Games Workshop v Chapterhouse Studios - Post Trial Events

[weeble1000]

Always love to see american protectionism at work.....oh hello there free markets, what was that, no this is a one way street.....

Do please remember that GW benefited from being able to judge its copyright ownership under US law. Had the Court chosen to apply UK law, GW would probably not have had even half of the copyrights it asserted against Chapterhouse.

Facts, they are a @&$%#.

[lattd]

Erm how do you get that ? English copyright is easier to prove than American copyright, as you do not have to register it you just have to show you came up with that expression of the idea first. Please stop saying UK law there is no such thing, you have the English and welsh judicial system and then the Scottish and Irish systems.

[weeble1000]

Erm how do you get that ? English copyright is easier to prove than American copyright, as you do not have to register it you just have to show you came up with that expression of the idea first. Please stop saying UK law there is no such thing, you have the English and welsh judicial system and then the Scottish and Irish systems.

A: Copyright laws are not very different between Berne Convention countries. Nowhere that I know of requires registration of a copyright. That's pretty fundamental, so you might want to look into that in a bit more detail.

B: The issue is with what qualifies for copyright protection in England. Toys qualify for design right protection, but not copyright protection. Essentially anything mass-produced for consumption as something other than art does not fall under English copyright law, whereas is can in the US. An extremely qualified expert on the matter, Professor Lionel Bently of Cambridge, who advised the drafting of intellectual property laws opined that as mass-produced toys, many of the works asserted by GW would not fall within copyright protection. As Design rights last for 5 years, and can be renewed a few times to something like 15 years (I do not know the specifics), and because GW does not have any such registrations, most of the products GW asserted would, under English law, likely qualify for absolutely zero protection and could be freely copied by anyone.

So, yes, under US law, GW enjoyed far greater protection than it would have if English law had controlled. That's how I get that.

[lattd]

Except there is unregistered design rights and copyright for an sculpture which these are arguably are, so I still believe they have better protection under English law, you can register copyright in America and it's valued more than unregistered copyright where as in England copyright just exists.

[weeble1000]

Except there is unregistered design rights and copyright for an sculpture which these are arguably are, so I still believe they have better protection under English law, you can register copyright in America and it's valued more than unregistered copyright where as in England copyright just exists.

A copyright registration gets you nothing except the ability to collect statutory damages, and only because the public is on notice that your work exists. A registered work is not "better" or "more protected." A registered work in the US just opens up the possibility if stach damages. It is entitled to the exact same protection as an unregistered work. You can still get lost profits, unjust enrichment, and equitable relief. Nothing else is different. A registered work does not even establish a presumption of validity, scope, etc. it only establishes a presumption of a date of creation and ownership.

[Mike Dunford]

Weighing in a bit late - I've been tracking the case closely, but the 2L course load is pretty intense, so I haven't had as much of a chance to either talk hobby or work on projects much lately.

FWIW, here's my current background: 2nd year student (of 3, so at about the halfway mark) at a decent law school. I'm focusing on IP law both as an area I want to practice in after graduation (science degree, so patent bar eligible) and on an area that I enjoy studying (so I'm taking IP classes, working as a research assistant for an IP-focused faculty member, and on a competition team that participates in national trademark law contests). I'm NOT a lawyer, but I do know a little bit about what's going on with this case.

This case is a complex one, and there's a lot here. I've discussed the case with my faculty advisor, and she's strongly urging me to use the case as the subject for a lengthy academic paper I have to write next semester. In other words, she agrees that there is a great deal in this case that is of potential academic and legal interest. And that was her advice before Don Steinberg and WilmerHale entered the case.

I don't think that weeble and I are in full agreement on the overall strength of the CHS case, but he's right when it comes to the complexity and the likely lifespan of this case. Based on everything that we've seen so far, it appears that the jury verdict marked the end of the beginning of this case, not the beginning of the end. There are a large number of complex issues that are left outstanding. Given the entry of high-powered counsel on the CHS team, it is almost unimaginable that this will not go to appeal. (When and if it does, I suspect that both sides are hoping that Judge Posner will be one of the Circuit Judges assigned to the case.)

But - as weeble correctly noted - there's still a lot that will have to happen before this case gets to the point of the appeal:

1: There are pending motions for costs from both sides. Given the governing law, CHS is extremely unlikely to prevail on their motion for costs. However, their agressive pursuit of costs may, when combined with their opposition to the GW motion for costs, either reduce or eliminate CHS's likely liability there. This is important, because the costs (not attorneys' fees, but witness expenses, transcript fees, and so forth) that GW is seeking dwarf the $25,000 that they were awarded. If GW wins the costs motion, I believe it may be possible that CHS's right to appeal might be conditioned on their ability to post a bond that includes that total, which may be difficult for them to do (and which I do not foresee pro bono counsel doing on their behalf).

