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

Games
1448

It is good to see the recent moves, but as people have pointed out it appears that the stance hasn’t really changed.

One of the things I find annoying is how the strawman argument is still being made that P&F or anyone on their side is claiming that you can copyrights names or that you can copyright ideas. The concept of substantial similarity has been explained to him clearly multiple times in this and other forums and he still chooses to completely ignore the concept in order to throw out bullshit about how people are claiming you can copyright ideas or how P&F’s list of similarities means they think they own the concept of space exploration. So while their public actions have taken a step back from the precipice, it seems the self-delusion is still in full swing. The reality distortion bubble has warped a bit but it appears to remain intact.

1449

This is one of the things that is just unconscionable for me. He’s flat out lying when he repeats this line. There are a lot of statements where one can be generous and assume some misunderstanding rather than an outright lie but this is not one of them. There is no wiggle room. No weasel words or special definition that can make this even remotely true. When you’ve said that something will be made under your control or not at all saying you aren’t trying to prevent it’s making is simply an outright lie.

It’s like someone pointing a gun at their partner and saying “If I can’t have you nobody else can” and then claiming “but I’m not trying to prevent you from seeing other people”.

1450

I’m not sure that’s entirely fair.

Some of Brad’s posts here have gone some way to explaining his perspective - which appears to be that by acquiring the trademark they acquired the rights to the goodwill in the Star Control brand and that actions by P+F that damage or exploit that goodwill are tortious. The lawsuit then becomes a matter of Stardock seeking to enforce their rights rather than trying to prevent P+F making an independent game using the SC IP. I think he’s said in the past that he believed that if P+F wanted to make a Star-Controlish game they would have to negotiate with Stardock for pretty much this reason.

All of this is of course based on a serious misapprehension regarding the way trademark rights work (It’s a shame that Brad hasn’t offered his take on the Guitar Hero / Harmonix / Rock Band example, although I appreciate why he might have wanted to stop posting in the thread), but it does at least offer an explanation for Stardock’s actions which while I wouldn’t describe it as “innocent” nor would I compare it with someone pointing a gun at their partner.

1451

I do get what you are saying. I do not believe it is the core intent, or was the original intent, to prevent GotP from being made. That’s not the primary goal. But it is what they are trying to do and saying one thing while doing another remains dishonest in my book.

The settlement demand speak for itself. As does the “free to do what they want as long as it’s under my control” definition of freedom.

Still recent events are hopeful. A week ago I would have bet in a second on this going to trial. Even if the removal of the Alien Name Grab™ DLC was not really an olive branch and just a move to protect the release it is still a demonstration that the heels aren’t dug in to hard.

I think there’s a definite glimmer of hope in a proper settlement along the lines of; Stardock makes games under the brand “Star Control” that don’t follow the original story, setting, etc. P&F make games that do follow the story that are not branded under Star Control. The potential infringing fan content is handled by DMCA like it is done near everywhere else. P&F still get to mention they were behind the original games (exact terminology can worked out). Everyone releases a nice “yeah that sucked, we’re cool now” statement. Perhaps with some quips about how they first decided to settle their differences over a game of Frungy but after several months of trying to figure out the rules they called the whole thing off and settled.

1452

Brad’s pretty clear in that UQM post about why he bought the trademark:

The value of the trademark was completely about the awareness it would generate. Its association with the classic Star Control games is valuable. That is the whole point of acquiring an existing trademark like Star Control.

The problem is that he doesn’t seem to understand that what he bought was the trademark, and that he didn’t have any rights to any of the actual copyrighted material from SC2 outside of whatever might have been covered in an agreement spilling forth from the publication of SC3.

This I found illuminating:

While no doubt some fans would have been upset if Glen A. Larson didn’t approve of the new BSG, most fans wouldn’t have cared.

He’s made the BSG comparison before, in the sense that Origins is to SC2 as the rebooted Battlestar Galactica was to the original one. But the key difference is that Stardock doesn’t own the original SC2 IP in the way that the studio/producers/whoever owned the rights to BSG (as a property, both the trademark and the copyright). Even still, when the rebooted show kicked off with the mini-series, Larson complained and was awarded a credit as the writer (creator!) of the original show

Larson was later credited as “consulting producer”, in the same way that Roddenberry was on Star Trek: The Next Generation after the first season or two, when he basically had zero control. The position is mostly ceremonial; just an acknowledgement of the person’s contributions to the IP in question in the past. (One could imagine a settlement agreement in which P&F are credited as “consulting producers” to Star Control: Origins, for example.)

