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Topic: My take on Stardock (Read 192039 times)
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Shiver
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Oh, it's the MoO 1 remake I heard about ages ago. I hope Ghosts and Remnants don't step on each other's toes too much. 
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Lakstoties
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At this point Stardock is just paying lawyers to throw as much stuff as possible and see what even remotely sticks. Again, Stardock is demonstrating a provably wrong understanding of trademark law. There's no evidence that "Precursors" has was ever used as a trademark, even a common law one. How something within the product that's never beened used as an indicator of source, that's actually a fairly generic term (because everyone seems to use the term precursors for scifi stuff) can be a trademark is ridiculous. And that's key thing, they'd have to demonstrate so much just for it to even be recognized as a common law trademark: What is it? Where was it used? Has it been used consistently? Do they have properly formed secondary meanings? Do they properly indicate a source of origin for a product? And has it even survived the transfership of ownership, twice? To properly transfer even a common law trademark you need actual written notification of the transfer of ownership of that mark and what it is. Very similar to how the "Star Control" trademark was transferred. Yet, there's NOTHING for any of these "common law trademarks" that Stardock keeps claiming.
This is desperation on Stardock's part and they are going directly counter to their narrative of "Not stopping Paul and Freed from making their game". And here's the thing, "Precursors" and "Ghosts of the Precursors" can exist at the same time. The USPTO often recognizes the different between a single work and a phrase trademark, and they can indicate separate sources.
As for "Remnants of the Precursors" and "Ghost of the Precursors", that's mostly up to the USPTO at first. But, so long as both groups are cool with it... There shouldn't be any real issue with both marks co-existing at the same time as long establish their origins properly. The "Likelihood of Confusion" concept is interesting at times, but given the software game market has some interesting quirks when it comes to how confused people can actually get, there should be room for both to exist.
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WibbleNZ
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USPTO has already decided that Remnants of the Precursors and Ghosts of the Precursors have a likelihood of confusion, suspending the Remnants application until Ghosts is either registered or abandoned. Having an alpha in distribution already, Remnants should have first use in commerce if they wish to / can afford to dispute things. Perhaps giving the mark over to Ray Fowler (rather than Stardock) would help settle the Star Control case? Stardock should have no objection as there is no likelihood of confusion between Remnants and Star Control, and P&F could lose Ghosts anyway to someone with a much stronger claim than Stardock's. UQM fans in particular should understand supporting non-commercial remakes 
I note that once again, Stardock's legal assertions do not align with Brad's continued insistence that the Star Control mark covers everything.
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rosepatel
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Just as a matter of practice, the amended pleadings are unlikely to contain any surprises. There might be a few tweaks, and if we're lucky we might see a new exhibit or two.
The Trademark stuff doesn't sit very well. Atari could have litigated the UQM Project if the alien Trademarks were even a thing, and they ultimately let it slide for a decade, while they weren't selling the games. But Atari doesn't claim the Trademarks even existed, let alone that they could sell them to Stardock. Atari had a very specific list of IP it was selling to Stardock, and there was only a singular Trademark.
I wonder if "we own the Trademarks to everything Star Control" is more of a PR exercise than a legal one. I doubt they would even try that argument in court, and the company line doesn't really appear in the applications either.
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Ariloulawleelay
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Unless there is some evidence Accolade provided creative oversight and direction rather than publishing and consultation, that's what it looks like to me. The intention of the 1988 contract seems clear that the author would be Paul. 5.3 allows Accolade some creative input but not enough that I would consider them the author.
Without the benefit of any insider knowledge, I imagine that there could be a very, very plausible argument that it was Accolade, as the publisher and financier, who superintended SC1 and SC2, even if F&P were the initiators who dreamed up some of the underlying concepts.1 But both Accolade and Stardock seem to have disavowed this position...
Although I haven't seen a proper legal argument on this point from Stardock, it seems as though Frogboy is asserting that all of the creative elements of SC1 and SC2 were contributed by others: it's well-known that the thematic music from SC2 was conceived of and created by independent artists2 who found F&P through a newsgroup; I believe Frogboy has claimed that the games' characters, conveyances, background art and stories all came about in a similar fashion.
