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

I’m really curious by what legal sorcery an equitable estoppel claim regarding the copyright can be established. (P+F’s separate counterclaims regarding the lapsing of the trademark agreement are a different and entirely distinct matter where equitable estoppel is relevant). There’s clear evidence that Brad believed at one point that P+F held the copyright, and that P+F were aware of this. There’s no evidence or statement of which I am aware that suggests P+F were made aware of the fact that Brad had formed an alternate opinion until October 2017, at which point the entire situation rapidly escalated.

Equitable estoppel only applies if the copyright holder knowingly allows infringement, or misleads the infringing party as to their rights. As far as I’m aware no serious claim has been made that either of these happened, and until one is this is FUD.

Yeah, half the reason I was touching this tar baby is that Brad kept coupling assertions that demonstrate a fundamental misunderstanding of both copyright and trademark law, but then paired them to snark about how the people he’s arguing with must not understand how intellectual property works.

(I think it’s fine for one to make whatever arguments one needs to make to protect one’s interests, but just because you put a pig in a tuxedo doesn’t mean the rest of us have to pretend it’s the homecoming king.)

Hello, a former lurker here. I was wondering if I can get you guy’s opinion on a few ideas about this whole thing that’s been rattling in my head. Feel free to tell me if this is too tangential and needs to go into a different thread.

So I’m just a programmer and have no legal training. Just been really interested in IP/Copyright/Trademark law that I took time out to read about it so I know enough to protect software that I write. With that background out of the way.

  1. I keep hearing the phrase (from Leonard French, the copyright attorney with his own youtube channel) “If you abuse copyright, you lose it.” So if that’s the case, can anyone speculate what would happen if this goes to trial and Stardock loses? Does it go into public domain? Does the previous company (now bankrupt and no longer exists) regain it? Does it go to P&F?

  2. From my personal reading of the history, the posted documents and the story from both sides, it sounds like what happened (to me, personally), that Brad saw the opportunity to buy Star Control, was really enthusiastic and got it. But only after that did he realize that he just got the name, not the content or the games or anything that really mattered. Let’s say in a parallel universe that was the case and Brad didn’t try to sue P&F but instead tried to recuperate the costs of, what he felt, was a misrepresented sale of the Star Control IP. How would he have approached that? What methods would have been available? Would that even have been possible from a now bankrupted and no longer existing company?

The only reason why I even thought the second question was that the email from Brad to P&F offering to sell them the rights mentioned a number specific enough to stick in my head. It was a number that no ordinary person can afford, but a company can, or at least, that’s what it seemed like to me.

I am in about the same legal knowledge position as you are.That being said, for #1 if Stardock were to lose, they would still own the Trademark. From what I can tell, at this point Stardock is not asserting ownership of the Star Control IP (story, plot, etc.), they are seeking the right to use that IP. It is their assertion that because of previous agreements between P&F and publishers, they are able to use it. So if they lose, they will not be able to use that IP. But they would not lose the ownership of the Trademark. the game can be called Star Control

As to your second question, Stardock has no recourse with the sale at the auction and a refund. Everything is sold “as is” and it is up to the buyer to do due diligence beforehand. Stardock did sign a document stating that they had, in fact, done this and understood the consequences. (But imho obviously those that did believe they had done research need to be sacked, and probably the people that sack them need to be sacked as well. They may have purchased the Brooklyn Bridge.)

Reaching a license agreement with PF would be a good recourse - but that costs more money and the copyright holders have the leverage there. I think selling the Trademark is a good recourse, but of course it would have to be revalued in light of this and possibly not worth as much as paid for since it is a unique thing. PF are the natural customer for that, so leverage again.

It is still very much in question in my mind whether Stardock’s pursuing the IP from previous versions was worth the time and effort and received ill-will, as opposed to producing a new game of RPG space exploration. The money put into the Auction purchase and legal wrangling could have been used to get some good writers to make up new races and build a story, perhaps even a name for marketing purposes. I don’t think the TM was needed to do that. However, to some extent bad news is still “news”, and more people are talking about this than otherwise would be, with some gamers now emotionally invested in the game’s outcome either way. Kinda like Star Citizen.

I believe there is an emotional factor here for the principals on both sides that cannot be discounted as well, and that has added to the sensation. I don’t see this going to trial though, and I doubt either party does. But that emotional factor is a wildcard.

I’ve made this argument before: this would have worked as Galactic Civilizations: Adventures! or something like that. In other words, Stardock has existing IP that this could have slotted into.

As regards @sleepingkirby’s first point: Stardock already had to drop using “Super Melee”, so I imagine other elements are also contentious: I mean, is “Star Control” (the organization) covered by Stardock’s trademark or by P&F’s copyright? In other words, can Stardock refer to the organization as “Star Control” or not? If not, what does that mean for the trademark? If yes, I assume P&F will simply have to rename the organization for Ghosts, or perhaps license its use from Stardock.