Of course, one of the arguments that Brad’s trying to make is that P&F didn’t actually create Star Control, which is patent nonsense. Unlike Larson (and Roddenberry), they didn’t do their work “for hire”, and all the agreements make clear that they own the copyright, though the court case will no doubt clarify further what they do and don’t own exactly. But as with Larson and Roddenberry, there really shouldn’t be any doubt as regards their contributions, or those of their collaborators. I mean, people acknowledge the contributions of other writers to these works in question (e.g. Ron Moore for BSG, people like Dorothy Fontana and Gene Coon for Star Trek, and so on; Greg Johnson for SC2) without that diluting the copyright issues or who should be properly credited as the original “creators” of said works.

As to whether or not fans of BSG cared about whether or not Glen A. Larson approved: Dirk Benedict wrote a screed in which he decried the fact that Starbuck was going to be played by a woman, and there were plenty of old-school fans who didn’t like the show (especially before it aired). So it’s not so much that fans care whether or not the original creator approved (Roddenberry hated Star Trek II, for example), but rather whether or not the fans think the new thing is actually good.

Edit: or to put it simply – you can do a BSG-style reboot of a thing only if you own more than the trademark. Otherwise, it’ll just be a “spiritual successor” (but otherwise original IP) that just happens to have the same name. P&F’s Ghosts is actually intended to be the mirror image of Origins: a true successor to (the story of) Star Control 2, without an entirely different name. It seems to me that Brad thinks that having the trademark automatically gives him certain rights to the IP as a whole.

1453

The metaphor is a bit strong, yes. Still the lawsuit is being used as a weapon. That weapon is pointed at P&F. We do have the conflicting positions of “under me or not at all” and “I’m not trying to prevent”. We’ve even got a lot of “do you see what you made me do to you” with the repeated blaming of actions on the other party. Even now the line is still that they are forced to do what they do because P&F are questioning the validity the trademark as part of their defense.

1454

Going back to what I remember from the airplane convo with the IP lawyer I had months ago -

I believe there is a difference between the amount of IP that can be inferred from just the Trademark when the underlying IP is dormant vs active. What Stardock is claiming was probably fine until P&F announced their game w/ an intention of doing a direct sequel.

Even with the announcement, given that Stardock had an active communication channel with P&F for years prior to announcement they might be able to argue that this right didn’t go away due to the lack of feedback from P&F on these points. Seemed like a 50/50 chance w/ the court decision hard to predict, hence the recommendation to go into settlement.

1455

Copyright doesn’t go “dormant”. You (or your heirs) retain copyright over what you’ve created until 70 years after death (depending on jurisdiction, etc.). Stardock cannot make the claim that simply because P&F didn’t do anything with their copyrighted materials that it was fine for them to just appropriate it or parts of it. That’s simply not how copyright works.

Edit: I guess a definition of copyright is useful. This website gives a concise and accurate description:

Copyright refers to the legal right of the owner of intellectual property. In simpler terms, copyright is the right to copy. This means that the original creator of a product and anyone he gives authorization to are the only ones with the exclusive right to reproduce the work. Copyright law gives creators of original material, the exclusive right to further develop them for a given amount of time, at which point the copyrighted item becomes public domain.

P&F say they didn’t authorize Stardock to use their copyrighted material. Stardock claims that they have a right to the material (or Brad at least seems to think that owning the trademark gives him the right). That’s the key issue at stake here. Personally, I don’t see how Stardock has any chance of winning this, but that ultimately depends on the agreements P&F made over the past nearly 30 years and how a court sees matters.

1456

I’m just regurgitating discussion points I had with an IP lawyer who made a snap judgement based on what I told him (which was admittedly much more limited than the timeline listed above).

You could be right but his sense is that gets very complicated and the fact that P&F & Stardock was in contact could have legal implications.

Edit : He also shared that this type of case is fairly common and it almost always settled out of court, with some revenue split arrangement made.

1457

I work in publishing (and have had books published with other publishers) and just talking to a creator doesn’t magically give a publisher a right to do anything with someone’s copyrighted work. Agreements always take the form of formal contracts that are created after some back and forth.

Yeah, I would be very surprised if this actually goes to court. On the UQM forum, it seems that they’re going through some kind of mediation process now, which makes sense.

1458

This seems generally correct, but if in the context of that early contact between the parties, P&F said (informally) that they had plans to make a follow-up game one day, doesn’t that likely redound to their benefit, not Stardock’s?

