has rights to what it claims.

2 - Chapterhouse did not directly copy any of Games-Workshop's artistic expressions. That is a fact, by the way, not an opinion. Chapterhouse did not make molds Games-Workshop's models and then make copies of them. Chapterhouse did not even directly copy any of Games-Workshops symbols, drawings, pictures, iconography, etc.

3 - Games-Workshop only has rights to what it has actually produced and only has rights to basically the specific artistic expressions of what it did produce. For example, Games-Workshop has exclusive rights to the Rhino tank model. This copyright is incredibly thin and is almost of necessity limited to the exact model that Games-Workshop sells.

This is because Games-Workshop does not own the copyright to the idea of a tank, a troop transport, tracked vehicle, etc. etc. etc. Furthermore, nothing that is a functional element of the design is able to be copyrighted. This means that Games-Wokshop cannot say that another tank model infringes its Rhino copyright because it has tracks, an armored hull, doors, view ports, or anything else that is necessary to the function of the tank. What makes the Rhino unique is the specific expression of those ideas that Games-Workshop made, i.e. pretty much the exact Rhino model.

4 - In spite of the way copyright laws function, Games-Workshop has claimed copyrights to things as broad and unspecific as the "look and feel" of its fictional universes and the weapons and methods of waging war of every army in the Warhammer and Warhammer 40,000 universes.

Now, it is true that one could infringe a copyright by copying the "look and feel" of someone's artistic expression, but only in the sense that the accused product is substantially the same even though it isn't an exact copy. The problem here is that this kind of "look and feel" argument only really works if the "look and feel" of what you've produced is itself extremely unique. The "look and feel" of the Warhammer and Warhammer 40,000 universes, as much as I love them, is so diffusely broad as to basically be the "look and feel" of the fantasy and science fiction genres.

If you want some more detailed discussions about similar issues, see my other posts. As this post is running incredibly long, I'll leave out an explanation of why Chapterhouse doesn't infringe Games-Workshop's trademarks even though it certainly used them.

[Soam]

Wow, I love it. A well explained explanation of the situation. So now my question is... Is there any precedence from other cases that my swing this case one way or the other?

[Defenestratus]

I think that the problem that chapterhouse is going to have is with the iconography - which is distinctly GW. The salamanders icons specifically.

[weeble1000]

I'm not terribly experienced in case law, but I think there's plenty of case law regarding after market accessories. Even so, I get the sense that this case is somewhat unique, given the nature of the copyright claims.

Once you get outside of the realm of words, copyrights can get pretty subjective. I think most lawyers would tell you that this case isn't a slam dunk for either party, but lawyers tend to be rather conservative when making predictions.

In the end, Games-Workshop's claimed copyrights would wind up being compared to just about everything else in the fantasy and sci-fi genres from Conan to Appleseed.

On a side note for those of you that like a good story, Games-Workshop has opened just about the entirety of its intellectual property to scrutiny due to the nature of its claims against Chapterhouse. Imagine the look on Tom Kirby's face when he spends three days in deposition endlessly comparing anything related to Warhammer and Warhammer 40,000 to basically anything that Chapterhouse's attorneys can pull from sci-fi and fantasy.

Def Attorney "Mr. Kirby, are these two things smilar?"

Pla Attorney "Objection"

Mr. Kirby "No."

Def Attorney "Are they both longer than they are wide?"

Pla Attorney "Objection"

Mr. Kirby "Well...yes."

Def Attorney "Do they both have an armored hull?"

Pla Attorney "Objection"

Mr. Kirby "Yea but..."

Def Attorney "Do they both have tracks?"

Pla Attorney "Objection"

Mr. Kirby "I can't believe this..."

Def Attorney "Answer the question please, Mr. Kirby."

[weeble1000]

I think that the problem that chapterhouse is going to have is with the iconography - which is distinctly GW. The salamanders icons specifically.

I'm sorry about the double post.

The thing about iconography is that it lacks functional elements, for the most part. But you still can't copyright a concept, like putting a dragon head on a shoulder pad. Now, the shoulder pad is itself a functional element, so we can count that out. Furthermore, the Salamander design is based on a very common concept. It's pretty much just a stylized dragon head. The fact that Games-Workshop put one dragon head on a shoulder pad doesn't give it the right to prevent anyone from putting any dragon head on a shoulder pad. It has rights to the specific artistic expression of a dragon head on a shoulder pad that it produced. Chapterhouse makes a completely different dragon head on a shoulder pad.

Games-Workshop knows this and so it made sure to claim all of the Warhammer 40,000 universe and include claims of derivation based on a look and feel. So it is arguing that the look and feel of Chapterhouse's dragon head shoulder pad is similar enough to its models, artwork, and written descriptions to infringe a copyright. But in order to succeed in that claim, Chapterhouse's shoulder pad is not merely compared to Games-Workshop's artistic expressions. They are both compared to anything else that's similar.

In order for a judge or jury to determine that the accused shoulder pad infringed Games-Workshop's copyright they would have to decide that the Chapterhouse shoulder pad copies that which makes Games-Workshop's Salamander iconography different from anything else. Again, the fact that it is on a shoulder pad is not germane to this consideration, as a matter of law.

[HsojVvad]

If you want some more detailed discussions about similar issues, see my other posts. As this post is running incredibly long, I'll leave out an explanation of why Chapterhouse doesn't infringe Games-Workshop's trademarks even though it certainly used them.

What other post are you refering to? I woiuld love for you to explain why Chapterhouse doesn't infringe on GW trademarks.

I have been critical of CH Tyranid Drop Pod. If I was in court, I would be saying there is no way this could be GW Tyranid Drop Pod, so I don't see how CH is copying anything from GW.

The only thing I can see that CH is in the wrong, is that it used GW pictures of actual models, and even said this was for GW products.

I thought if they said these shoulder pads are made for Marines in Space instead of saying Space Marines or using the name Tyrandis, or Tau, or Necron, which is clearly GW names, they could have gotten away with it. But they didn't, so I can see where GW may be in the right here.

They could have used Lizards/Dinasours in space bitz but they didn't, they used Tyranids. So yeah they are using GW Intellectual names where I believe the problem is.

But I like to see what you have to say weeble.

[eldargal]

This really ought to be merged into the existing discussion in the Wargames section, it is absurd having two arguments going at the same time.

[heartbitt]

While Chapterhouse has been made small thingies, GW surely oversees and let the things unroll, but the problem is wanted to be "bigger". Making full models and rules with GW IP (all we know how is GW about their IP), it's just crossed the line.
With GW on the opposite side along with the arguments they got, Chapterhouse it's already defunct.

[weeble1000]

With GW on the opposite side along with the arguments they got, Chapterhouse it's already defunct.

I appreciate your comment heartbitt. I understand how it may seem that Games-Workshop has strong arguments against Chaptehouse and how it seems impossible for Chapterhouse to stand up to Games-Workshop. Even so, I have to disagree with you on both counts.

