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Q+A regarding Star Control and Paul and Fred

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Q+A regarding Star Control and Paul and Fred

from StarControl Forums

Given the ongoing discussion of the legal dispute between Stardock and Paul Reiche and Fred Ford, designers of Star Control I and II, I wanted to take time to make Stardock's position clear and address inaccuracies that have been promoted.

As the need arises, I’ll continue to update this post with additional questions and answers.

Q: What are the issues in dispute?

A: On the eve of launch of the beta of Star Control: Origins in October 2017, a game Stardock has spent the past four years working on, Paul Reiche III and Fred Ford, the designers of Star Control II for Accolade 25 years ago announced a new game, Ghosts of the Precursors as a “direct” sequel to Star Control even going so far as to promote it as Star Control: Ghosts of the Precursors.

They did this despite knowing Stardock had acquired the Star Control IP in 2013 and knowing before hand our announcement schedule. Their actions created confusion in the market as to the origin of Star Control games which is why we have trademark laws. 

When Stardock asked that they cease and desist marketing their game as a sequel to Star Control they refused and began demanding that the sale of the DOS games, which had been on sale continuously since before Stardock acquired the IP and for which they had been receiving royalties for during the entire time cease and began to disparage Stardock publicly in the press. 

Despite Stardock's best efforts to reach a private, mutually beneficial co-existence agreement, Paul and Fred responded with increasingly hostile, misleading public attacks and served Steam and GOG with DMCA take-down notices on all of the classic DOS games, including Star Control 3 which they had no involvement with all while continuing to promote their new game as the "true" sequel to Star Control.

In addition, Paul Reiche and Fred Ford also began to claim that various features of Star Control: Origins violated their copyrights such as the ship designer, user interface similarities and other elements that are not subject to copyright protection (you can’t copyright an idea and Star Control itself was inspired by many other games). They also began to demand special access to Star Control: Origins to inspect it and demanded the removal of the ship designer,

As a result of their broad interpretation of what they believe they have rights to combined with their willingness to instruct their lawyers to issue a DMCA take down notices, even on titles in which they had no involvement in, combined with their refusal to cease promoting their game as the sequel to Star Control, Stardock was forced to file a complaint over their continuing trademark infringement.

In retaliation, Reiche and Ford filed a countersuit seeking to cancel the Star Control trademark and for copyright infringement due to the sale of the classic Star Control games on GOG and Steam and are even suing GOG despite the fact that Reiche and Ford were the ones who claim to have helped get the classic Star Control games onto GOG.

Q: Why did Stardock file the initial lawsuit against Paul and Fred?

A: We had no choice after Paul and Fred filed DMCA claims against the distribution not only of Star Control 1 and 2 but also Star Control 3 which they admit they had no involvement.  The DMCA claims were reversed, but it was clear that our ability to create more experiences in the Star Control multiverse for fans would be at risk if they are allowed to continue to misrepresent their new game as being associated with Star Control without a license while simultaneously making broad, unsupportable claims of ownership on ideas and concepts that are present not just in Star Control games but games in general.  

Q: How did these unfortunate events come to pass?

A: Here is a timeline of the order of events:

