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


#767

Wow, lots of stuff to reply to today.

Oh, we know. Not much we can do about it though, except hope that P&F win.

No, Stardock picked this fight. When Brad heard that P&F were planning to start work on a new game, he made an apparently baseless claim to control all of their copyrights to the SC2 universe, despite having reassured them for years that he recognized and respected their ownership of that world. I just made a long post on UQM about this.


#768

All of these documents have been posted on the UQM wiki.

It goes back further than that. Infogrames (later renamed to Atari) arguably forfeited those marks way back in 2002, when the UQM project started. For more reasons why the trademarks might not be valid, I wrote a summary on the UQM forums,

As others have said, there’s a nominative fair use argument that this should be permissible. However, P&F also used the box art in their announcement, which arguably could have pushed them over the line. My take is that this probably was an infringement, but not a particularly egregious one.

None of the alien names seemed important enough to register. Where P&F made their first serious mistake was not registering their copyright to the rest of the game in a timely manner (they just filed it this year, after the litigation started). That puts the burden of proof on them, and much of Stardock’s legal ink is spent making them pay for that mistake. Their second mistake was failing to get written work-for-hire agreements from the other people on their creative team. They just got copyright assignments from them in April to try to rectify this. I don’t think these flaws are fatal, but they make it much easier for Stardock to bleed P&F’s legal budget litigating these details.

They had only just announced that they were starting work on the game when they got sued. Also, nothing says that a game developer is required to let people see their work in progress. Personally, I think I’d rather not be spoiled by advance knowledge about the game, and would be fine just knowing that P&F are working on it. More discussion here (forum.uqm.stack.nl/index.php?topic=7182.msg78586#msg78586)

They bought it at Atari’s bankruptcy auction, with a specific “no guarantees” clause in the sales agreement. The video posted in this thread goes into that. Even if they could sue, Atari’s been liquidated.

Not really. It was Star Control 2’s 25th anniversary; both Stardock and P&F were aiming to celebrate that date with their announcements.


#769

Thanks for the info Elestan.


#770

I agree with everything you said.

P&F in their filing now claim it is #1, that they planned to do so all along and weren’t being honest about it. I don’t know what stage discovery is at and if their lawyers have something to back that up.

If it is #2, even if adding them in strengthens the case it seems like such an incredibly horrible business decision. Literally letting your game’s design and/or storyline be dictated by a legal strategy rather than focusing only on making a great game.

It can of course be both. That they always planned to but hoped they could do so with permission, and that the action of going through with those plans now without any permission has been prompted by the legal strategy.

And as you mentioned, it’s kind of a slap in the face to the team working on the story. Such action is basically saying that what they did isn’t good enough and so the classic aliens need to be inserted to bolster the product, or you are making dictates on the story just to gain legal advantage over the people who created the original work they now are being instructed to copy (or both). Though if the people hired to create the new universe had always hoped (if not planned) that they’d be able to do their own version of the classic aliens then it might be a big positive for the team rather than a slap in the face.


#771

Thanks for weighing in, Elestan! Quick note: In your post on UQM you said “Accolade” a couple times when you meant “Activision.”

You’re right, that email from Brad on 10/4 seems to really be a crucial moment when any goodwill that existed was crushed. “We can use this stuff if we want. It’s just a courtesy to you that we’re mostly not going to.” Until he decides otherwise later.

By the way, I have to ask: You say you’re not a lawyer, but the way you talk about this stuff sounds pretty professional. Paralegal?


#772

You probably want to read this thread. In summary, there was a contest, and the winning compositions were non-exclusively licensed for the game, so the original composers retained the copyright. P&F put Stardock in touch with Riku, the contest winner, and Stardock hired him to do the music for SC:O, which is why it sounds so similar to the original.

No, it’s under CC-BY-NC-SA. So no commercial use, and derivatives must use the same or a compatible license.

No doubt, but they were Activision employees when they made Skylanders, so Activision would have taken the profits from the game, and happily paid P&F their salaries. I’m sure they’re millionaires, probably multi-millionaires, but I doubt they’re mega-millionaires.

This is my opinion. Brad decided that once P&F were competitors and potential legal adversaries, the legal leverage from using those names was more important than honoring his prior stated commitments about their IP.

Corrected; thank you.

Nope; software engineer; another profession where attention to detail matters. I’ve just spent several hundred hours researching and discussing this case in my spare time. Plus the benefit of the crowd-sourced research from others on UQM and Reddit, as well as many spirited exchanges with Brad.


#773

When did Stardock say they were going to use the original SC aliens? I thought I was following the legal aspects and the game itself fairly closely, but I don’t remember seeing this.


#774

It was fairly recent. I would guess sometime in the last couple months is when I became aware of it, via this thread.


#775

They filed trademarks on them in February, and started showing artwork a bit later.


#776

Is there anyone saying filing applications for trademarks for the alien names/Super Melee, etc makes sense? I find it really strange that attorneys would formally do this, when it seems to me they have indicated no intention of selling anything bearing those names. As I recall you have to provide proof of sale to be approved. is it more than likely that the trademarks will ultimately be denied?


#777

Trademarks require at least an intent to be used in commerce, and they have apparently put the Arilou in the game at this point. But they were certainly not originally intended to go in; this was a change in plans after the legal fight started. Presumably, by putting the old aliens in, they intend to strengthen their trademark claims on them, so that they can use those trademarks as leverage against P&F in the lawsuit.

Personally, I think that letting litigation goals dictate game design is probably a recipe for a bad game, and it could make them vulnerable to getting the release of the game injuncted, but we’ll see what happens.


