Chapterhouse Motion to Dismiss

[eldargal]

From memory it was a fairly sold chunk of text on the bottom of the mainpage, and perhaps other pages too. It wasn't small, but it didn't stand out.

[Faultie]

According to the waybackmachine, as far back as 7 June 2009, the disclaimer was as such:

Space Marine is a registered trademark of Games Workshop. Chapterhouse Studios has no affiliation with the Games Workshop. Throughout our website and miniature catalog these terms are used for identification purposes only.

[Old_Paladin]

Thanks Faultie and Eldargal; now I now why I'd never seen it before.
It was on every page; but it was only two lines.
I think GW will fight it for being small and vague; but chapterhouse should be alright. I have a feeling GW might even take the rout of saying, "We're not 'the Games Workshop' We are "Games Workshop Ltd." the 'the games workshop' could be a local gaming den; you have to use a companies full and proper name for it to be valid."
Edit:
Actually, they will fight this for being vague; their IP claims state that they desire every individual peice of their IP to be listed with its proper name seperately.


Weeble: Thank you for the offer to discuss the other comment. I'll read and respond when I have time.


Wow, I just read all that again; I sound like a completely different person.

[Denzark]

Old Paladin

Don't think doing a u-turn means anything at all - your earlier comments are quite correct - GW aren't doing this for nothing - they will probably fight to the end.

The hurried re-organisation to bits of the CHS website (can't be arsed to list them as they have been done to death) only looks guilty, and most of the rational members of the BoLS community have a lack of sympathy for companies that for whatever reason can't go the generic naming route of maxmini et al.

I think anything less than a total win for CHS will be pretty drastic. By which I mean if most but not all of GW claims are satisfied, but the judge awards costs to GW on the balance of judgement, stand by CHS.

Lets look at possible outcomes - by which I mean second order effects, not the actual case judgements.

CHS wins? GW takes a small hit, they carry on and a whole lot of 3rd party companies act like tics sucking off the back of the dog - the varying standards may piss people off but hey you get what you vote for. GW may even decide the US market is bust and go back to how it was early 90's - majority of UK (Euro) sales with very few importers, so as to deal with Eurpoean/UK standards of law.

GW wins? Strengthens their hand, protects IP, lack of impact to the company, which even with all its well publicised faults, has done more for wargaming than CHS will ever do in 1000 years.

Either way to be honest, the gamer is the winner at least in the short term.

Quite frankly the best bit of the outcome, is that Weeble can come on here, either crow about it or have sour grapes, and analyse the whole thing in his excruciatingly earnest detail, before fading back into low post count obscurity from whence he came - he only comes on not to contribute to the BoLS community but to fly the flag as a CHS proxy (funny how they have quietened down, obviously busy paying back all the donations like they said they would now they have free legal) and ram his opinion of GW doom down our throats.

[weeble1000]

Otherwise, we all know what they mean by their claim and chapterhouse knows where they did wrong; but I suppose that clarification wouldn't hurt, if chapterhouses defense is to play dumb, like they don't know what's going on.

I edited my previous post responding to the first portion of Paladin's post. At this point it is on an earlier page of the thread

How can you say that Chapterhouse knows where it did wrong? To my understanding, Chapterhouse Studios did everything it believed was necessary to respect Games Workshop's rights while similarly exercising its own. Even if Chapterhouse Studios is found to have been wrong in a few instances, it doesn't mean that it knew it was doing wrong to Games Workshop. Now, my personal belief is that in this situation Games Workshop is the party inflicting harm. Moreover, I believe Games Workshop's intent from the outset was to drive Chapterhouse Studios out of business.

Chapterouse isn't "playing dumb" by asking the court to require Games Workshop to specify its claims or dismiss the lawsuit. It is more than reasonable for Chapterhosue to be unable to intelligently respond to the complaint as it stands. Given the wording in the complaint, every one of Chapterhouse's 106 products is accused of infringing every work associated with the Warhammer and Warhammer 40,000 fictional universes and even a blanket claim on the character of the universes. This would mean that the super-heavy walker, for example, individually infringes every work that Games Workshop has produced. Does the super heavy walker infringe the Carnifex, the Leman Russ Battle Tank, the Gaunt's Ghosts novels, or the Ultramarines movie? You can argue that it isn't reasonable to believe that the super heavy walker infringes those works, and I agree. However, Games Workshop did not specify that the super heavy walker wasn't accused of infringing Col. Commissar Ibram Gaunt. Chapterhouse Studios has a responsibility to respond to every specific claim in the complaint and it needs to know what those claims are.