That's not to say that there were secret, worldwide contests, of course. F&P could have gone around to their friends and associates and licensed from these contributors pre-fabricated, ready-to-go generic sci-fi artwork and aliens. F&P later took all of these separate, copyrighted works and arranged them into SC1 and then SC2. So long as these "contributions" were conceived and independently fixed by the contributors prior to the contributions' incorporation into one of F&P's games, this line of case law should not apply.
The start date for those three years is debatable though, as most courts apply it from the date the infringement was discovered or reasonably should have been discovered. The first time anyone looked at the box probably counts, but any time the word "reasonable" comes up there's room for an argument. Stardock appear to have discovered some things in 2017, but it seems a bit unworkable to allow rediscovery any time IP changes ownership - I would think any such discovery would have to be sorted prior to or at the time of purchase.
The statute of limitations would only begin running when the ostensible true copyright owners became (or reasonably should have become) aware that F&P's claim was adverse to their own.
Looking at the box wouldn't necessarily do that. Let's imagine that the theory above is correct: F&P had absolutely no creative input into the contents of SC1 and SC2. Even under those facts, F&P could still claim a narrow copyright in those two games as collective works - it was F&P's creativity that put all of the independently created dialog, visuals and characters together.
This narrow copyright would be enough to give F&P standing to file DMCA notices (or actual lawsuits) relating to those two games, but not SC3 (nor any potentially derivative elements of SCO). And since this copyright in the collections could coexist with the contributors' copyrights to individual elements of SC1 and SC2, a copyright notice on the box might not have been adverse to the contributors' copyrights, and thus may not have started the limitations period.
Anyway, since both Accolade and Stardock have disclaimed copyright, there's no "rediscovery" to worry about. We would only care about the original contributors... (That's not to say that it is legally permissible or prudent for Stardock to be making the contributors' case here; so long as the copyright owner of SC2 has the exclusive right to prepare or authorize the preparation of a derivative work based upon SC2, Stardock just needs someone other than F&P to be the copyright owner.)
From reading Aalmuhammed v. Lee, it's possible that the other contributions (aside from music) are not independently copyrightable at all, if they were not intended to exist separately from the work.
That's the idea. If these contributions were inchoate works - only intended to be fixed as inseparable parts integrated into a singular whole (i.e., each game), with no objective intention to share copyright as joint authors - then the contributions were never protected by the Copyright Act in the first place. The dominant author(s) would have copyright in everything, even without a written assignment.
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[1] That is to say, in line with rosepatel's remarks, "creative oversight and direction" are not trump cards here; it is certainly possible that a company could take steps to ensure that it, and not a mere director, be the dominant author of unitary work.
[2] Do you hear the Blood-Monkey's howls? Do you see how he darts and leaps? He demands that I call these composers by their name! It is most fortunate that they never sold a computer game nor appeared in the Halo universe.
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Elestan
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The Trademark stuff doesn't sit very well. [...] I wonder if "we own the Trademarks to everything Star Control" is more of a PR exercise than a legal one. I doubt they would even try that argument in court, and the company line doesn't really appear in the applications either.
So, let me see if I can summarize the known arguments against Stardock having trademarks that control the alien race names:
- First, P&F's contract with Accolade (Section 11.5) only gave Accolade the ownership of trademarks "used in the marketing of the Work". It is silent on any marks not used in marketing, so P&F could argue that they have at least as much right to any marks embedded in their copyrighted material as Stardock does.
- Second, Section 4.1 of Addendum No. 3 appears to confer rights to the "Reiche Intellectual Property" to Paul Reiche as of a date certain. "Reiche Intellectual Property" is defined to "include proprietary rights in and to any...names (of starships and alien races)...[and] terminology unique to the Star Control products[.]" This provision might have transferred control of any accessory trademarks from Accolade to Paul in ~2001.
- Third, P&F allege in their countercomplaint #38 that "In mid-2002 [...] Accolade indicated that it was no longer using the ["Star Control"] name and had no plans to do so in the future." Indicating an intent not to use a trademark mark can be cause for it to be found to be abandoned.
- Fourth, the UQM project began distributing a rebranded version of the game during the 2001-2010 period when it wasn't being sold, and Paul has alleged that Accolade was aware of this, and did not act, thereby forfeiting any protection of them it might have had.
- Fifth, any common-law trademarks would need to have been specifically listed in any documents that transferred IP, and none were listed in Stardock's purchase agreements or accompanying schedules.
- Sixth, in 2015, Brad clearly stated that he would not use the aliens, arguably giving affirmative intent not to use them in commerce.
