Games Workshop vs Chapterhouse Document Dump

[Nabterayl]

I don't think they'd want a precedent set, as it may then rule out the possibility of them threatening other companies to cease trading. I suspect the reasons they didn't want to buy out Chapterhouse are two-fold: (1) They don't want to encourage/support 3rd party bits makers ("Hey, GW bought CH, maybe if I make GW bits they'll buy my company" and (2) the legal action would have been cheaper, assuming of course CH just folded like everyone else. They've probably spent more than a buy-out at this stage, but I doubt they ever expected it to get to this stage.

I don't think money's the issue. If it were, GW could always have settled by now - I have a hard time imagining CHS being so sure of its merits as to not accept a settlement. To my mind, GW is acting like it wants to hammer the third-party bits industry (or at least upgrade the hammer it has available), and the only way to do that is to carry a lawsuit through.

Does anybody have a link to the Second Revised Copyright Claim Chart? Be interested to know what GW was trying to withdraw, and whether it's significant that the court didn't allow them to do so without prejudice.

[Caitsidhe]

The rulings so far were exactly as I expected them to be. Now it will go to the jury (where the Pro Bono Chapterhouse Lawyers will have a field day). Proving that Chapterhouse "copied" Games Workshop in the legal definition of the word is going to be a very hard sell. The precedent likely to be set by the end is what kind of deviations clearly protect spin-off works, i.e. what size and proportional differences are required. This is the last thing Games Workshop should want. It means, win or lose this particular case, that the floodgates are wide open. Anyone wanting to follow in the steps of Chapterhouse knows exactly what to do to be within the precedent, i.e. be like Games Workshop without them being able to legally win.

I happen to think that the final court outcome will be a split too with minor corrective action (if any) against Chapterhouse and no damages of importance whatsoever awarded for Games Workshop. They will only eat the massive legal fees, while Chapterhouse won't owe a cent to its Lawyers. More to the point (and it bears noting) that the firm that took this case Pro-Bono saw financial gain in it, i.e. a way to recoup huge legal fees from Games Workshop. They are in it to win it, and clearly believe that they will. I think they have a very good chance of it actually, but my bet is still on the split call.

[DrLove42]

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.

[Caitsidhe]

If CHS win its a sad day for common sense.

We disagree. It could be cultural. The United States believes in competition for better prices and product. Chapterhouse only exists because Games Workshop left a niche for them. They have NO ONE to blame but themselves. They owned the market entirely and instead of taking the steps to ensure that this would remain so, they followed a different path and created the very situations which led to the creation of Chapterhouse and all the others like it (and those that will surpass).

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.

This has always been the standard of any and EVERY industry. Everyone stands on the shoulders of giants to achieve their goals. Games Workshop is no different. It suffices to say that Games Worship STILL has the brand name and tools to CRUSH their opponents within two quarters simply by cutting costs and driving would-be competitors out of business. They can do this because they have the production means to produce product cheaper, the distribution network, and brand identity.

They are playing a dangerous game. They want it ALL. They want to continue to charge prices as if they are the only game in town and release their product if/when they feel like it. They want their would-be competition driven out of business by the courts rather than by competition. Greed; it will get you every time. Times change. The world moves on. Commonsense, that you talk about, is about using the most efficient tactics, i.e. doing those things which will result in the outcome you want. Who is demonstrating a lack of commonsense?

[Nabterayl]

The rulings so far were exactly as I expected them to be. Now it will go to the jury (where the Pro Bono Chapterhouse Lawyers will have a field day). Proving that Chapterhouse "copied" Games Workshop in the legal definition of the word is going to be a very hard sell.

I'm not sure I agree with this. If the jury finds that a Chapterhouse work looks like a copy of a Games Workshop work - and I don't know if they will for any given work, but I don't think it's far-fetched to imagine - then the burden of proof shifts to Chapterhouse to prove that it didn't copy. Proving that you didn't copy something is just as hard, if not harder, as proving that somebody else did copy something. I do doubt that GW can prove that CHS copied, but I also doubt that CHS can prove it didn't. So I expect what it will come down to is who has the burden of proof, which in turn comes down to how similar the jury thinks the works look. I can see that going either way.

The precedent likely to be set by the end is what kind of deviations clearly protect spin-off works, i.e. what size and proportional differences are required. This is the last thing Games Workshop should want. It means, win or lose this particular case, that the floodgates are wide open. Anyone wanting to follow in the steps of Chapterhouse knows exactly what to do to be within the precedent, i.e. be like Games Workshop without them being able to legally win.

I think it's premature to say that the floodgates "are wide open." I think that setting a precedent as to what kind of deviations are permitted is actually what both parties want. The difference is that GW wants a precedent that only very large deviations are permitted, whereas CHS wants a precedent that even very small deviations are permitted.

I happen to think that the final court outcome will be a split too with minor corrective action (if any) against Chapterhouse and no damages of importance whatsoever awarded for Games Workshop. They will only eat the massive legal fees, while Chapterhouse won't owe a cent to its Lawyers. More to the point (and it bears noting) that the firm that took this case Pro-Bono saw financial gain in it, i.e. a way to recoup huge legal fees from Games Workshop. They are in it to win it, and clearly believe that they will. I think they have a very good chance of it actually, but my bet is still on the split call.

I agree that it's highly unlikely for either side to prevail on 100% of its remaining claims. Bear in mind, though, that there are reasons for a firm to take on a pro bono case other than being awarded attorney's fees. I don't think Winston & Strawn is actually very likely to win attorney's fees in this case. Attorney's fees are generally only awarded when a court thinks the losing side was wasting everybody else's time, and if Judge Kennelly thought GW was wasting everybody's time, he likely would have just granted summary judgment for CHS. Even if it eats its own costs, though, Winston & Strawn has a very interesting copyright and trademark case to add to its IP group's portfolio. Interesting copyright and trademark cases don't come along every day, so just being involved in this case is a feather in their professional cap.

