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?
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.
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.
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?
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.
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.
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.
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.
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” ;>
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.
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?
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?
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.
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).
It’s not quite so cut&dry. The termination of that contract would have ended any license Accolade/Atari/Stardock had to use the IP that Paul owned. But the contract also gave Accolade the ownership of some of the IP, including any trademarks used in the marketing of the game (like “Star Control”), and probably the ownership of the box art copyright. Those ownership rights would survive the termination of the contract.
Accolade was acquired by Infogrames in 1999, which then changed its name to Atari in 2003 after buying the previous company of that name. Atari eventually went bankrupt in 2013, and Stardock bought some Star Control assets at its bankruptcy auction, under a “no warranties” sale contract.
To correct something I said earlier, it looks like Atari wasn’t entirely liquidated; a remnant of it apparently exited bankruptcy in 2014 as a small business with about 10 employees.
