The case law I could find isn’t clear, so it would probably have to be decided on a case-by-case basis. Fred has the largest contribution to the project, so he could certainly make a claim. Serge runs the code repo and website, so he’d be another possibility. But I suspect (though I can’t speak for them) that everyone else with a plausible claim would back P&F on this if push came to shove. Their decision to open-source the game in the first place earned them a very large store of goodwill in the community that grew out of that decision. And, of course, the fact that Brad has requested an injunction that he could use to shut the project down didn’t earn him any friends there.
No, they didn’t. If the old “Star Control” trademark were invalidated, Stardock could just get a new “Star Control” trademark based purely on SC:O. This would allow them to continue to make and control that line of games going forward for as long as they wanted. The only IP they are “defending” is their highly tenuous claim on the names of the aliens. And since they had already publicly said that the aliens belonged to P&F, how can they now claim that they are obligated to defend them against P&F?
That section only applies to trademarks used “in the marketing of the Work”. Stardock’s brief tries to claim that simply having them in the game manual counts as “marketing”, but that seems like a really stretched argument to me. The manual is not the same as a sales brochure, especially since when these games were published, you couldn’t get it until you’d already bought the game. Moreover, some of these names, like “Dnyarri”, weren’t even mentioned in the manual at all.
Most companies here have some form of IP assignment clause in their employment agreements. The most aggressive ones claim every bit of IP the employee creates while an employee, no matter when, where, what, or how. I’ve turned down jobs to avoid signing such agreements before. But even a moderately reasonable company is still going to claim IP relating to the company’s business, even if done on the employee’s own time. In this case, Activision’s business is video games, and unless they are very generous on their IP, I would be extremely surprised if they allowed their employees to work on potentially competing games. Do you think Activision’s reputation suggests that they might be generous regarding IP rights?
So? Their email to Brad indicated that the GotP announcement was planned in relation to the 25th anniversary, and I see no basis to doubt its sincerity when written, though they may have moved the announcement up after their email exchange with Brad turned hostile
Nominative. They needed to identify the product containing the first part of the story that they were planning to continue in GotP, and they could not readily identify it without using its name. As I’ve said, their initial use of the box art was probably not fair use, but they quickly took that down upon Stardock’s objection.
This argument has no merit, and I wish people would stop repeating it. They announced that they were starting work, so obviously there wasn’t (and probably still isn’t) any work to show, just as there wasn’t any work to show when Stardock announced it was starting work on their new game back in 2013.
One could try to make that argument, but so far, the only evidence we’ve seen to that end is that they made their announcement some weeks before the 25th anniversary, instead of waiting for the exact date. That’s too circumstantial to convince me, unless Stardock finds more evidence to support it.
So, Brad said:
He did base his statement on Paul having copyright, but the statement has implications under trademark law as well. When he said “I don’t have the right to mess with the aliens”, that’s an affirmative statement of intent not to use them, which can serve as evidence of abandoning any trademark rights he might have had in them.
In context, it’s clear that this prohibits assignments from Paul, not to him. And importantly, Section 9.3 specifies the penalty if Paul’s IP rights turn out to be defective: He has to indemnify against any damages the Publisher might suffer. So Stardock could reasonably use Paul as a shield if Erol Otus or Greg Johnson were to sue them over any copyright issue in the old SC games. Which can no longer happen, since Erol and Greg have since assigned their copyrights to P&F.