How can you argue with copyright authority Bill Patry? The man says that "if plaintiffs know 669 sound recordings have been infringed, they owe a duty of fair notice to specify each one." It doesn't matter if the complaint will be 1,000 pages long, the plaintiff has a duty to give the defendant fair notice of all claims. Just consider the flip side. How long would Chapterhouse's answer have to be in order to meet its duty to individually respond to all claims in the complaint? Would it be fair for Chapterhouse to assume that Games Workshop wasn't accusing a product of infringing something, and thus not answer that claim, and then have Games Workshop argue that the claim is uncontested?

[weeble1000]

Actually, they will fight this for being vague; their IP claims state that they desire every individual peice of their IP to be listed with its proper name seperately.

The key here Paladin is "their IP claims," meaning what Games Workshop tells people to do. The way that Games Workshop wants people to interpret the law is not necessarily the way that the laws are properly interpreted. Sure, it is very precise to list every mark separately with its proper name, but this is in no way a legal requirement. It isn't as if not doing this automatically means you are infringing. In point of fact, you don't even need a disclaimer to avoid infringement.

The flip side is that a disclaimer doesn't guarantee that you don't infringe. It can often be compelling evidence to the contrary, but it isn't a win button. It is certainly fair to say that Games Workshop wouldn't think that Chapterhouse's disclaimer is sufficient, but my point is that Games Workshop won't offer this as evidence of infringement. If Games Workshop discusses it, it will be addressing one aspect of Chapterhouse's defenses to trademark infringement. It is not itself evidence of infringement. I think it is important to highlight that distinction.

This is a summary of Chapterhouse's response to the derivative works argument:


Games Workshop did accuse Chapterhouse of infringing its exclusive right to produce derivative works, but Chapterhouse attacked that claim directly, arguing that Games Workshop has failed to adequately plead such a claim. This is a little complicated, but the idea is that the statute of derivative work is very specific and requires specificity in the claim.

In order to be a derivative work, a product must either be in a form specifically mentioned in the statute (a translation, musical arrangement, dramatization, fictionalization, motion picture version, sound recording, art reproduction, abridgment, condensation) or it must "recast, transform, or adapt" another work. Chapterhouse cited precedents which state that a work is not derivative "simply because it is 'based on'...preexisting works," and that "[a] work is not derivative unless it has been substantially copied from the prior copyrighted work."

Based on this precedent, Chapterhouse argues that Games Workshop, "merely alleges that Chapterhouse Studios’s products are 'derived from' and 'inspired by' Plaintiff’s works. Compl. ¶¶ 30, 34." Chapterhouse Studios argues that this does not meet the legal definition of a derivative work. "To the extent Plaintiff relies on a theory that any work having anything whatsoever to do with another is ipso facto a derivative work, its allegations fail at the pleading stage. This 'but-for' interpretation of the derivative works right has no basis. Even if it were assumed, for the sake of argument, that Chapterhouse Studios’s products were 'inspired by' Plaintiff’s alleged works, inspiration is not infringement."

Interestingly, Chapterhouse also argues that any derivative claim is implausible on its face because the only works directly mentioned in any way by Games Workshop are literary works. Chapterhouse argues that it is implausible to argue that a sculptural work of art (which constitutes all 106 of Chapterhouse Studios's products) is "recast, transformed, or adapted from" a literary work. In essence, you can't "recast" a novel into a sculpture, transform a novel into a sculpture, or adapt a novel into a sculpture. The implication is that this is especially true given that Games Workshop did not specify which portion of the identified works are infringed. One must then assume, for example, that the "Soul Drinkers" novel in its entirety has been recast into Chapterhouse's super-heavy walker, the only product specifically mentioned in the complaint.

