Games Workshop vs Chapterhouse Document Dump

[Mr Mystery]

Given he was bragging he'd 'found a way to circumvent' copyright, and told all and sundry, and one of his sculptors confirmed he was told to use GW IP.....

[Nabterayl]

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."

Well, maybe. We don't know what GW turned up in discovery (that's the phase of litigation where each side is allowed to require the other to turn over relevant evidence). CHS' communications - internally, with its sculptors, online, etc. - could certainly make the difference between a juror saying, "I don't know, they both just look like generic shoulder pads to me" and "Oh, I think this is trying to be a copy of that, even if I don't know enough about toy soldiers for it to strike me intuitively that this is a copy." We don't know what evidence each side is planning to submit at trial, and we don't know the makeup of the jury - without those things, I don't think we have enough information to speculate on how the jury will go.

If you gave me two helmets, say, from some market I'd never heard of and said, "Look, Item A is clearly a copy of Item B!" I might well go, "I dunno ... I mean, they're both helmets, but otherwise they don't look that similar." If you also showed me an e-mail from the sculptor of Item A that said, "Hey, about our project to produce our own copies of Item B ... I came up with Item A; what do you think?" that would ... certainly at least incline me to believe that A is a copy of B, even if I don't know enough to tell that from the objects themselves.

[inquisitorsog]

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.

I don't think you're reading my comment as intended. He interpreted the law as is. The result of that is that incentives are preserved. This keeps Judge Kennelley's interpretation firmly in line with the germ of US IP law found in the US Constitution, which is to promote progress in arts and sciences.

[Mr Mystery]

Given the evidence we know about, I don't see CH walking away from this.

Even if found guilty(? Not sure of correct term) on only some, the damages GW would likely press for could well bury them.

As for other bits manufacturers, whilst they aren't dumb enough to use another company's trademarks, we may see fewer. When CH lose, it's very unlikely anyone else would get pro-bono representation. There is a reason a cease and desist usually does the trick. Few small companies can foot the bill of a legal challenge.

And as for 'traditional methods' suing someone using your IP is traditional. Not really seeing the David and Goliath thing here. It's not as if GW are in the wrong, and seek to use their muscle to shut down other games ala Microsoft.

[Denzark]

I don't think you're reading my comment as intended. He interpreted the law as is. The result of that is that incentives are preserved. This keeps Judge Kennelley's interpretation firmly in line with the germ of US IP law found in the US Constitution, which is to promote progress in arts and sciences.

Given that under the International Treaty quoted often in this case (can't remember the name) that states this is being looked at under UK IP law, how is this relevant?

[inquisitorsog]

As for other bits manufacturers, whilst they aren't dumb enough to use another company's trademarks, we may see fewer.

From what I saw of the summary judgements, CHS is winning most (not all) contention points on trademarks so far and may continue to do so. Contrary to GWs position, you ARE often allowed to display someone else's trademarks if the purpose of doing so is to make reference to that someone or their products and you're not trying to confuse others as to who is who. Even to the extent of saying "my product is compatible with their product".

CHS is going to run into problems on the copyright front. That's a whole other ball game and the summary judgements probably favored GW somewhat more than CHS.

[Nabterayl]

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.

Hmmm ... not sure I follow you here. It's true that it doesn't take much to make something copyrightable. However, you can't just transfer copyright from somebody by making changes to it. For instance, GW owns the copyright to their space marine pauldron design (well, designs, but let's just take one for now). If I copy that pauldron and decorate it with a totally original piece of artwork, we now have a sort of hybrid: I own the copyright to my artwork, GW owns the copyright to the pauldron, and neither of us can use the full object without the other's permission. If I tried to sell my Nabterayl Pauldrons, I'd be infringing GW's copyright (in the pauldron); by the same token, if GW tried to sell my Nabterayl Pauldrons, it would be infringing mine (in the decoration).

So here's how I see the merits of the case - which may or may not be how the jury finds:

1. Chapterhouse has infringed GW's copyright with respect to GW bits that (i) had publicly available 2D or 3D representations at the time CHS created the accused product, and (ii) are unique enough to be copyrightable in the first place.
2. Chapterhouse has not infringed any, or very few, of GW's trademarks.