1459

Perhaps? Reverse could be true as well - if P&F didn’t mention any restrictions or concerns on how a new Star Control game may infringe on their copyrights/their plans for a future game until after the public announcement then Stardock may have recourse too.

1460

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1461

I’m really curious by what legal sorcery an equitable estoppel claim regarding the copyright can be established. (P+F’s separate counterclaims regarding the lapsing of the trademark agreement are a different and entirely distinct matter where equitable estoppel is relevant). There’s clear evidence that Brad believed at one point that P+F held the copyright, and that P+F were aware of this. There’s no evidence or statement of which I am aware that suggests P+F were made aware of the fact that Brad had formed an alternate opinion until October 2017, at which point the entire situation rapidly escalated.

Equitable estoppel only applies if the copyright holder knowingly allows infringement, or misleads the infringing party as to their rights. As far as I’m aware no serious claim has been made that either of these happened, and until one is this is FUD.

1462

Yeah, half the reason I was touching this tar baby is that Brad kept coupling assertions that demonstrate a fundamental misunderstanding of both copyright and trademark law, but then paired them to snark about how the people he’s arguing with must not understand how intellectual property works.

(I think it’s fine for one to make whatever arguments one needs to make to protect one’s interests, but just because you put a pig in a tuxedo doesn’t mean the rest of us have to pretend it’s the homecoming king.)

1463

Hello, a former lurker here. I was wondering if I can get you guy’s opinion on a few ideas about this whole thing that’s been rattling in my head. Feel free to tell me if this is too tangential and needs to go into a different thread.

So I’m just a programmer and have no legal training. Just been really interested in IP/Copyright/Trademark law that I took time out to read about it so I know enough to protect software that I write. With that background out of the way.

  1. I keep hearing the phrase (from Leonard French, the copyright attorney with his own youtube channel) “If you abuse copyright, you lose it.” So if that’s the case, can anyone speculate what would happen if this goes to trial and Stardock loses? Does it go into public domain? Does the previous company (now bankrupt and no longer exists) regain it? Does it go to P&F?

  2. From my personal reading of the history, the posted documents and the story from both sides, it sounds like what happened (to me, personally), that Brad saw the opportunity to buy Star Control, was really enthusiastic and got it. But only after that did he realize that he just got the name, not the content or the games or anything that really mattered. Let’s say in a parallel universe that was the case and Brad didn’t try to sue P&F but instead tried to recuperate the costs of, what he felt, was a misrepresented sale of the Star Control IP. How would he have approached that? What methods would have been available? Would that even have been possible from a now bankrupted and no longer existing company?

The only reason why I even thought the second question was that the email from Brad to P&F offering to sell them the rights mentioned a number specific enough to stick in my head. It was a number that no ordinary person can afford, but a company can, or at least, that’s what it seemed like to me.

1464

I am in about the same legal knowledge position as you are.That being said, for #1 if Stardock were to lose, they would still own the Trademark. From what I can tell, at this point Stardock is not asserting ownership of the Star Control IP (story, plot, etc.), they are seeking the right to use that IP. It is their assertion that because of previous agreements between P&F and publishers, they are able to use it. So if they lose, they will not be able to use that IP. But they would not lose the ownership of the Trademark. the game can be called Star Control…

As to your second question, Stardock has no recourse with the sale at the auction and a refund. Everything is sold “as is” and it is up to the buyer to do due diligence beforehand. Stardock did sign a document stating that they had, in fact, done this and understood the consequences. (But imho obviously those that did believe they had done research need to be sacked, and probably the people that sack them need to be sacked as well. They may have purchased the Brooklyn Bridge.)

Reaching a license agreement with PF would be a good recourse - but that costs more money and the copyright holders have the leverage there. I think selling the Trademark is a good recourse, but of course it would have to be revalued in light of this and possibly not worth as much as paid for since it is a unique thing. PF are the natural customer for that, so leverage again.

It is still very much in question in my mind whether Stardock’s pursuing the IP from previous versions was worth the time and effort and received ill-will, as opposed to producing a new game of RPG space exploration. The money put into the Auction purchase and legal wrangling could have been used to get some good writers to make up new races and build a story, perhaps even a name for marketing purposes. I don’t think the TM was needed to do that. However, to some extent bad news is still “news”, and more people are talking about this than otherwise would be, with some gamers now emotionally invested in the game’s outcome either way. Kinda like Star Citizen.

I believe there is an emotional factor here for the principals on both sides that cannot be discounted as well, and that has added to the sensation. I don’t see this going to trial though, and I doubt either party does. But that emotional factor is a wildcard.