[Old_Paladin]

For your first section;
Perhaps I could have been clearer; but, you've taken my word 'wrong' out of context of the sentence, and you've taken the sentences out of context of the paragraph.

What I mean is 'Chapterhouse should know which of its actions have provoked GW.' Calling it a 'Blood Raven Shoulderpad' is the 'wrong' in that GW will be very protective of its Blood Ravens. With goes to the greater paragraph's point that GW might have been vague, but we all know that copyrights are actually being claimed. They are going to reference the Tau codex against the super-heavy walker, they are going to reference specific pages in Codex Space Marines when going after copyrights for 'storm shields' 'thunderhammers' 'jump-packs' etc.
As the above is both logical, and honestly we can all tell that's what they mean; it is 'playing stupid.' To act like you're unsure how a "Space Wolves Storm Shield" might be... I don't know... taking a printed idea from the equipment section of Codex: Space Wolves...
But like I said before, It'd probably be a good thing if GW had to simply come out and label all the sections from their Codex’s, White Dwarves, Novels and pictures from their websites that correspond to each item of chapterhouse.



As to the next part; once again I feel your are completely incorrect about copyrights and 'art'
A copywrite applies to the work as a whole AND IN PART (plagiarism). Like I've said; proper names in a book can be taken completely independent of the rest of the work. You are stealing from LoTR if you use the name "Frodo Baggins"
There are exceptions, like "fair use" and "parody/satire" but Chapterhouse is not reviewing GW products to be covered by 'fair use' nor are they making fun of any iconic references in the GW universe to be covered by parody.
You are also wrong about the ability to transfer 'art' into different mediums. The simplest example to show you is novel to movie; that's why they are called 'The movie ADAPTation of the novel.' And GW currently owns the "miniature adaptation of a movie (LoTR)", which is a film adaptation of a novel (by the same name).

GW also has a strong argument for chapterhouses works being copies. Once again, I'll state that their copies are NOT direct remoldings/press casts/etc., they ARE all done freehand.
But, I'll give you the oxfords English dictionary (c) 2001; definition of Copy:
1) Things made to look identical or SIMILAR TO another
2) IMATATE the style OF
The labeling on chapterhouses website makes it clear what we're supposed to think this things are, and they look very similar to GW's own; they are freehand COPIES of another person(s) work.
Just like a forgery of a Rembrandt or Picasso; those clearly aren't scans/press molds/etc. but they are copies, even if done freehand or through the talent of the forger.

[weeble1000]

Paladin, you are missing my point that there is a distinction, very clear and unambiguous, between copyrights and trademarks. It is also often easy to draw a clear distinction between copyrighted works. The phrase "Space Marine" is a Games Workshop trademark. The phrase "Storm Shield" may be a Games Workshop copyright. The storm shield models are all distinct works that may also be Games Workshop copyrights, assuming they are considered to be distinct sculptures that stand apart from the whole models with which they are designed to be assembled. Games Workshop should not be able to enforce a copyright on the collective concept of storm shields. You cannot copyright a concept.

A product's labeling has nothing to do with whether or not it infringes a copyright. And, by the way, it is copyright, not copywrite. I normally wouldn't go out of my way to point this out, but as you are clearly having difficulty even spelling the term correctly, you might want to seriously consider how much you genuinely know about copyright law. A copyright gives one the right to copy the protected work. It is a little broader than the ability to copy that which you write.

I don't think I took your words out of context. You wrote: "Otherwise, we all know what they mean by their claim and chapterhouse knows where they did wrong..." In the context of whether or not Games Workshop's complaint should require specification, I think it was only reasonable of me to assume that by "Chapterhouse knows where they did wrong" you meant that Chapterhouse should be able to tell which of Games Workshop's works its products infringe without having to have it spelled out in the complaint.

To this I essentially responded that it is impossible for Chapterhouse Studios to know which of Games Workshop's works its products are accused of infringing and it would be unreasonable for Chapterhouse to make assumptions about that.

In no way did the context of what you wrote indicate to me that you meant Chapterhouse knows what provoked Games Workshop. I'm sure Chapterhouse Studios knows exactly what upset Games Workshop. But whether or not Chapterhouse knows what upset Games Workshop has nothing to do with whether or not Games Workshop should be legally required to be specific about its accusations of copyright infringement.

