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


#12

I really want to know what @Enidigm wrote now!

I didn’t intend this to be the shit-on-Stardock thread. If people want to talk about how they’re handling the legal case, positively or negatively, I would say put that here. If people want to critique the plans for Origins, I think that conversation should happen in the other thread.

Not trying to be the thread cop here, just trying to clarify why the threads were split, which I think was the right move. Folks interested in Origins should be allowed to talk about it as a game without hearing the armchair lawyers (absolutely a fair description of me and others!) hash out the legalities and parse the public statements.


#13

You are welcome to update the thread to at least point to Stardock’s Q&A on the topic which lists the order of events:

https://www.starcontrol.com/article/487690/qa-regarding-star-control-and-paul-and-fred


#14

I’m most of the way through making my own (more balanced, I hope) timeline, which I will post here. Your Q&A post is definitely one of the main sources, although the claims themselves are showing themselves to be better on the dates of events. When it’s up, I welcome any color you want to add to it from your perspective, Brad.


#15

That’s fine. The thing to remember, because this is in litigation, any public representation has to be checked and double checked by lawyers. So you can, almost literally, take to the bank that the items on that list are factual.

You can probably imagine the legal consequences for posting anything official like that that is false or misleading.

Hence, https://www.starcontrol.com/article/487690/qa-regarding-star-control-and-paul-and-fred has been vetted as being factually accurate without the intent to mislead.

Also, it was updated today to reflect recent actions such as their PR firm’s social media postings.


#16

rubs forehead Things can be technically factual while still disingenuous. In the beginning part of that document:

An in-person meeting? Deposition time for everybody involved. This is very careful wording on the part of Stardock, as “does not contest Stardock’s right to do so” does not mean the subject of the ownership of the aliens from Star Control 2 even came up in the discussion!

Stardock is trying to carefully craft a narrative. As are Paul and Fred.

Whether or not Stardock ‘respects’ Paul and Fred isn’t really relevant when Stardock doesn’t have the rights to include characters from the classic series. “I’m going to be benevolent and not steal your IP” is less impressive a statement than it appears.

Except Star Control 3 contains licensed IP which Stardock does not own and does not have a license to.

I reiterate that Stardock made what will likely end up being a very expensive mistake in not only publishing the previous Star Control games on Steam, but literally having a bundle including the old games and Star Control: Origins. Which is pretty clearly using the old games to market Origins.

Because, for the moment, completely ignoring transferability/severability aspects of the 1988 agreement, I still can’t find anything Stardock’s own filings of their own contracts with Atari that gives them any legal right to distribute those games, or have a valid license for the licensed aspects of Star Control 3.

Now, understandably Stardock wants to focus on what it thinks Paul and Fred did wrong while ignoring or underplaying what it might have done wrong. But this itself is an aspect of the legal battle playing out in the PR realm.


#17

Just to correct this misconception. No, there’s no “expensive” mistake here. Even if the stars aligned, they would have to show damages if it turns out that Stardock didn’t have the right to put the game on Steam. There are no statutory damages involved. At best, they could claim Stardock’s share of the ~$10,000 (which Paul and Fred receive a royalty from) the games have netted on Steam since release.

By contrast, on trademark, Stardock there are statutory damages for violating a federally registered trademark. There are also further damages if it is shown that it was done willfully. And that’s before getting into the damages caused from the market confusion.

In addition, Stardock’s position has been, and you can see posts on QT3 on this, that it has a perpetual license on those characters per the 1988 agreement even in the event that the sales term has expired. You can disagree with that but that would be up to a court. So yea, Stardock could have used the aliens if it had wanted to without “stealing” anything (a license != ownership). It chose not to.


#18

Brad, you also until recently had images of the Spathi, Orz, etc. on your website for the game, despite claiming that years ago you declared you wouldn’t use them. You still have Spathi and Ur-Quan ships visible in one of the alien scenes, as far as I can tell. Couldn’t some of the damages Paul & Fred ask for be licensing fees for these uses of their copyrighted work? And if there’s no claim to be made there, why did you change your website recently?


#19

There are two problems there:

  1. The right to use the characters from Star Control 1,2,3 for marketing and promotion is not the same as using them in the game (none of their IP, licensed or not, is in Star Control: Origins). StarControl.com has been selling all of the Star Control games since 2013. So it’s not surprising that the marketing team would put up marketing images from the various games to promote them.

  2. Even putting that aside, and this is the part I’ve seen non-lawyers misunderstand over and over, Paul and Fred have no copyright. As most authors and developers can tell you, sticking a © on something doesn’t give you federal copyright protection. Unless you file your copyright, you can’t take advantage of the federal copyright laws.

Right now, there is zero evidence that Paul and Fred even have a right to those characters themselves. Those copyrights may be held by the authors of those aliens (who were not Paul and Fred). This was another reason we didn’t want to use those characters.

  1. As soon as Paul and Fred requested the characters be taken down from the website, Stardock complied and it should be noted, Stardock didn’t have to comply to their request.

#20

At the end of the day, my summary boils down to: I think Stardock is overestimating their chances of a favorable willful trademark infringement finding and underestimating their chances to getting hit with a willful copyright infringement finding.

We shall see! Which is fascinating because the stakes are so high and the outcomes can be so volatile in these situations parties usually settle.

Which doesn’t seem to be the case here.

http://cocatalog.loc.gov/cgi-bin/Pwebrecon.cgi?v1=4&ti=1,4&Search_Arg=Reiche%20Paul&Search_Code=NALL&CNT=25&PID=REsxVZJdNN4kgFIH10n2WTNuQ&SEQ=20180323120235&SID=1


#21

Note the filing date. It’s after the alleged infringement notification. Thus, no statutory damages. But that aside, Stardock has publicly and privately asserted it had the right to sell, distribute, market and promote the classic games. Not until 6 months ago were we told this was the case.