  1. Stardock acquires the Star Control brand, copyright to Star Control 3, the license to use the Star Control classic characters, lore and the right to distribute the classic DOS games.  The DOS games are already available on GOG  with Atari listed as the publisher. (2013)
  2. Stardock discuss plans for the new Star Control.  They state that their employment by Activision prevents them from working on a new Star Coxntrol game and request that we not use the aliens from Star Control 2 but do not contest Stardock's right to do so.  (2013)
  4. Upon learning that Activision has blocked their ability to be involved and that Paul and Fred hope to one day to continue their stories, Stardock offers to transfer its rights to Star Control to them, thus uniting the Star Control brand with Paul and Fred's licensed IP.  (2013)
  6. Paul and Fred ask what Stardock acquired from Atari to which Stardock responds: The trademark, assets to Star Control 3 and the right to sell distribute, market and promote the original trilogy.
  8. Paul acknowledges Stardock's position and asks how much it cost.
  10. Paul and Fred politely decline the offer to acquire the Star Control IP. (2013)
  11. Stardock announces a reboot of Star Control and explicitly states that it will not include the characters from the classic series out of respect for Paul and Fred. (2013)
  12. Stardock spends the next 4 years and millions of dollars developing Star Control: Origins. (2013-2017)
  13. Stardock provides Paul and Fred regular updates on progress including video of pre-alpha footage, design notes, screenshots.  Relations are amicable and supportive. (2013-2017)
  15. Stardock updates Paul and Fred on Star Control: Origins release schedule and begins planning its 25th anniversary which will include releasing the classic games onto more channels.  Stardock asks if there would be any interest in having SC2 ships appear in Super-Melee. The games are submitted and approved by Steam in preparation (Summer 2017).
  17. Paul and Fred contact Stardock to inform them that they will be announcing a new game that will utilize the characters from their universe.  (Fall 2017)
  19. Stardock is both pleased and concerned about the timing of their plan, points out the licensing agreement would allow Stardock to use their IP (albeit at a higher royalty than Stardock was hoping for). Stardock asks that they coordinate these announcements together ensure there is no confusion and about the games appearing competitive. (Fall 2017)   
  21. Paul and Fred state they plan to make a sequel to Star Control II which would violate Stardock's trademark rights (you can't claim your product is a sequel to another company's product).  Paul and Fred also assert that Stardock does not have a license to their IP.
  22. In the email below Paul and Fred state that each party should work within its respective rights: Stardock having the Star Control trademarks and Paul and Fred owning all the IP rights to the works they created. Note that at this point, Paul and Fred recognized that owning the registration to the Star Control trademark also includes many common law trademarks. Hence "trademarks" plural.
  24. Stardock responds stating that as far as Stardock is aware, while Paul and Fred own the IP they created, Stardock does have an active licensing agreement that controls how that IP can and can't be used.  Stardock also reiterates that it has not used this license out of respect for Paul and Fred. (October 2017)
  26. Stardock states its concern at the idea of Paul and Fred representing their game as a "direct sequel", asks to schedule a call to discuss.  Note that at this point, Brad, like many, is under the impression that Paul and Fred essentially created Star Control on their own, a two-man team with licensed music was not uncommon thing back in 1992 (Stardock later re-evaluates that position after learning that the project had a large budget for 1990 and immense talent on it). (October 2017)
  27. Paul and Fred respond that they simply don't agree but provide no evidence as to why the licensing agreement would have expired. (October 2017)
  29. Stardock provides its reviewed legal position.  Stardock isn't using any IP from the classic games other than the right to market and sell them as they have been for several years.  (October 2017)
  30. Stardock points out that it has a license to the IP to use provided it pays a royalty of 10% (which is why Stardock has asked in the past for a new licensing agreement as 10% is too much for a cameo of a classic character). Stardock CEO, Brad Wardell suggests talking on the phone to iron things out. (October 2017).
  31. Email includes proposal:
  33. Paul and Fred refuse Stardock's proposal and begin to demand changes to Star Control: Origins.
  35. Paul and Fred, knowing the date Stardock was planning to announce the Fleet Battles beta, preemptively announce Ghosts of the Precursors as a direct sequel to Star Control II; use the Star Control II box (which is owned by Stardock) as the only art on the page for it; promote it to the media and to social media as the "true" sequel to Star Control.  (October)
  36. Despite having just stated that their efforts should be "separated" by each parties rights (Stardock with the trademarks) Paul and Fred almost immediately violate that understanding by using the Star Control trademarks throughout their announcement.
  38. The Star Control trademark is mentioned 4 times in the announcement, each with an (R) without mentioning Stardock leading a reasonable consumer to believe it is their mark (Ghosts of the Precursors is listed once). 
  39. Paul and Fred claim they "released" Star Control II on the same page that shows Star Control II with the Accolade mark misleading the relationship between Accolade and Paul and Fred (who, regardless of their tremendous work, were contracted by Accolade to create content that was then licensed into Accolade's product).
  40. The media follow-up by referring to it as "Star Control: Ghosts of the Precursors". (October)
  41. Paul and Fred promote the idea that it's Star Control: Ghosts of the Precursors and not its own game:
  43. The above is one example among dozens.
  44. Paul and Fred publicize coverage of their new game with each post using the Star Control mark but not a single one using the term "Ghosts of the Precursors".  Looking below, what's the name of their new game?
  46. Many posts and articles appear, endorsed by Paul and Fred that state that their new game is a "direct sequel" to Star Control.  Some refer to it as Star Control: Ghosts of the Precursors.
  47. Stardock moves forward on its 25th anniversary plans, release the beta of Star Control: Origins - Fleet Battles beta and relaunches the classic DOS games for the 25th anniversary on Steam. (October)
  48. Paul and Fred's attorney contacts Stardock's CEO.  This is the first time lawyers have been involved.  Lawyers take over. (October)
  49. Paul and Fred begin to demand that Stardock begin policing the Star Control community for fan art that they believe violates their rights (including members of this forum and on Steam). (October)
  50. Paul and Fred begin demanding the removal of features from Star Control: Origins including the ship designer (a feature that has been part of Stardock's games for over a decade). (October)
  51. Paul and Fred begin demanding insider builds of Star Control: Origins for inspection and begin insisting various broad features are their property despite having no right to do so. (October)
  52. Paul and Fred reject numerous attempts to create a co-existence agreement that would permit Ghosts of the Precursors to go forward independently.   (November)
  53. Paul and Fred insist they have the right to associate their game with Stardock's trademarks including referring to their game as the "true" sequel to Star Control. (November)
  54. Paul and Fred demand that the DOS games be removed from distribution while still providing no evidence to support their claim that the agreement had expired. (November)
  55. Paul and Fred begin to make public defamatory blog posts and tweets about Stardock. (December)
  56. Paul and Fred file DMCA notices against Steam and GOG not just for Star Control 1 and 2 but also Star Control 3 which Stardock holds the federally registered copyright for and that Paul and Fred had no involvement in. (December)
  57. Stardock's attorneys file a suit against Paul and Fred for trademark infringement and other causes of action. (December)
  58. Paul and Fred's attorney files a lawsuit against Stardock alleging copyright infringement and other causes of action. (February).
  59. Paul and Fred's PR firm releases a press release to the wire services accusing Stardock of "copyright theft" do press interviews attacking Stardock. (February)
  60. This post is initially made. (February)
  61. Paul and Fred post an email exchange they claim is between themselves and Atari, something they had not shown to Stardock and still have not provided to Stardock to evaluate. 
  62. Paul and Fred post what they claim is a Stardock settlement proposal in violation of federal rule 408. Stardock denies the accuracy. (March)
  63. Paul and Fred's PR firm targets Stardock CEO, Brad Wardell personally on Twitter for abuse with an inflammatory and completely inaccurate social media post. (March)
  65. Paul and Fred like a tweet that purports that these activities have cost Stardock up to 50% of potential sales and may lead to review bombing of the final game:  (March)
  67. To make clear that Stardock's concern is regarding the protection of its Star Control IP and not the sales of Star Control: Ur-Quan Masters, it decides that it will be suspend sales of the classic games until the dispute is resolved starting April 4. (March 2018).