Re: #1, I don't have a copy of the claim chart so I don't know what precisely CHS is accused of copying. But I think their space marine shoulder pads, for instance, are infringing with respect to the underlying pauldron design (neither GW nor CHS magically owns the copyright to the whole shoulder pad bit, but CHS still can't sell it without GW's permission). I doubt their variant thunder hammers are infringing (I'm not positive - again without seeing the claim chart - that GW thunder hammers are copyrightable, and in any case, I don't think CHS' thunder hammers are based on GW's). But the key principle here is that a bit cannot incorporate a distinctive GW design - no re-decorated shoulder pads or Mk. VII helmets, for instance.

If a visual design doesn't exist (even 2D artwork) but a textual description does, then creating a bit to match that description will most of the time, I expect, be un-provable copying. For instance, if GW creates a new monstrous creature in a codex for which there is neither artwork nor model, I think a company could safely (though not legally) create a bit or kit to create or convert that new MC. Now, mind, this would still be copying - the textual description is copyrighted, and a sculptor who sits down with that description and asks, "How can I give this description three dimensional form?" is totally copying the text. Likely it's provable, too - you can always ask the sculptor, "Did you create this kit to give this textual description three-dimensional form?" and unless he perjures himself, you've got your evidence. But so long as the company engaging in this completely illegal activity is smart enough to advertise the kit in sufficiently generic terms, I imagine it will be too much of a pain to track down this kind of infringement. Just say, "Can be combined with GW kits to create a flying alien egg-carrying space snake!" instead of "Can be combined with GW kits to create a <insert name of new MC here>!" You're still infringing, but I imagine that will get you under the radar most of the time.

I should distinguish this from creating bits or kits to create units for which no description exists, either visual or textual. For instance, if GW describes how a new tyranid monstrous creature has three fanged maws on an armored serpentine body with twelve scythe-tipped arms and a tail that drips acid with leathery bat wings from which hang bulbous egg sacs, that's one thing. Sitting down with that description to create your own model of it - even if GW hasn't produced one yet - is totally copyright infringement. But if instead the text gives no description of what the creature looks like, instead describing how it sails through the air looking for Imperial Guardsmen to decapitate so its young can play basketball with their heads ... well, you can sit down to create your own model of that description all day long.

As to trademark, I don't think GW's claims have much merit. Ordinary people might look at a CHS bit and confuse it with a GW bit. But the people who actually buy this stuff - that is, the actual consumers who would need to be confused - are more discerning than that, I think.

[inquisitorsog]

Given that under the International Treaty quoted often in this case (can't remember the name) that states this is being looked at under UK IP law, how is this relevant?

You have an American judge performing that interpretation. He comes from a legal background in which IP law has grown out of a different purpose than that of the UK. The UK has never been able to escape the notion of royal monopolies and it's very much reflecting in the conversation here.

[Caitsidhe]

Hmmm ... not sure I follow you here. uy[/i]

What I'm getting at is that if someone wants to copy but is smart about it, there is no way to prove it is a copy. For example, if Chapterhouse was idiotic enough to directly copy a shoulder pad by using a mold and then just altering the decoration on it, they will certainly be made fools of in court. However, if their shoulder pads are different sizes and dimensions with different decorations, they are not Games Workshop shoulder pads. What I'm pointing out is that most Juries do take their job seriously (emotional or not) and most will not rule against someone based on the basis of intentions. If they are going to rule for Games Workshop saying something is clearly a copy, they will do so based solely on the physicality of the item.

I'm making the argument that is far easier to copy something in spirit without copying that thing in physical fact. It is, in fact, much easier to do than it is for someone to prove that "spiritual" copying or intention. While the conversation has moved away from "after market product" I think it will come back in a big way at trial. I think that is REALLY the crux of the matter. Americans have that right. They are used to having that right. They will (right or wrong) see this case as a battle between being forced to buy everything from the dealership or have other options. It will go against their gut. In that mindset they will be VERY demanding about proof of copying because they won't want to rule for Games Workshop.

[Mr Mystery]

You have an American judge performing that interpretation. He comes from a legal background in which IP law has grown out of a different purpose than that of the UK. The UK has never been able to escape the notion of royal monopolies and it's very much reflecting in the conversation here.

Monopolies and Mergers commission would beg to differ on that one.

UK IP law essentially means if I create something, I automatically own all possible representations of it.