#778

I have to point out again that as long as it doesn’t violate bar rules or legal ethics, attorneys do what you tell them to even if they believe it is a stupid idea. If you ask an attorney to file trademarks that they think are ridiculous and unlikely to be granted what that attorney will generally do is file the trademark and cash your check.


#779

Putting it in the game does not qualify it for a Trademark though, as much as I understand. The product would have to have that name. That is why I am confused as to this action.


#780

The line on what constitutes “use in commerce” is a bit blurry. Stardock’s latest filing claims that the presence of the aliens in the game manuals of SC1&2 was enough to qualify them for trademark protection. I and others who have researched the topic are quite skeptical, but I’m presuming from Stardock’s filing that it isn’t so preposterous that Stardock’s lawyers would embarrass themselves making it.

So, I believe you are correct, but Stardock claims otherwise, and we probably won’t know for a fact until the dispositive motion hearing in March.


#781

this is from the source, and is in line with what I understand. I vaguely also remember that when I applied for a trademark, I had to send to copies of the good.

And I do not believe the name of the guy doing the presentation. “Mark Trademan” ;>


#782

It is rather funny how Stardock’s stance on one hand is:

They don’t own those names just because they appeared in the game (never mind the contract that explicitly says they do)!

but on the other hand is

We own the names because they appear in the manual which Accolade created and thus had the copyright for!

At the same time they are going with the claim that P&F don’t own the copyrights but the people who worked under them do, and literally arguing in the filing that by claiming to have them P&F have maliciously prevented those people from profiting from their creations. Meanwhile, with no regard to the alleged real copyright holders, they are claiming to own everything.

It’s just so ridiculous. I really hope the judge and jury can see through it.


#783

I think, to be precise, Stardock isn’t saying they own the copyrights to any work, only that they bought the right to license them from P&F in exchange for royalties. Except now it turns out Paul doesn’t own any of it because he didn’t make contracts with all those other creators. And Stardock owns the trademarks on lots of the names because of the manual and other marketing material.

Here’s a thing I guess I know the answer to, but I have been confused about for awhile (maybe @Elestan knows more details):

For Accolade (and now Stardock, assuming the purchase was valid), they had the exclusive right to license the content of the classic games from Paul. Does that mean they could do so at any time and without Paul’s permission as long as they pay the required amount? Doesn’t it seem like each time they wanted to do that, Accolade had to create an amendment to the license agreement and get Paul onboard? And does that mean that if Paul refused the terms, he could refuse to license? Stardock seems to say that they don’t need a new agreement or Paul’s compliance to use the material as long as they’re paying. Is that consistent with the 1988 agreement?


#784

There was a clause I read in the original agreement that said of the royalties drop below $1000 a year, the entire agreement expires. Did ai read that right?

Maybe that triggered somewhere.


#785

Incidentally, that’s such a weak argument that I’m really surprised they’re trying to run with it.

Verbal agreements (i.e. the people doing content for classic Star Control as work for hire) are just as binding as written ones. The problem with verbal agreements tends to be that it’s hard to prove anything about them if there’s a dispute. After all, nobody is going to remember the details that turn out to be non-beneficial for them. But here all the original parties appear to agree, and have retroactively produced signed contracts to match the verbal agrements. There’s just nothing there.

Let’s assume that the old contracts are by some miracle still in effect. There are actually a bunch of IP-related rights. The relevant ones are:

  • “Derivative works”. This is defined in these contracts to mean basically ports of existing games. The '88 contract let Accolade commission anyone to do the ports, but they’d have to ask Reiche/Ford for a bid, and accept their bid if it was competive compared to other bids.
  • “Derivative products”. This is defined as non-software. So Spathi plushies or a SC2 comic book. I don’t think the exact parameters of this are actually defined in the '88 contract, just that this kind of merch would have a 10% royalty rate.
  • “Sequels”. Games using the characters or plot of the classic games. The '88 contract specifies that if Reiche/Ford didn’t want to develop a sequel, Accolade could do so with terms that would be negotiated in good faith (and a royalty rate that can’t exceed 10%; maybe 15% depending on how the contract is interpreted).

The '95 addendum allows for developing a single named sequel (SC3) at a royalty rate of 3.5%, and a 10% rate on merch.

The '96 addendum grants a three year license for developing further sequels at a variable 1-3% royalty rate. That license could have been renewed for another three years, but wasn’t.

While the addendums routinely obviate parts of the original contract, none of them do so for the section about sequels. They just specify the licensing terms for a specific sequel, but leave the original more generic text about sequels in force as well.

So no, not quite “without permission”. But if the contract as a whole was still in effect (which it isn’t), and if Stardock could bring themselves to negotiate in good faith (hahaha), then Reiche/Ford couldn’t really refuse. The best they could do is to try to extract the maximum level of royalties.


#786

They are claiming a copyright in the cover art, some of the art in the user manual, and all of Star Control 3.

@jsnell answered this at least as well as I could have.

EDIT: With one caveat:

It turns out that work-for-hire agreements must be written and signed in order to be valid.
/EDIT

That’s the original definition of the Sales Term, in §2.2 of the 1988 agreement. While Stardock hasn’t admitted it, the evidence that it triggered is pretty overwhelming. P&F’s latest brief cites a 2006 statement by Atari that there had been no sales of “Star Control” products since at least 2001, and Paul said that he received no royalty checks from Atari after about 2000.

Other reasons for the agreement to have terminated include:

  • §7.1, which terminates the agreement upon the bankruptcy of the publisher, which happened to Atari.
  • §12.1, which prohibits assigning (transferring) the agreement without Paul’s permission.
  • Addendum 3, §4, which automatically terminates the agreement three years after its 1998 signing, unless Atari actually published something under it by then (which they did not).