Games Workshop vs Chapterhouse Document Dump

[Psychosplodge]

I've got the one original, that's fine for making my chaplain stand out...

[Nabterayl]

Most Chapterhouse products that look even a little like Games Workshop products are largely inferior in quality and thus look substantially different.

That's an interesting argument, though I think it's more apposite to the trademark claims than copyright. If I drew a space marine, it would be a poor quality drawing (because I'm not very good at drawing), but it would probably still be clear I was trying to draw a space marine. Unlikely that anybody would confuse my work for GW's, and thus unlikely that I infringed GW's trademark. But I was still copying a space marine even if I did a bad job of it, so I likely did infringe GW's copyright. I think that's the most natural way to take the "CHS' work is poor quality" line of thinking. Pushing it beyond that to "this stuff is such crap that I can't even tell what they were trying to copy" is certainly possible, but would be much more of a stretch.

More to the point, this is a case involving international law

It does technically, but not on the main points. Now Judge Kennelly has gotten the question of who owns the copyrights out of the way (well, except for Smith's, which will need to be decided at trial), the remaining questions are governed by US law. And the big questions - did CHS infringe GW's copyright; did CHS infringe GW's trademark - always were US only.

Games Workshop would do well to employ American lawyers for the actual trial, i.e. those who are good at "working" a jury.

They have, all along. Foley & Lardner is a well respected American firm, based out of Chicago, in the heart of the 7th Circuit (the circuit in which this case is taking place).
[EDIT: Apparently they're actually based out of Milwaukee, though they do have a major office in Chicago, and both cities are in the 7th Circuit.]

All those sub-contractors or employees muddy the water.

I don't have a copy of the claim chart, but CHS did name seven artists who created copyrights at issue in the case back in the '80s. CHS alleged that these seven individuals were the original creators of the art in question, were not GW employees at the time they created the art, and never assigned their copyrights to GW ... and thus they remain the copyright owners, not GW. In his summary judgment order, Judge Kennelly shot CHS down as to six of the seven. The court found that three of the seven were GW employees at the time they created the art (and that they created the art within the scope of their employment), which according to English law makes GW the copyright owner. Another three were found not to have been employees at the time, but found to have assigned their copyrights to GW, which obviously makes GW the copyright owner (GW was able to produce documents from the same time period by which the freelancers sold their copyrights to GW).

As for the seventh (Adrian Smith), he wasn't an employee at the time and GW was not able to find a copyright assignment from the time. Did it once exist, and has just been lost? Maybe. GW was a small company back then, offices were not very computerized, and things do get lost. The jury will decide who owns the copyrights created by this seventh artist. Sadly, without the claims chart or a PACER subscription, I don't know what this seventh guy actually created.

Either way, the majority of the water-muddying as to who exactly owns which copyrights was cleared up by Judge Kennelly's summary judgment order.

Pleb question incoming...

Would GW be able to ask CH for their original sketches etc? We know GW is likely to have several for each piece, such as Jes Goodwin's sketchbook.

Yes indeed. They're allowed to ask for any information CHS has that would be relevant to the case, with very limited exceptions that for our purposes essentially boil down to things CHS said to its lawyers asking for legal advice. So if CHS ever asked a lawyer, "Hey, I think I'm infringing GW's copyright; what do you think?" they would not have to show that conversation to GW. But original sketches, greenstuff masters, and stuff like that is totally fair game. Since those certainly seem relevant to the case, I assume GW has indeed seen those things, but there is no particular reason for them to talk about it yet. All that stuff would go towards whether CHS copied GW, so the proper time to trot that out for observing public would be at trial.

[Caitsidhe]

I recommend using the Forgeworld ones. They're much nicer.

I assume you are talking about the ones on the Mark IV Space Marine Assault Squad? Those are nice, but you can't buy them without the rest. They also don't fit my CSM look. The issue always comes down to a market. There are people who want bits, not entire models. In my case I just wanted 10-15 good looking Jump Packs I could magnetize. Ideally I wanted the Turbine-style to have a Pre-Heresy kind of allure. Neither Games Workshop nor Forge World had what I wanted. Why wouldn't I turn to another vendor?

Don't mistake me for a Chapterhouse fanboy. I only buy the things from them that meet my criteria. They have a LOT of stuff that does not. The Jump Packs are aces for the cost though.

[Caitsidhe]

That's an interesting argument, though I think it's more apposite to the trademark claims than copyright. If I drew a space marine, it would be a poor quality drawing (because I'm not very good at drawing), but it would probably still be clear I was trying to draw a space marine. Unlikely that anybody would confuse my work for GW's, and thus unlikely that I infringed GW's trademark. But I was still copying a space marine even if I did a bad job of it, so I likely did infringe GW's copyright. I think that's the most natural way to take the "CHS' work is poor quality" line of thinking. Pushing it beyond that to "this stuff is such crap that I can't even tell what they were trying to copy" is certainly possible, but would be much more of a stretch.