First I'd like to respond to your opinions about why Games-Workshop sued Chapterhouse. You may be right that Games-Workshop believes that Chapterhouse has crossed some sort of line, but it isn't a line as defined by copyright and trademark laws. I'd also like to add that there are other third party manufacturers that produce whole models inspired by Games-Workshop's fictional universes that are designed to primarily be used with its game systems. As I've said before, it’s difficult to distinguish Chapterhouse Studios from other third party miniatures companies other than that Chapterhosue Studios decided to exercise its rights within the law. That's apparently not something that Games-Workshop wants people to do.

It seems like Games-Workshop has strong arguments against Chapterhouse because people tend to conflate trademarks and copyrights into a homogeneous concept of "intellectual property." Games-Workshop is saying that Chapterhouse Studios copied its intellectual property and people see that Chapterhouse uses Games-Workshop's trademarks on its website. This seems to be direct evidence of copying because the same words are being used.

However, there are important distinctions between claims of trademark infringement and claims of copyright infringement. It is legal to use a registered trademark within the limits of what is called "fair use," even without permission from the owner of the mark. One type of fair use is called "descriptive use." It is okay to use a registered trademark when making a true statement about a product. Describing a product accurately is a true statement, hence "descriptive" use. This is commonly used in conjunction with an aftermarket accessory, such as, "This case fits the Apple i-Pod 4," or "Spoiler for a Dodge Charger." It is also common to use it when comparing one product to another, such as "Coke tastes better than Pepsi," or "This model is in the same heroic scale as a Games-Workshop Space Marine model."

Trademarks are used to identify a specific company, product, service, etc. They key word here is specific. Ideally, a trademark identifies a single thing in the minds of consumers. The key concept here is the minds of consumers. Trademarks are about market perception, which is why Games-Workshop is claiming that Chapterhouse Studios is damaging its trademarks by associating them with inferior quality products. The law calls this dilution. What Games-Workshop in arguing is that because consumers will look at Chapterhouse’s products and assume that they are Games-Workshop’s products, they will believe that Games-Workshop’s products are of a different standard of quality than that which Games-Workshop has worked to associate with its marks. The idea is that Games-Workshop has invested money into making its marks associated with a premium quality product and the confusion that Chapterhouse is causing by using those marks is “diluting” that association in the minds of consumers.

Now, this argument has lots of pitfalls. First, it is legal for Chapterhouse to use Games-Workshop’s trademarks without permission within the limits of fair use. Second, the argument has an element of consumer confusion which it is incumbent upon Games-Workshop to prove. Games-Workshop must prove that its regular customers will be confused as to the source of Chapterhouse’s products and that Chapterhouse is deliberately attempting to cause that confusion.

Chapterhouse’s website both acknowledges every registered trademark and includes a disclaimer on every page which says that the company is not associated with Games-Workshop. That’s about as cut and dry a defense as you can get.

Also bear in mind that it is extremely unusual for a trademark infringement claim to result in monetary relief, i.e. money damages. It is far more common for a successful claim to result in what is called equitable relief, i.e. Chapterhouse stops using the marks. Chapterhouse Studios has already stopped using most of Games-Workshop’s registered trademarks. This means that the trademark infringement claims are basically defunct because the judge would say that Games-Workshop has already received a reasonable remedy even if its claims were upheld.

Now, as to your opinions about Chapterhouse Studios being defunct just because it is being sued by Games-Workshop, consider the following:

First, Games-Workshop itself cannot afford to pursue this case through a trial. Games-Workshop has plenty of money in the bank, but it is using Foley and Lardner which is an incredibly expensive firm. It also has the burden of proof, being the plaintiff, and so would have to spend money on reams of market research and expert testimony in order to support its claims. This would cost multiple millions of dollars, easy. This isn’t the kind of money that Games-Workshop can afford to spend. It also doesn’t believe that it will have to spend it.

Games-Workshop is in the business of intimidation, not the business of litigating cases. Games-Workshop has actually filed very few intellectual property cases in the US federal court system. It prefers to send out very cheap cease and desist letters that its in house attorneys probably have a template for.

In the Curse litigation (the other case Games-Workshop filed in 2010), Games-Workshop’s complaint was actually never answered by Curse. Instead, the docket shows the complaint and then motions for an extension to answer the complaint up until the case was jointly dismissed, which means the parties settled out of court. The narrative is something like this: Games-Workshop sees that Curse makes about 2 million dollars per year so it skips C&D letters and goes right to filing a lawsuit. It hires Foley and Lardner to get across the point that it’s really serious and intends to spend Curse into the ground. Curse panics for a while and then probably hires a modestly-priced attorney. Mr. Modestly-priced attorney probably says, “Let’s deal with these people because I don’t want to litigate against Foley and Lardner and you can’t afford to pay me to anyway.” So he never answers the complaint, files some extensions that are granted by Foley, and then after a few months Games-Workshop negotiates a nice settlement for itself.

This is what Games-Workshop expects in this case. It wants Chapterhouse to think like you. It is hoping that Chapterhouse is thinking like you. In fact, it went out of its way to surprise and scare Chapterhouse Studios so the owner would freak out and hire some crappy attorney that would negotiate a settlement, just like in the Curse litigation.

Games-Workshop filed the complaint on December 21st and sent a copy of it to Chapterhouse the next day, and it attached an angry letter giving Chapterhouse 20 days to respond before something bad happened. Remember that the attorneys at Foley and Lardner were out enjoying their Christmas vacations at the time and couldn’t be contacted until the second week in January. Along with this underhanded tactic designed to make Chapterhouse wonder what the hell was going on, Games-Workshop faked up a connection between Chapterhouse and Paulson so that the complaint could be filed in Chicago, literally more than 1,000 miles from Chapterhouse Studios. Even if Chapterhouse wanted to respond to the complaint it would need an attorney licensed in Illinois, and how is it going to do that over Christmas?

All of this was intended to make Chapterhouse freak out so that Games-Workshop can shut down the business without spending any money. Luckily, Chapterhosue Studios hasn’t freaked out. It’s prepared for a lawsuit and it can answer the complaint. I’m guessing the owner has some legal connections or was simply expecting something like this to happen given Games-Workshop’s history of legal intimidation. What Chapterhouse Studios needs is help to go the extra mile and take this case all the way through a jury trial if need be. Right now, the company is poised to call Games-Workshop’s bluff, and that’s fantastic. I expect we’ll see Games-Workshop fold up like a cheap suit, but it might respond by trying to up the ante and buy the pot, to use some poker lingo. Chapterhouse Studios needs to be prepared to go all in and call Games-Workshop’s bluff. We can help get them there.

[HsojVvad]

I believe, Chapterhouse is correct here. AFter I made some wrong suggestions, I believe, that Chapterhouse is in the right, up to a point, because there is a few things I don't understand how they get away with it.

