The Ur-Quan Masters Home Page Welcome, Guest. Please login or register.
Did you miss your activation email?
November 17, 2019, 09:09:23 pm
Home Help Search Login Register
News: Paul & Fred have reached a settlement with Stardock!

  Show Posts
Pages: [1] 2
1  The Ur-Quan Masters Re-Release / General UQM Discussion / Re: My take on Stardock on: May 22, 2018, 04:45:50 pm
Except that Brad has mentioned many many times in numerous documents and forums he was well aware of the copyright existing. The lack of registration merely allows for "innocent infringement" as a defense. There is plenty of evidence that Stardock was well aware of the copyright prior to registration.

Check out 17 USC 412(1):
Quote
In any action under this title...no award of statutory damages or of attorney’s fees...shall be made for—

(1) any infringement of copyright in an unpublished work commenced before the effective date of its registration

There are some exceptions, which might or might not apply, but in general, infringements before registration can't collect statutory damages.

Examine your quote though. Emphasis Added. It IS a published work. You might also find this interesting Skip the Copyright Office and Proceed Directly to Suit?
2  The Ur-Quan Masters Re-Release / General UQM Discussion / Re: My take on Stardock on: May 22, 2018, 06:52:39 am
I presumed that this was why Stardock stopped selling them; I'm not sure how many sales there would have been in the couple of months after the copyright was registered and before the games got pulled; it might not be enough to be scary.

About $10,000.

That's Brad's estimate of the actual Steam sales.  But for sales after the copyright was registered in December, it's possible (though I'm not certain) that statutory damages could also apply, which could be much larger.

Except that Brad has mentioned many many times in numerous documents and forums he was well aware of the copyright existing. The lack of registration merely allows for "innocent infringement" as a defense. There is plenty of evidence that Stardock was well aware of the copyright prior to registration.

Quote
Why do the U.S. Copyright Laws put such an emphasis on registration?
Constructive notice. By registering your work with the U.S. Copyright Office others are put on constructive notice that you are claiming copyright to a particular work of authorship. This constructive notice precludes potential infringers from claiming that they innocently infringed your original work. In other words, if your work is registered these potential infringers cannot copy your work and then later claim that they did not know the author of the work they copied was claiming a copyright. Because innocent infringement is an affirmative defense, if a potential infringer can prove to a court that he/she truly did not know an author was claiming a copyright, the potential infringer may escape liability for copying that author's work.

Many times, if a work is not registered a claim of innocent infringement amounts to a "he said, she said" battle. That is, the potential infringer claims he/she did not know the author was claiming a copyright, while the author claims he/she did. Meanwhile, neither side has any real proof of either claim. Thus, the Copyright Laws provide for stiff penalties (i.e., the preclusion of statutory damages) to encourage registration and help avoid the "he said, she said" scenarios.
3  The Ur-Quan Masters Re-Release / General UQM Discussion / Re: My take on Stardock on: May 13, 2018, 08:59:10 pm
If a Judge decides that Accolade/Atari let the Trademark effectively lapse or that it was assigned in gross separating it from the assets it represents. P&F should legally have priority of use given that they own the assets that the mark represents.

Do you mean that the GoG sales would be deemed to be P&F using the "Star Control" mark in commerce?  That seems like a stretch to me; the 1988 agreement makes it pretty clear that if there is a valid trademark covering the classic games, Accolade and its successors would own it.  The two plausible outcomes I see are that either Stardock owns it, or it's invalid and nobody owns it.  And in the latter case, Stardock has a newly filed "Star Control" mark, and they're clearly using "Star Control" in commerce in connection with their current game, so they could just get a fresh one.  That might block their ability to prosecute P&F for infringement, but it wouldn't block SC:O's release.