Q: Don't Paul and Fred contend that the 1988 licensing agreement with Accolade has expired?

A: That is their position.  However, since the dispute began, Stardock has chosen to err on the side of caution and operate as if that is the case.   Stardock requested that GOG and Steam remove the games for sale pending a resolution.  The 1988 agreement, however, does not have anything to do with the Star Control trademarks were were always owned by Accolade and were assigned to Stardock.   

Stardock's ownership of the Star Control trademark is incontestable.  You can review the federal registration that dates back to the 1990s here.

Q: But isn't it true that Star Control: Origins has very similar gameplay to Star Control II? That you explore planets, travel through hyperspace to different star systems, meet with aliens? Couldn't their copyright of Star Control II mean that Star Control: Origins is too similar?

A: You cannot copyright an idea.  Putting aside that Star Control itself borrowed many ideas from many other games, copyright protects creative expression. Not game play.  

There are articles you can read that discuss this:

https://en.wikipedia.org/wiki/Video_game_clone 

https://venturebeat.com/2013/03/16/defeating-mobile-game-clones-why-copyright-protection-is-not-enough/ 

https://gamedev.stackexchange.com/questions/11752/is-it-legally-possible-to-make-a-clone-of-the-game 

Obviously, anyone who has ever played Angry Birds or Candy Crunch already knows this.

That said, Star Control: Origins is not a clone of Star Control II.  The 25-year gap in game technology allows Star Control: Origins to deliver a much richer experience.  So while the core concepts remain true: You are the captain of a starship traveling through this part of the galaxy, meeting aliens, engaging in battles, exploring planets, the implementation is very different.

In short: Gameplay clones aren't illegal and even if it were illegal, Star Control: Origins is not a clone. 

 

Q: Why does Stardock claim that Paul and Fred were not the creators of Star Control?

A: Paul and Fred were the designers of Star Control I and II.  In the credits, on the box and elsewhere they had previously officially listed themselves as either developers or designers.  

While Stardock has no objection to “creators” in the casual sense, legally, and when trying to promote a product in commerce, they are not. Most of the Copyrighted material people think of as being important to Star Control was created and owned by others. 

For 25 years, Designer was their official designation.   

It is Stardock's opinion that they have begun to focus on referring to themselves as "creators" in their marketing in order to give the impression that Ghosts of the Precursors would have the the same creative core as Star Control II.   This is not the case.

What most people do not realize is Star Control II had, in essence, the dream Sci-Fi team as mentioned in this 25th anniversary tribute. The lead animator went on to lead the animation at Pixar and is the director of the Minions movies.  Many of the alien designs were created by the artist who went on to design Darth Maul and other Star Wars and Marvel movie characters.  Many of the most quoted lines came from seasoned Sci-Fi writers.  The engaging music was created by others.

We respect Paul and Fred’s crucial contributions as well as the rest of the talented team who worked on Star Control.  

Q: Who owns the Star Control trademark?

A: Stardock is the legal owner of the federally registered trademark for Star Control.  You can view it here. https://www.trademarkia.com/star-control-75095591.html 

Q: What does Stardock want out of this lawsuit?  

A:  Our ONLY goal is to protect our ability to tell more stories in the Star Control multiverse.  We remain fans of Paul and Fred and their contributions to Star Control.  However, given the confusion they’ve created in the market by promoting their new game as a “true sequel” to Star Control II combined with their abuse of the DMCA system to take down even Star Control games they had no involvement with, we are forced to act to prevent them from continuing to create confusion.   

Consider some of your favorite games or movies. Now imagine if someone instrumental to the development of that game or movie went on to claim to be making a sequel to that game or movie without the consent of the owners of that trademark? What would be the result?

Q: But doesn't Paul and Fred own all the in-game IP?

A: Paul and Fred own whatever IP they created.  What that is remains to be seen. Stardock does not claim to own any copyrighted material within Star Control II which is why the new Star Control: Origins is set in its own universe with its own characters and story.

However, as of April 2018, neither Paul or Fred had any rights to any of the art and much of the writing in Star Control II. However, even if they did, it would be irrelevant as Stardock isn't using any copyrighted material from Star Control 1, 2, or 3 in the new Star Control games.

On the trademark side, simply because you were contracted to work on a game does not grant you the right to make a new game and claim it is related regardless of what copyrights you think you may own (otherwise, you could argue that Unity and Epic could start to make sequels to other people's games).

For example, Paul Reiche is the President of an Activision studio.  Blizzard is another Activision studio.  Stardock was once contracted to develop a StarCraft expansion (StarCraft: Retribution). One can imagine the response Stardock would receive it it were to announce a new game as a "direct sequel" to StarCraft: Retribution.

By contrast, not only did Paul and Fred announce their new game as a "direct" and later "true" sequel to Star Control, they even used the Star Control II box, that was acquired by Stardock, to promote it.

As much as we respect Paul and Fred, the fact is, Paul Reiche was contracted as an independent contractor (not as a company) by Accolade to develop Star Control for Accolade.  This is a fairly routine method that developers get products made (Stardock's own Fences, WindowBlinds, Groupy, IconPackager, etc. were developed using the same method).

Q: Do these legal issues have any impact on Star Control: Origins?