1465

I’ve made this argument before: this would have worked as Galactic Civilizations: Adventures! or something like that. In other words, Stardock has existing IP that this could have slotted into.

As regards @sleepingkirby’s first point: Stardock already had to drop using “Super Melee”, so I imagine other elements are also contentious: I mean, is “Star Control” (the organization) covered by Stardock’s trademark or by P&F’s copyright? In other words, can Stardock refer to the organization as “Star Control” or not? If not, what does that mean for the trademark? If yes, I assume P&F will simply have to rename the organization for Ghosts, or perhaps license its use from Stardock.

As regards point 2, I’m not sure what legal recourse their was. Brad offered the trademark back for sale to P&F, as far as I know, and they declined. I imagine they figured the trademark wasn’t worth as much as the actual setting, story, characters, and races, which they assumed – no doubt correctly – would be covered by copyright. Again, there are difficult aspects that will have to be hammered out in court (like the Star Control organization vs trademark thing).

1466

So there is a legal concept of copyright misuse, usually for instances where someone is leveraging a copyright for anticompetitive or fraudulent reasons.

However, your question has the parties backward. Stardock’s case is primarily based on Trademark law, not Copyright law. So any question of copyright abuse would be as to whether it was committed by Paul and Fred.

I didn’t see a specific claim of Copyright Misuse in Stardock’s defenses, but they do try to make a similar argument that goes, roughly:

  1. P&F failed to get signed work-for-hire agreements from the other SC2 team members back in 1991.
  2. Therefore P&F didn’t own all of the SC2 copyrights.
  3. Therefore P&F committed fraud when they licensed those copyrights for later use.
  4. Therefore their copyrights should be cancelled.

I don’t give this argument much credit, because there’s quite a bit of evidence that everyone involved intended P&F to get those copyrights, so the missing work-for-hire paperwork is a technicality - one that has since been corrected by P&F getting copyright assignments from those team members.

No, there’s a fair amount of evidence that he knew what he bought. When asked in another thread here whether P&F had given him a copy of the original contracts, he said:

He never claimed the right to use the SC2 elements in new games until Fred told him that he and Paul were planning to make a new game. Until then, he kept asking them for licenses to use them.

As for any remedies if he didn’t get what he thought he was getting, there would be few if any. He bought them at a bankruptcy auction, and the sales contract had a “No Warranties” clause that essentially made it a “buyer beware” sale. Stardock was responsible for doing any due diligence to make sure they were actually buying what they wanted.

1467

So, I want to correct what looks like a common misunderstanding in play here. Stardock does not need the trademark to release a game called “Star Control”. Trademarks are used to create exclusivity, so if there was no “Star Control” trademark, anybody (including Stardock) could make a game called “Star Control”. Moreover, Stardock has already filed for a new trademark on the phrase, so if the old trademark were to be cancelled, they would still have exclusive use of the phrase in commerce; the only difference it would make is that they wouldn’t be able to make the sort of threats they’ve been making with regards to the old games.

I used to think that Stardock was misinformed about what it bought back in 2013, but enough evidence has accumulated that I no longer do. My current opinion is that Stardock and P&F had the same general understanding about what Stardock bought from 2013-2017; Brad’s repeated pleas for a license to use the SC2 ships shows that he believed he needed one. However, I think that once P&F told Brad that they were going to do a new game that might compete with Stardock, he went back to his lawyers, and had them look for loopholes and reinterpretations that would let him either claim he didn’t need their permission, or that would give him the leverage over their planned new game to block it or force them to work with Stardock to make it.

The one place that I do think Stardock made an incorrect assumption is that Brad appears to have been taken aback by Paul and Fred’s refusal to work with him. It seems to me that he bought the trademark under the presumption that they would either quit their jobs at Activision to come work for him, or at least license him the rights to use elements from the prior games. But it doesn’t look like he actually asked them about it until after he’d already won the auction.

It looks like it wasn’t until he realized that they weren’t going to work with him that he realized that he might have bid on a lemon. He knew, from tons of feedback and posts, that a “Star Control” game without P&F’s involvement would not be viewed as legitimate by many of the fans. So he offered to sell it all back to them at his cost. However, they probably believed that he overpaid for it, so they passed.

The Rogers Test appears to be the legal standard for when this is permitted. In summary, a trademark cannot control the use of the mark within a creative work, unless that use would “explicitly mislead” consumers into thinking the work was made by the mark holder. I’m not lawyer enough to guess whether any use of that phrase in GotP would qualify as such.