If the 1988 Agreement is taken into account while the trademark was transferred from Accolade to Atari, it would have elapsed due to lack of use. Stardock would need to argue it somehow didn't meet the 10 year criteria. If it has lapsed, P&F would have priority of use given that they have a copyrighted product originally sold under that name. Stardocks would be a new attempt to use the name. P&F could easily snap the trademark up if the judge decides it's out of date. Stardock does not yet have a product in commerce attached to the name and they would be competing with an EXISTING product that was sold under that name causing confusion. Honestly given the damage that Brad has done to Stardock's reputation they are better off just naming it Stardock: Origins and calling it a day but what do I know.
4  The Ur-Quan Masters Re-Release / General UQM Discussion / Re: My take on Stardock on: May 12, 2018, 10:54:02 pm
Actually the trademark is in dispute due to years of lack of use and it's both dilution and assignment in gross. It is quite possible the trademark is invalid, which would put Stardock's entire case in jeopardy.
Not only would it put Stardock's case in jeopardy if this is true, it would also put the entire SCO project in jeopardy.

I don't see how; P&F aren't claiming to own the trademark themselves.  Even if Stardock's trademark was cancelled, they could still release SC:O.

If a Judge decides that Accolade/Atari let the Trademark effectively lapse or that it was assigned in gross separating it from the assets it represents. P&F should legally have priority of use given that they own the assets that the mark represents. Unlike a brand trademark representing a companies goodwill, a product trademark represents a given products goodwill. Without that product the goodwill doesn't transfer and the trademark is likely invalid and the purchaser is left high and dry.

Quote
As for "providing the tools [to SCO's players] to infringe [on F&P's copyright]", I think this was also a bad move on F&P's part to bring up that point.

I see this as an enforcement of the non-commercial spirit that the content of UQM was released under.  If Stardock was to release SC:O's engine as an open-source project like UQM, this would be indisputably legal.  But adapting P&F's copyrighted material into a form that requires buying SC:O means that the UQM story could be used to drive Stardock's commercial sales.  So I can't really blame them for trying to limit this.  I do think that there is a middle ground that could be found here, though.

It's also not the tools themselves that are at issue; it's brads suggesting multiple times people should use them to infringe on others copyrighted work to benefit himself financially. This is  indirect infringement and he bears contributory liability for the acts others commit on his suggestion especially if he is perceived as benefiting financially (as he owns the company he would).
5  The Ur-Quan Masters Re-Release / General UQM Discussion / Re: My take on Stardock on: May 12, 2018, 06:45:54 pm
I don't see Brad claiming that Stardock owns the copyrights there.  I see him disputing whether P&F own those copyrights, and saying that Stardock has the right to control the names via trademark.

Stardock's strategy on the SC1&2 copyrights doesn't appear to be to claim them, but rather to muddy the waters around them as much as possible.  Hence Brad's assertions there and elsewhere that "the IP in SC2 is messy (lots of creators)", while trying to portray Stardock's trademark claims as being very straightforward ("We have a valid federal trademark for Star Control which means there are statutory damages"), and ignoring or dismissing any questions about it ("We don’t have to “prove” anything regarding its validity because it is already assumed valid").

Well, I assume that whatever is not owned by Fred and Paul personally would have been owned by Accolade (and would therefore be owned by Stardock now).

As for the trademark, the case does seem pretty straightforward to me too. There is no disputing who currently owns the Star Control trademark (Stardock does). Sadly, that would indeed mean that since GotP is by definition a sequel to SC2, F&P would require Stardock's permission to develop GotP. But that also means that Stardock won't be able to use any of F&P's copyrighted material in their own Star Control games without F&P's permission. And it seems to me (a layman who is unaffiliated with either F&P or Stardock) that copyright is the only issue in dispute here.