The only reason, I say Chapterhouse will loose, is because, the way justice is served in North America, at least in Canada and US (not sure how it works in Mexico) it all comes to how much money you have. You can be innocent of a crime but if you don't have the money for a defence, you can be found guilty even if you didn't commit to the crime.

So the question is, does, Chapterhouse have the money? If they have the money and WIN, then GW has to pay for all of Chapterhouse's legal expenses. If Chapterhouse looses, then they have to pay for GW legal fees and what ever they loose. Since Chapterhouse is very small and if they do loose, GW gets nothing. Chapterhouse will not even be able to pay their attoreny fees, let alone GW.

So I beleive GW looses no matter what they do. Try and follow through a jury court trial they will loose more than they gain. All they will do is put Chapterhouse out of buisness, but really not have any finacial gains at all.

So this is bascially a loose loose situation for both parties. GW just being the BIG BULLY as Weeble has said. I am curious, did GW give out a Cease and Desist order? If not they are just being bullies because they have more money.

[wittdooley]

We can help get them there.

If they were really "prepared" then no one should have to. Feel free to throw your money away; I won't be.

FWIW, I ordered from them when they were very new and was pretty unimpressed by the casting quality of the product I received, particularly when put side by side to the Forge World resins. Unless they're casting qualities have gone up considerably, we won't be missing much, particularly if they're too arrogant or too ignorant to follow the simplest of groundrules that all the other other 3rd party bits suppliers seem to understand quite easily.

[lattd]

Ill think you missed the fact that Chapterhouse actively used GW models to compare and show bits on then stated that none of the items used where wit GW's permission.

Also think you find that tyranid is likely to be trademarked and using it without permission and then putting the disclaimer up after the company is suing you is not going to save you from anything.

GW is suing because chapterhouse sold items that GW could make in the future : tervigon and myeotic spore spring to mind, it stops GW making as much money as they could from producing their own version of this product. If you use another companies IP to make a profit while acknowledging you do not have permission to do so your breaking the law simple as.

Now if any you read GW big long disclaimer on every product they realise it actually states all rights reserved. Now this means they reserve other peoples rights to use their copyright without acknowledgement something up until recently chapterhouse had failed to do.

[wittdooley]

GW is suing because chapterhouse sold items that GW could make in the future : tervigon and myeotic spore spring to mind, it stops GW making as much money as they could from producing their own version of this product. If you use another companies IP to make a profit while acknowledging you do not have permission to do so your breaking the law simple as.


I think these are really the problem. Had Chapterhouse made any effort, any at all, to use a different name other than the GW name for these models, we wouldn't have an issue. As such, I think it's reasonable to fathom that a newcomer to the game that bought the Tyranid rule book would assume that the "Tervigon" model at the Chapterhouse website was THE "Tervigon" model issued, or at least commissioned by, Games Workshop.

All they had to do was call it "Big Space Bug Conversion Kit."

Again, arrogance or ignorance. I don't feel bad for either.

[HsojVvad]

GW is suing because chapterhouse sold items that GW could make in the future
The thing is, GW has to prove that they were going to actually make them. Again, a simple letter of cease and desist could have been done.

I am not sure about American Law, but I thought, that you can't just sue anyone. You have to come to them, and ask them first. After they refuse to do what you asked, that is when you sue.

So with no Cease and Desist letters, that we know of, I can't see how GW will get any money from Chapterhouse at all since they never even asked for them to stop, when they clearly knew what they were doing for years.

It is not like they just started last month and GW just found out about it. Just some thoughts to think of. How much is leagal and what not, I have no idea.

[lattd]

American law states cease and desist letters then alternative dispute resolution and then sue. GW love their cease and desist letters they have used them a lot in the past with a few websites so i would assume they have already gone down this route.

Also it seems likely that GW would have made this bits they have done crimson fist, raven guard, flesh tearers bits so why not add to that as they and forgeworld come to it.

And when it comes to personal injury America is a sue first ask for a sorry later. Hence why mcdonalds now have to have a this coffee is hot labels.

[addamsfamily36]

At the end of the day, does anyone know what is copyrighted by GW?

Does anyone have a complete list of all their:

creative products
Designs
Concepts
Sculpts
Plans
etc
etc

Who Knows what Words, images, designs, and all manner of products Gw have protected by law?

They could produce evidence for hundreds of things we will never get to see as its all locked up in the studios. Maybe for future release or other things. For example they used to produce a flesh tearers shoulder pad. That was then made by CHS. I doubt with permission.

GW's archive and evidence could be huge.

[weeble1000]

Again, Games-Workshop can claim a copyright on anything. It actually has copyrights to its unique artistic expressions. I'm sure Games-Workshop has tons of copyrighted material that it can show, but it must show that Chapterhouse Studios has copied that material.

Chapterhouse used the Tyranid mark within the limits of fair use. It is also fair to display a product, such as a model, for purposes of comparison with another product. Games-Workshop also cannot prevent someone from making a product that it doesn't produce and hasn't publicly declared an intention to produce.

Everyone can rest easy about the laws involved in this case. The only areas where the case gets a little fuzzy are those that are open to subjective interpretation, namely Games-Workshop's "look and feel" arguments. Games-Workshop will have to show that Chapterhouse's products are substantially similar to what is unique about its actual creations. It is impossible to truly know what a jury will determine because you can't read minds or predict the future. However, it is possible to make an educated guess about what a likely jury will determine based on the evidence.

Without having performed the actual research I can say from my personal experience with this type of case and the potential venues involved that Games-Workshop will have a seriously tough time getting a jury to enforce its claims. I think that a reasonable attorney experienced in the area of copyright law would come to a similar conclusion and I think Games-Workshop is well aware of the likely outcome of a jury trial.

Nevertheless, Games-Workshop filed this suit with incredibly broad copyright claims because it does not expect to see a courtroom. That is intimidation. Filing a case with claims that you know aren't supportable is an anti-competitive abuse of the legal system. I expect that we'll eventually see an anti-trust counter claim from Chapterhouse, so keep your eyes peeled.

[addamsfamily36]

http://www.games-workshop.com/MEDIA_CustomProductCatalog/m990131a_99060101459_FTShoulderPads3_445x319.jpg

http://chapterhousestudios.com/webshop/component/virtuemart/?page=shop.browse&category_id=31


If that one isn't clear enough then check out this one

http://chapterhousestudios.com/webshop/component/virtuemart/?page=shop.browse&category_id=33

http://www.bitzbox.co.uk/images/space_marine_rhino_side_door_2_large.jpg

The doors and components have been taken. Ok the imagery on the doors might be self created and are infact just wolf skulls (can't really claim those), but the doors and hinges etc etc are all copied from the original as its a replacement for the original. GW makes a set of space wolf doors via forgeworld.

How would you argue them out of that one?