A: UPDATE:

Apparently yes.  Despite Star Control: Origins having nothing to do with Reiche and Ford's games, they have filed DMCA take down notices to Steam and GOG to take down Star Control: Origins.  They claim (with not specificity) that they own copyrights in Star Control: Origins

Game sites don't make legal judgments on the merits.  They simply remove the content.  No one, to our knowledge, has ever tried to do this on a shipping game before.  

You can read our response here.

 

Q: Why did Stardock trademark Ur-Quan Masters, Super Melee, and other names from the original games? 

A: Once Paul and Fred began to challenge the validity of our intellectual property we were forced to take steps to solidify our common law rights. Specifically, Paul and Fred have worked to try to separate Stardock's Star Control mark from its association with the classic games.  

The reason companies were bidding to acquire the Star Control trademarks and willing to pay $300,000 for it was for the association with the classic series.  The trademarks, being in active use in connection with the beloved classic series, made it valuable.  

When Paul and Fred began to seek to cancel the Star Control mark and make public statements that Star Control: Origins isn't related to the classic series Stardock felt obligated to respond by reinforcing its intellectual property rights to the classic series.  

As background: Stardock always had the common law trademark to Ur-Quan Masters. It's the sub-title to Star Control II after all and was, by Paul and Fred's admission, available in commerce on GOG even before Stardock was involved. Super-Melee is literally a promoted feature from Star Control. The alien names are so strongly associated with Star Control that if you Google Star Control aliens they come up as the first entry.  

They have made it very clear that they believe that they have the right to associate their new game with Star Control on the basis that they have previously licensed content to Star Control games. They have no such right.

Q: Why did Stardock really need to trademark the Star Control 2 alien names?

A: Star Control fans expect new Star Control games to have the Spathi, Ur-Quan, Orz, etc.   We originally chose not to include them in Star Control: Origins in deference to Paul and Fred who asked us not to.  

However, in December 2017, Paul and Fred posted:

This creates confusion because Stardock alone owns the Star Control universe. That doesn’t mean it owns any lore or stories created by others. It just means that Stardock has the right to determine what is canon in the Star Control universe.  

The Star Control aliens are associated with Star Control. That doesn’t mean Stardock can use expressions and stories of those aliens without permission. But it does mean Stardock has the right to create its own stories and expressions for the Ur-Quan, Spathi, etc.

When Paul and Fred were contracted to develop Star Control I and Star Control II for Accolade, they were allowed to keep certain copyrights to the works they created. But all trademarks were explicitly defined as being owned by Accolade. 

Incidentally, their name was put into a diagram because they literally announced their game as a sequel to Star Control II.  They associated their new game with Star Control, not the other way around.

Q: Is Stardock trying to prevent Paul and Fred from making new games in their universe?

A: No.  Stardock wants them to create new games in the universe they created.  However, this needs to be handled in such a way that there is no confusion as to the relationship between Star Control and the works they licensed for Star Control II.

Q: If Stardock wants a new game from Paul and Fred, why did the settlement offer that Paul and Fred publicly posted that they claim came from Stardock demand that they "surrender" their IP?

A: It is regrettable that Paul and Fred chose to violate confidentiality and post, without context, a settlement offer.  Paul and Fred have been offered many settlement proposals with many different terms and are intended for negotiation by both parties to try to reach an amicable settlement.

Stardock paid over $300,000 for the Star acontrol IP which included the trademark and copyright to Star a Control 3. The Star Control brand is, in our view, far more valuable than any copyrighted material within a 25 year old DOS game. Source code and alien art. Nothing else, as far as we can discern, falls under copyright protection. You can’t copyright “lore” or timelines, or alien names, or game designs or UI.  

Thus, all we would gain would be the ability to have Ur-Quan that look just like the old Ur-Quan and space ships that look like the classic space ships. The greater value would be to make sure this kind of dispute didn’t happen again. But that value would still not overcome the damage they’ve caused in the market place due to the confusion on who owns Star Control and the ill will due to their PR company issuing false and misleading press releases and publicizing the dispute in a way to maximize ill will. Not to mention the considerable and rising legal costs.

None of this would prevent Paul and Fred from making a new game if that really is their desire. Stardock, in turn, would have been happy to license, free of charge, any IP they needed to make their new game.

Our respect for the work Paul and Fred did 25 years ago remains undiminished.  However, that respect does not give them the right to disrupt our product development at the 11th hour or misrepresent their new endeavors as the "true" sequel to our products.

Our dedication to bringing you a new Star Control game remains unchanged.  BETA 2 of Star Control: Origins is due in a few weeks.

For those interested in reading the details, our complete initial filing available online:

https://www.documentcloud.org/documents/4385277-Stardock-Legal-Complaint-2635-000-P-2017-12-08-1.html

Stardock 25th anniversary post documenting the creation of Star Control:

https://www.stardock.com/games/article/485810/star-control-ii-25th-anniversary---on-the-shoulders-of-giants  

 


Thank you for being fans of Star Control, and supporting our effort to make a great new game in the Star Control franchise.

And if you have questions that you’d like to see added to this post, feel free to reach out to me directly via Twitter at @kevinunangst

Kevin Unangst

Vice President, Marketing and Strategic Partnerships

Stardock Entertainment

1,790,169 views 728 replies
Reply #226 from StarControl Forums Top

Quoting PRHMro, reply 225


Quoting Frogboy,
reply 163

2. Because THIS was their response:

Image

This was in November.  They absolutely knew we would eventually have to seek legal action.  But if you look at their public posts, they act as if they're shocked, shocked that this would happen.