Actually the trademark is in dispute due to years of lack of use and it's both dilution and assignment in gross. It is quite possible the trademark is invalid, which would put Stardock's entire case in jeopardy. Also even if Stardock retains the right to star control, they have no good recourse as to P&Fs historical nominative fair use unless the Judge expressly decides against it.  Given Stardocks behavior of manipulation, misleading statements, historical misrepresentation, and willing infringement of copyrighted assets, express statements that they will continue to infringe, and by both providing tools to infringe and encouraging the community to secondarily infringe with said tools. This indicates a behavior of Intentional Tort.
6  The Ur-Quan Masters Re-Release / General UQM Discussion / Re: My take on Stardock on: May 02, 2018, 02:57:44 am
If the buyers of the product identify it's use as illegitimate and not representing the product or service the mark represents, Stardock could easily lose the trademark.

I don't think that's likely - The SC3 copyright seems sufficient to keep the mark alive.

Except they don't own unilateral rights to it.
7  The Ur-Quan Masters Re-Release / General UQM Discussion / Re: My take on Stardock on: May 02, 2018, 01:53:12 am
I'm really unsure about that last part.

I'll try to expand on it.

"You can't stop someone from selling similar products using a different trademark." - https://www.beelinelegal.com/Trademarks101/Trademark

"A trademark is generally a word, phrase, symbol, or design, or a combination thereof, that identifies and distinguishes the source of the goods" -  https://www.uspto.gov/sites/default/files/documents/BasicFacts.pdf

"Goods" in this case specifically means "IC 009. US 021 023 026 036 038. G & S: Computer games; Computer game software; Video games" as per the trademark applications.

Thus:

"Star Control" identifies "Stardock" as the source of certain computer game(s).
"Galactic Civilizations" identifies "Stardock" as the source of certain computer game(s).
"Drengin" identifies "Stardock" as the source of what exactly? There is no Drengin computer game(s).

The only trademark that seems to be of any concern (assuming it is one at all) is:

"The Ur-Quan Masters" identifies <currently disputed> as the source of a certain computer game.

Both Stardock and Paul and Fred have applied to register this mark. Whoever wins it has at least some power over the UQM project (in my opinion, only the name). Paul and Fred's application is more complete, but Stardock may have a case - it would rely on a subtitle counting as trademark (not clear to me) and either a) it hasn't expired or b) the project is not engaging in commerce. P&F's case relies on the project engaging in commerce, and that they represent it; it's possible it's not a trademark at all. As far as I currently know, the competing applications mean the whole process (which takes ~12 months at the shortest) grinds to a halt - perhaps that is why Stardock have only filed the bare minimum.

One thing to note is that without underlying transfer of assets, Star Control becomes a fraudulent mark as it indicated Paul and Fred/Accolade as the producers of the product. Stardock has no associated goodwill to the Star Control Trademark and without the assets underneath must build new good will. See Assignment-In-Gross. Trademarks are fragile things and The trademark buyer, or assignee, bears the transaction risk in a trademark assignment. If the acquired mark is declared invalid, the assignee’s new trademark rights will be lost. This is what Brad is afraid of. Without the underlying assets and goodwill his trademark is so much dust in the wind. To quote:
Quote
Trademarks cannot be sold apart from their businesses because they do not have discrete value as property, are meaningless apart from the business with which they are associated, and so are inseparable from that business. Trademark assignments, whether or not they are assigned attendant to a sale, are declared illegal if the trademark is sold alone, divorced from the business it formerly represented.
If the buyers of the product identify it's use as illegitimate and not representing the product or service the mark represents, Stardock could easily lose the trademark.
8  The Ur-Quan Masters Re-Release / General UQM Discussion / Re: My take on Stardock on: April 26, 2018, 05:41:16 am
A character used in a movie, book, game, etc. is copyrightable, and a character includes a name. A name might be one of the most distinctive parts of a character, the same way that courts care that a chorus is the most distinctive part of a song. The legal issue won't be whether the Star Control characters are protected by copyright, but whether there is any infringement in Stardock's new game if they copy even partial aspects of those characters.

I'm wondering about Wikipedia article, where is says:
Quote
stock characters or archetypical and hackneyed elements are disqualified from protection by virtue of the fact that they are not unique in their expression.