As regards point 2, I’m not sure what legal recourse their was. Brad offered the trademark back for sale to P&F, as far as I know, and they declined. I imagine they figured the trademark wasn’t worth as much as the actual setting, story, characters, and races, which they assumed – no doubt correctly – would be covered by copyright. Again, there are difficult aspects that will have to be hammered out in court (like the Star Control organization vs trademark thing).

So there is a legal concept of copyright misuse, usually for instances where someone is leveraging a copyright for anticompetitive or fraudulent reasons.

However, your question has the parties backward. Stardock’s case is primarily based on Trademark law, not Copyright law. So any question of copyright abuse would be as to whether it was committed by Paul and Fred.

I didn’t see a specific claim of Copyright Misuse in Stardock’s defenses, but they do try to make a similar argument that goes, roughly:

  1. P&F failed to get signed work-for-hire agreements from the other SC2 team members back in 1991.
  2. Therefore P&F didn’t own all of the SC2 copyrights.
  3. Therefore P&F committed fraud when they licensed those copyrights for later use.
  4. Therefore their copyrights should be cancelled.

I don’t give this argument much credit, because there’s quite a bit of evidence that everyone involved intended P&F to get those copyrights, so the missing work-for-hire paperwork is a technicality - one that has since been corrected by P&F getting copyright assignments from those team members.

No, there’s a fair amount of evidence that he knew what he bought. When asked in another thread here whether P&F had given him a copy of the original contracts, he said:

He never claimed the right to use the SC2 elements in new games until Fred told him that he and Paul were planning to make a new game. Until then, he kept asking them for licenses to use them.

As for any remedies if he didn’t get what he thought he was getting, there would be few if any. He bought them at a bankruptcy auction, and the sales contract had a “No Warranties” clause that essentially made it a “buyer beware” sale. Stardock was responsible for doing any due diligence to make sure they were actually buying what they wanted.

So, I want to correct what looks like a common misunderstanding in play here. Stardock does not need the trademark to release a game called “Star Control”. Trademarks are used to create exclusivity, so if there was no “Star Control” trademark, anybody (including Stardock) could make a game called “Star Control”. Moreover, Stardock has already filed for a new trademark on the phrase, so if the old trademark were to be cancelled, they would still have exclusive use of the phrase in commerce; the only difference it would make is that they wouldn’t be able to make the sort of threats they’ve been making with regards to the old games.

I used to think that Stardock was misinformed about what it bought back in 2013, but enough evidence has accumulated that I no longer do. My current opinion is that Stardock and P&F had the same general understanding about what Stardock bought from 2013-2017; Brad’s repeated pleas for a license to use the SC2 ships shows that he believed he needed one. However, I think that once P&F told Brad that they were going to do a new game that might compete with Stardock, he went back to his lawyers, and had them look for loopholes and reinterpretations that would let him either claim he didn’t need their permission, or that would give him the leverage over their planned new game to block it or force them to work with Stardock to make it.

The one place that I do think Stardock made an incorrect assumption is that Brad appears to have been taken aback by Paul and Fred’s refusal to work with him. It seems to me that he bought the trademark under the presumption that they would either quit their jobs at Activision to come work for him, or at least license him the rights to use elements from the prior games. But it doesn’t look like he actually asked them about it until after he’d already won the auction.

It looks like it wasn’t until he realized that they weren’t going to work with him that he realized that he might have bid on a lemon. He knew, from tons of feedback and posts, that a “Star Control” game without P&F’s involvement would not be viewed as legitimate by many of the fans. So he offered to sell it all back to them at his cost. However, they probably believed that he overpaid for it, so they passed.

The Rogers Test appears to be the legal standard for when this is permitted. In summary, a trademark cannot control the use of the mark within a creative work, unless that use would “explicitly mislead” consumers into thinking the work was made by the mark holder. I’m not lawyer enough to guess whether any use of that phrase in GotP would qualify as such.

First off, thank you all for your input. It’s nice to have rational minds to bounce thoughts off of.

In regards to:

I think Stardock/brad did/is claiming ownership of the copyright.
Stardock-Legal-Complaint-2635-000-P-2017-12-08-1

Page 5

  1. Also, pursuant to the 1988 Agreement, Accolade was the owner of the title,
    packaging concept, and packaging design in and to the Classic Star Control Games and any trademarks and other intellectual property rights adopted and used by Accolade in the marketing
    thereof, including but not limited to the STAR CONTROL Mark (collectively the “Accolade
    Star Control IP”).
  1. In 2013, the 1988 Agreement, along with certain other assets, including the STAR CONTROL Mark, certain copyrights in and to the Classic Star Control Games, including but not limited to the Star Control Copyrights, as well as publishing rights to the Classic Star Control Games (collectively, the “Atari Star Control Assets”) were assigned to Stardock via an asset purchase agreement and associated intellectual property assignment between Stardock and Atari dated July 18, 2013 (hereinafter “Asset Purchase Agreement”).

