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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 #251 from JoeUser Forums Top

Astrobia ....why am I being quoted?

I'm the last person who sees any logic in any of this armchair lawyering/discussion.  There are people on various forum threads who clearly suffer from ADHD and/or OCD and are analyzing everything to death.

 

Reply #252 from StarControl Forums Top

Quoting Jafo, reply 251

Astrobia ....why am I being quoted?

I'm the last person who sees any logic in any of this armchair lawyering/discussion.  There are people on various forum threads who clearly suffer from ADHD and/or OCD and are analyzing everything to death.

 

 

I know. That is why you are being quoted. I'm agreeing with you.

 

Man... What does it say about this thread that it puts people in the mindset that anyone responding to your position is attacking it?

Groupy 2 - Organize multiple applications into grouped tabs on your Windows desktop
Reply #253 from JoeUser Forums Top

Quoting Astrobia, reply 252

Man... What does it say about this thread that it puts people in the mindset that anyone responding to your position is attacking it?

Exactly...;)

I can't see any real logic behind wasting what little time we all have on the planet in frivolous pursuit of a topic that has essentially zero impact on just about everyone on the planet...;)

Reply #254 from StarControl Forums Top

I have to admit I'm getting tired of seeing Elestan post here. I thought you made a separate thread to vent your anxiety over UQM by grasping after everything and anything that assuages your fears? I don't really know what your involvement is with UQM, but let me say this: UQM was never yours or anyone else's in that fan community. It has always been something that existed at the suffrage of the trademark holder. Whatever benefits you see yourself deriving from the project are nonexistent. If you think it will somehow be beneficial to your career, it won't be in any direct way. Take whatever knowledge, ideas, or lessons from that project and go do something on your own. Create your own brilliant game and let that be your path forward. Don't be like another poor soul who didn't move forward and suffered as a result.

As Astrobia put earlier, let's just wait until the courts decide what the outcome is. All this arm-chair lawyering BS is frankly irritating, because as the one actual lawyer that was posting mentioned, you have no skills in this arena and even if you did, you do not have all the information to make informed conjectures or debates. So if you want to continue your biased dialogue, do it in the thread you dedicated to it. Honestly I think your time is much better spent thinking of a project you can call your own instead of clinging to someone else's work that only leads to a dead end. Also, given that game making is a small industry, if that's your calling, it really doesn't behoove you to piss off the CEO of a game company, no matter what your views on this issue are.

Reply #255 from StarControl Forums Top

Elestan,

The public attacks (#2) that you so blithely pass off as "they never intended to hurt you personally" include when they had their PR firm personally call Brad a thief and a liar. By name.

That's the bullshit that broke the camel's back for me with P&F. They lost any and all respect that day. Screw those guys.

+1 Loading…
Reply #256 from StarControl Forums Top

Quoting Frogboy, reply 230

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.

 

p. 62: The Reiche Intellectual Property shall include proprietary rights in and to any source code, names (of starships and alien races), characters, plot lines, setting, terminology unique to the Star Control products, and music in and to (a) - (d) above.

 - Addendum no. 3 to license agreement (https://www.documentcloud.org/documents/4385486-2635-000-P-2018-02-22-17-Counterclaim.html)

Maybe Elestan is mistaken on "copyright" being the right word, but there's a contract acknowledging Reiche's "proprietary rights" to the plot line.

Reply #257 from StarControl Forums Top

Quoting GMOrz, reply 256

Maybe Elestan is mistaken on "copyright" being the right word, but there's a contract acknowledging Reiche's "proprietary rights" to the plot line.

You can't copyright things like "plot lines", that's ridiculous. Saying it in a contract doesn't make it legal or valid. If anything, it calls the whole contract into dispute.

I could sign a contract saying that I'm your personal slave for life, but it's unenforceable. And so is copyrighting (or whatever other word you want to assign to it) elements of stories. You're saying I can never make a story about a farmboy who saves the galaxy because George Lucas copyrighted Luke Skywalker.

Reply #258 from StarControl Forums Top

The nice thing about taking a relaxing, mostly-unplugged vacation is that you can forget all about legal arguments on assorted internet forums.

The downside is that when you return, there are a bunch of posts that you have to decide whether or not to respond to.

In this case, since there's been a fresh thread made for litigation discussion, I'm going to hold back from restarting debates in this one, and suggest that others do the same unless it's directly related to the Q&A.  If anyone wants a reply from me, feel free to repost there.

Reply #259 from StarControl Forums Top

This is long but this should walk readers through why Paul and Fred are categorically mistaken in what they think they “own” as well as the repricussions of their actions. 