[HsojVvad]

The funny thing about GW sueing anyone over copyrights, or intelectuall property, what on Earth did GW make that is original? I believe everthing they have is a copy of something.

Tyranids are not origanal. Copy of Aliens and Cluthuu. IG not orignal at all. Orks, Eldar, Dwarves? I don't think so. How about Chaos? Deamons? Uh uh. Necrons? Terminators anyone? SM are not even original. Dark Angels? A complete rip off from a poet 100 years ago. Basically nothing GW has is original at all.

So funny how they sue someone for copying them. So couldn't CH say they were copying what GW was copying?

[HsojVvad]

Nevertheless, Games-Workshop filed this suit with incredibly broad copyright claims because it does not expect to see a courtroom. That is intimidation. Filing a case with claims that you know aren't supportable is an anti-competitive abuse of the legal system. I expect that we'll eventually see an anti-trust counter claim from Chapterhouse, so keep your eyes peeled.

I know Europe is huge agaisnt anti-competitive cases. They have done a good job in Enforcing Microsoft, or I should say fining Micorsoft for anti-competition. Has Europe gone against GW yet?

Has GW tried to do this bullying tactic to European countries?

[lattd]

Bit different with Microsoft who didn't release their product and made it only available on their computer system. Where as GW produces products that people are free to use as they can buy them where as you couldn't buy microsoft media player.

[eldargal]

For the last time, GW is not suing CHS for copying their designs! They are suing them for breach of trademarks and copyright. In effect they are suing CHS for using the term 'Flesh Tearer*' rathr than producing a shoulder pad with a wonky gear and a gemstone on them. If you want to sue someone for copying the specific design of something, you actually have to state specifically, it doesn't come uinder the general trademarks and copyright stuff.

*Which is a problem for them because CHS have always had a disclaimer stating those were GW trademarks. Also, GW is (apparently) suing Paulson for having a financial stake in CHS, which he says he doesn't. GW may really have messed this one up.



http://www.games-workshop.com/MEDIA_CustomProductCatalog/m990131a_99060101459_FTShoulderPads3_445x319.jpg

http://chapterhousestudios.com/webshop/component/virtuemart/?page=shop.browse&category_id=31


If that one isn't clear enough then check out this one

http://chapterhousestudios.com/webshop/component/virtuemart/?page=shop.browse&category_id=33

http://www.bitzbox.co.uk/images/space_marine_rhino_side_door_2_large.jpg

The doors and components have been taken. Ok the imagery on the doors might be self created and are infact just wolf skulls (can't really claim those), but the doors and hinges etc etc are all copied from the original as its a replacement for the original. GW makes a set of space wolf doors via forgeworld.

How would you argue them out of that one?

[weeble1000]

For the last time, GW is not suing CHS for copying their designs! They are suing them for breach of trademarks and copyright. In effect they are suing CHS for using the term 'Flesh Tearer*' rathr than producing a shoulder pad with a wonky gear and a gemstone on them. If you want to sue someone for copying the specific design of something, you actually have to state specifically, it doesn't come uinder the general trademarks and copyright stuff.

I'm going to have to disagree with you here eldargal. Games-Workshop is indeed arguing that Chapterhouse Studios infringed its claimed copyrights to sculptural works and other artistic expressions in addition to its written words.

If you would like, I can go back through the complaint and provide paragraph references. I think, though, that it will suffice at the moment to remind you that Games-Workshop's intended remedy is for Chapterhouse to cease sales of all infringing products and destroy the molds. This wouldn't be potential equitable relief if the claimed infringement was only an issue of labeling.

Games-Workshop's claims of trademark and copyright infringement (as to its written words such as "Flesh Tearers") seem to be obfuscating the real meat of the case: Games-Workshop's "look and feel" copyright infringement claims. These claims have far-reaching implications for the third party miniatures market and they are the most glaringly abusive claims of the suit. Games-Workshop is effectively saying to the world that if it goes with Warhammer and Warhammer 40,000, it belongs exclusively to Games-Workshop. This is a blatant overreach of Games-Workshop's copyrights and it ignores the fact that the vast majority of the Warhammer and Warhammer 40,000 universes (including the games and associated models) comes right out of material freely available in the public domain.

[addamsfamily36]

30. All of the 106 products that Chapterhouse currently markets and sells (including
the “Super-Heavy Assault Walker” designed at least in part by Paulson Games) are derived from
and bear the unique characteristics and expressions of Games Workshop’s copyrighted works,
including unique expressions created and set forth in great detail in Games Workshop’s
background published works described above.
31. Upon information and belief, all of the items produced, marketed, and sold by
Chapterhouse (including the “Super-Heavy Assault Walker” designed at least in part by Paulson
Games) have been copied from (and infringe upon) Games Workshop’s copyrighted characters
and stories and sculptural works.


Im just going on the article. I don't agree that all of the products that CHS produced are copies, but the ones i posted were just two examples. And it seems Gamesworkshop agrees.

[wittdooley]

Im just going on the article. I don't agree that all of the products that CHS produced are copies, but the ones i posted were just two examples. And it seems Gamesworkshop agrees.

See, I'm of the opinion that the "Super Heavy Assault Walker" would be the last product that would infringe. I just don't get why CHS decided to give that a generic name and refused to do so with any of the other products...

[weeble1000]

I just don't get why CHS decided to give that a generic name and refused to do so with any of the other products...

This has to do with the way copyright and trademark laws work. There's nothing in Games-Workshop's model line, game rules, or fluff that correlates to a Tau super heavy vehicle. I expect that the folks at Chapterhouse wanted to disassociate the model from Games-Workshop's Warhammer 40,000 universe because, properly speaking, it isn't represented in the universe in any form that I'm aware of. Without a precedent in the Warhammer 40,000 universe, you would ironically be inviting some trouble by marketing the product as, say, a "Super Heavy Vehicle for Tau Players."

Given that the concept doesn't really have any form in the Warhammer 40,000 universe, you would have a tougher time arguing that the above statement is a descriptive use, and you would be setting up Games-Workshop to argue that your unique Warhammer 40,000 inspired artwork belongs to them. Now, you could argue descriptive use, but you'd be giving Games-Workshop ammunition when there's little need to. As it is, with the model being an entirely unique work of art and without being attached to any of Games-Workshop's marks or copyrighted words, the defense against copyright infringement is very strong.

The issue of copyright infringement with a whole model is also less clear than with a physical accessory for an existing physical product, like an arm or should pad swap that has little use other than as an accessory to an existing product. This is not to say that Games-Workshop has a strong argument about whole models intended to be used with its wargames. The issue is one of clearly established precedent. There's a lot of precedent for aftermarket accessories like automobile parts. Alternative third party game pieces probably fits into that precedent, but the questions seems a little less clear to me. I'm not a close student of the case law at issue, but I think there's more room for subjective interpretation with a whole model because there's less guidance from extant case law.

I hope that answers your question.