If CHS win its a sad day for common sense.

Speaking with my lawyer hat on, "win" is too broad a term. Suppose Chapterhouse is found to have infringed the copyright of 50% of the accused works and found not to have infringed any trademarks. Is that a "win" for CHS? For GW? What if they are found to have infringed all the copyrights but none of the trademarks, or all of the trademarks but none of the copyrights? There are a lot of possible outcomes here that are only a "win" or a "loss" from a particular point of view.

EDIT: Bear in mind, too, that the merits of a case are not necessarily connected to who wins in a jury trial. I think (and I think most other lawyers think) that juries generally take their jobs seriously, but that doesn't mean they're good at it. It's always true that who will win is different from who should win, but even moreso when you're past the summary judgment stage and into "what do regular people think?" land.

[Caitsidhe]

I'm not sure I agree with this. If the jury finds that a Chapterhouse work looks like a copy of a Games Workshop work - and I don't know if they will for any given work, but I don't think it's far-fetched to imagine - then the burden of proof shifts to Chapterhouse to prove that it didn't copy. Proving that you didn't copy something is just as hard, if not harder, as proving that somebody else did copy something. I do doubt that GW can prove that CHS copied, but I also doubt that CHS can prove it didn't. So I expect what it will come down to is who has the burden of proof, which in turn comes down to how similar the jury thinks the works look. I can see that going either way.

These are fair points, but then again we don't disagree on much anyway. The ironic (and funny) thing about this comparison is that Chapterhouse will actually BENEFIT from what some claim is their poor quality workmanship in this case. Most Chapterhouse products that look even a little like Games Workshop products are largely inferior in quality and thus look substantially different. The best quality Chapterhouse stuff either hit the market BEFORE Games Workshop (like their Jump Packs) or represents original models or other things not yet released. I buy from lots of different vendors and I have tons of Games Workshop product and some Chapterhouse stuff. It suffices to say that NOBODY is going to confuse the two.

I think it's premature to say that the floodgates "are wide open." I think that setting a precedent as to what kind of deviations are permitted is actually what both parties want. The difference is that GW wants a precedent that only very large deviations are permitted, whereas CHS wants a precedent that even very small deviations are permitted.

This is also a fair point but I think this is very likely to go toward Chapterhouse's desires as it does in most other industries. You don't have to change very much in music or art to make it your own. It is unlikely that toy soldiers will get greater protection. More to the point, this is a case involving international law, and you know better than I that they will tend to avoid the larger strokes in the final rulings for this very reason. I think Games Workshop was unwise because none of the likely outcomes are very good for them. I think there are lots of companies itching to get into the market but unlike Chapterhouse have been held back by legal concerns. Once those lines are clearly drawn (broad or narrow) they will jump in and the number of competitors is going to increase a great deal.

I agree that it's highly unlikely for either side to prevail on 100% of its remaining claims. Bear in mind, though, that there are reasons for a firm to take on a pro bono case other than being awarded attorney's fees. I don't think Winston & Strawn is actually very likely to win attorney's fees in this case. Attorney's fees are generally only awarded when a court thinks the losing side was wasting everybody else's time, and if Judge Kennelly thought GW was wasting everybody's time, he likely would have just granted summary judgment for CHS. Even if it eats its own costs, though, Winston & Strawn has a very interesting copyright and trademark case to add to its IP group's portfolio. Interesting copyright and trademark cases don't come along every day, so just being involved in this case is a feather in their professional cap.

You are correct. I honestly don't think Winston & Strawn jumped in for the cash (although they will certainly get it if they can) but rather because they think they can win and put that symbolic feather in their cap. That feather translates into more money in other cases down the line. The best advertisement for a law firm is a winning record, so most take Pro Bono they think they can win. I am one of the "regular people" but I tend to read up on things I comment about. I am at best a well-read layman, but I pay attention to what you and other actual lawyers say. I happen to be very interested in the difference between good "Trial" lawyers versus good lawyers. In that respect, Chapterhouse has a clear advantage. Games Workshop would do well to employ American lawyers for the actual trial, i.e. those who are good at "working" a jury. The last thing Games Workshop needs in an already difficult case is to add cultural disparity in how one wins over a jury.

[Mr Mystery]

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.

If CH are unable, or unwilling to show their working, how would that affect things?

As for GW's lawyers, I'm sure they are using a major US firm, a rival of CH's team?

[Psychosplodge]

The best quality Chapterhouse stuff either hit the market BEFORE Games Workshop (like their Jump Packs)

They just look like the Original (really old) GW jump pack...

[Caitsidhe]

They just look like the Original (really old) GW jump pack...

Ah but therein lies the problem. Games Workshop hasn't shown they own the copyright to that. All those sub-contractors or employees muddy the water. I agree it looks like how most of us conceptualize pre-Heresy Jump Packs. It is why I bought them (they are good), but ownership of said idea has not been shown to belong to Games Workshop, nor is it likely to do so. Twin Turbines on a backpack has been around a LONG time, all the way back to the 30s and 40s at least.

I highly suggest the Chapterhouse ones if you are using magnets. The material they are made with drills easily and sinking little magnets in is a breeze. Once the chaff is trimmed off they sit very well on the back. I use them with a variety of Cult Troops, so I can have Mark of Khorne Raptors or Mark of Nurgle Raptors. You get the idea. I magnetize everything so I can swap out heads, weapons, backpacks, or whatever. It allows me (as a CSM player) maximum options without having to buy as many models.

[Mr Mystery]

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