Fundamentally, the community is split on this issue which is not a good thing.

I also want to reiterate that when PF announced Ghosts we tried to be supportive. I made many posts trying to support it and we were very open to the idea of more games in the Star Control multiverse — provided that the parties understand that Stardock owns Star Control and how it is used.

There are two issues. One involves, at most, a few thousand dollars of dispute. The other involves millions of dollars.

I’ve seen a lot of posts that don’t recognize the asymmetry of the dispute.

On the one hand, PF fans focus a lot on the copyright dispute and whether the 1988 agreement is in effect or not.  Stardock’s complaint doesn’t touch on that because the IP in SC2 is messy (lots of creators).  

If the 1988 agreement expired, it means the old games can’t be distributed, the total amount collected from Steam is around $10,000 of which PF were sent royalties for. If the 1988 agreement expired, they could argue that up to the remainder of the $10k would be owed to them. There are no statutory damages involved because they had no federal copyright at the time they claim infringement began (and you can’t do it retroactively).  And if it expired, that would be counter to the Impression PF gave in 2013.

In any event, it seems petty to me for them to have spent months calling me, personally, a thief. Hiring a PR agency to issue a press release calling me a thief and doing a media tour attacking us was not helpful to them as it has made it much harder to find a win-win.

Simply put, if PF had shared with us the Atari GOG email chain they posted in March back at the start we wouldn’t have put the games on Steam. This is not an admission that we believe the agreement has expired but simply recognition that the issue was murky enough not to bother with given how miniscule the sales of 25 year old games are. 

On the other hand, their actions have caused a great deal of confusion. The UQM forums and Reddit are rich sources of examples. They literally promoted their game as the true sequel to Star Control at the same time we were releasing the open beta of the new Star Control game. And they knew before hand our dates and plans.

We have a valid federal trademark for Star Control which means there are statutory damages. We don’t have to “prove” anything regarding its validity because it is already assumed valid. It was in active use, explicitly, by Atari and acknowledged by PF to be in use by Atari, at the time we acquired the Star Control IP in connection with the classic games (for example, GOG).

We are confident that we will be able to show that the confusion they have generated has cost us several percent losses in sales which translates to millions of dollars in revenue. 

Paul and Fred have no rights to Star Control beyond what specific copyrights (common law or otherwise) they can show to hold. This might include DOS source code, alien paintings, ships (maybe, if 32x32 pixel ships can be covered). So far, we’ve seen no evidence to support any of the above. Their one copyright, filed a couple months ago, has none of this. It does include the user manual. 

You cannot copyright a name. For instance, nothing would stop Elestan from making a game with Spathi in it except possibly a trademark claim if it created a false association with Star Control OR copyright if the art used to express them was substantially similar to the Spathi depicted in Star Control 2. You cannot cooyright a description (“they’re cowards”) and there is not nearly enough development to protect any of them, even Fwiffo, as a character (James Bond, Rocky, etc. have enough development to gain such protection but that is a massive gulf).

Future Star Control games will have the classic Star Control aliens in them. For years, our position was that we would not use the classic Star Control aliens.  I’ve even previously said that PF had common law copyrights on them (because like most people here, I believed their claims).

We held this position because PF asked us not to and said they wanted to continue their story and we wanted that too. But it was always assumed that even if they wanted to work on it themselves, they’d do so as an authorized Star Control game. When they made it obvious that they didn’t believe we have rights to the Star Control aliens (not just what they might have copyrights to but even the names) we had no choice but to defend our rights.  

Only the most unreasonable person would argue that Star acontrol games can’t have Star Control aliens simply because an independent contractor of Accolade’s claims rights to names he may or may not of randomly generated 28 years ago. Sorry, I can admire someone’s work without instilling upon him extralegal rights.

Someone might argue that PF “created” the Orz but the evidence actually doesn’t indicate they did.  However, even if they had, it was as an independent contractor for Accolade and all they would have is any copyright over the expression of the Orz. It wouldn’t prevent Accolade (or us) from having Orz in our game, it would only prevent a derivative of that artistic expression of the Orz. 

This is why conversations on games can’t be compared to a book. A game is made up of many many different types of IP. Art, music, source code, the manual. Those are the primary assets that can have a copyright.  Ideas, concepts, names, game designs, themes, plots, descriptions, timelines, recipes, cannot be copyrighted. 

I want to apologize to the community that any of this has happened. It won’t affect the development of the new Star Control games and you can still play Ur-Quan Masters for free.  We will do all we can to ensure that both Star Control: Origins and the classic DOS game timeline stories are able to coexist and evolve in a way that satisfies the fans.

