UPDATE: Make sure you read the official statement from Stardock regarding newer events.
Re: November's blog post by Paul and Fred claiming Stardock's objection to their new game being promoted as a "true sequel" constitutes Stardock preventing them from doing a new game.
We are disappointed that Paul and Fred, two people we have a great deal of respect and admiration for, have chosen to imply that we are somehow preventing them from working on their new game.
Stardock has been nothing but supportive of their new project and wish them the best. I personally made the post here on StarControl.com in support of it.
With regards to their contentions:
First, as many people know, the classic Star Control games have been available for sale long before Stardock acquired the rights from Atari four years ago. For the entirety of the time we have held the rights, they have been getting paid for those sales. If they had an objection to the games being sold this is something that could and should have been addressed before we were ever involved.
Second, we have stated, repeatedly and consistently for over four years that we are not using any of the aliens from the classic series. As we have stated, our position is that, to the best of our knowledge, the classic alien IP is owned by them.
We have also discussed, at length, why it wasn't commercially viable for us to attempt to continue or retell the Ur-Quan story. 25 years is just too long of a gap. This is one of the reasons why we have been so excited about Paul and Fred's project. Their game frees us to introduce new characters and a new story into the new Star Control while allowing fans of the classic series a way to continue the classic story. This strikes us as a win-win situation.
Lastly, when we acquired Star Control from Atari in 2013, many assets were transferred to us including the various publishing agreements to the Star Control franchise. The short version is that the classic IP is messy. We understand that this makes them "really really angry" but we weren't a party to that agreement. All we can do is try to put something together that releases them from the restrictions placed on their IP that they agreed to and transfer any and all rights and responsibilities to them. We want them to make Ghosts but we don't want any liability or association with it.
Given the disturbing and unanticipated post by Paul and Fred, we are persuaded more than ever that a clear and irrefutable document that makes it clear that we are not associated or involved with their new game is needed.
We have nothing but respect and admiration for Paul and Fred and wish them well in their new project.
Update 12/4/2017:
Paul and Fred continue to make unsubstantiated claims regarding the DOS-based Star Control games. If they have any documentation to provide evidence to their assertions, we have yet to see them.
Stardock, by contrast, possesses a perpetual, exclusive, worldwide licensing and sales agreement that was explicitly transferred to us by Atari who in turn acquired it from Accolade that has Paul Reiche's signature along with a signed distribution agreement between Atari and GOG for the DOS Accolade Star Control games.
The tone of their blog posts is similar to the kind of correspondence they had with us since the announcement of their Ur-Quan Masters successor, vague, full of demands and without any documentation.
With all due respect to Paul and Fred, they really should talk to competent legal counsel instead of making blog posts.
Update 12/5/2017:
Dealing with the sales and distribution of 20+ year old DOS games is an unusual way to spend a Tuesday afternoon. Nevertheless...
Atari had transferred to Stardock a signed agreement between Atari's President and GOG that we assumed was the agreement. Paul and Fred claimed they were the ones who had set up the agreement and upon verification with GOG, we instructed them to terminate this agreement which they have which we appreciate.
The games are now correctly transferred to Stardock and we will continue to ensue that Fred and Paul receive royalty payments for the games per the publishing agreement. We apologize if anyone was inconvenienced.
Old IP can be messy to deal with. The best way to deal with that is to have the parties talk to each other (as opposed to making public Internet posts) and work something out. We remain committed to dealing with this situation with as much restraint and gentleness as possible.
Update 2/27/2018
Added link to https://www.starcontrol.com/article/487690/qa-regarding-star-control-and-paul-and-fred to address Paul and Fred's latest complaints.
At this stage, the parties are seeking to resolve their disagreements in court. Stardock wishes this could have been resolved otherwise.
For the record, if Paul and Fred had simply announced their game as a sequel to Ur-Quan Masters and requested Stardock to remove the DOS games from distribution, Stardock would have complied out of respect, even if we would have been unhappy that they chose now, after 25 years, to jump back in the middle of Stardock's efforts to bring Star Control back.
However, by promoting their new game as a "direct-sequel" to Star Control (and in other places as the "true" sequel) while using the Star Control box art (which is owned by Stardock) a great deal of consumer confusion has been created requiring Stardock to protect its IP rights.
Other links:
I am sure you are. The burden is on you to provide proper support for your "legal analysis." You are more than willing to post your "legal analysis" of different potential issues in this dispute, but you've yet to provide any citation or quote from an actual source of law that would prove you have even a basic understand of the underlying law at issue. You also have yet to directly respond to the argument that you do not know all of the relevant facts in this dispute, an argument that multiple other posters (including a party to the dispute, Brad) have also told you. When asked to cite your assertions of the law, you try to place the burden on others (including me) to prove you are wrong. That isn't how it works, you are the one posting your "legal analysis" and you are the one who needs to prove it is legitimate.
