LEGALWATCH: Games Workshop vs Chapterhouse Verdict

I have noticed folks 'round the internets going on about who "won" the GW v CHS case. I dug up some comments by Magistrate Judge Gilbert from way back in September 2011 that help to put this whole thing into context.

Here are the facts about who prevailed on various claims. Note that obviously this is pre-judgment, and the judgement, once entered, will be preliminary and subject to post-trial motions. Then there very well may be an appellate process:

"Together with the summary judgment wins, the jury’s verdict confirmed Chapterhouse can continue to make and sell 111 products that Games Workshop hoped to block using copyright laws, and can continue to use 104 words and phrases that Games Workshop said were trademarked."

Chapterhouse Studios won on 111 copyright claims and 104 trademark claims. That of course does not include the Court finding that none of GW's marks are famous.

For its part, GW won something like 50 copyright claims and 50 trademark claims, according to the BOLS post.

Now, you could say that GW "won" because it won something, but GW's goal was not to win something. GW's goal was to obliterate Chapterhouse Studios.

These comments by Magistrate Judge Gilbert, waaaay back on September 1st, 2011 are very, very enlightening:

You can find it on page 107 of [url=http://ia700405.us.archive.org/18/items/gov.uscourts.ilnd.250791/gov.uscourts.ilnd.250791.163.1.pdf]this document[/url].

THE COURT: And so let's say for the sake of argument
and only for the sake of argument and not as any finding or
anything else that for at least some of your items you're
going to be able to show they're substantially similar and
you're going to be able to put together whatever
circumstantial or even direct evidence in terms of the types
of things you're asking for from the defendant of copying,
okay? And for others it's going to be a little bit dicier.
You're not going to be able to show that they're that similar
and you're not going to be able to -- and maybe the defendant
is going to be able to articulate from whatever diaries he has
or whatever that he came up with the Shakespeare sonnet pretty
much on his own and it's going to be a bit of a reach.
But let say you're going to win on some of this stuff
after you go through all your discovery. What then? If Games
Workshop Limited's goal is to put Chapterhouse Studios out of
business, a death knell, cease and desist, go away, die, and
pay us whatever you can of our attorneys' fees, then you're
right, there is no basis to sit down and settle this case.
However, if you would like to work out some agreement
with Chapterhouse Studios, and I haven't yet heard whether
Chapterhouse is willing to do that, short of "We'll go away
roll up and die," but that allows both of you to go on and
attempt to continue to operate in the areas, the space that
you're operating in in some way without one or the other
having to give up, in the world I live that's called a
settlement, right?

And further down on page 115

- and I'll add in also I would bet with 97 or however
many works we are talking about here that defendant is going
to win some too.
So defendant is going to get some ruling someplace from
Judge Kennelly if this goes all the way through that you don't
have any protectable interest in certain of your works. You
know, there may be some figures, there may be some other
things if you get into a battle on this, that lo and behold
Chapterhouse, which has a profitable business on this, there
is going to be a ruling on the record public in federal
district court in Chicago that you don't have rights to
certain things that you're now asserting rights in.
So let's assume that all that goes down. But with
respect to the things that you win on, what do you want? Do
you want Chapterhouse to cease and desist production of those
items, period? Would you be satisfied if Chapterhouse owned
by a fan paid you a royalty of some, or your client a royalty
of some amount in order to do that or some other type of
relief that you could negotiate with them now? Or is the only
way [Games Workshop] is satisfied here is it proves its case, it
wins, and it puts Chapterhouse out of business.

And on page 128:

I think it
would be a shame for both sides here, one side is paying their
lawyers, one side is doing it for free, but it seems to me
both sides have risk in the litigation and it can be an
extremely expensive litigation...

I mean, I will tell you I had a trademark case last, a
couple weeks ago, maybe a month ago now, that was very -- it
was also a zero sum game, it was very hotly fought. The
principals came in, the settlement discussion for hours was
very hot, but in sitting with both parties I learned that the
principals really had a lot of animosity against each other
because of some prelitigation telephone calls that were had
and things that were said on those calls.
And one of the principals took it upon himself to say to
the other principal, "I'm sorry. I'm sorry about how I
reacted when we had a phone call. I'm sorry for saying that I
was going to bury you, that I was going to put you out of
business, that this was going to cost you too much and you
could not fight us. And I have respect for your business,
your plan, your model and I would like to try and resolve
this." The case got resolved.

I think it is fair to say that looking at where this case is now, Judge Gilbert would say, "I told you so."

Games Workshop's aim was to put Chapterhouse out of business, period. Games Workshop was not willing to say, 'You are a fan, I respect your business, I'm sorry for being an a-hole, let's find a reasonable way to work this out'.

Now, as a result, well warned by Judge Gilbert, Games Workshop walked right into "a ruling on the record public in federal district court in Chicago that you don't have rights to certain things that you're now asserting rights in."

You can make up your own minds about who won this lawsuit. But never forget that for Games Workshop this was always a "zero sum game" that Games Workshop walked into with eyes wide open.

6-27-2013 Motions for Final Judgement
Both parties have submitted their suggested versions of final judgement after the Jury Verdict


Attachment 4302
Motions for final Judgement

Attachment 4300
Games Workshop Judgement Request

Attachment 4301
CHS Judgement Request

I feel like GW has the better argument there. CHS is trying to grasp at straws, muddy the waters and say 'nuh-uh!' to what seems to me a detailed and comprehensive rundown of legal precedent on costs. But what do I know.

Hold on...can someone translate.....I understand most of it....but the costs?

Is that GW going for the costs of their legal peeps from CH?

Assuming Judgeypoos agrees, would the partial success lead to a partial payment, or do these tend to be 'all or nothing' affairs?

As a secular example....say you'd accused me of kicking your dog, throwing your hamster and being lippy to your Gran, but was only found guilty of being lippy to your Gran, would that mean that as only a third of the accusations were found to be 'true', that you could only claim a third of my costs?

Utter ignorance here folks, be gentle!

Basically yes, or yes as fair as I can tell.

GW is saying that it won the judgement as it was awarded damages and so are able to claim for legal costs.
CHS is saying that it is a mixed judgement, i.e. no winner so no legal costs would need to be imposed.

Erm. K.

My head hurts!

Sorry to clarrify.

GW is saying that it won the judgement as it was awarded damages and so are able to claim for legal costs. They argue that even if it is a mixed judgement then they should still be seen as the prevailing party as they were awarded substantive damages and so are able to claim for costs.

CHS is saying that it is a mixed judgement, i.e. no winner so no legal costs would need to be imposed. CHS also cite that court are able to suspend the legal costs if they so wish, though they conceed that this is discretionary.

If there is a prevailing party then they are able to claim for cost recovery on the case as a whole, but the court can limit the amount recovered if they deem them too punitive.

Of course if we were to have a proper lawyer to clarrify it would be better

Thanks dude! Much more clarified!

Costs are never 100% of actual fees normally 75% although expect 60% in this case because of GW being a bit naughty. GW does have the stronger argument here it seems there legal team can put forward strong arguments

Another quick hypothetical....

Say CH had been exonerated on all charges. Being pro-bono, they have no costs. But of course, costs are still incurred by their solicitor, just not passed on.

What would have happened there?