[addamsfamily36]

See, I'm of the opinion that the "Super Heavy Assault Walker" would be the last product that would infringe. I just don't get why CHS decided to give that a generic name and refused to do so with any of the other products...

sorry for any confusion, but i was referring to the space wolf doors and the flesh tearers shoulder pad.

The walker does seem to crop up a lot though in the article.

Maybe forgeworld have been working on a tau walker :eek: lol

doubtful i know.

[weeble1000]

http://www.games-workshop.com/MEDIA_CustomProductCatalog/m990131a_99060101459_FTShoulderPads3_445x319.jpg

http://chapterhousestudios.com/webshop/component/virtuemart/?page=shop.browse&category_id=31

How would you argue them out of that one?

addamsfamily36,

You've compared the Games-Workshop product to the Chapterhouse Studios product side by side.

You've succinctly presented a microcosm of Games-Workshop's argument. "Hey, these two things are the same, look how similar they are." I'm not trying to be flippant or insulting. My intention is to highlight the honest simplicity of the comparison. You've asked how would one argue around this comparison. The answer is one of context.

First there's the legal context. Taken as a whole, the images look very similar. They're even colored similarly. They're both armored shoulder pads for use with Space Marine models. Legally-speaking, most of those similarities are immaterial to the question of copyright infringement.

The coloring is immaterial. Both products are sold unpainted and Games-Workshop does not own the work of the artist that painted the Chapterhouse product.

The fact that the symbol is on an armored shoulder pad is immaterial. The shoulder pad underlying the symbol is a functional element and cannot be copyrighted.

What you're left with are the "saw blade and teardrop" symbols. These two symbols are the only parts of the images that should be compared for purposes of determining copyright infringement. You could also consider the fact that the Chapterhouse product is only a shoulder pad, but I'm going to assume that the Games-Workshop product is also sold as a shoulder pad. If not, then you would of necessity compare the entire work of art to the entire work of art, and the differences between the two should be glaringly obvious.

Second, the proper context in which to compare these images is every other similar thing that exists. The question is not merely one of "how much does this thing look like that thing." That is a one sided argument that does not take into account the defendant's response. The proper question is, "How much does the accused product copy that which makes the claimed copyright unique?"

Games-Workshop only has copyright protection to what it created, not the concept. It doesn't have rights to the concept of putting a saw blade on a uniform. It only has rights to it's specific artistic expression of that concept. Now, if the concept itself were unique, Games-Workshop might be entitled to some kind of protection, but if you look at the claimed copyright in the context of saw blades used as a symbol, it ceases to be very unique.

A simple Google Image search reveals a startling array of similar saw blades used as symbols on clothes, uniforms, and armor, as both a decorative element and a meaningful symbol. Many of these uses also include blood of some kind. I won't bog down the post with lots of images, but one particular example is Metal Man from the Mega Man games. In this one instance you have an armored robot that uses a round saw blade as a decorative element and a meaningful symbol.

It is reasonable to conclude that a round saw blade on a uniform is not itself an artistic expression unique to Games-Workshop. A reasonable interpretation would then compare the design of the saw blades. You will find that the circumference of the blades is different, the number of teeth is different, and the shape of the teeth is different.

Both products also include a teardrop-shaped jewel. This is itself not a unique image. The Games-Workshop product places the jewel in the center of the saw blade. The Chapterhouse product has the two pieces molded separately. While it is true that the Chapterhouse product could be assembled with the jewel in the center, Chapterhouse does not direct its customers as to the placement of the jewel. Furthermore, the shape of the two jewels is different.

The two products are both round saw blades with a teardrop-shaped jewel, but they are clearly different expressions of the same unprotected concept.

[addamsfamily36]

I understand that.

But both designs share a common "context"

Both are on a shoulder pad - a pad significantly recognised as being of a space marine aesthetic.

Both use a saw blade on this shoulder pad.

Both have a tear drop (even if one is removable)

Now CHS might have changed the shoulder pad significantly like they did with other designs, to create a significant enough difference, but they didn't. They also then labelled the product as a Flesh tearers alternative shoulder pad.

So even if you ignore the visual similarities from the original design, CHS have put their product in the context of the flesh tearers, and associated their product with them.

That then becomes a direct 1 on 1 product vs product replacement for something GW already produce. or have produced.

Thats all I'm saying. GW have the right to protect their IP as much that CHS has the right to argue their case, unfortunately I feel they were creating products too close too existing material.

[weeble1000]

I think you are misunderstanding what I said about context. I’m not making this argument up because I like Chapterhouse Studios and I think the shoulder pad is different, I’m describing how the products must be compared under the law.

The shoulder pad is a functional element. By law, a functional element cannot be considered when making a determination of copyright infringement because no one can have a copyright to the functional elements of a design. A judge would understand this distinction and would instruct the jury regarding it.

By law, the two designs should be considered within the context of other, similar artistic expressions. Again, this is a consideration that must be made because no one is allowed to copyright something that already exists. In the co-interests of privileging the creator and allowing room for others to create, copyright laws do not allow individuals to stifle creative expression by claiming ownership of concepts that can be expressed in a broad variety of ways.

Games-Workshop can and does argue that the specific shape of the Space Marine shoulder pad is unique. However, the fact that it is an armored shoulder pad is not subject to copyright. The fact that it has a curved shape is not subject to copyright as this is, again, a functional element of the design.

The fact that the shoulder pad extends from the shoulder to the elbow might be subject to a copyright, but again, Games-Workshop would have to show that this specific element of the design is unique. In my opinion, this is not a unique element of the design.

Past this, Games-Workshop has not specified any ways in which the Space Marine shoulder pad is unique, as far as I remember. Games-Workshop’s assertions as to the unique style of Space Marine shoulder pads go on to describe the location of symbols and iconography.

As the Chapterhouse shoulder pad in question is neither right nor left sided, only Games-Workshop’s claims as to the unique shape of the Space Marine shoulder pads are relevant.

The fact that that the Chapterhouse shoulder pad in question fits on a Space Marine model is not relevant to the consideration of copyright infringement. Chapterhouse Studios did not sculpt this shoulder pad on the base of a Games-Workshop Space Marine shoulder pad. If aftermarket accessories could not be shaped to attach to, fit around, or fit on a product it would impossible to make aftermarket accessories, almost by definition.

The fact that Chapterhouse Studios used the copyrighted phrase “Flesh Tearers” is not relevant to the consideration of Games-Workshop’s claimed copyright to the sculptural form of the shoulder pad in question. These are two different copyrights.

It is distinctions like these that make a determination of copyright infringement different from a simple one on one comparison.

[addamsfamily36]

Ok fair argument.

However in terms of the shoulder pad (without any iconography) , it would be interesting to know the exact specifications of the CHS one and that of the GW produced ones.

The CHS ones have the same shape, size, trim to the GW ones. Ok you can't claim copyright on a armored piece of body i.e shoulder pad, but the aesthetic and dimensions if identical or close enough will put CHS in a tough spot.