I suppose that could be legalese to try to confuse the reader into thinking that the trademark and the ip used for marketing is the ip of the game collectively. But also:

Page 19:

  1. Stardock is the owner of the Star Control Copyrights, which is protected under U.S. Copyright Registration No. PA 799-000.

in addition to:

Page 12

  1. Upon information and belief, and contrary to the common public understanding and
    what they have portrayed to the public, Reiche and Ford may not have created any of the artwork,
    animation or characters incorporated in the games, or otherwise substantially contributed to the
    authorship of Star Control I and Star Control II.
  1. Reiche and Ford’s advertising themselves as being the “creators” of the Classic Star Control Games is false and misleading, and has been made in an attempt to dishonestly benefit from the goodwill and reputation associated with the STAR CONTROL Mark to which they have never had rights.

For me, this is what says brad is going after the IP:
Settlement document from Stardocks to P&F:
Page 4, Section 3

…that Defendants hereby (i) assign to Stardock, pursuant to the Assignment set forth in Exhibit C hereto, any and all right, title and interests that they have in and to any and all intellectional property they own relative to the Classic Star Control Games (the “Assigned IP”)

Not having played any of Stardock’s games (I was thinking about trying out Star Control: Origins until I heard about this.), I’m definitely not going to try/buy any of their games. I’ve tried to find some humanity from Stardock/brad on this situation, but if they knew what they were buying and they are going after the IP by way of the trademark, I can’t personally find the humanity in any of this. Well, enough of my personal feelings.

Lastly, does Stardock even legitimately own the trademark? Reading through these documents reminded me that I did read the original agreement that P&F had with Accolade that if the trademark was not used for x period of time, it reverts back to P&F. Not only did that happen, but it was acknowledged by Atari back in April 25, 2011 (referring to the emails P&F posted in this post:
https://www.dogarandkazon.com/blog/2018/2/27/report-from-planet-surface). This someone thinks the email was fake, it’s easy enough to confirm. Just ask
https://www.linkedin.com/in/kelseymusgrave/
or GOG themselves.

I mean, it sucks that Stardock bought a trademark for something from someone where the seller didn’t own (which, I guess goes back to @mok’s comment about the people believed to have done the research needing to be sacked and the people that sacked them needing to be sacked. Nice Monty Python and the Holy Grail reference btw. ^^b ), but to take it out P&F is no way to act. That’s like being fooled on buying the Brooklyn bridge. When, finding out that you were fooled, you demand the bridge from the city. I suppose if he didn’t do this there was a possibility P&F could have sued. But if GOG and P&F AND Atari worked out an agreement, I imagine Stardocks could have too without paying a lot or a lot up front. (I believe the agreement with Atari and GOG was that 25% goes to P&F and 25% went to Atari) I mean, he did approach them, stating he was a fan of the game and their works (which is contradictory to him then saying in a claim that they didn’t draw or write the games at all.), he could have just said “Hey, so I got this trademark, I don’t think it’s 100% legit and I only found out after the fact. Can we work something out?”

Now that I’m laying all this out, I’m wondering why this case is still being considered. It’s pretty obvious logistically who’s lying, who has malicious intent and who the owners of the trademark and IP are.

sigh maybe I’ll just go play UQM again.

BTW, isn’t putting “Crimson Corporation” on a game whose copyrights you don’t own a direct copyright/IP infringement?

You need to read carefully to see through the sneaky word games Stardock’s lawyers are playing. If you look at ¶20 of their Second Amended Complaint, they redefine the phrase “Star Control Copyrights” (for purposes of their legal brief) to consist solely of any copyrights that were owned by the Publisher, excluding any copyrights owned by Paul, Fred, or anyone else. As near as I can tell, this includes the games’ packaging, and the parts of Star Control 3 that weren’t based on Star Control II. They also try to claim some of the artwork in the manual, but I’m skeptical of the argument they use for that.

That was actually in Amendment 3, and trademarks were specifically excluded from that clause.

Not necessarily. I could go make a game and have a “Crimson Corporation” in it, and be perfectly fine. But the closer my setting gets to the setting of Star Control II, and the closer my “Crimson Corporation” gets to the one from SCII, the more likely it is that a jury would decide that I’m illegally copying from them.

Latest blog post by Brad:

Why does Brad continuously emphasize how unknown the original games are, while other times he keeps emphasizing how important the old games are as regards the value of the trademark? Choice quote:

Given the number of comments we’ve seen on Facebook that can be summarized as “Oh this is inspired by Mass Effect!” or “This is just No Man’s Sky with a story!” it’s clear that most people have no idea about the amazing DOS games that came so long ago.