As to your "next part."

What I've said in the past, and to which I think you are referring, is that visual works of art are typically, as in a whole lot of precedent that one can reasonably assume will be followed in this case, considered in their entirety as the works have little use or meaning when arbitrarily divided. Written works are handled somewhat differently. A written work can often be broken down in terms of the narrative structure, the characters, specific descriptive language, etc. These things typically have meaning outside of the context of the whole work. A character, for example, is in a certain sense greater than the sum of its parts, and you can copy the unique narrative structure of a novel or play without exactly copying the words or using the same characters.

An interesting example often discussed by copyright attorneys is Romeo and Juliet versus West Side Story. Now, Romeo and Juliet is not subject to copyright, but if you pretend that it was, you could say that Shakespeare could have claimed that West Side Story is a derivative work. This is because the narrative structure of West Side Story is almost exactly parallel to Romeo and Juliet. Shakespeare could have argued that the play is more of an adaptation of Romeo and Juliet than a work that was inspired by Romeo and Juliet.

The plain and ordinary meaning of "copy" is not at issue here. The issue in the GW v Chapterhouse Studios lawsuit is copyright infringement. There are reams of writing about copyright law, what it means, what is protected, how you are required to make an allegation of infringement, etc. etc.

Specifically, we are talking about Games Workshop's derivative works claim. This is a very specific type of copyright infringement. The idea is that if you own a copyright, you also own rights to works that are derived from the base copyright. The relevant question is thus not "is Defendant's work A a copy of Plaintiff's work B," but instead, "is Defendant's work A derivative of Plaintiff's copyrighted work B?"

To make that determination you have to consider the legal definition of a derivative work, which I have copied below:

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).

So, a derivative work must be one of the examples cited in the above rule (translation, musical arrangement, fictionalization, motion-picture version, abridgment) or it must be a recast, transformed, or adapted from the original copyright. You have to have taken the original copyright and changed it into the version that you created in order for it to be derivative.

So a translation is derivative because it is the same work transformed into a new language. An abridgment is a derivative work because it is the same thing transformed into a condensed version. A motion-picture version is a derivative work because it transforms a written work into a screenplay. The narrative is the same, the characters are based on characters in the original work, etc. etc. Similarly, a fictionalization recasts the original story as a fictional narrative. In all such cases, the derivative work is substantially similar to the root copyright, and for the most part the medium is substantially similar or exactly the same. The furthest you get is a motion-picture version, but remember that a motion-picture is based on a screenplay and it is still a narrative with a story, scenes, characters, rising action, falling action, a climax, etc.

Explain to me then how a sculptural work of art is a "recast, transformed, or adapted" version of a novel? Not only is the medium entirely changed, but it lacks all of the essential elements that give a novel meaning. Bear in mind that implicit in the legal definition of a derivative work is the concept of same or similar medium. Recast implies the same or similar medium. Transformed implies the same or similar medium. Adapted from is as close as you get to a different medium, but an adaptation implies maintaining the original meaning or intent of the work, which is difficult across substantially different mediums. So too are all of the examples cited in the rule derived from the same or similar medium.

On a final note, an artistic forgery is only a forgery if you claim that it was done by the original artist. Of course, most works by the masters are not subject to copyright, but in the world of fine art, it is difficult to copy something without actually copying it. Andy Warhol never got a license from the Campell Soup Company.

It is also interesting to note that late last year the Ninth Circuit reversed the lower court's ruling in the Bratz-Barbie case. The federal circuit explained the distinction between protectable and unprotectable elements of a design and the difference between the copyrightable expression of ideas and the noncopyrightable ideas themselves.

[Denzark]

yawn.

[Old_Paladin]

OK I'm done with you Weeble;
...

For everyone else on BoLS:
I wish you all fun gaming, keep up the great painting and conversion work; win as much as you can (if that's your thing), keep a watchful eye for eldargal saying naughty things, and maybe one day Mal will get a good SoB codex that is both full of fluff and plays the way she thinks it should (and with models that rock).
I'll not be posting here again.