I'm pondering whether the fact that most of the "characters" in UQM are racial archetypes rather than individuals might cause them to be considered "archetypical".  The Captain, Fwiffo, Cmdr Hayes, ZEX, Talana, and the Dynarri are the only individuals you really talk with, although I suppose you could argue that each time you visit a homeworld, you're speaking with the same central authority figure.

To the best of my knowledge that applies to archetypes considered common in culture. I.E. The damsel in distress, The old wise mentor, The token black guy killed in every horror film. They have no depth or anything making them unique and distinct from every other character sharing the same archetype. Klingons, Hobbits, Centauri, and Ur-Quan all have unique histories, lore, mannerisms, and representation that qualify them as a unique creative work. You can't copyright a vampire or a werewolf because it's a common archetype in media. You could however copyright a Camirilla Vampire or a Tribal Garou as they both have unique defining qualities.
9  The Ur-Quan Masters Re-Release / General UQM Discussion / Re: My take on Stardock on: April 26, 2018, 05:17:40 am
Another thing to note is that Stardock isn't even trying to hide their infringement anymore. You can compare it to the original. Any normal person would find these two ships to have "substantial similarity" which is the general test for infringement and while "Humans" is too general a term to have copyright applied, the ship created for them in Star Control certainly isn't.
10  The Ur-Quan Masters Re-Release / General UQM Discussion / Re: New Trademark Filings on: April 26, 2018, 04:02:59 am
The copyright associated with the name is fairly powerful on it's own. Middle-earth enterprises has proven this repeatedly with 'Hobbit' and killing attempts to trademark the name. The collection of work surrounding a name makes the name itself part of the copyright. All of the races in Star Control I & II are sufficiently unique to copyright and protect each individually.

Middle-Earth Enterprises has trademarked "Hobbit", in several categories.  Can you find a reference where they specifically used copyright?  I'm not saying you're wrong, but I'd like to get a clear example of where a name, especially a race name, was protected by copyright.

Middle-earth copyright cases
1974 - Threat of copyright action from Tolkien Enterprises to TSR prompted the name changes of hobbit to 'halfling', ent to 'treant', and balrog to 'balor'.

2011 - A campsite owner from West Stow in Suffolk was threatened with legal action over his plan to build a so-called 'Hobbit hole.' When the owners asked the the Tolkien literary legacy for permission to use the Hobbit name, they received letters from lawyers claiming it was an infringement of copyright and threatened him with legal action.

2011 – A Birmingham cafe called the Hungry Hobbit was accused of copyright infringement by lawyers representing The Saul Zaentz Company, which Middle Earth enterprises is a division of. The cafe was told to phase out the use of the name on menus, websites and signs.

2012 – A Southampton pub that had been called The Hobbit for more than 20 years was accused of copyright infringement. Stephen Fry later confirmed that he and Sir Ian McKellen paid a copyright licence fee so that the pub could carry on trading as The Hobbit.

2015 - Stuart and Elise Whittaker set up Giraffe and Hobbit, a company that imports wine from small vineyards in Provence, France, and pokes fun at their difference in height. Middle-earth Enterprises has tried to block the couple's attempt to register the company, which was launched in 2014, as a trademark.

An actual court case I can find details about. Also a second one. Most seem to get settled out of court and getting documents besides news reports is kind of difficult. Note it's the copyright being enforced, not a trademark.
11  The Ur-Quan Masters Re-Release / General UQM Discussion / Re: New Trademark Filings on: April 26, 2018, 02:49:42 am
Copyright protects creative works including descriptions and names

Careful with that reference; I believe there is a distinction between a character and a name, and even for the characters that may be protectable by copyright, there appear to be a number of subjective factors that get weighed.