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Reply #260 from StarControl Forums Top

Since this is a Q&A after all:

I can only find references to, and remedies for, use of a trademark itself. How can trademark law be used to protect something other than the mark?

How can you satisfy fans with 'substantially dissimilar' aliens (see also Star Control 3)? I can only speak for myself, but I would like to see P&F's (or Greg's if you prefer) Orz, or no Orz.

Reply #261 from StarControl Forums Top

Quoting wibblenz, reply 260

Since this is a Q&A after all:

I can only find references to, and remedies for, use of a trademark itself. How can trademark law be used to protect something other than the mark?

How can you satisfy fans with 'substantially dissimilar' aliens (see also Star Control 3)? I can only speak for myself, but I would like to see P&F's (or Greg's if you prefer) Orz, or no Orz.

Trademarks exist to identify certain goods as originating with a specific word or symbol. 

Trademarks protect against confusion and unfair competition. If another party engages in activity that is likely to create confusion that their product is related to your product that is trademark infringement. This can be due to a similar name of the product (or someone literally using your trademark to state their product is related your mark) or because elements of that product are strongly associated with your mark.  If a game came out with the Ur-Quan, Spathi, Orz, would there be likely confusion into believing that game was related to Star Control? If yes, that’s infringement.

As for Orz or Spathi designs that would satisfy fans, I’d argue that the Orz and Spathi in Star Control 3 were not similar enough to be considered substantially similar and I sure don’t remember fans arguing that they weren’t the Orz or Spathi.  Just like in other games, whether that be Ultima or Master of Orion each version comes with their own artistic expression. 

In Star Control: Origins, the Arilou have a cameo. The Arilou are inspired by the little green men trope. The Arilou in Star Control 3 were substantially different from the Arilou in SC2 (or Origins). 

Most fans are pretty tolerant of artistic changes in games or movies (within reason). The Klingons in Star Trek or the aliens in GalCiv have evolved over time based on the art leads and their particular vision. 

Reply #262 from StarControl Forums Top

Quoting Frogboy, reply 261

This can be ... because elements of that product are strongly associated with your mark.

Can you suggest any further reading on this particular aspect? I can find plenty of information on the similarity of marks themselves causing confusion, but nothing on the association of the elements of a product with a mark doing the same. Confusion within the product seems to be the domain of copyright (and/or patent). When neither copyright or patent are relevant, identical products seem to be perfectly acceptable to trademark law (e.g. bottled water).

Reply #263 from StarControl Forums Top

Quoting wibblenz, reply 262


Quoting Frogboy,
reply 261

This can be ... because elements of that product are strongly associated with your mark.



Can you suggest any further reading on this particular aspect? I can find plenty of information on the similarity of marks themselves causing confusion, but nothing on the association of the elements of a product with a mark doing the same. Confusion within the product seems to be the domain of copyright (and/or patent). When neither copyright or patent are relevant, identical products seem to be perfectly acceptable to trademark law (e.g. bottled water).

You could talk to an IP lawyer I suppose.

If you made a game that included the Klingons, Romulans and Ferengi, what do you think would happen? Assume you were simply using the names.

Broadly speaking, trademark exists to protect consumers from confusion as to the origin of goods and services.

If I made a game with the Federation, Klingons and Romulans (no art, just those names) would there be a likelihood of confusion that that my game had some relationship with Star Trek? If the answer is yes, then that would violate the Star Trek trademark.

You can read up on this:

https://www.trademark.iastate.edu/basics

 

Reply #264 from StarControl Forums Top

Quoting Frogboy, reply 263

If you made a game that included the Klingons, Romulans and Ferengi, what do you think would happen? Assume you were simply using the names.

The present owners of the Star Trek copyright would probably investigate it for copyright violations.  And do checks for similarities.  I'm still looking for the exact literature, but it seems when comes to copyright "names" is in reference to names of people and factual items.  (Hence, how you can't copyright facts.)  But, if the term is used as a new, unique expression of an idea, there can be copyright protections upon it, within the right context.  Although chances are a Cease and Desist would get lobbed by Paramount and most on the receiving end would run. 

Even Axanar lawsuit was a COPYRIGHT case.


If I made a game with the Federation, Klingons and Romulans (no art, just those names) would there be a likelihood of confusion that that my game had some relationship with Star Trek? If the answer is yes, then that would violate the Star Trek trademark.


You can read up on this:

https://www.trademark.iastate.edu/basics

I have to disagree.  Reading what you have presented, there's nothing that states what you are stating in that elements unrelated to the trademark itself can violate the trademark.  Trademarks are marks upon a good or service in trade that identity the origin.  That's it.  If the possible product you mentioned does not represent itself as a "Star Trek" game or attempt to immitate the "Star Trek" mark, then there is no violation of the "Star Trek"trademark.  Trademarks cover the label of product... NOT the contents.  That's copyright territory.