- Seventh, while one might think that the alien names would be considered fanciful marks (the strongest type), that designation relies on them having no use other than as a trademark. But because the primary use of those words is as a descriptive term for the alien races in copyrighted material owned by P&F, they should actually be considered descriptive marks, a much weaker category that requires a demonstration of the attachment of brand identity ("secondary meaning") before they receive protection.
- Eighth, the alien names were never used to build a brand; they were all internal to the game. I think the "Ur-Quan" might have been mentioned in small print somewhere on a box, but none of them had any effort put into marketing them or building up such "secondary meaning".
- Ninth, the Ninth Circuit, in Mattel, Inc. v. MCA Records, Inc, and Mil-Spec Monkey v. Activision has adopted a particularly strict version of the Rogers Test, providing a high degree of freedom-of-speech protection for the use of trademarks within creative works like video games. So even if Stardock is found to have a trademark in those names, using them in a video game may be constitutionally protected speech.
- Tenth, the original "Star Control" trademark is in international class 28, "Games, toys and playthings" (meant for physical toys), and not class 9 (computer programs and software).
EDIT: Added more insights paraphrased from Ariloulawleelay, and renumbered.
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« Last Edit: July 19, 2018, 06:01:45 am by Elestan »
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Ariloulawleelay
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So, let me see if I can summarize the known arguments against Stardock having trademarks that control the alien race names:
Even if the Ur-Quan and Spathi have accomplished what the Klingons and Vulcans have not and become Mickey Mouse-like trademarks used to identify the source of goods, I think there are at least two additional questions to think about:
- Looking at the License Agreement, section 4.1 of Addendum No. 3 appears to confer rights to the "Reiche Intellectual Property" to PaulReiche as of a date certain. "Reiche Intellectual Property" is defined to "include proprietary rights in and to any...names (of starships and alien races)...[and] terminology unique to the Star Control products[.]" Would this provision have transferred control of any accessory trademarks?
- Arguably, the Publisher has twice expressly abandoned any trademarks in the alien names by flatly stating that it had no intention to use those names in the future: Accolade in mid-2002, and Stardock in 2015. After Accolade's alleged abandonment, F&P open-sourced UQM (using at least one alien name in commerce). After Stardock's apparent abandonment, F&P made their GOTP Announcement (which still features many of the alien names). What was the effect (if any) of these purported abandonments?
- Sixth, the Ninth Circuit, in Mattel, Inc. v. MCA Records, Inc, and Mil-Spec Monkey v. Activision has adopted a particularly strict version of the Rogers Test, providing a high degree of freedom-of-speech protection for the use of trademarks within creative works like video games. So even if Stardock is found to have a trademark in those names, using them in a video game may be constitutionally protected speech.
I will have to take a closer look at these cases, but I think that the general idea is that: trademarks are used to describe things which really exist, and works of fiction can include things which really exist, thus works of fiction can include trademarked things. So I could write a novel where a character enjoys drinking Coca-Cola without first getting a license (or resorting to euphemisms), and I can even put a bottle of Coke on the cover (or make the product's mark part of the title) so long as there's nothing to suggest that the Coca-Cola Company is somehow the source of the book.
But as long as Stardock is making a nebulous claim that it owns the "Star Control universe" (or multiverse), it's hard to say that these cases would be directly applicable in future litigation. (Remember that the contents of GOTP and SCO are not directly in play. Yet.)
Would F&P even want to go down that road, having already lost to Stardock once before?
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« Last Edit: July 13, 2018, 04:38:23 pm by Ariloulawleelay »
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rosepatel
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All this makes sense to me and seems consistent with most legal interpretations.
The alien Trademarks are still an interesting question. I think Stardock's argument starts from the premise of asking who, if anyone, would be entitled to Trademark those aliens?
I'm trying to put the best face I can on Stardock's argument. Maybe they're trying to oversimplify to explain to non-lawyers, rather than trying to dupe people in bad faith. Buying the Trademark is, in fact, a purchase of whatever goodwill and reputation has accrued in that Trademark (apparently worth around $300k at auction). Legally speaking, they now hold the history of that Trademark, dating back to 1990. I think their argument is that if Atari wanted to, they could have Trademarked all kinds of marks related to Star Control. They're the ones trading the product, and therefore, they can try to protect anything that marks the product.