The copyright associated with the name is fairly powerful on it's own. Middle-earth enterprises has proven this repeatedly with 'Hobbit' and killing attempts to trademark the name. The collection of work surrounding a name makes the name itself part of the copyright. All of the races in Star Control I & II are sufficiently unique to copyright and protect each individually.
12  The Ur-Quan Masters Re-Release / General UQM Discussion / Re: New Trademark Filings on: April 26, 2018, 02:10:51 am
These are story elements within the game, not the material used to label the product!

I think it's safe to say that Brad takes a much broader view on the utility of trademark, and a much narrower view on copyright.  He's been giving his views on a thread over in the Stardock forums.

It's also worth noting that he did not accept that the flash game Atari commissioned over a weekend was a token use of the "Star Control" trademark.

I saw that post...  That post really confused me more than anything about Stardock's stance and understanding of the situation.  For as much experience that has been claimed, that's a very strange view of the way the system works.

Is there any case law supporting Trademarks being somehow magically recursive for all names used within a creative work of media? Last I checked that was solely in the realm of copyright. Copyright protects creative works including descriptions and names. Trademarks are used to establish a source of origin for a product or service.
13  The Ur-Quan Masters Re-Release / General UQM Discussion / Re: My take on Stardock on: April 25, 2018, 11:22:58 pm
"as yet unspecified"...
Yes, but is there (and does there need to be) any kind of explicit statement that the "as yet unspecified" was agreed by Paul & Accolade to be "Star Control 2"?

That should fall under derivative work created by developer. While it does not say explicitly that Paul Reiche III is the developer, it does specify this document is both between Accolade and Paul Reiche III and is between the publisher(explicitly defined as accolade) and the developer. It's not exactly ambigious. See here and here.
14  The Ur-Quan Masters Re-Release / General UQM Discussion / Re: My take on Stardock on: April 19, 2018, 08:08:03 pm
I agree it's pretty clear.  I'm not sure why you are struggling to understand it.
Cool. Lets break it down point by point then.

Which part of any trademarks adopted used by the publisher are sole property of the publisher are you having trouble understanding?

Accolade (the publisher) adopted one trademark 'Star Control' and registered it March 18, 1997 (filed April 29, 1996) as [sn:75095591, rn:2046036]. This is the only registered mark I can find (excluding the registrations made by Stardock and P&F within the last year). Thus your control would be limited to the word "Star Control".

Which part of "Developers understands that it may not use the trademarks of publisher in any way without permission of the publisher" wasn't clear to you?

This would not exclude nominative fair use as historical fact. They were the developers of Star Control. You yourself have admitted this fact in the past.

Which part of  "Publisher is free to use any such trademarks in connection with another work or product at any time before or AFTER the term of this agreement"  are you not understanding?

The contract specifically states "the publisher". You may have purchased the trademark but that does not mean this agreement in full would have transferred to you, especially given the state of it's expiration prior to your involvement. The trademark does not inherently have this right, the publisher and signatory of the contract did.

Also, please point me to where Riku or the other creators assigned their copyrights to Paul Reiche III? All my non-lawyer reading of this shows is that Paul represented he had rights.  Are you claiming that Paul owns Riku's music (as one example?)  I don't think Riku would agree and in fact, Paul has previously stated that the music is owned by others in various IRC chats.  What about the writing he didn't do.  What about the art?  I would imagine that Paul and Fred could, post-facto, get assignments to those particular creative expressions.  But we're not using any of them anyway so it doesn't matter.

P&F by virtue of contracting and paying for the work completed by Riku and other contractors without a specific assignment contract would have a non exclusive implied license to use the work in perpetuity to distribute, perform, or derive new work from the original work created. This wouldn't stop Riku from licensing it to you via a separate agreement however it does give P&F a fully valid license for Star Control's lifetime.

In fact, which part of your link do you think isn't damaging to Paul and Fred's position?