Yes, but while you and I logically can follow that distinction, the jury will look at the models and bits. We both know they will be brought in as exhibits and handled. Juries are famous (or infamous) for going by what they can understand in a sensory way over what they are told in an intellectual way. What will matter most is how much or how little the products look alike side by side.

I can tell you, having handled them side by side, that they don't look much very much alike.

[Nabterayl]

Oh, so have I. And I know I've been down on juries in my last several posts, but remember, they do have the judge to instruct them in the law (and to ask questions of during deliberations), and most jurors seem to take their job seriously. Maybe they'll understand the judge's instructions and maybe they won't, but if you - a lay person, albeit one who is pretty interested in this stuff - can follow the distinction, there's certainly a chance that the jury will too.

[inquisitorsog]

If CHS win its a sad day for common sense.

But its sets a great standard for the industry. That you can piggyback on someone else artwork and ideas and marketing and work for your own products.

Thankfully, the judge seems inclined to interpret the law and instruct the jury along lines that preserve incentive to create new ideas while disallowing GW from squatting on common images, shapes, and tropes.

CHS got handed a lot of losses already... many of GW's copyright claims have thus far been deemed valid. Unless there's some egregiously bad behavior discovered on GW's part, CHS will probably be parting with some cash at the end of this.

At the same time, GW wants to claim more territory than the law allows and has liberally used the threat of lawsuits to bully others into complying. That HAS been the standard in the larger gaming industry. TSR/Wizards/Hasbro has been doing the same(and worse) for years. It's not good for we, the consumer, anymore than allowing anyone to copy anything.

Overly broad IP law goes from being an incentive to create to being a disincentive as creators only create one thing then sit on their laurels.

[Nabterayl]

Thankfully, the judge seems inclined to interpret the law and instruct the jury along lines that preserve incentive to create new ideas while disallowing GW from squatting on common images, shapes, and tropes.

I ... don't think that's really a fair way to interpret it. The judge has pretty much just interpreted the law as it is. If there was anything surprising in the summary judgment order, it was finding that a sufficiently unusual pauldron is copyrightable - and even that, I think, was always pretty clear.

[Caitsidhe]

Oh, so have I. And I know I've been down on juries in my last several posts, but remember, they do have the judge to instruct them in the law (and to ask questions of during deliberations), and most jurors seem to take their job seriously. Maybe they'll understand the judge's instructions and maybe they won't, but if you - a lay person, albeit one who is pretty interested in this stuff - can follow the distinction, there's certainly a chance that the jury will too.

Perhaps. You still have more faith in the intellectual reaction of a jury than I do. I like people. I think most individuals (educated or not) are far more clever than given credit. I think people as a group tend to be rather stupid. I think that this case will boil down to the bits in hand and Chapterhouse will be singing its own version of "if the glove don't fit you must acquit." I think that in the end people will go with their gut on this (and I don't think they would be wrong in this instinct) to look at the product and decide if it looks like a copy. In the end, I don't think any of us will ever know the INTENTIONS of Chapterhouse. I don't think we can know if they copied or not. I think that unless someone picks up Chapterhouse bits and demonstrate that they are direct molds of Games Workshop products with a few minor changes, Chapterhouse is going to win. Now... that being said... if Chapter house did use molds made from Games Workshop products, I think that can and will be shown. If that is the case they will (and should) lose.

[Mr Mystery]

CH's intentions are all over DakkaDakka, proclaiming he is legally ripping of GW IP and designs...

[Caitsidhe]

CH's intentions are all over DakkaDakka, proclaiming he is legally ripping of GW IP and designs...

If his intention was to "legally" profit from GW's IP and designs, what possible beef can we have? Was Chapterhouse arrogant and obnoxious? Sure. That isn't a crime. Those aren't intentions that matter. What matters is did they COPY and how narrowly is copy going to be applied. In general, it doesn't take much to make something NOT a copy. This is, of course, why we are going to have a trial. The answers to these questions will be coming along at the snail's pace that a legal system provides. I've made my predictions. My summary judgment predictions were on target. I'm willing to go on out an ledge and predict the split final judgement which is largely a win for Chapterhouse. I think that:

1. Chapterhouse will not have to pay any (or any significant) damages.
2. I think Chapterhouse will get instruction and a hand slap about names.
3. I think clear rules about copying for bits and toy soldiers will be fleshed out.
4. I think Chapterhouse will have to pull a tiny number of items and have its rights to several big ones affirmed.
5. I think pro bono Laywers will have a great David & Goliath (small company versus big) case in their portfolio.
6. I think Games Workshop will be out a great deal of money.
7. I think little companies will start producing more bits and models using the guidelines set by the case.
8. I think Games Workshop will be back to square one and have to address competition in traditional ways.