A jury doesn’t decide questions of law, they decide questions of fact. I absolutely believe that a jury could look at the SC:O Melnorme and say "Pfffft, they totally copied the first one and then changed a few things.’ I also believe they might rule the other way. Juries are famously mercurial. This is exactly why your lawyers have probably advised you not to let the case go to trial (and to be clear, I’d expect P&F’s lawyers to be giving them similar advice). I’m not surprised that you believe you’re not infringing; I’m just surprised that you don’t see how putting those two pictures one above the other in the same post visibly weakens your argument. If I showed 30 pictures of random aliens to people-on-the-street, but included the two Melnorme, and said “Circle the two that are most like each other”, they would circle the two in your post.
I think an argument about whether the Melnorme are technically infringing is rather subsidiary to the much more interesting question of what is driving Stardock to accept this potential legal exposure.
(I actually like the Stardock Melnorme design and don’t think in pure visual design terms that it’s derivative of the original.)
I do not have the clairvoyance to know what 30 random people would or wouldn’t do.
I do agree that anytime you are dealing with juries you are rolling dice. If I show a jury 30 random fruit that includes an apple and a plumb and ask them “circle the two that are most like each other” they might indeed circle the two. But that doesn’t make an apple a plumb and that’s not the question they’d be asked. They’d be asked is THIS a copy of THIS using the substantial similarity test. And our Melnorme isn’t a copy of anything and as previously noted, was described to an artist using traits that are largely unique to our Melnorme.
Of course, none of this exists in a vacuum. This suit is primarily a trademark infringement case which includes statutory damages and various penalties for willful infringement. I won’t get into all the problems the other side has for obvious reasons. But we are comfortable with our rights and position on the merits.
A better question to ask and debate, imo, would be to ask why Stardock would even bother using the species names associated with Star Control in the first place. The answer is, we’d rather not. But we are caught between a rock and a hard place now. On the one hand, Paul and Fred and their friends have made the argument loudly, and in the press, that the new Star Control is just a new game with the words Star and Control slapped on it and has no relationship to the classic games. That’s not what we paid for. We acquired the Star Control IP specifically because there is value in associating a new Star Control game with the classic game for marketing purposes. So now we feel pressed to strengthen that association by leveraging our IP rights which includes using the names of the Star Control species.
Provided no one drags me back in, I’d like to bow out so I can work on other things. But as Elestan mentioned, this is my “home forum” but I’d still rather you guys discuss this without making the discussion about me personally.
It was mentioned earlier that this could simply be leverage, to reinforce Stardock’s bargaining position. For example: “We give you (back) the Melnorme and the Arilou and allow you to make Ghosts, if you give us the right to use the Star Control organization, swear you’ll never call your game a direct sequel, and don’t bother us about the trademark any more.”
I am really curious as to what P+F have done to “pass off” their work in a way in which they have either materially benefited from the goodwill associated with your trademark or in a way that is materially damaging to Stardock’s commerical interests.
Note that the passing off is a vital part of a trademark infringement claim - I think this is the key misunderstanding here. Normally the only way to exploit the goodwill associated with the trademark would be through passing off, but in this case P+F can exploit it through being the original creative leads, and by making use of their copyrighted IP. If they access the goodwill in that way they are not passing off, and your trademark doesn’t become involved. (see Rock Band and Guitar Hero for an example - Harmonix absolutely accessed the goodwill associated with the Guitar Hero brand in selling Rock Band).
Note I agree that their description of their game as a “sequel to Star Control” was out of line - I just don’t see where the material damage is from that specific isolated statement. If are continuing to use that phrasing, especially if they were to use it in a wide-scale marketing campaign that would be a different matter.
It seems very strange that the excuse is being used that Paul and Fred claimed that star control Origins had no association to the storyline of the previous games when the first I heard about that was from stardock saying that the game will be set in the new universe with separate IP.
I find this really interesting. There’s a real tension here between strengthening any association, but avoiding infringement at the same time. It seems the more you aim for one goal, the bigger the risk of missing the other.
edited, due to:
Thanks, BBB
I feel compelled to say I think the event that happened on Discord, if factually represented, is relevant to the case. Certainly without the discovery it would not have happened. I am very curious if such an encounter will end up in someone’s legal brief.
This thread remains probably the best source of factual information and analysis on this IP conflict anywhere on the internet, mostly from Nightgaunt’s hard work.
At least until very recently where it became part of the story.
In an effort to keep this thread open, I’d like to remind folks to try to be cordial. Which I really shouldn’t have to do. You guys all know better.
Also, @Brad_Wardell , you posting in this thread is surprising to me given that your company is one of the parties in the litigation. Until the legal situation is resolved, you should probably let this thread run its course as commentary from the peanut gallery instead of a place to make your case. I’m not laying down any admin decrees or anything, but as a friend and fellow community member, it would be a lot easier for everyone involved – including you – if you recused yourself from the thread. If you’re worried about correcting things said in error, there are enough people here commenting impartially and also flagging posts that you should be covered.
-Tom
Mine is a thoroughly amateur attempt at sorting through things (and a little slapdash on recent developments) but I’m glad there’re others here looking closely at this stuff and sharing their analysis.
I feel a little put to shame by the UQM wiki page, which (if you haven’t seen it) is another great source.
Yeah. When litigants post their legal opinions without benefit of attorney advice it rarely works out all that well for them. Though I’m sure Tom would be charmed to see forum posts cited as evidence in court.
A couple things on that, @tomchick
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That other time there was no way I could have known that we were being monitored. You didn’t know we were either so let’s not pretend otherwise.
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No one forced you to bail me out of that Turkish prison. The fact is, I’d already developed a taste for the food so don’t fool yourself into thinking you were doing me a favor.
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I will follow your advice despite the fact that you are well aware that I have my mission:
- I will see you on Sunday. I will bring the Köfte.
I was just taking a bit of my lunchtime to catch up on the lawsuit discussion around the web and someone on reddit pointed out that everything star control related is gone from steam except for the “mowlings” DLC pack (one of the new SC:O aliens that isn’t in SC2).
I just went in and searched and it appears to be true. None of the other DLCs are there, not even SC:O itself comes up in a search.
What this portends who knows.
The original games not being on GOG isn’t new, those were taken down some months ago if I’m not mistaken, by mutual consent. Do you recall if GOG was ever selling the DLC with all the alien names? I don’t know if that was just on steam.
Yeah, you’re right. The Arilou and Chenjesu DLC packs used to be listed on Steam, but they’re gone now. The fact that the Mowlings are still there there indicates that the other two are gone due to the legal dispute.
Wonder how the dlc even shows up when the game doesn’t.