GW sues Chapterhouse

[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[ing] 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. 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.

[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 - [url]http://winstonandstrawn.com/[/url] 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.