I think there are plenty of posters here that see that in your posts. I encourage them to read what you've been posting on the forum you've linked and reddit to more clearly see your faulty analysis and clear bias against Stardock.
@Elestan
To add upon what Eride has stated "which Eride could state a whole lot better" you're not adding examples of law rulings that support your arguments
For example I could take the FIGJAM stance stating I know for a fact that Stop & Frisk is a violation of the law here in the USA, or I could back it with evidence such as stating Stop & Frisk was deemed unconstitutional in the 1968 case of Terry v Ohio by the supreme court, after which I could go into a long list of examples of that ruling being upheld across the nation.
However that brings the talking points back to the fact that you're being an armchair lawyer with only a very small amount of the information provided... You don't have the whole picture, I don't have the full picture, at this point I think the one who has the most information on the case is Brad/Frogboy's lawyer(s). Unfortunately it's very likely we won't see additional information to start filling in gaps for many months and that's only if the courts deem it acceptable for information to be released prior to the court case comes to a conclusion.
Okay, so let me try to clarify what I feel proper discussion etiquette entails:
Suppose I say a bunch of legaly stuff, including a specific claim: "X is true." Possible responses include:
A GREAT response would win the point unless I provided at least as good a reasoning in response AND at least as good citations.
A GOOD response would win the point until I provided as least as good a reasoning in response. This is the minimum level of response you need to make before it's appropriate to start asking for citations.
An OK response would leave the issue undecided until one of us decided to provide more supportive reasoning.
The BAD responses add no value to the discussion, and these are the only types of responses Eride was making on that thread.
Legal citations are needed when you're writing a legal brief or a scholarly article, but that level of rigor is not necessary in casual discussion. In a casual setting, you need to at least state a basis for questioning a particular point before asking someone to put in the work of adding citations. If you really feel someone's credibility must be undermined, pick a particular point, and show how they are wrong. Repeat a few times, and they will either start being more careful what they say (possibly adding citations to bolster their arguments), or they will lose all their credibility.
I'll hold you to that. Any further posts referencing SFB and/or SFU on this thread shall be removed in order that the thread remains specifically on-topic...
I'll give you the benefit of the doubt that you missed this comment, and re-iterate.
Please, no more SFB and/or SFU on this thread. It is off-topic.
You are more than welcome to author your own thread on Stardock's Forums about them.
Edit...
I really insist. You are more than welcome to create a thread SPECIFIC to allegations of originality/plagiarism re P & F and anyone prior or since.
Opinions won't be censored, only their location/relevance.
No what I'm saying is without showing that was a ruling that has set the precedent for X all you're doing is standing on a soap box beating your chest, even when there's a president for X I know of no lawyer who'll talk in true certainty and will tell you if you have either favorable or unfavorable odds in something.At this point we there are FAR too many unanswered variables to be able to answer the equation. Yes Paul & Fred or Stardock would say they have the case in the bag or very good odds of winning the case, but the problem comes out to which one of the two is right or even neither of them, and what would the judge rule for distribution / damages / etc.
At this point we don't have enough information and honestly a highly informed fan could probably predict with better accuracy who'd compete in the super bowl or world cup.
Honestly I didn't go over and read the UQM threads "No I'm not going to" but from what Eride stated here is not once has anyone given concrete proof that the case would go one way or another, not a single past case that has set a precedent has been cited to backup the claim.
Honestly I wouldn't be surprised at this point if both sides had multiple full time lawyers for legal console, all of which practicing different fields "Intellectual Property / Trademark / Etc"
My personal opinion is...
Unless somebody can successfully locate and represent a previous precedent for Paul & Fred, where assets owned by a publisher would revert back to a contractor and/or their subcontractors, things will not look good for Paul & Fred. Now unfortunately for my pessimistic side of the view... after all the dust settles I don't see either side coming out unscathed.
As someone who has been a 'subcontractor' in the Architecture game [46 years] I can state absolutely that were it all about building design - Paul & Fred are definitely 'screwed'.
You work FOR a Design Company, it is THEY who own it, not you ...
Paul and Fred were not working under a typical contractor arrangement when they developed SC1&2. They had a negotiated contract that specified who owned which IP rights. Differing interpretations of that contract are one part of this case.
I cannot comment on the specifics of this case.
That's for Frogboy to do ...
Paul and Fred were not working under a typical contractor arrangement when they developed SC1/2. They had a negotiated contract that specified who owned which IP rights. Differing interpretations of that contract are one part of this case.
See Elestan, this is a prime example of my complaints in regards to the content of your posts. You actually do not have either the legal knowledge nor the complete set of relevant facts to make this determination.
I'll leave it at the above, unless you post something else on a forum where I am not blocked that contains legal analysis wherein you don't even bother to provide a single citation of an actual source of law, nor make crystal clear that you do *not* know all of the relevant law nor all relevant facts in dispute. If you come here and post things like the above, I will call it out.