Where does this quote come from?

Their lawyer.

Reply #227 from StarControl Forums Top

Can you give us a little more context on that? Like, who stated what below, and who and what was the lawyer replying to? Because the way you put it in your post, it does sound like some pretty damning evidence against Fred and Paul, but I wonder if one can interpret it differently.

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Reply #228 from StarControl Forums Top

Quoting PRHMro, reply 227

Can you give us a little more context on that? Like, who stated what below, and who and what was the lawyer replying to? Because the way you put it in your post, it does sound like some pretty damning evidence against Fred and Paul, but I wonder if one can interpret it differently.

The context was for them to STOP doing that.

Reply #229 from StarControl Forums Top

Quoting Frogboy, reply 163
2. Because THIS was their response:
Image

This was in November.  They absolutely knew we would eventually have to seek legal action.

When I parse this, it seems like they went out of their way to avoid saying that they were going to make "a sequel to Star Control: The Ur-Quan Masters", and instead used the more complex phrasing that they were going to make a sequel to the "adventure" from SC2.  That suggests that they were using "sequel" in the literary sense - a sequel to the story to which they hold the copyright - and not in the product identity sense that would infringe on your trademark. 

That at least seems like a plausible enough interpretation of the statement that legal action against them would not be mandated - their use of the words "Star Control" there would be nominative - and you'd been saying for ages that you wanted them to be the ones to continue that story.

Reply #230 from StarControl Forums Top

Quoting Elestan, reply 229

When I parse this, it seems like they went out of their way to avoid saying that they were going to make "a sequel to Star Control: The Ur-Quan Masters", and instead used the more complex phrasing that they were going to make a sequel to the "adventure" from SC2.  That suggests that they were using "sequel" in the literary sense - a sequel to the story to which they hold the copyright - and not in the product identity sense that would infringe on your trademark. 

You've seen this copyright? Can you share it? What story in particular? Do you have a link to this story that has copyright protection?  You clearly have access to documents the rest of us don't have.  Feel free to share them.

The lengths you will go to interpret things to fit your biases Elestan are quite astounding to me.

 

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Reply #231 from StarControl Forums Top

Quoting Frogboy, reply 230

Quoting Elestan,
reply 229

When I parse this, it seems like they went out of their way to avoid saying that they were going to make "a sequel to Star Control: The Ur-Quan Masters", and instead used the more complex phrasing that they were going to make a sequel to the "adventure" from SC2.  That suggests that they were using "sequel" in the literary sense - a sequel to the story to which they hold the copyright - and not in the product identity sense that would infringe on your trademark. 

You've seen this copyright? Can you share it? What story in particular? Do you have a link to this story that has copyright protection?  You clearly have access to documents the rest of us don't have.  Feel free to share them.

I believe it's on file at the Copyright Office under PA0002071496.  And yes, I know that because they filed the paperwork in 2017 instead of 1997, you're allowed to force them to prove their authorship, instead of it being assumed.  But their contract ascribes the copyright to them, their copyright notice was on the original game, and nobody who was actually involved in creating the game has ever disputed it.  Unless one of them does, that's good enough for me.

But that whole issue is actually orthogonal to my point, which was that their statement appears to have been deliberately focused on the story, so as to avoid stepping on your trademark, and therefore did not constitute a casus belli for a legal war.

Reply #232 from StarControl Forums Top

Not if the story is associated with the trademark and has the potential to cause confusion. If a sequel to SC2's lore was created, the presumption by a lot of people would be that that sequel is a Star Control game, and that Stardock, the owners of the trademark, was somehow associated. In fact as posts in this thread have demonstrated, that actually happened for some of the people that saw the announcement for Ghosts. That's a demonstration of confusion, and is grounds for legal action. It is on P&F to take the steps necessary to avoid confusion if they don't want to be on the receiving end of a lawsuit. That they went ahead with it and allowed confusion to spread throughout the public audience until Stardock was forced to resort to legal action does not make for a convincing argument that they actually wanted to avoid infringement of Stardock's property.

All of Brad's prior remarks about wanting P&F to do a sequel was implicitly contingent on, assuming P&F not being interested in buying back the trademark itself, a legal agreement that would define how P&F could use Stardock's trademark. Nowhere should it have been inferred that P&F would have somehow been given carte blanche to do as they pleased. Brad likely presumed that P&F could at least be trusted to not screw up the lore and integrity of SC and so might have been willing to give them fairly generous terms (in terms of money and etc) in such a license, but Stardock would still have been obliged to retain editorial control.

Reply #233 from StarControl Forums Top

Quoting Elestan, reply 231

But that whole issue is actually orthogonal to my point, which was that their statement appears to have been deliberately focused on the story, so as to avoid stepping on your trademark, and therefore did not constitute a casus belli for a legal war.

First off, I can find no "story" in there that would rise anywhere close to being protected by copyright.   You are the one saying they hold a copyright to a story. I'm asking, what story?  For example, how would one infringe on "the story"?  

Unless one of them does, that's good enough for me.

That's nice.  However, you are not the arbiter of what constitutes holding a copyright to something.  You could have just said "They wanted to continue their story" and been fine.  But instead you insisted on stating that they hold a copyright to a story with, I think, the clear intent to show that they had some legal counter to Stardock's actual federally registered trademark.   

Any action they do that creates potential or actual confusion in the market place with our intellectual property is our business.  As has been stated countless times, we wanted them to continue their Ur-Quan story.  But it would still have to be done in such a way to avoid market confusion (as the Q & A emails make clear).