Also, if the pad is made to fit the Standard GW range, then the inside of the pad must be made to the dimensions of the GW product i,e the space marine arm. Would that not be Designing/making a product directly using the design and specifications of a product that does not belong to them, to make a product for themselves? (i'm curious as i will admit you know more law than i do, far more)

for want of a better example though how about the studded pre heresy shoulder pad, still marked up as "for mk5"

http://chapterhousestudios.com/webshop/component/virtuemart/?page=shop.product_details&flypage=flypage.tpl&product_id=87&category_id=30

http://www.forgeworld.co.uk/Warhammer-40000/Space_Marines/Space_Marine-Infantry-Accessories/MK-V-HERESY-ARMOUR.html

Both for mk5 heresy armour.

Both pretty much identical in appearance.

Which is where GW's "misleading" argument comes from.

I know its the same example, but at the end of the day the jury will see the two items and clearly see the similarity. Its not like the CHS mk5 pad was original. It is clearly inspired and designed from imagery and previous products produced by GW. That is proffiting from a design that isn't yours.

And in regard to context, i was sort of referring to a different context. For example GW might not have come up with the studded armour style. Look at a dalek for example. But GW did apply studs (a functional element) to one of their armoured shoulder pads. Creating a new design in the context of the "40k universe". The CHS mk5 pad is just a copy of it.

[weeble1000]

If it's not copyrightable, it doesn't matter if it was designed to be part of the Warhammer 40,000 universe. Games-Workshop cannot take things out of the public domain. A studded shoulder pad isn't original. Games-Workshop has copyrights to the specific artistic expression that it has made. On a product like the studded shoulder pad, Chapterhouse would pretty much have to make a mold of Games-Workshop's product and produce copies of it in order for Games-Workshop to have a clear case of copyright infringement.

This is the essential problem with Games-Workshop's claims. It has claimed that everything in the Warhammer and Warhammer 40,000 universes is copyrighted and that if you make anything that could exist in its universes, you've violated its copyrights. However, as can be plainly seen, not everything in the Warhammer and Warhammer 40,000 universes is unique. That's hardly a revelation.

Now, if Games-Workshop had a legitimate problem with some of Chapterhouse's products, such as the Mk V shoulder pad or the spore pod, it could have opened a reasonable dialogue with Chapterhouse's owner, voiced its complaints and sought some kind of amenable resolution, such as limited licenses to specific products and the removal of other products.

Instead, Games-Workshop has made it clear that the only resolution it will be satisfied with is Chapterhouse going out of business. Along with that, the company has filed a complaint with claims that are incredibly broad to the point of either gross intimidation or gross negligence. The company does not believe that is has to negotiate because Chapterhouse and other companies like it will simply curl up and die with the threat of litigation. Why bargain for something when you can take it by force?

I love Games-Workshop's universes. I think that the settings are nuanced, exciting, and incredibly flavorful. I especially enjoy the space gothic aesthetic of 40K. I think that there's plenty of things in Warhammer and Warhammer 40,000 that are uniquely Games-Workshop's creations. But I also think that there's lots of stuff that Games-Workshop has no business claiming exclusive rights to.

I understand why Games-Workshop feels vulnerable about its intellectual property rights. The company has had some bad experiences in the past. But the sad reality is that the company is old, slow, and too set in its ways of doing things. It isn't 1990 anymore. If Games-Workshop wants to be a successful company it is going to have to learn how to embrace the 21st century. Strong arm legal tactics isn't the way for Games-Workshop to keep itself competitive, but I don't think the CEO knows what else to do. Games-Workshop has been scrambling to hang onto the glory years and all the while it has been losing its grip on reality.

The only thing that seems to be working well at Games-Workshop is the sculpting staff. The new models get better and better with every release. That should be how Games-Workshop competes in the marketplace; on the strength of its superior products. There's really no need for Games-Workshop to expose itself and its intellectual property just to destroy a little third party miniatures company in Texas that isn't significantly affecting its business.

[addamsfamily36]

From what sources i have, you can copyright a logo such as the flesh tearers buzz saw, as long as the artwork and expression is original.

Now if GW can prove that their logo is the first example of this design, then "in the opinion of the law" , the copyright would be legitimate, retrospective of the individual components that make up the logo. I.e the blood drop and the buzz saw.

You can copyright a group of letters formed into a logo, depending on their positioning, weight, font, etc etc.

I'm only going on the information i can obtain from the law sources available. All suggest that The design can be copywright protected.

Although CHS made a slight change, one or two less spikes on the saw, the design is too close too the original from which its clear they got the "inspiration". They reference it as a flesh tearers shoulder pad.

(as much as we can argue back and forth all day, that is where they have shot themselves in the foot. A jury will clearly see product vs product, and then see that CHS even quoted their product as being for use with flesh tearers. It might or might not be fair, but unfortunately that is how someone who knows nothing about either company and is impartial, will see it)

It would further be protected if the mark is trademarked. Protecting the use with the logo in reference to goods or services.

And on that, I don't think i can say anymore. I appreciate your points, and take them into consideration. I am also more informed now because of your information regarding the case, But from the information i can gather and definitions of copyright laws that i have, i stand by GW.

[weeble1000]

The key point here is "as long as the artwork and expression is original." We agree on that, but your interpretation beyond this point is where we are disagreeing.

I'm interested in this dialog because I think it is important for people to understand the implications of the Chapterhouse lawsuit. Games-Workshop is claiming exclusive rights to very broad copyrights.

In order to determine how original the artistic expression is, it is necessary to consider it in the context of everything else out there. The less original it is, the narrower the copyright because you only own the new thing that you do. That is, whatever makes your artistic expression different from those of other artists.

The fact that your artistic expression is itself unique does not give you the right to everything upon which it is based, just the unique aspects of the design. If I draw a dragon, I can't say that I own exclusive rights to all dragons. I don't have a copyright to dragons. Games-Workshop does not have a copyright on round saw blades with teardrop shapes in the middle of them. It has a copyright to the specific artistic expression of that design.

Teardrop shapes are not unique. Round saw blades are not unique. Putting either of those symbols on a uniform is not unique. Putting a teardrop shape in the middle of a round saw blade might be unique enough to claim exclusive rights to something that significantly copies that design, as in similar placement, size, shape, etc. etc.

Given all of the aspects of the design that are not unique you may only consider those aspects of the design that make it a unique artistic expression when determining copyright protection. These things would include the specific size and shape of the overall design. Not every round saw blade is the same size. That is a unique aspect of the expression. It would also include the shape of the teeth. Round saw blades have many different tooth shapes. That is a unique aspect of the expression. It would include the number of teeth on the saw blade. Different saw blades have different numbers of teeth. That is a unique aspect of the expression. It includes the size and shape of the tear drop and its placement within the round saw blade.