2: There are pending JNOV motions from both sides. JNOV motions are rarely granted, but this case might (just conceivably) be one of the exceptions. Portions of the jury verdict are difficult to reconcile with other parts of the jury verdict unless the jury either misunderstood the law. One example of this is the SM shoulder pads. The jury found infringement of some of the most basic and unadorned shoulder pads, but outright non-infringement on a number of shoulder pads with designs. It's tough to see how that combination of verdicts is consistent with a copyright holder's rights over derivative works.

3: The injunction still needs to be finalized. This is important to determine what CHS can and can't do in the short term, and will create issues on appeal.

4: It is possible that the trial court may order another round or two of attempts at mediation before the case moves to appeal, but I think that's unlikely. It's relatively obvious that both sides have strong incentives to not settle at this point. Chapterhouse would normally have a fairly strong motive to settle right now, but most of that motive is removed by the pro-bono representation. They're not shelling out the massive - truly massive - attorneys' fees that are being expended on their behalf at this point, and even the relatively low liability resulting from the jury verdict could have huge effects on their viability moving forward. GW, meanwhile, can't settle for anything that would let Chapterhouse continue to produce the products that were found to infringe without risking opening the floodgates.

[Mike Dunford]

GW included a screenshot from this thread in papers filed earlier today in the case - the post where Chapterhouse announced that they were intending to appeal. I'll try to upload it to Scribd in the next day or so.

[weeble1000]

GW included a screenshot from this thread in papers filed earlier today in the case - the post where Chapterhouse announced that they were intending to appeal. I'll try to upload it to Scribd in the next day or so.

And in typical GW fashion, it is grossly misleading and out of context. GW argued that Chapterhouse stated an intention to appeal, thus admitting that it lost the case and would be otherwise forced out of business. In support of that, GW sliced up a screen shot of just a one sentence confirmation about the intent to appeal in answer to someone's question without including the preceding post which described why Chapterhouse intended to appeal.

The Jury in this case, seems to have given GW some "winners" to appease them, that is how our side saw it, and there was a large amount of issues that the courts caused pertaining to evidence that should have been in front of the jury as well. This is why we are appealing.

So, yea, grossly misleading. That's GW. Drum up an argument, flash something real quick, hope the Court is too lazy to look at it closely, withhold documents until you get caught, then do it again. The appellate court will have a field day.

[Mike Dunford]

And in typical GW fashion, it is grossly misleading and out of context. GW argued that Chapterhouse stated an intention to appeal, thus admitting that it lost the case and would be otherwise forced out of business. In support of that, GW sliced up a screen shot of just a one sentence confirmation about the intent to appeal in answer to someone's question without including the preceding post which described why Chapterhouse intended to appeal.

I respectfully dissent. I probably would not have put things exactly the same way that GW did in the reply (but it's worth pointing out that GW did not say that the verdict was going to force CHS out of business). Nevertheless, the basic point is sound. If you announce an intent to appeal, you probably did not prevail at trial.

I would personally have stopped short of assigning motive to the announcement that there would be an appeal. (As an aside, it would not shock me if the attorneys have a discussion with their client about the perils of making public announcements about filings that have yet to happen in the next couple of days.) But my reservation is simply because I don't think the motive is all that relevant - the fact of the announcement is enough. That the appeal is planned is enough, in and of itself, to show that there is a problem with Chapterhouse declaring themselves the prevailing party.

So, yea, grossly misleading. That's GW. Drum up an argument, flash something real quick, hope the Court is too lazy to look at it closely, withhold documents until you get caught, then do it again. The appellate court will have a field day.

On this? The 7th Circuit will have a field day if Chapterhouse prevails on its costs motion. Aside from that, not so much.

[weeble1000]

On this? The 7th Circuit will have a field day if Chapterhouse prevails on its costs motion. Aside from that, not so much.

By have a field day I meant the case as a whole, wherein GW generally played a little 'loose' to put it mildly, and the Court's rulings were similarly...loose. Like not granting summary judgment on a claim when a 30(b)(6) deponent that is the sole witness on copyright infringement says, "This thing is a copy of our idea, that's the best I can come up with." Stuff like that.