Second, you are choosing to interpret that in the most generous way possible to them. 

Not only did they make it clear that they would continue to market their new game as a sequel to Star Control 2, they simultaneously began to attack us publicly, issued DMCAs against Star Control 1,2 and 3 (and 3 we own the copyright to) while also claiming that Star Control: Origins also violates their rights because of the ship designer, the Earth Cruiser, UI complaints, etc. and numerous other complaints that have been explained to you countless times including in this Q & A post.  Taken together, Stardock had no alternative but to file a legal complaint.   

Reply #234 from Stardock.net Forums Top

Quoting Frogboy, reply 233
First off, I can find no "story" in there that would rise anywhere close to being protected by copyright.   You are the one saying they hold a copyright to a story. I'm asking, what story?  For example, how would one infringe on "the story"?  

As in the script, as in the text in the game. Is text in a game not covered by copyright? (I'm genuinely asking, I assumed text was very much covered as it is in books but perhaps I'm wrong.)

Reply #235 from StarControl Forums Top

Quoting zwabbit, reply 232
Not if the story is associated with the trademark and has the potential to cause confusion.

I'm going to ask for a citation on this point.  Do you have an example where the courts have upheld the idea that a literary work itself (as opposed to a literary work's title or logo) can receive trademark protection?

All of Brad's prior remarks about wanting P&F to do a sequel was implicitly contingent on, assuming P&F not being interested in buying back the trademark itself, a legal agreement that would define how P&F could use Stardock's trademark. Nowhere should it have been inferred that P&F would have somehow been given carte blanche to do as they pleased. Brad likely presumed that P&F could at least be trusted to not screw up the lore and integrity of SC and so might have been willing to give them fairly generous terms (in terms of money and etc) in such a license, but Stardock would still have been obliged to retain editorial control.

 

That doesn't seem to have been Brad's position in late 2015 (Reply #205):

I don't believe anyone but Paul and Fred have the rights to mess with the Ur-Quan lore and aliens. I believe their rights to be identical to my rights on the GalCiv aliens. Personal, common-law copyright.  Paul and Fred PERSONALLY have ownership of that lore.

Note that this is well after Brad knew that Paul was not going to buy the Star Control IP.  He cites copyright, not trademark, to protect the lore and aliens.  And even though it's since come out that others might have collaborated in those copyrights, if none of them are contesting Paul's ownership, I don't think it materially changes the situation.

Brad then went on to say:

I never considered Star Control to be particularly connected to a specific set of aliens. Star Control, for me, is about humans exploring the galaxy and having adventures with aliens and dealing with ships with unique powers all put together through an interesting story.

So here, Brad was explicitly saying that he did not consider the aliens to be part of the identity of "Star Control".

He's entitled to change his mind, of course, and decide that it's trademark, not copyright, that would cover the alien races, and that those aliens really do form part of the essential product identity of the games.  But it seems more than coincidence that these changes in his position happen to match Stardock's legal strategy.

Reply #236 from StarControl Forums Top

Stop trying to overgeneralize the points. My prior post was not about if a specific "work" was trademarked, but on the issue of a work causing confusion with a trademark. The topic here is not about whether everything inside SC2 has trademark protection of some sort, but whether something that is derived from SC2 can cause confusion with the Star Control trademark itself. This also goes for Brad's statements, stop overgeneralizing them to conflate copyright and trademark. Brad previously seemed to believe that it was possible to allow P&F to continue using material that originated from SC2 (that he believed they held a copyright to) in a manner that did not create a connection to the Star Control trademark. That would have been the only way for P&F to make a "sequel" to SC2 without submitting to Stardock's editorial control because Stardock was now the owner of the Star Control trademark itself. Instead P&F made explicit attempts to associate the "story" and other elements of SC2 that they nominally controlled with the Star Control trademark itself. That is something they had no right to do legally, and Stardock responded accordingly. That they used their nominal control of those elements as a cornerstone of their wider claim to Star Control makes it inevitable that that control would be challenged, since that's the most effective legal means of undermining any legal grounds for P&F's claims. They have no one but themselves to blame for that one.

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Reply #237 from StarControl Forums Top

Quoting zwabbit, reply 236
The topic here is not about whether everything inside SC2 has trademark protection of some sort, but whether something that is derived from SC2 can cause confusion with the Star Control trademark itself.

Sure, I'll accept that refinement.  But the implication still appears to be that you are saying that when a product contains (or consists mostly of) a literary work, the owner of the product's trademark can, on grounds of product confusion, block the literary work's copyright holder from producing an independent product continuing that literary work - or that they would somehow have to do so without referencing - even in a nominative way - the original product.  That is a point at the conflux of multiple bodies of law that is specific enough that I do not believe that it can be considered without examining case law.

Reply #238 from StarControl Forums Top

If Ghosts were an independent work, we wouldn't be having this discussion. If the reference were purely nominative, this thing wouldn't be the giant charlie foxtrot it is now. P&F could have disassociated whatever story elements were in SC2 from the Star Control trademark itself, which would have freed Stardock from any obligation to care about them legally. It's because they didn't, and in fact tried to use their claimed copyright as a vector to attack Stardock's trademark that precipitated Stardock's response.

Reply #239 from StarControl Forums Top

Quoting Elestan, reply 235

Note that this is well after Brad knew that Paul was not going to buy the Star Control IP.  He cites copyright, not trademark, to protect the lore and aliens.  And even though it's since come out that others might have collaborated in those copyrights, if none of them are contesting Paul's ownership, I don't think it materially changes the situation.