The games have been sold on GOG for many years already and even if the Accolade agreement had been terminated, that wouldn’t confer upon Paul and Fred to start selling Star Control themselves.

I’d be curious to hear what would constitute willful trademark infringement then?

They literally used the sample from the registered trademark in their announcement. It would be like announcing your new movie as the sequel to Lord of the Rings and literally using the Lord of the Rings logo that was used when they filed the trademark while also having literal decades of awareness of the trademark existing.

Now, I have the luxury of having listened to IP attorneys on this. This case could literally be a IP Law 101 case study of flagrant trademark violations.

But I am genuinely interested in that image above doesn’t constitute willful infringement.


#22

One of the takeaways I have from digging through the documentation for this timeline I’m making is that it seems pretty clear that Brad felt it was important to have some of the aliens and ships from Star Control 1&2 in Origins. Paul & Fred record weeks of repeated requests soon after Stardock acquired the SC trademark for P&F to both work on the game and to license to Stardock the rights to some of the aliens. The fact that P&F (according to their account) repeatedly and conclusively said no and yet Brad kept asking, and then Stardock went ahead and made website and in-game assets using those characters, tells me that Brad sort of always thought he was going to get that permission eventually, and that to some extent he couldn’t countenance NOT having them in the game. Seems especially true with regard to the fleet battles, which was the subject of the last set of license requests to P&F.

That’s why it feels disingenuous when they turn around and, post-dispute, say things like “We never wanted to continue the story of Ur-Quan Masters anyway. Not that many people remember a 25-year-old game.”


#23

Personally, I think that could be a trademark violation, which is why I think the language and imagery on the website was changed. I don’t know how trademark rights relate to stating facts like “I worked on [trademarked] thing and I’m making a new game.” Like, can CliffyB say, “I was the designer of Gears of War ™ and I’m making a new shooter!” or is he violating Epic’s trademark?

I can also understand the idea of it muddying the market perception of a game when someone else announces something and points out how it’s related. On that front, though, I think Stardock has done their fair share of muddying (like the universe chart showing how P&F’s game is connected to Origins), and more importantly I think both these projects are small enough and fan-driven enough that they benefit from the fact that both games are in development and both parties are talking about the old and new games.


#24

The idea was to have the ships in Super-Melee. Not in the story based game. There were a lot of fun ships in SC 2 that would have been nice to include in SCO and we didn’t want to pay a 10% royalty just for that element.

When they said no, that was it.


#25

rubs forehead again

Even if there wasn’t a federal registration that still wouldn’t have mean that there was ‘no copyright’, that isn’t how the law works. Stating that additional protections apply if you have a federally registered copyright would have been a perfectly accurate statement.

I should probably refrain (like I have so far) from speculating about the trademark claims because it is not an area where I have the experience to make an informed opinion. To be clear: my opinion about the overconfidence regarding trademark claims is not due to my experience in trademark matters, but rather amazement out of how Stardock is conducting itself on the copyright side of things, which is in my wheelhouse. But it is presumptuous to apply that perceived incompetence to an area I know less well.

So mea culpa, I should have just said I think Stardock is probably grossly underestimating its own risk to claims on copyright grounds.


#26

This case is very interesting and speaks to how intellectual property is divided up and sold, and how rights transfer and on what terms. If they can figure it out it will be good, if it’s a horrific legal battle then there might be a chilling effect on buying the rights to games and IP, especially ones done by small teams. You don’t really have these issues when the developers have signed their IP claims away through and employment contract.

Also, I wish Brad would stop commenting about the legal battle in these threads, not commenting on ongoing litigation is a standard that should be set in stone, because all public records like this can be called into court as evidence and I want to see Stardock do well (I.e. not hurt their case).


#27

Fair enough. So in your estimation, what risk do you believe Stardock has on the copyright side of things. Let’s assume, for instance, despite evidence to the contrary, that the DOS games could not be distributed. Then what? What do you believe is the risk? I know what the copyright attorneys have said but I am genuinely interested in your view.

(I’m going to take a break to let others get a word in edge-wise. I am working on some dreadfully slow memory profiling today so I have a bit too much time on my hands).


#28

Sure, although in return I’d ask you to direct me to the part of the contract between Atari and Stardock that transfers distribution rights of Star Control to Stardock, because if it exists, I’d swear it wasn’t included it in the filing.

In short, the two main things where I identify risk to Star Control: Origins.

  1. Selling pre-orders of Star Control: Origins in a bundle with classic Star Control games
  2. Including what could be construed as infringing elements of previous Star Control games in promotion material for Origins (especially if this continued while accepting pre-orders)

#29

Okay, check out the top post for the timeline of major events in this sad saga. I welcome any corrections, additions, or clarifications to what I’ve written. I will continue to update it and also probably improve its readability and clarity over time.


#30

Wow! That’s impressive.

There’s a lot to take in. My main critique would be minor POV. Stardock “claims” vs. Paul and Fred’s claims being treated as facts (when in fact I know a few of them are untrue). I would stick with the “claim” verbiage for both sides. But again, wow.

Here’s a fact as someone who has had to experience a great deal of social media abuse from this:

Paul and Fred hired a PR firm that specializes in “crisis PR” and has been inciting people to not just attack Stardock on various social media and media outlets but me personally.

Example:

So yea, that’s been fun.


#31