I think most of it supports their position pretty well. That agreement has expired, the rights to their work and all derivative work based on their work would revert to them. Given both the expiration of this contract reverting all work consisting of the 3 games to them, the lack of use of Star Control in commerce for 10 years, the fact that P&F have plenty of priority of use both through their own sales and UQM for trademarks on all the names NOT originally trademarked by accolade, your hold on the trademark is pretty tenuous at best. The fact you seem to think you own all of the IP as well is pretty laughable.

Was it your intent to torpedo any argument that Paul and Fred had some possible justification to use the Star Control trademarks?  Is there some other reading of "developer understands and agrees that it may not use the trademarks of the publisher in any way without permission of the publisher?  And that the same paragraph explicitly makes it clear that this applies even after the term of the agreement?  And you do understand that this agreement was transferred to Stardock, correct?

Given the fact that everything I took is IN the legal documents submitted as a counter claim; No I haven't torpedoed anything. Also remember, you bought a Trademark and Copyright to non derivative contents of Star Control 3. You did not buy this agreement and you did not buy Accolade. The terms in this agreement would not magically transfer to you. This document isn't even relevant to you directly other than it provides background to P&F's claim of ownership and rights.

So even if the term of the agreement has expired, the best possible reading of it is that Paul and Fred would have full rights to the works (copyrights) they created.  So what, specifically, did they create?  But they have no trademark rights whatsoever and pretty flagrantly violated the "may not use the trademarks of the publisher in any way" part.

As per the document they own the work known as Star Control 1 and Star Control 2 and it's derivatives which would include the implied licenses granted per contracting out the work.
15  The Ur-Quan Masters Re-Release / General UQM Discussion / Re: My take on Stardock on: April 19, 2018, 05:50:40 pm
Stardock acquired both the trademark and the copyright to Star Control 3 in which Accolade is listed as the sole author.  That is all of the IP that existed as far as the federal court is concerned.

What IP Paul and Fred actually have is unknown.

The examples you provided above are not applicable here anyway as the rationale is to prevent someone from acquiring a trademark to use for something unrelated.   But consider the implications of your argument, it would make the case that Stardock absolutely must include all the aliens. You said earlier you didn’t want this but now argue, in effect, not having them would weaken our claim.  

The new Star Control game certainly fits into the various uses that the Star Control games of the past. A ScI Fi video game developed by the people who own both the trademark and copyright.

It’s pretty disappointing to see people who claim to be fans grasping at straws in the hopes of stopping a new Star Control game. You guys keep wrongly assuming Paul and Fred have a whole bunch of valuable IP.  I used to think that too.  

But the bottom line is that 100% of the registered Star Control IP was transferred to Stardock. Copyright and trademark. Paul, Fred, Riku, Dan, Erol, etc. may have various common law rights but it’s unknown and wouldn’t prevent a new Star a Control game.

You should watch the new Lost in Space series on Netflix through the eyes of this discussion.

The 1988 agreement clearly states that all work and DERIVATIVE work reverts in the case of bankruptcy or lack of sales. You yourself have admitted that the 1988 contract lapsed and it pretty clearly states what happens when it does. The  agreement makes it pretty clear you bought a lemon.

First, no, I have not "admitted" the 1988 agreement has expired.  I have said that we have operated as if it has because we haven't relied on it for Star Control: Origins.

Perhaps you should read the 1988 agreement more closely on what reverts to them and what doesn't.  You have to own something in the first place for something to revert to you by definition.  

In addition, one needs to specify what their work is.   As time has gone on and more investigation has taken place, it's not real clear there is any "work" that they created that would be usable in a new Star Control game.

Well the Relevant sections are copied here here and here. Per the agreement the 'work' includes all of Star Control 1 and 'As yet Unspecified' (Star Control 2) according to the contract. I think it's pretty clear.
Pages: [1] 2


Login with username, password and session length

Powered by MySQL Powered by PHP Powered by SMF 1.1.21 | SMF © 2015, Simple Machines Valid XHTML 1.0! Valid CSS!