I’m listening to the interview now, and right off the bat Brad mischaracterizes P&F argument. He claims that they are continuing to assert the right to market their game using the name Star Control and by saying it’s a true sequel to Star Control. They’ve already removed the offending language.
I appreciate that, however you just literally characterized one side as “screaming” that “Stardock is evil”. That’s not an attempt to remain impartial.
The people who believe Stardock has lied believe that because they have seen statements that seem to be in direct contradiction to each other. Stardock’s position and explanations have shifted over time. Surely you can see how saying “We don’t own the lore, even if we did we refute any ownership” and then saying “we own all the lore” is a radical shift in position. They quite literally have gone back on their word. Forming an opinion that they have been dishonest is hardly unreasonable.
Absolutely it is a radical shift in position. I simply see that as a likely result of lawyers getting involved as opposed to “see, they lied”. But iirc, you’ve said lawyers being involved is a poor excuse, so… ¯\(ツ)/¯
I don’t mean to be flippant. I just don’t know what else to say on the matter. But you are right. That was poorly said on my part. I’ve felt that the tone of the thread was unbalanced at times, but being unbalanced in the other direction is not the answer. Sorry.
The thing about lawyers is that they do what you allow them to do. They’re ultimately an expression of what you are okay with.
In all of the communications between both parties, P&F are consistentently pretty concise and direct about their position. SD, by contrast, is erratic, inconsistent, and when confronted with direct questions - vague. See their responses to direct questions from Ars, for instance.
I think it’s perfectly OK to form your opinion of a given party based on what they allow their lawyers to do on their behalf.
That’s fair. Lawyers instincts are generally to go full ham, so to speak, but you don’t have to allow that. I certainly remember fighting with my attorney over the wording over employee contracts (trying to protect them more) when I was running my own company.
Well, sure. It seems daft to me too. The point is that you don’t need an excuse to try, just lawyers willing to try everything and see what they can get away with.
You do realise those positions appear a bit inconsistent right?
How so? I’m not party to this lawsuit - if I was getting sued with those claims I’d need to counter but here I’m just watching the fireworks :)
From your earlier quote: “I think the key point is the claim from P&F that the rights that Stardock bought from Atari wasn’t valid in the first place and all rights stay with them.”
This is a misunderstanding. Stardock holds the trademark. The rights P&F claim to hold are the copyrights, which are explicitly granted by the contracts and original copyright notices. It is also specifically enumerated in the contract that Paul owns the story, setting, alien and ship names, and unique terminology.
Accolade had a licensing agreement to license the alien names, setting, etc. (the lore) from Paul. The last addendum to that license was the one for SC3 (where the clause detailing Paul’s IP resides). That granted Accolade an exclusive license to make derivative works based on their IP and to use the races, etc. for the term of the agreement. That license had limits and termination clauses. Based on those prior agreements that spell out their ownership in black and white P&F claim they own the copyrights to SC1&2 (and the portions of SC3 that used their licensed copyrighted material).
Also as part of the original agreements is a license to sell the original games, which P&F also claim has expired. That is why Atari had to make an agreement with P&F when they started reselling the games. Atari sold the games on GOG, P&F contacted them to tell them they held the copyrights and to sell the games they need license from them to do so. Atari looked over what rights they got from Accolade, said “yep, you’re right” and made a royalty agreement with P&F for the sales.
Stardock has claimed part of what they purchased at bankruptcy was perpetual and exclusive rights to use the lore and to publish the old games. Which isn’t what Accolade ever had to begin with.
@Ex-S_Woo so to complete the circle, even if the rights to that material had reverted, P&F don’t dispute that Stardock bought the trademark (despite the issues surrounding the trademark renewal being hinky), therefore SC:O wasn’t threatened except to the extent it incorporates material it doesn’t have the right to use (which wouldn’t have been an issue in the early part of development as far as we know). Therefore, there was no reason to go for the scorched earth route to protect Origins.
Did I get that right, Thrag?
A question in my mind is did Stardock perform any due diligence before the sale? I have not seen any evidence of it, based on statements made after the sale. If it was, one would have thought that a lot of this communication would have occurred before the auction, so that a proper valuation could have been performed. I am sure P&F would have gladly stated their position before the sale - whether or not Stardock would have felt they were correct is another matter - and should have been part of the valuation.
Yes, that matches my understanding.
P&F did make requests for them to not use the term “supermelee” and that a ship creator not be used as a way to back door their copyrighted material into the game. In Stardock’s PR efforts these requests are given a slippery slope treatment to make it seem like P&F are trying to stop or hinder SC:O development. The notion being that if they feel they can make these kinds of requests based on their copyrights, they could make more aggressive requests in the future which may be a threat and so they must be disarmed completely.