So, in theory, you can have a game with Federation, Klingons, and Romulans, so long the similarity of their use to the copyrighted Star Trek material is not enough to be considered derivative.  If they are used inside and never used as the labeling or marking of the product, or misrepresentation, no trademark is violated.  (USPTO has trademark registrations for a lot of the Star Trek games when it comes to Federation, Klingons, Romulans for specific uses in context of those products.)

Reply #265 from StarControl Forums Top

Quoting Lakstoties, reply 264

The present owners of the Star Trek copyright would probably investigate it for copyright violations. 

You cannot copyright a word.  Hence "Assume you were simply using the names."

Even Axanar lawsuit was a COPYRIGHT case.

Because they used the Klingon language in it as well as copyrighted visuals (they literally had Klingon D7s in there).

I have to disagree.  Reading what you have presented, there's nothing that states what you are stating in that elements unrelated to the trademark itself can violate the trademark.  Trademarks are marks upon a good or service in trade that identity the origin.  That's it.  If the possible product you mentioned does not represent itself as a "Star Trek" game or attempt to immitate the "Star Trek" mark, then there is no violation of the "Star Trek"trademark.  Trademarks cover the label of product... NOT the contents.  That's copyright territory.

You are misunderstanding the basics of trademark.   

Trademarks protect against unfair competition and false designation of origin.  If your game had Klingons and Romulans in them, just the names, it would be trademark, not copyright that would come into play because it might create a false association between your game and Star Trek in the mind consumers.

Now, if your Klingons were substantially similar in how they were presented that would fall under copyright.  

So, in theory, you can have a game with Federation, Klingons, and Romulans, so long the similarity of their use to the copyrighted Star Trek material is not enough to be considered derivative.

No. You could not.  You are absolutely incorrect.  All CBS or Paramount would need to show is a likelihood that consumers would believe that your game is associated with Star Trek.  

Now, if you have both copyright and trademark in hand and someone literally has a Klingon D6, D7 in there movie then copyright, imo, would be the way to go because that's a lot more obvious than trying to prove consumer confusion.

(USPTO has trademark registrations for a lot of the Star Trek games when it comes to Federation, Klingons, Romulans for specific uses in context of those products.)

Yes.  That helps perfect the trademark rights.

 If they are used inside and never used as the labeling or marking of the product, or misrepresentation, no trademark is violated

This is completely incorrect.  I am not sure why you would even think this.  The purpose of a trademark is to distinguish your goods and services from someone else's.  Your goods and services are connected to the trademark.  If someone starts to offer goods and services (in this example, Klingons and Romulans in a video game) and you can show this will likely result in consumer confusion then infringement has occurred.

You trademark a word or symbol with the idea being that you are connecting elements to that word or symbol.  That's the whole point.   

 

Reply #266 from StarControl Forums Top

Quoting Frogboy, reply 265

You trademark a word or symbol with the idea being that you are connecting elements to that word or symbol.  That's the whole point.   

I think this is a fundamental difference in our interpretation. Everything I read comes across as:

You trademark a word or symbol with the idea being that you are connecting a product (e.g. a computer game) to its source (e.g. a company).

Reply #267 from StarControl Forums Top

Your interpretation does not preclude Brad's also being correct.

Reply #268 from StarControl Forums Top

Quoting wibblenz, reply 266


Quoting Frogboy,
reply 265

You trademark a word or symbol with the idea being that you are connecting elements to that word or symbol.  That's the whole point.   



I think this is a fundamental difference in our interpretation. Everything I read comes across as:

You trademark a word or symbol with the idea being that you are connecting a product (e.g. a computer game) to its source (e.g. a company).

I’m not sure we are disagreeing. You trademark a word or symbol to connect things you want to associate with it. This way, consumers know those specific things originate from you.

 

Reply #269 from StarControl Forums Top

Unless his interpretation is you trademark "only" a word or symbol, which is emphatically not the case. Trademarks have always involved more than just a singular word or symbol, they encompass the entire network of ideas and concepts that is built up around the word/symbol. There are limits, yes, but they are not so narrow as to be just the word or symbol.

And Brad, shouldn't you be asleep by now? :P

Reply #270 from StarControl Forums Top

Quoting zwabbit, reply 269

Unless his interpretation is you trademark "only" a word or symbol, which is emphatically not the case. Trademarks have always involved more than just a singular word or symbol, they encompass the entire network of ideas and concepts that is built up around the word/symbol. There are limits, yes, but they are not so narrow as to be just the word or symbol.