When you narrow the copyright to these specific details of the artistic expression the Chapterhouse product does not copy them. This is the way that all of Games-Workshop's claimed copyrights would be assessed in court. Games-Workshop is very familiar with this process.

In the past, Games-Workshop has had overly broad copyright claims narrowed significantly, specifically regarding the design of the Imperial Aquila. The Imperial Aquila copyright was narrowed down to the number and angles of the feathers in the design. This by definition means that if a design does not copy those details it cannot infringe. Games-Workshop did not invent double-headed eagles even though it claimed to have. It was determined that what Games-Workshop had rights to was the specific artistic expression that is the Imperial Aquila. In order to describe precisely what the bounds of the copyright were it was necessary to describe the very specific details that made the Imperial Aquila a unique artistic expression.

Games-Workshop is well aware that this is how all of its claimed copyrights will be interpreted in a court of law. In spite of this knowledge and experience, it filed a complaint against Chapterhouse Studios claiming copyrights as broad as weapons and methods of waging war. It does not intend to go to court with these claims. Filing a lawsuit that you have no intention to pursue is a clear act of anti-competitive intimidation with a long line of precedent to back it up.

[Old_Paladin]

I think some of the problems with these arguments is that that are getting too specific, and missing the point of the suit in the first place.
Manly that most of this lawsuit is NOT about COPYRIGHT's
GW states up front that they have very few American Copyrights (They've listed around five of their North American copyrights); it is about the broader and less defined realm of IP.
They are defending ownership of imaginary idea's (and all potential works, mediums, etc. based upon those ideas).

This isn't a case of 'they produced copied replecas of our protected material items'; it is a case of 'they took our unique words, drawings, expressed thoughts, etc. and made items out of it."

I've used this example before and I'll use it again:
Say I made a 20mm tabletop miniatures wargame; but it was from the Halo of Fallout IP. I wouldn't get to say "It's never been expressed in this medium, so It's Mine." or "I came up with a unique ruleset, so I can use it with whatever I want."
Even if I came up with several unique designs I couldn't even say "Sure, I made mini's of banshee's, wraiths and spectres; but I also made Golems, Lycanthopes and Shadows, vehicles which are unique to my thoughts and imagination (as the context and artisic styles are based UPON other peoples works."

This is the problem with the Tau Super-heavy. GW has produced nothing like it; but, the essence and form make it clear where it's based on; the name and equipment leave no doubt. When it came out people said "that is perfect for Tau, it screams T'au (and their culture, esstectic, etc.)."

To repeat; this is a broad IP case, not a defined copyright case (although some of the issues, such as the Names are copyright).
This is also the point of IP's it protects you in all forms of expression and expands beyond the original works limited boundries.

[weeble1000]

To repeat; this is a broad IP case, not a defined copyright case (although some of the issues, such as the Names are copyright).
This is also the point of IP's it protects you in all forms of expression and expands beyond the original works limited boundries.

Old_Paladin,

Please keep in mind that I don't intend to insult you in any way. I'm concerned that you might find my response insulting because I am in complete disagreement with you.

I'd honestly prefer to leave your opinions unquestioned because they are so erroneous and extreme that I'm concerned a dialog with you would not be productive. However, I would like to head off any damage that your demonstrably flawed interpretation of this case and the law might cause to the understanding of other people reading this thread.

It is patently incorrect to say that this case is about "the broader and less defined realm of IP." There is no realm of "intellectual property" beyond the different classifications of intellectual property. Patents, trademarks, copyrights, and trade dress are all types of intellectual property. In order for something to be "intellectual property" it has to be one of the legally-defined types of intellectual property. Nothing outside of this is intellectual property.

It is also erroneous to conflate the different types of intellectual property into some kind of homogeneous amalgam. A patent and a copyright are two distinct types of intellectual property with different rules. A claim of patent infringement is not subject to the laws that govern trademarks, copyrights, or other types of intellectual property. Arguing otherwise would be like saying that a Land Raider has to make a morale test when it takes 25% casualties from a shooting attack.

Part of the case is indeed about "they produced copied replecas of our protected material items." That would be a claim of copyright infringement. Part of the case is also about "they took our unique words, drawings, expressed thoughts, etc. and made items out of it." However, your statement here makes an erroneous leap of logic.

I am assuming that what you mean is that Games-Workshop is upset about Chapterhouse Studios creating models that could fit within the Warhammer 40,000 fictional universe that it created. I think that's correct. I also think that's why Games-Workshop filed this lawsuit. I also think it is what Games-Workshop is trying to argue in this case. However, Games-Workshop has to follow the rules of intellectual property in order to make that argument. You are leaping to the conclusion that this means that Games-Workshop is making a case about "the broader and less defined realm of IP." That is incorrect.

The way that Games-Workshop is trying to make that argument is by specifically following the rules of copyrights.

Games-Workshop cannot make a case against Chapterhouse Studios for, as you say, "produc copied replecas of [its] protected material items" because Chapterhouse did not directly copy any of Games-Workshop's products. That's a fact. So, Games-Workshop is making the argument that Chapterhouse's products infringe its copyrights because they are derivative work.

Just so you know that I'm not making this up, the following is the complete definition of derivative work from Black's Law Dictionary: Seventh Edition (pg. 455). I don't usually like to go out of my way to dig this stuff up as I generally think that people are equipped to do their own research and draw their own conclusions, but here it is:

derivative work. [I]Copyright. A copyrightable creation that is based on a preexisting product, such as a translation, musical arrangement, fictionalization, motion-picture version, abridgment, or any other recast or adapted form, and that only the holder of the copyright on the original form can produce or give permission to another to produce. Cf. compilation (1).

"[W]hile a compilation consists merely of the selection and arrangement of pre-existing material without any internal changes in such material, a derivative work involves recasting or transformation, i.e. changes in the pre-existing material, whether or not it is juxtaposed in an arrangement with other pre-existing materials. A catalog constitutes a compilation, and a translation of a pre-existing work constitutes a derivative work." 1 Melville B. Nimmer & David Nimmer, Nimmer on Copyright 3.02, at 3-5 (Supp. 1997).

Games-Workshop is claiming that its models, artwork, fictionalizations, et. etc. are all copyrighted material, including everything in the Warhammer and Warhammer 40,000 fictional universes, up to and including the weapons and methods of waging war of all of its armies. It is claiming that these are all valid copyrights and that Chapterhouse Studios is infringing those copyrights by producing products that have the same look and feel as its copyrighted material. Because Chapterhouse's products have the same look and feel, such as the super heavy walker being in, as the complaint alleges, the Tau "style," Games-Workshop alleges that this constitutes a recasting or transformation of its copyrighted material into new forms.

