Yes, that was an excellent synopsis that memorializes my own understanding. And it also goes toward what I stated that what Brad bought was tainted by claims he obviously wasn’t aware of at the time. And as the purchase indicates, the due diligence (as with things like this) is up to the buyer. Had Brad reached out to P&F ahead of his finalizing of the purchase, all of this could have been avoided.
This isn’t entirely accurate:
However, Brad did not bother to contact Paul for such a license prior to bidding on the trademark. He seems to have taken it for granted that Paul would give him one.
My understanding is that Brad contacted them after the purchase. Which is when he came to realize that what he bought probably wouldn’t allow him to make the game he wanted.
IP (trademark, copyright etc) law is an absolute mess. Especially when different people own or have rights to different aspects of the same works. e.g. When P&F ask GoG to pull their games from the store, Atari (from whom Brad bought what he did) had to give GoG explicit rights to use the Star Control trademark (later owned by Brad). As a result, GoG had to do a separate deal with GoG for the games (SF 1-3) themselves. At that point, it was clear that Atari (as per their own attorneys) knew they didn’t own the rights to those “games” (<— this is very important) themselves.
Then Stardock started selling SF 1-3, “games” for which they apparently (as per what they purchased from Atari) had no rights (still owned by P&F). This despite the fact that NOTHING in the purchase agreement appeared to give Stardock the rights to do so. Here is where that pesky IP law comes into play. Having rights to a trademark and/or copyright for a game, absolutely, positively, does NOT confer the right to the actual “body of work” (in this case the games) if those rights aren’t explicit.
To me, that’s the only indisputable claim that P&F have. But only IF they can prove that they, not Atari, own the rights to the games themselves. And that would be very easy to prove with the original contract they had with Accolade, how they transferred to Atari, and what happened to them if they did expire, revert as per bankruptcy etc.
e.g. when I took legal action against Take Two back in 1997 over Battlecruiser 3000AD, I still owned my works, IP, trademarks etc. TT only had the “rights” to distribute the works, and for a limited 5 year term. So when we settled, and I rescinded their “rights to distributed my works”, I was able to not only release the game for free, signed new deals with third-parties (e.g. GameTek UK) which TT has sold as sub-licensing, but I was also able to pull the game from retail store shelves. These rights which reverted, allowed me to release the game for free (to prevent TT and their partners from continuing to exploit them), as well as to later sign a deal with Interplay, who went on to release v2.0 (a fixed and more advanced version of the original) of the game about a year later. As the creator, not only do I own the IP, trademarks, copyrights etc, but also the characters, world etc - because I created all of them. There was no ambiguity because I never had a deal whereby a publisher was either licensing or buying them from me. TT was basically given the rights to distribute the game and pay me royalties. That’s it.
Owning a trademark or copyright had to be specific as to what they cover. To wit. Owning the “Star Control trademark” absolutely doesn’t mean that you also own the rights to characters, world, body of work (games) etc. Similarly, owning the copyright to Star Control 3 is restricted to that in its entirety. You could make a flight simulator and call it Star Control 3. But if it contains any assets (word, characters, lore etc) which weren’t part of the body of work that was sold, that’s infringement (especially if the original owners can prove ownership).
Here is where it gets hairy for P&F and is the crux of this fiasco.
- Brad bought the Star Control trademark. Which now means that ANYONE selling ANY Star Control game, was now in violation. This is PRECISELY why Atari had to sign a trademark use agreement with GoG in order for them to continue selling the legacy SC 1-3 games. And Paul knew this. He also HAD to have known that with Brad now owning that trademark, they were now in the same violation that GoG was in, and which led to their agreement with Atari. Which means that P&F (or ANYONE else for that matter) simply CANNOT legally sell SC 1-3 without getting permission from Brad. And Brad can’t sell SC 1-2 because he absolutely, positively does NOT own the rights to the games.
- Brad bought the copyright to Star Control 3: This is exclusive to that body of work. Which means that Brad effectively owns the copyright to that [released] game. And since he has the Star Control trademark, he can absolutely sell SC3 if he chose. But here’s the problem. A court now has to decide if that ownership indeed covers the lore, world, characters etc that were part of SC1-2, and also used in SC-3 (and no SC:O). But not so fast - it gets worse. If there is no contractual evidence that the copyright to SC-3 includes everything associated with it - including the entire body of work (game, characters, world, lore etc), that means they now have to figure out who owns what.
ps: Brad owns Star Control 3 in its entirety. see Exhibit D, page 231
However, the email from Brad on Oct 16, 2013 (see p 240) is troubling because I found no evidence that what he bought is what he claimed there. I looked at this back when the sparks started to fly, and your citing these links gave me the opportunity to take another look. Still don’t see it.
Similarly, his email of Oct 17, 2017 is equally troubling because he claims to own rights that I don’t see listed in what he bought from Atari. And it’s not in the bankruptcy court listing either. :(
And as I previously stated, this is where a court comes in because clearly Brad probably convened with attorneys who probably gave him more clarity as to what he actually bought and owned. This is the only thing that I can think of that would explain him going from one extreme (agreeing that P&F own the rights to characters, SC 1/2 works etc) to saying that they don’t, and that he does.
But all of this pertains to SC 1-3. That ST:O exists, and uses legacy works (lore, characters, world) from Star Control, is where the real fireworks are because if the court decides that Brad had no rights to use any of those in that game, he’s got a massive multi-million Dollar damages problem of “studio killing” proportions.
But the hilarious part is that he now owns the trademarks to games (SF 1-3) that the original creators no longer have the rights to sell, without his permission. Like I said, IP stuff is hilarious - and brutal. It’s like you owning a car, but can’t use or sell it because you don’t own the engine that makes it work. Meanwhile, Brad now owns Star Control 3 (the shitty one no less) the “game”
There, I’ve done my best to be impartial, but that’s where I am with this.
If this were me, having failed at reaching a deal with P&F, I’d have made Star Control 4 based on the lore, assets, world, characters in SC3. Which is almost what ST:O is, except that P&F contend that they own certain rights to the lore, characters etc.
I can’t imagine an attorney not looking at this and thinking that basically what Brad paid $300K (+ legal and court costs) for was the trademark to Star Control, which (like Atari → GoG) allowed them to sell Star Control 3 (which they also bought), while having the ability to ask anyone (e.g. GoG, P&F) selling Star Control 1-2 for a license to use the Star Control trademark. There aren’t enough lols for this one, but seriously, that’s basically it - all of it.