Still, my best interpretation is honestly that nobody has the right to Trademark those aliens. Trademarks are a mark used in trade. Star Control is used in trade, but all the other alleged marks were used in the game. (With the possible exception of the "Ur Quan", which marks the open source Ur Quan Masters spinoff.)
All that said, Paul and Fred have just as much claim to those Trademarks as anyone, if not more. Nobody was selling Star Control for nearly a decade, while UQM was holding the torch. And UQM could not proceed wihout P&F's authorization. And when GOG started selling Star Control proper in 2011, they needed Paul and Fred's authorization once again. Which is to say, Atari had lost all legal standing to sell the Star Control games, and had acknowledged this in email. So how would they Trademark aliens that they were no longer using, even in the loosest definition of "use"? The best Atari could do, after 2001, was slap their singular Star Control trademark on a completely different product (which is what they tried to do with that Flash Game). Paul and Fred controlled the contents of the game, including the aliens, since 2001. If you're trying to determine a common law Trademark based on use in commerce, it's pretty clear that Paul and Fred controlled the use of those aliens since 2001.
Again, it's a stretch for anyone to try to claim Trademark in those aliens. Just pointing out, P&F's claims on them would be no more of a stretch than Stardock's claims. This says less about who might own the Trademarks in those aliens, and more about the overall unlikelihood that those aliens even qualify as Trademarks.
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« Last Edit: July 13, 2018, 04:23:27 pm by rosepatel »
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Yazman
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In other news, amended pleadings are due on Monday. For anyone familiar with litigation, would it be expected to see significant revisions to their earlier filings? Are there any limits to the extent of such revisions? That is, is there any rule prohibiting a party's earlier briefs from being entirely irrelevant or misleading, allowing them to blindside the opposing parting with their final submission? Or would a judge slap them down for that and/or give the opposing party an extra chance to revise their arguments to match?
There are circumstances where amended pleadings can allege issues that are 'new' to the pleadings but known to the parties because of discovery, other pretrial proceedings, etc. And California is a jurisdiction that's pretty liberal about pleadings, amendments and supplemental complaints, but I think in this case we're unlikely to see much significantly new added. We'll probably see some revisions, perhaps references to stuff that's occurred since the initial documents, that type of thing. There's also requirements about notice, so in practice you can't really be 'blindsided' even if there was something unusual included in there because you'll generally have several weeks notice.
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gnunk
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- Arguably, the Publisher has twice expressly abandoned any trademarks in the alien names by flatly stating that it had no intention to use those names in the future: Accolade in mid-2002, and Stardock in 2015. After Accolade's alleged abandonment, F&P open-sourced UQM (using at least one alien name in commerce). After Stardock's apparent abandonment, F&P made their GOTP Announcement (which still features many of the alien names). What was the effect (if any) of these purported abandonments?
Their announced intent to abandon those marks may create grounds for equitable relief whereby StarDock would be estopped from enforcing those trademarks on account of promises made previously (even though they do not otherwise constitute a valid contract).
At this point their strategy seems to be to bleed P&F until they beg to settle. I would say 'boycott Star Control: Origins' would be the best way to ruin that strategy, but at this point people either don't know it exists or seem to despise it, so I'm not sure it's even strictly necessary.
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CommanderShepard
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I would say 'boycott Star Control: Origins' would be the best way to ruin that strategy, but at this point people either don't know it exists or seem to despise it, so I'm not sure it's even strictly necessary.
Not a problem for me, I was already disappointed at the preview for it, and I haven't even heard of it outside directly searching for it which is partly due to Stardock's subpar marketing. If you want to boycott it more effectively, get players to leave negative reviews on all platforms it might be released on and on game blogs (which will require researching them) while mentioning how Star Control 2 / UQM was the best of the series in order to garner reputation to P&F. If p6014 was completed, it would have helped with this, making a contemporary version that looks less pixelated would be more likely to attract millennial support.
But, the timing needs to be somewhat staggered so that it doesn't appear intentional, which it likely wouldn't be anyway since it takes time to contact and beseech many people. This is also why it's important that only "players" give it negative reviews instead of random people since the strategy would be able to fall back on the credibility of the fact that people who actually played the game are just expressing their lack of enjoyment for it. It would also be important to maintain that credibility in the instance that the negative reviews were used as evidence in a legal dispute.
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« Last Edit: July 16, 2018, 03:01:36 am by CommanderShepard »
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