If someone else created the aliens, those copyrights belong to them, not Paul and Fred.

I never considered Star Control to be particularly connected to a specific set of aliens. 

So here, Brad was explicitly saying that he did not consider the aliens to be part of the identity of "Star Control".

How does "I never considered Star Control to be particularly connected to a specific set of aliens. "

Become "not part of the identity of Star Control"?

To me, Star Control is, first and foremost, a space RPG.   We always had the ability to have the Ur-Quan, Spathi, Orz, etc. in the new Star Control game but didn't simply because Paul and Fred asked us not to and that was enough for me.  It wasn't crucial to the game's success for those aliens to be in. However, there's a big difference between something being particularly connected and not being part of the identity at all.

 

Reply #240 from StarControl Forums Top

Quoting Frogboy, reply 233
Not only did they make it clear that they would...

  1. ...continue to market their new game as a sequel to Star Control 2,
  2. ...they simultaneously began to attack us publicly,
  3. ...issued DMCAs against Star Control 1,2
  4. ...and 3 (and 3 we own the copyright to)
  5. ...while also claiming that Star Control: Origins also violates their rights because of the ship designer,
  6. ...the Earth Cruiser, UI complaints, etc. and numerous other complaints

that have been explained to you countless times including in this Q & A post.  Taken together, Stardock had no alternative but to file a legal complaint.

(Above reformatted to coordinate the replies)

  1. I think P&F were mistaken to do this, and I think that the fact that they are no longer doing it indicates that they probably think so too.
  2. From what I could tell, whatever they said here wasn't really hurting you, other than by making it clear that they didn't support you.  I (and others) were of the opinion that they should have stopped with the public posts, and kept negotiating in private.  However, now that I've seen some emails from behind the scenes, it looks like their attacks were largely rejections of your insistence that they had to get a license from you to continue the story, even under another name.  At the time, you were insisting that the 1988 agreement gave you this power, but to make this argument persuasive, you would have needed to explain why each of three clauses in it (termination by lack of royalties [from 2000-2010], bankruptcy trigger, and anti-assignment) would not have applied.  I don't believe that you have ever done so.
  3. They have published emails in which Atari acknowledged that it required their permission to publish the games, so it seems like they were entirely within their rights here.  And you've even said that there wasn't enough money at stake in the old games to really care about.
  4. They claim to hold the copyright to the portions of SC3 that were derived from SC2 - and I know that you're contesting that claim.  But you could have just filed a DMCA counter-notice for this.  That would have put the game back up, and they would have had to sue you if they wanted to get it taken down again.
  5. The ship designer seems like something that could have been negotiated - since we don't have access to all the behind-the-scenes talk, I don't know what was said or whether they were hammering on this hard or just mentioned it once.  But a DMCA-like systems seems like how these things have been handled elsewhere, where Stardock wouldn't publish or endorse UQM-derived ships, and would have a notice/counter-notice system that could be used in case of disputes over user-created content.
  6. I don't know the details of these enough to speak to them.

So IMHO, of these, #1 is the only one that clearly requires a lawsuit, and my understanding is that they had already backed off on it before your lawsuit was filed.

Reply #241 from StarControl Forums Top

Quoting zwabbit, reply 238
If Ghosts were an independent work, we wouldn't be having this discussion. If the reference were purely nominative, this thing wouldn't be the giant charlie foxtrot it is now.

So, to clarify, are there any current statements or posts by P&F that you would consider as disqualifying GotP from being an independent work, or is this purely spilled milk from their initial post?

Reply #242 from JoeUser Forums Top

Quoting Elestan, reply 240

So IMHO, of these, #1 is the only one that clearly requires a lawsuit, and my understanding is that they had already backed off on it before your lawsuit was filed.

You don't escape a charge of 'trespass' by ducking out the front gate again, so it's a 'yes' here.

#2 references slander/defamation [personal attack] so it's a 'yes' again.

#3 if you cannot clearly demonstrate ownership posting a DMCA exposes you to criminal prosecution so it's a 'yes' once again.

#4 ownership is defined so see #3.

#5 and #6 you admit you 'don't know enough' so it cannot be a 'no', can it? [rhetorical]

 

So much effort to [attempt to] rewrite reality....if it waddles like a duck and it quacks like a duck it's probably.....a duck...;)

Reply #243 from StarControl Forums Top

I can't decide what is more annoying..the side that insists Stardock can do no wrong, or the side that insists P&F can do no wrong. 

I thought we were done the the pointless circular misunderstandings of law?

Reply #244 from StarControl Forums Top

Quoting Elestan, reply 241
So, to clarify, are there any current statements or posts by P&F that you would consider as disqualifying GotP from being an independent work, or is this purely spilled milk from their initial post?

What you refer to as "spilled milk" warrants continued action on Stardock's part on at least three accounts.

1) The possibility of confusion with any "sequel" to SC2 by P&F with Stardock's trademark was high enough that they really, really should have dealt with it before announcing the game. If they didn't want Stardock to have any claim to editorial oversight, they should have just accepted Brad's offer to buy the trademark at cost. If they didn't want to associate their game with the trademark, they should have sat down with Stardock to work out how to avoid confusion, assuming Stardock even thought it was possible. The one thing they shouldn't have done to begin with was cause confusion by announcing their game without having come to some sort of arrangement or understanding with Stardock. Having so infringed upon Stardock's trademark, Stardock is obliged to pursue legal action to defend their ownership of it.