They did. Again, refer to section 4.05 of the APA. You can find it in the counterclaim from Reiche/Ford. Clearly that due diligence failed e.g. when the GOG revenue split wasn’t discovered.
That seems far outside the norms of a normal due diligence process.
Given that they didn’t actually state their position until years after the deal, that seems unlikely. Like there is that very early email exchange where Reiche asks exactly what Stardock bought. Brad answers it with roughly “the trademarks and the distribution rights to SC1/2”. And Reiche is just “that’s cool” rather than “they can’t sell you the distribution rights, those expired 10 years ago!”.
Your last line is the most important one - the hypothetical you suggest would essentially never happen in the gaming world because this is literally the only situation that exists where the the developer owns the IP rights other than the trademarked name that the publisher used.
The only situation I can think of that is remotely similar is what Richard Garriott is doing with Shroud of the Avatar. He retained ownership of a few names (including Lord British) used in connection with the Ultima series, and his new game has been marketed, at times, as a successor to that series – but never using the box art of names of any of those games, and EA apparently seems fine with it.
The difference is that they actually own the content to those original games, other than the trademarked name it was published under. So it’s completely dissimilar to your examples.
This is, instead, analagous to George Lucas selling the Star Wars name but retaining all rights to the content of the movies, in which case he could produce a storyline sequel as long as he didn’t use the Star Wars name.
Well, they “signed off” on it. But yes, they failed to look closely from what I understand.
To that I definitely disagree. When buying an asset like this, (I have been in this position), you really want to know what you are getting, who owns what, and who claims what. I would think that the Atari contract would have been reviewed, and they would have verified for themselves that the rights in the contract had been maintained. You just don’t assume in these types of situations. Someone dropped the ball.
Yeah, there is a hole there in the Reiche conversation. (However, ‘distribution rights’ are different from derivative work rights). But Stardock did not pick up the phone before the auction, as they should have. A call prior to the sale could have avoided all of this.
I’m reminded of the lawsuit that led to the production and release of Never Say Never Again, which was a Bond movie without being officially a Bond movie. From the IMDB page: “Kevin McClory, who was producer and co-writer of Thunderball (1965), won a legal battle against Ian Fleming to make his own Bond movie. The settlement stipulated that it had to effectively be a remake of Thunderball.”
This IP stuff can get really weird.
I have also been in this position (though on the other side) for an IP asset purchase deal with six figure lawyer fees. Obviously a lot more care went into the DD there than could possibly be justified for a distress sale of some rights related to a 20 year old game.
Basically every contract we had with anyone, and various other bits of paper were combed through. Things were discovered or deemed missing that stalled the closing for weeks, even though to me they seemed like incredibly minor things. (Look, we have two other kinds of paper showing that this person assigned all work products to the company. No, we didn’t do any separate special case patent assignment paperwork at the time.)
But even though tons of time from both sides was spent in defusing and investigating those issues, contacting the counterparties of those contracts for their interpretation was not an option anyone seriously suggested.
On top of that, in this case the people being contacted might well (for all Stardock knows) be direct competitors for buying those rights. It’s a ludicrous idea.
Absolutely, but not by contacting third parties. They should have e.g. noted the termination conditions on all contracts, and asked for documentation showing they were still valid.
Or as another example, the contract + correspondence with GOG should have surfaced at some point in the DD. Atari should have produced that document with no prompting, but clearly they weren’t even a marginally professional organization. Even so, financial records should have given a breadcrumb trail to this contract existing, and have people check their email inboxes and not just the filing cabinet.
So you’re correct in that it wasn’t a well executed DD process. I just disagree about what they should have done instead.
Sure, but that doesn’t matter. They clearly had no interest in setting the record straight, why would they have been any more helpful during DD?
I see the point there, I will give you that.
There wasn’t much a record to set straight at that point According to the emails published in Stardock’s Q&A they only asserted contentious rights in 2017 when they claimed to have active and exclusive license to all the IP.
The publishing rights weren’t the contentious issue either at that point. Atari did have publishing rights, as per the agreement worked out between themselves, GOG and P&F. Stardock didn’t clarify that the publishing rights they owned meant that they would publish the games without any license or payments to P&F.
They likely looked at the statement that Stardock purchased the trademark and publishing rights that Atari had and thought, yes, correct. After all at the time they had a deal with Atari regarding publishing. Stardock has not yet claimed publishing rights separate and exclusive from P&Fs rights. If he had said 'the right to publish the games without your license or paying royalties" a correction would likely have followed.
edit: Corrected where I said Stardock in one place where I mean to say GOG in regard to the publishing deal between them, Atari and P&F