And Brad, shouldn't you be asleep by now? :P

heh. Probably. ;)

Wibble can speak for himself. But there does seem to be this misconception that trademarks are somehow akin domain names as if you are reserving a specific word for your business or product. That’s obviously not how they work but it seems to be a theme with some folks.

 

Reply #271 from StarControl Forums Top

Quoting zwabbit, reply 269

Unless his interpretation is you trademark "only" a word or symbol, which is emphatically not the case. Trademarks have always involved more than just a singular word or symbol, they encompass the entire network of ideas and concepts that is built up around the word/symbol. There are limits, yes, but they are not so narrow as to be just the word or symbol.

 

Actually, that's covered by the "symbol" aspect. Symbols in law are way more complicated than a visual mark. When they say symbol they actually mean everything that embodies and represents the recognisable elements of the product. Smells, flavours, textures, sound and yes the visual elements but more overly even ideas recognisably associated with it are considered part of the symbol.

 

This goes beyond trademark law. There's an interesting example in consumer law where in many countries you can't name a yellow table spread product you are selling "butter" unless it also contains the associated ingredients and generally recognisable properties of butter because those are component that symbolises butter and you can't use the symbol of butter to misrepresent a product that isn't. Thus butter substitutes are often called table spread instead. This recognised symbol for butter is also what prevents someone from trademarking the word butter. It word belongs to that existing symbol.

 

Most trademark disputes are over if someone is either using the symbol of your product to misrepresent their own, or someone diluting the symbol of your trademark with a symbol someone could misinterpret as yours. The legal need to defend trademarks is because if your trademark becomes diluted and the symbol comes to be recognised as something other than what you trademarked you lose the trademark to the new symbol. Probably the most dangerous example of this is a company not defending a name when other vendors use it for the same type of product resulting in the name of the product being genericised. The most famous example of this would probably be aspirin. Other fun ones are cellophane, dry ice, kerosine and heroin. :-P

Reply #272 from StarControl Forums Top

Quoting Frogboy, reply 268

I’m not sure we are disagreeing. You trademark a word or symbol to connect things you want to associate with it. This way, consumers know those specific things originate from you.

But it doesn't preventing others putting their mark on an identical product, connecting their version to them. 

Can you provide an example of where trademark law (and only trademark law) has been used to protect an 'element' of a product?

Quoting zwabbit, reply 269

Unless his interpretation is you trademark "only" a word or symbol, which is emphatically not the case.

Essentially this is my current interpretation. You state this as incorrect as if it is self-evident, but I can find no examples of trademark infringement cases or articles about trademark that refer to confusion about anything other than the mark itself. Thus my request for articles or examples that contradict my current understanding.

Reply #273 from StarControl Forums Top

Quoting wibblenz, reply 272

Essentially this is my current interpretation. You state this as incorrect as if it is self-evident, but I can find no examples of trademark infringement cases or articles about trademark that refer to confusion about anything other than the mark itself. Thus my request for articles or examples that contradict my current understanding.

It would be a lot quicker for you to just ask an IP attorney than to ask others to Google Fu for specific cases. 

Just ask them why can I not have Klingons and Romulans in my game even if I make sure they look and act nothing like they do in Star Trek.

 

Reply #274 from StarControl Forums Top

Quoting Frogboy, reply 259

I’ve even previously said that PF had common law copyrights on them (because like most people here, I believed their claims).

The way you're wording this implies that Fred and Paul have been lying about their copyrights. But where and how exactly were they lying? If you believed that F&P had personally created all the art, dialogue, and programming code for SC2, then you could have just looked at the credits for the game (or read the interviews and IRC chat logs with F&P and other people who worked on SC2, such as George Barr or Erol Otus). You claim that you have read the IRC logs, at least, and some of them are decades old. So it's hardly a secret that Fred and Paul weren't the only people who worked on SC2, and I don't remember them ever denying that, either (although I do remember some video game magazines making that mistake). I don't want to sound aggressive, but you do seem to accuse F&P of lying where I believe no lies have been told.

You also say that you have previously believed that F&P's copyright extended far wider than it really did, and now you know that it doesn't. Does that mean that F&P simply failed to provide the evidence for their copyright so far (but could still provide it later), or is there definitive proof that F&P do not own the copyright to something within SC1 or SC2?

Reply #275 from StarControl Forums Top

I’m not going to discuss that level of detail in ongoing litigation. Suffice to say that what we thought was true 6 months ago, due to the reasons you outlined, and what is actually true are not the same.