2) The harm they did to Stardock in infringing upon their trademark is not something you can just wave away. They have cost Stardock good will by launching a PR campaign to try to paint Stardock in the wrong in this legal conflict and likely caused considerable monetary damage through the disruption of Stardock's own ability to market and promote SCO. Stardock deserves due compensation for the damage done to them. The extent of that compensation will either be determined by the courts if it gets that far and Stardock wins, or in a negotiated settlement. There is however no reason for P&F to be able to walk away from this without providing restitution to Stardock if Stardock's claims are found to be valid.

3) Stardock needs to make sure this can't happen again in the future with the Star Control trademark. This means cutting off any further grounds that P&F might have for future claims as permanently as possible, because there is no way Stardock is going to just accept P&F's "word" that they won't try this again. Stardock wants something in paper, with legal authority, and legal finality.

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Reply #245 from StarControl Forums Top

Quoting zwabbit, reply 244

What you refer to as "spilled milk" warrants continued action on Stardock's part on at least three accounts.

1) The possibility of confusion with any "sequel" to SC2 by P&F with Stardock's trademark was high enough that they really, really should have dealt with it before announcing the game. If they didn't want Stardock to have any claim to editorial oversight, they should have just accepted Brad's offer to buy the trademark at cost. If they didn't want to associate their game with the trademark, they should have sat down with Stardock to work out how to avoid confusion, assuming Stardock even thought it was possible. The one thing they shouldn't have done to begin with was cause confusion by announcing their game without having come to some sort of arrangement or understanding with Stardock. Having so infringed upon Stardock's trademark, Stardock is obliged to pursue legal action to defend their ownership of it.

2) The harm they did to Stardock in infringing upon their trademark is not something you can just wave away. They have cost Stardock good will by launching a PR campaign to try to paint Stardock in the wrong in this legal conflict and likely caused considerable monetary damage through the disruption of Stardock's own ability to market and promote SCO. Stardock deserves due compensation for the damage done to them. The extent of that compensation will either be determined by the courts if it gets that far and Stardock wins, or in a negotiated settlement. There is however no reason for P&F to be able to walk away from this without providing restitution to Stardock if Stardock's claims are found to be valid.

3) Stardock needs to make sure this can't happen again in the future with the Star Control trademark. This means cutting off any further grounds that P&F might have for future claims as permanently as possible, because there is no way Stardock is going to just accept P&F's "word" that they won't try this again. Stardock wants something in paper, with legal authority, and legal finality.

While I don't agree with all of the assertions necessarily, I find this a good summary of my impression of Stardock's position. Also, interestingly, if the names are reversed and trademark swapped out for copyright (and a few other tweaks to make sense), a pretty good summary of my impression of P&F's position.

Reply #246 from JoeUser Forums Top

Quoting wibblenz, reply 245

While I don't agree with all of the assertions necessarily, I find this a good summary of my impression of Stardock's position.

Oh, it's 100% accurate too...;)

Reply #247 from StarControl Forums Top

Quoting wibblenz, reply 245

While I don't agree with all of the assertions necessarily, I find this a good summary of my impression of Stardock's position. Also, interestingly, if the names are reversed and trademark swapped out for copyright (and a few other tweaks to make sense), a pretty good summary of my impression of P&F's position.

Copyright and trademark aren't interchangeable.

 

Reply #248 from StarControl Forums Top

Quoting Frogboy, reply 247


Quoting wibblenz,
reply 245

While I don't agree with all of the assertions necessarily, I find this a good summary of my impression of Stardock's position. Also, interestingly, if the names are reversed and trademark swapped out for copyright (and a few other tweaks to make sense), a pretty good summary of my impression of P&F's position.



Copyright and trademark aren't interchangeable.

 

In terms of what they cover, sure. But are you disagreeing that it is P&F's position (without regard to the accuracy of such claims) that Stardock has infringed copyright, owes damages, and should never do it again?

Reply #249 from StarControl Forums Top

Quoting wibblenz, reply 248


Quoting Frogboy,
reply 247






Quoting wibblenz,

reply 245


While I don't agree with all of the assertions necessarily, I find this a good summary of my impression of Stardock's position. Also, interestingly, if the names are reversed and trademark swapped out for copyright (and a few other tweaks to make sense), a pretty good summary of my impression of P&F's position.



Copyright and trademark aren't interchangeable.

 



In terms of what they cover, sure. But are you disagreeing that it is P&F's position (without regard to the accuracy of such claims) that Stardock has infringed copyright, owes damages, and should never do it again?

There is no equivalency between the two.  One involves millions of dollars, the other would be trivial.

Reply #250 from StarControl Forums Top

Quoting Jafo, reply 242
So much effort to [attempt to] rewrite reality....if it waddles like a duck and it quacks like a duck it's probably.....a duck...;)

 

I can't get over how dedicated some people are to debating the legalities despite not being lawyers. While actual lawyers might speculate, they aren't going to argue because they know that is exactly what is going to be done and ultimately concluded in court anyway. If there were no legitimate grounds for legal fillings the court will throw the case out... If either side is legally in the right or wrong that will be determined in court. Public opinion on how the law should work has no bearing on the outcome of the case. So what is the point even debating such a thing?

I mean it's one thing to harp on the etiquette of the whole incident. You can make all sorts of reasonable and debatable points about that. But descending into a debate on legal processes that will inevitably be decided in court regardless of that debate is just so... I don't know... Pointless? Childish? Redundant? Probably numerous other descriptive words and still there are not enough words in the English language to emphasise just how dumb it is. I can not think of any way to perceive it other than as a deliberate attempt to flat murder actual relevant discussion on the issue.

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