As far as I know, the designer behind Mass Effect cited Starflight as a key influence, not Star Control. But anyway.

Then we get this:

Two different histories (three if you treat Star Control III as having a different history). How do you reconcile that? Our solution: the multiverse. We refer to the universe expressed in Star Control II as the “Ur-Quan universe” and treat it as being owned by Paul Reiche, the designer of Star Control II with the numerical designation of 6014.

Emphasis mine. Say what now?

I mean, it is absolutely on its face ludicrous. The only reason to buy the Star Control name is if it is recognized by people and has value as a brand. If people have no idea what it is why would you pay hundreds of thousands of dollars for the name? There’s a reason this isn’t Galactic Civilizations Adventures or whatever.

Probably because he’s making contradictory arguments, but doesn’t want to acknowledge it. On the one hand, he’s claiming that P&F are trying to ride Stardock’s coat tails, so he has to assert that the original games (or at least P&F’s roles in making them) were unknowns before Stardock started marketing SC:O. On the other hand, he has to claim that the “Star Control” trademark’s connection to the old games is incredibly valuable in order to justify spending 6-7 figure legal fees to fight over it instead of paying developers and artists to make their game better.

If the old games under the SC brand are relatively unknown, aren’t generating any appreciable revenue, and (due to the absence of P&F’s copyrights) aren’t contributing any good will to the brand name anyway, then why is that connection worth fighting over? He could just let the old trademark go, and sell SC:O as the first in a new franchise of the same name. All he’d lose is the ability to make claims on the old properties.

When I consider this, along with the fact that Brad has made a big deal of the SC2 copyrights at several points relating to the litigation:

  • He repeatedly asked P&F to license them to him from 2013-2016.
  • He finally insisted he already controlled them in the 2017 email exchange that triggered the hostilities.
  • He demanded that P&F surrender them in his settlement proposal.
  • He asks the court to void them in the final version of Stardock’s complaint.

…it makes me suspect that gaining control over the SC2 copyrights is more important to Brad than he is admitting.

Well, he clearly hasn’t given up on claiming that his multiverse is a framework in which other peoples’ copyrighted IP can be contained. Legally, this doesn’t seem any different than claiming that someone else’s fantasy setting is a part of your own fantasy world, but is just “across the ocean where it can’t be reached”.

I also wonder if he realizes that by explaining his universe in terms of the SC2 elements it doesn’t have:

No nuclear wars. No peace vaults. No clones.

…he is basically inviting people to think of the Origins universe as “the SC2 universe except that X and Y happened instead of A and B”, which, it seems to me, would make it easier to claim that it is a derivative work, and therefore infringing.

Also, I wonder how Cedric6014 feels about part of his handle being co-opted that way.

I read a comment elsewhere that makes these kind of statements and the constant arguing with anyone, anywhere on the internet that the lawsuit comes up make some sense. He’s not doing it to convince the audience. He’s doing it to convince himself.

I’m very confused about this strategy. The ‘alternative universe’ thing is basically admitting your work is a derivative one.

This is even more tortured language than we’ve seen in past blog posts. I feel like the last couple posts, including this one, have gotten subtly conciliatory as far as claims about IP ownership of SC2. It’s like reading signs in the rustling of leaves in the wind, but it feels like something has changed on the legal front, probably good for P&F. It’s still a little gross that these blog posts that should just be promoting the game have been encoded to reflect whatever legal strategy Stardock has at the moment (like the weird way they described how the Arilou art was created).

I know we’re all probably hyper-attuned to any language that might reveal what’s going on in the case itself. But I can’t think of any other explanation for some of the stuff in these blog posts, honestly.

I guess if Brad is indeed playing a little more nicely with P&F that’s undoubtedly a good thing!

My prediction: this new kinder, gentler era of not pushing the envelope on P&F’s copyrighted content is a strictly temporary move designed to mitigate risk around the launch of SC: Origins. Once we’re out of the launch window, the (in my opinion) infringements and unreasonable legal claims will resume.

Hope I’m wrong!

Apparently, review copies are being sent out on Monday. I imagine Stardock won’t like it if every review includes the phrase “Stardock, who are currently suing the original creators of Star Control…” I imagine that could be one reason for why it seems a bit quieter right now.

There was a big PR push this weekend in other places. Sadly from what I read today Stardock’s position really hasn’t softened. The new stance and excuse for their actions is the belief that Paul and Fred are insanely jealous and vindictive people will do anything to prevent anyone else from making a new Star Control game. Seems kind of a strange position to take when Stardock is the one who sued P&F, not the other way around.

It looks like Stardock is still selling the Arilou and Chenjesu DLC through its own website. So, it seems Stardock isn’t really backing down from selling altered versions of the aliens…they just somehow reduced their visibility on Steam.

That’s all rather disappointing, if not surprising.