The Third Doctrinal War -- Stardock, Reiche/Ford, and Star Control


#1388

Knock yourself out. I remember the team here laughing (a lot) regarding the last litigation thread that was here. So many definitive predictions. So much certainty. We knew the outcome long in advance but it was still amusing to watch the confirmation bias work its magic on hateful people.

I’ll even start linking to this thread just so others can enjoy the legal wizardry.


#1389

You do realize that people like to discuss things that they aren’t experts in?

We have a lot of sports predictions that end up wrong, about a million legal threads across sports, entertainment, video games, politics, crimes, etc.

I think the Bears will be 6-10 this year. If I am wrong, I am wrong, doesn’t mean I can’t or shouldn’t discuss how terrible their front office is in my opinion.


#1390

That’s not quite right - the merits of the underlying case are not decided upon in an injunction - all that matters in that respect is that there is clearly enough substance for the injunction to not just be a nuisance action. The important test for whether an injunction is granted is that you will suffer damages that cannot later be adequately compensated through monetary damages if you later win.

So to answer the earlier question - nobody will be more likely to win/lose the overall case based on whatever results occur in the injunction. Winning an injunction can actually be dangerous, because you are inflicting damages on the other party that you will have to pay if you lose the case in the end.


#1391

Was an injunction actually filed or is this theoretical?


#1392

AFAIK an injunction was not filed. IIRC the only mention of an injunction is as part of the remedy requested by both sides. It would be something that would be part of the final judgement.


#1393

From a post on the UQM forum, regarding P&F’s revised counter complaint:

In ¶133, when you include their new claims about the SC2 aliens being used, they are now effectively asking for an injunction against SC:O’s release.

So I suppose injunctions could be filed at a later stage, if they wish to proceed? (Though “effectively” is the operative word here.)


#1394

We have a lot of sports predictions that end up wrong, about a million legal threads across sports, entertainment, video games, politics, crimes, etc.

I think the Bears will be 6-10 this year. If I am wrong, I am wrong, doesn’t mean I can’t or shouldn’t discuss how terrible their front office is in my opinion.

I do appreciate that you acknowledge that to you, this is little more than a sporting event.

But to those of us who have invested the last five years of our lives, it’s a little more personal.


#1395

I don’t have time to read back through the complaints right now, but as I said I believe the mention of the injunction was part of the request for what a judgment would contain, and that injunction is only in relation to not using the copyrighted material. Not a literal injunction to stop the release or sales of the game regardless of its content.

That’s separate from the idea of a preliminary injunction that could be filed before the suit is settled.


#1396

Ah, I see. Thanks for the explanation; much appreciated. :-)


#1397

Do you think it would be healthy for an NFL offensive coordinator to go on all the team fan sites and argue that they don’t understand the intricacies of his schemes?


#1398

There are two* types of injunction - an interim injunction granted by the court pending resolution of the dispute, and a final injunction granted by the court as a remedy at the end of a trial. You’d have to make a specific application for the former, whereas the latter would be part of the relief sought in the original claim.

  • for our present purposes

#1399

This is interesting because it shows a fundamental misunderstanding of what copyright protects; “an alien that is orange, one-eyed, size of fist, spy race, low gravity world” are absolutely all choices of expression that would be protected by copyright; “I drew an alien with those attributes but didn’t actually trace/copy the previous artwork” is not sufficient to argue against infringement, in my opinion, especially when the artist is given those attributes in combination with each other. The blog article concludes that the Melnorme expression in Star Control is different in SC:O, but of course if I created a character named “Burth Lurder” with a black helmet (but different than Darth Vader’s!) and a heavy breathing pattern (but different than Darth Vader’s!) who flies a ship with two vertical wings (but bent outwards, not inward like Darth Vader’s!), Disney would absolutely sue me for copyright infringement, and they would win, all things being equal and ignoring, for purposes of discussion, defenses such as fair use.


#1400

I think notions of ‘derivative works’ would also come into play.


#1401

Other than the one-eyed (which the final Melnorme doesn’t have) the traits you quoted are unique to Star Control: Origins. I am glad that you recognize that such traits, when combined, help to establish its uniqueness.

edit: Sorry Peter, I screwed up the quoting.


#1402

Sure. I mean the weird thing here is that the things the blog article presents actually weaken the claim that they’re “just” using the trademark. If I owned a trademark and nothing else, the way to use it effectively would be to “clean room” create new aliens. “OK, writers, here’s the name: Ariloulaleelay. Please sign this document indicating that you’ve never played Star Control or read anything about it. Go!” Starting from the position of publishing documents saying “Yeah, we gave the writers the name and a list of attributes that are the same as in the copyrighted work” seems self-defeating to me.

