I would be surprised if P+F aren't independently wealthy from the skylanders franchise, though it is certainly possible that the lawsuit is a liquidity squeeze for them. I found their GoFundMe in very poor taste but it is more understandable if they are trying to avoid borrowing against their equity in the studio.

Cash flow issues could also explain why they are only now seeking indemnity from GoG. However from the very barebones pleading I have to imagine that the GoG agreement does not actually extend to the current dispute, or includes some condition that they omitted to plead (e.g. no indemnity until favourable final judgment obtained from court of competent jurisdiction). I undertake to review and report back.

Once this is all over I'd shoulder a hefty bar tab to get some off the record conversation with the people from Nixon-Peabody. That is not some bush-league law firm and I can only imagine the [screams internally] inner-monologue going on over there. That response doesn't even address some of the arguments from the last filing.

I doubt NP cares at all about the outcome of the litigation or Stardock's consumer goodwill. I imagine they dislike Brad. He seems like a demanding client and his vanity litigation doesn't raise interesting issues. Probably their only concern besides getting paid is papering all of their warnings to Brad and forcing him to provide all instructions in writing.

P+F reply is up. Haven't read it closely but it seems to be poorly written

SC2 is a joint work co-authored by P & F. There have not even been allegations that other contributors had the requisite control over SC2 to be a co-author, or that either of P or F intended to be co-authors with these other contributors. For a more extensive and binding analysis of how to assess the authorship of joint works, see Aalmuhammed v. Lee https://www.law.cornell.edu/copyright/cases/202_F3d_1227.htm

To understand why SC2 is undoubtedly a joint work (and for a demonstration of how to apply Aalmuhammed to a video game), see Blizzard Entertainment, Inc. v. Lilith Games (Shanghai) Co. Ltd. https://scholar.google.com/scholar_case?case=11006776606406352622

The other contributors may have rights in individually copyrightable components of SC2, held independently or jointly with P & F.

So what does that mean in terms of sending DMCAs and dragging Stardock into a copyright battle when they didn't even have the proper copyrights until April 2018?

I don't think it makes a difference with regard to Stardock's Steam sales; they were selling the entire game, so as long as P&F have a copyright claim on at least a piece of it, that's good enough.  Where it could make a difference is in attempts to enforce claims against particular elements as they are used in SC:O; if Greg Johnson did everything related to the Orz, then P&F would need to get his copyright assignment before they could sue Stardock over it.

All of this presumes that SC2 is treated as a "collective work", where the authors own their respective contributions.  If it's a "joint work", then they all have a shared right to the whole thing, and what their individual contributions were doesn't really matter; any of them could sue for any of it.   (My understanding, not a lawyer, etc., etc.,)

There is no way that SC2 is a collective work.

P&F may very well have held all (or most) of the relevant copyrights this whole time as joint authors (with all the aforementioned contributors) of anything independently copyrightable going into the joint work of SC2. That would be a fact driven analysis that is sort of meaningless to attempt pre-discovery. However, what doesn't need to wait for discovery is P&F's copyright in SC2 itself, which I think is established trivially.

These assignments are presumably prophylactic against a challenge that the intellectual property contributed by independent contractors was not captured by work for hire. It could be completely superfluous if all the assignors were in fact employees of TfB or their contract agreements had the proper stipulations.

5. We return to the assignment in gross doctrine. No rights to Star Control IP of any kind besides the bare mark --> Star Control trademark severed from goodwill --> purported assignment of the Star Control trademark was a nullity.

Careful; you're losing the caveats I had attached when I brought that rule up.  We do not know how much weight that precedent has in this case; that's where a real lawyer who knows the case law in detail is needed.

Well, assignment in gross is not a precedent, it is a doctrine that is codified in statute. It flows from the fact that trademark doesn't exist independently from the associated line of business it represents. The leading Ninth Circuit case:
 “[T]he law is well settled that there are no rights in a trademark alone and that no rights can be transferred apart from the business with which the mark has been associated.” Mister Donut of America, Inc. v. Mr. Donut, Inc., 418 F.2d 838, 842 (9th Cir.1969). An exhaustive and authoritative treatment of assignment in gross can be found at § 34 of the Third Restatement of Unfair Competition. The purpose of derogating from trademark rights in this way is consumer protection: it's a fraud on the market for an assignee to do a bait and switch with a bare mark. As you assert, the rule of thumb is that if the assignee's business/products are not substantially similar to the assignor's, then the trademark assignment is void.

McCarthy's opinion is that you can't get goodwill/substantial similarity in a literary work without the associated copyright. When you phrase it this way, it's trivial: how does it lie in Stardock's mouth to say that it is not engaging in "substantially similar" reproduction of the copyrights held by PRFF (or the inchoate individual creators per Stardock's latest reply) while still arguing that it can create a "substantially similar" product to the one last marketed under the Star Control mark?

Nintendo and Universal Studios fought about this in the 80s -  Universal City Studios, Inc. v. Nintendo Co., Ltd., 797 F.2d 70. Universal said that Donkey Kong sounded too much like their King Kong trademark and was confusing people. Nintendo clapped back that Universal been assigned the King Kong trademark in gross (and thus never had it) because various third parties kept the copyrights to the only other extant visual images of King Kong (RKO Radio Pictures held copyrights to the 1933 film, Dino De Laurentis Productions had copyrights to the 1975 remake). Quoting from the appeal:

"The existence of the legally protected RKO and DDL King Kong images meant that the public could not possibly associate some undefined third King Kong image and distinguish it from these other sources. In this regard it is noteworthy that Universal never created another image of King Kong."

Now Stardock could argue that Universal is distinguishable insofar as Stardock does have copyright to an ersatz Frankenstein version of Star Control 3, though who knows what is left after you strip out everything licensed from PRFF (or as Stardock now claims, the inchoate individual creators.) Given how parasitic 3 is on 2's IP, that seems like more bad bootstrapping to me.

One might also argue that substantial similarity in a game is really just about a kind of mechanical/thematic congruence, or that the consumer protection policy of the assignment in gross doctrine is not engaged by computer games given how mutable and iterative they are. In my opinion those are just-so arguments that treat the normative connection to the underlying goodwill too frivolously.

5. For the sake of argument, let's presume Paul and Fred own all the copyrightable material in SC 1/2 plus derivatives of it in SC3.  How does this help them?  We aren't using any of it.  We have no plans to use any of it.  However, they most definitely did use our trademarks and created both potential and actual confusion in the marketplace.  

6. Star Control has been being used in commerce for many years.  The Star Control franchise was being sold on GOG even before we acquired the rights and as Paul and Fred have claimed, the trademark rights were between GOG and Atari and the copyrights between Paul and Fred.  The trademark has been in use, continuously, in commerce, for over 28 years.

5. We return to the assignment in gross doctrine. No rights to Star Control IP of any kind besides the bare mark --> Star Control trademark severed from goodwill --> purported assignment of the Star Control trademark was a nullity. Though many times since the start of the most recent dispute you and your staff have reversed the analysis: "we have the trademark, therefore we have the goodwill, therefore we can bootstrap our way into something very much resembling copyright over the franchise, such as by enjoining other rights holder to prevent confusion in the marketplace." Really it is your attempt to bootstrap that the law abhors.


6. Continuous? There was a period of many years where no product bearing a Star Control mark could be bought except on the secondary market.