Games-Workshop's argument is one of copyright infringement and it must therefore follow the rules of copyrights, just like your Land Raider must follow the Warhammer 40,000 vehicle rules. Games-Workshop's arguments assume that its claimed copyrights are valid. That assumption (a necessary component of the allegation of copyright infringement) will be tested in court. Games-Workshop's claims will necessarily be very difficult to prove because they rest on the backs of extremely broad, unspecific, and commonly-used material. It is likely that many of these claimed copyrights will either vanish or be narrowed to the point of being useless in supporting Games-Workshop's allegations.

[Old_Paladin]

I understand what you're saying; In fact, it's a common criticism of IP law.

But the problem is this; even though copyrights, patients, trademakrs, geographical indiction, etc. are seperate things (and probably should only ever be seperate things).
Under IP, they CAN be lumped together, in which case things aren't as clear cut as you'd wish them to be.

Again, I know you're just going to say that this is false; that there are really only copyrights, trademarks, trade secrets etc.; but I'm not going to buy that they're unrelated and totally seperate when you can have seperate fields of Copyright laws and a field of IP laws (even if a portion of IP can include copyrights).

And again that why the lawsuit says that Chapterhouse broke Copyright when they said "Space Marines" as they violated an actual expression of the idea of 'genetically modified super-warrior monks from the future'.
They didn't violate any true copyrights by building the Tau superheavy; they violated an idea (idea's aren't covered by copyright). But it does violate the general IP.

If there was no such thing as IP as a field; and it was just half a dozen somewhat related laws (as some lawyers or legal theioriest have suggested) you'd be 95% right and GW would be forced to take them to court to force some name changes and the removal of maybe a few shoulderpads.
By the law has allowed itself to become a jumble of potentially conflicting rules across several independantly developed sub-fields (which have in fact grown to be their own fields); that can protect things (like ideas) that the individual fields will not protect.


And on a last note; if you're going to comment that that's not how lawyers see it; or that's not how it's actually seen in refined Law.
My counter-point is this; even if it doesn't true exist as such in the law, it does exist as such in the real world. When the majority of layman see it as a poorly defined nebulous entity that DOES protect ideas. A jury is made up of people like that. It's not going to be a judge looking for the minutia and sentax, and expertly trained; it'll be a bunch of people off the street are are likely going to be told not to look up terms in a dictionary (let alone be given legal texts to familiarize themselves with the history of, and current extents/limitations of modern, Intellectual Property laws).

[weeble1000]

And on a last note; if you're going to comment that that's not how lawyers see it; or that's
My counter-point is this; even if it doesn't true exist as such in the law, it does exist as such in the real world. When the majority of layman see it as a poorly defined nebulous entity that DOES protect ideas. A jury is made up of people like that. It's not going to be a judge looking for the minutia and sentax, and expertly trained; it'll be a bunch of people off the street are are likely going to be told not to look up terms in a dictionary (let alone be given legal texts to familiarize themselves with the history of, and current extents/limitations of modern, Intellectual Property laws).

You have a valid point that the layperson typically views intellectual property in the way that you describe. You are also correct that juries are made up of laypeople.

However, although I do not claim to be a legal expert, I do claim to be an expert as to the nature of jury composition and the behavior of jurors. I am an experienced trial consultant and jurors, in point of fact, are my business. The bulk of my experience with regard to trial consulting is also intellectual property law, although I do confess to a great deal more experience with patents and trademarks than with copyrights.

The jurors will have the laws explained to them by the attorneys from both sides of the aisle. The attorneys will also be required to present their cases with respect to the law. The jurors will also have the laws explained to them during the judge’s jury charge.

The complexity of intellectual property laws makes it difficult for a jury to interpret cases like this, but just about every juror takes his or her jury service and related responsibilities seriously. There are ways to present a case that synergizes with a juror’s understanding of equity and the biases that he or she brings into the courtroom.

I can tell you from significant personal experience that it is quite possible to successfully present a case like this to a jury. I can also tell you that once you enter into the realm of pre-conceived notions and biases, many jurors in many venues in the United States will have an especially dismal view of Games-Workshop going into the case, particularly in the Eastern District of Texas which is the proper venue.

On a related note, cases do not see a jury for a significant amount of time, if they ever get to a jury. Up until that time there will be a judge examining the minutia of the case with respect to the actual laws as they are written and as they have been interpreted in the past.

Just because you misinterpret the meaning and proper application of intellectual property laws does not mean that the laws function in the way that you believe they should function. The system is designed to protect innovation while simultaneously fostering innovation. Allowing someone to prevent others from producing or practicing ideas that have not been expressed is a fantastic way to stifle innovation. Intellectual property laws variously protect what has been expressed, be it a patented invention, a trademark that identifies an actual product, or a copyright on an artistic expression.

[FastEd]

I just want to chime in here to say thanks to weeble1000. Glad to have your input and explanations, and you clearly put time and thought into your posts about the subject.

Also a thanks to the people posting questions and potential counter points, and representing different angles the case is view from. You've probably asked questions that others wouldn't have thought of, or were curious about but didn't ask for whatever reasons they may have.

Either way, after reading the thread(s), and asking a good friend who has a degree in the field for his opinion, I'm fairly confident that Chapter House's doors will stay open, and, to be a little selfish, I won't have to snag as much of their stuff as possible so I don't lose the chance.

I'm really just hoping that GW gets some sort of slap on the wrist for throwing it's weight around. I love a lot of their products, but it would make me feel good if the business half of the...well, business were forced to own up for their actions. It might even launch GW into the new millennium on the numerous fronts (information age technology and culture, and law both come to mind) that it has been lagging behind in, if one were to take the very optimistic point of view.

Also, to keep going toward the infinitesimally improbable, it will also lead to Andy Chambers coming back. :D

[wittdooley]

As a curious note, I mentioned earlier that when I did order from Chapterhouse many moons ago when they were first starting, the molds were crap. How are they now? Quality resin? Air bubbles?

[chapterhousestudios]

My company, Chapterhouse Studios LLC, has been very fortunate to locate pro-bono council with the help of a few of our customers. Those customers have intensive legal background as well as connections that helped us find a firm that believes in our case enough to support us.

Thanks to some friends good advice and experience we have a legal agreement for Winston & Strawn LLP - http://winstonandstrawn.com/ to represent us in our case.

I consider myself very lucky to have three attorneys from the firm willing to be our representatives during the case and any other negotiations with Games Workshop. The lead on the case Jennifer Golinveaux has some major experience behind her, and I am confident that with her teams help we will come out of this experience in great shape.

For everyone who has given their support, I really do appreciate it. I will do my best to let everyone know what happens (as much as is ok with the attorneys).

For those who swore up and down that GW was going to shut us down, bury us in legal fees and we had no chance to win since we were obviously in the wrong... I know the firm and attorneys representing us do not think that will happen, and they know much more about IP laws then we do.

Sincerely,
Nick Villacci
Chapterhouse Studios LLC

[scadugenga]

Best of luck, Nick.

You make some seriously cool stuff that GW has shown year after year to have no interest in creating.