¯\_(ツ)_/¯ I sure remember the Melnorme trading in information and being orange in Star Control II, so I disagree with your interpretation of my opinion. But I’m not really trying to convince you of anything - you have your own lawyers and I’m sure they are giving you advice.

I will observe that your blog article literally says “the artist was only given a description of the Melnorme”. When you read that sentence, you clearly focus on “only”. When I read that sentence, what I see is "the artist was given a description of the creative expression of the Melnorme.


#1403

I think it can be assumed that when we refer to the Melnorme we are referring to our Melnorme.

This is the Melnorme, as expressed in Star Control II:
image

and this:

is the Melnorme as expressed in Star Control: Origins which is in a different universe than SC2.

They aren’t the same Melnorme as they are, literally, in different universes.

Stardock’s position is that it already has a common law trademark to the Melnorme species name and has applied for a registered trademark of the name itself to help drive the point home.

If you honestly believe that a jury is going to believe that our Melnorme is a copy or derivative of the Melnorme expressed in SC2, then you’re entitled to your opinion but there is extensive case law on copyrights, in games.

And all this presupposes that Paul and Fred actually have a valid copyright on any of this in the first place.

But we aren’t interested in copying anything from Star Control II, we are interested in making a new Star Control game and we are using the names of the species associated with Star Control to drive home the point that Star Control: Origins is related to the classic series which became necessary after Paul and Fred chose to call our trademarks into question.


#1404

The primary source of information being given in that thread is from the same stardock PR representative that showed up in this thread. Only over there it does not appear he disclosed that he is a stardock PR person.

That same PR person also posted in some of the Reddit threads and when someone pointed out that he is a stardock PR person he stated that he felt no need to disclose such a thing.

When someone is only getting one side of the story, and part of that story is being told by a PR representative who does not disclose the fact that he is a PR representative and acts as if he is just another fan speaking on the forum, it’s not much of a mystery why the forum appears one-sided.


#1405

A jury doesn’t decide questions of law, they decide questions of fact. I absolutely believe that a jury could look at the SC:O Melnorme and say "Pfffft, they totally copied the first one and then changed a few things.’ I also believe they might rule the other way. Juries are famously mercurial. This is exactly why your lawyers have probably advised you not to let the case go to trial (and to be clear, I’d expect P&F’s lawyers to be giving them similar advice). I’m not surprised that you believe you’re not infringing; I’m just surprised that you don’t see how putting those two pictures one above the other in the same post visibly weakens your argument. If I showed 30 pictures of random aliens to people-on-the-street, but included the two Melnorme, and said “Circle the two that are most like each other”, they would circle the two in your post.


#1406

I think an argument about whether the Melnorme are technically infringing is rather subsidiary to the much more interesting question of what is driving Stardock to accept this potential legal exposure.

(I actually like the Stardock Melnorme design and don’t think in pure visual design terms that it’s derivative of the original.)


#1407

I do not have the clairvoyance to know what 30 random people would or wouldn’t do.

I do agree that anytime you are dealing with juries you are rolling dice. If I show a jury 30 random fruit that includes an apple and a plumb and ask them “circle the two that are most like each other” they might indeed circle the two. But that doesn’t make an apple a plumb and that’s not the question they’d be asked. They’d be asked is THIS a copy of THIS using the substantial similarity test. And our Melnorme isn’t a copy of anything and as previously noted, was described to an artist using traits that are largely unique to our Melnorme.

Of course, none of this exists in a vacuum. This suit is primarily a trademark infringement case which includes statutory damages and various penalties for willful infringement. I won’t get into all the problems the other side has for obvious reasons. But we are comfortable with our rights and position on the merits.

A better question to ask and debate, imo, would be to ask why Stardock would even bother using the species names associated with Star Control in the first place. The answer is, we’d rather not. But we are caught between a rock and a hard place now. On the one hand, Paul and Fred and their friends have made the argument loudly, and in the press, that the new Star Control is just a new game with the words Star and Control slapped on it and has no relationship to the classic games. That’s not what we paid for. We acquired the Star Control IP specifically because there is value in associating a new Star Control game with the classic game for marketing purposes. So now we feel pressed to strengthen that association by leveraging our IP rights which includes using the names of the Star Control species.

Provided no one drags me back in, I’d like to bow out so I can work on other things. But as Elestan mentioned, this is my “home forum” but I’d still rather you guys discuss this without making the discussion about me personally.