Both parties have already acknowledged the 1988 agreement, though the interpretation is disputed. What exactly am I missing?
^ This.
You actually have no basis in knowledge to make that statement. It doesn't make it better because you qualify it is in dispute. Just like all of your posts, you clearly biased the determination of the law to benefit Fred and Paul. The problem with that is you don't know the actual law, nor do you have all of the relevant facts.
Please tell us, on this board, how you are so well-versed in what is the typical contractual arrangement for a game designer? Do you have any basis of knowledge for anything you post? Brad, a CEO of a software development company who has actually dealt with multiple IP disputes doesn't agree with your conclusions. Can you tell us why your opinions are more valuable than his? Or are your opinions only more valuable because Stardock/Brad are "the bad guy?" If it is the latter, that is why you have my ire. If it is the former, that is why I have asked you multiple times to actually provide substantiation to your analysis.
^ This.You actually have no basis in knowledge to make that statement. It doesn't make it better because you qualify it is in dispute. Just like all of your posts, you clearly biased the determination of the law to benefit Fred and Paul. The problem with that is you don't know the actual law, nor do you have all of the relevant facts.
This is a fine example of one of the BAD responses I described above. If you want to dispute the above, then say what specific item in those two sentences you are contesting, rather than making ad hominem attacks on me as the speaker.
If you think it was biased, then you could also offer a rephrasing that removes the bias. If there is a point of law you know I missed, you could mention it. Improve the debate by educating people, instead of trying to shout them down. It'll make things a lot more friendly.
EDIT(in response to eride's edit):
Aha! A specific request at last. I'll interpret this as though it were a bit more politely worded, say:
I'm glad you asked! In this case, I was assuming that a 'typical contractor relationship' (as I have seen in the software industry) is generally a "work-for-hire" one, where all work performed belongs to the employer. I have worked under such arrangements, and supervised contractors working under such arrangements.
But these assumptions are actually irrelevant to the point I was making. Regardless of what the 'typical' arrangement might be, the SC1&2 arrangement was bespoke, and that was my main point. Note that I was responding to Pyro411's somewhat non-specific implications regarding IP ownership in contracting relationships:
So, it appeared that Pyro was not aware that there was a specific contract in force for the development of SC1&2. That contract has been acknowledged by both parties in the case, so its existence is not in dispute; only its interpretation.
Regardless of anything else, I felt Pyro might appreciate the chance to read the contract for himself, so that he could be better informed. Hence my statement. I don't think it was biased, but if you have a more neutral phrasing that you think would be better, feel free to suggest it.
Just say that you can't do it man, no need to talk pretty every single time someone asks you to do it. You are the one pretending to be a lawyer yet can't be bothered to offer a base to any of your claims.
I've been quietly reading this thread and others like it on other forums that Elestan posts on. When this fiasco began, I was leaning more towards Stardock's side. When P&F's counterclaim was made public and seeing their arguments and exhibits, I began shifting to their side. Stardock's filing of trademarks for all relevant names in the SC1-2 games further pushed me to P&F's side (and perhaps angered me personally to a fault). But I still keep reading and try to be open minded as possible.
Frogboy's informative post about trademarks in the previous page was an eye opener for me and I gave that post a +1. I concede I know nothing about trademark and copyright law and these are the kinds of posts that really move the discussion forward. I'd ask for citations but I'll just take Frogboy's word (a bit of appeal to authority there, and to save time) until someone else could argue otherwise.
But I find the dismissal of Elestan's arguments here and elsewhere just for being a non-lawyer and to the point of accusing him of making those posts with ill intent rather weak and annoying. Especially since he really takes the time to present his arguments with a clarity rare for even the most prolific contributors to these forums and openly offers his arguments up for scrutiny. And he has displayed multiple times that he is open minded enough to change his mind when new evidence becomes available, or new valid arguments are offered. As a reader I would much rather see rebuttals that specifically target the flaw in Elestan's arguments other than saying he knows nothing about IP law. I can't speak for lurkers here, but as a current fence-sitter I could certainly be swayed to Stardock's side if the counter arguments are sound. The only line of rebuttal I've repeatedly encountered so far is that Elestan knows nothing about trademark & copyright law and that we should just wait for the court's decision --- without any further explanation. If that's the line of thinking for the majority here, we might as well just close all these threads discussing the dispute since most of the posters here (and in the UQM forums, and elsewhere) are non-lawyers anyway. Or unless we're all fine about calling each other deceivers, liars, or hired goons from party A or B.
That's the problem, we are here to discuss our opinions with the benefit of frogboy giving us his own opinion, facts or some understanding about the law being applied.
We also have lawyers that refrain from saying too much because they themselves are in no position to do so. It's like asking a developer how to fix a specific piece of code without providing the said code. You can make assumptions and give advice but they may as well be nullified depending on how the actual code was made.
EDIT: Like not even saying in what language the code was made to begin with.
Their contract was pretty typical. It’s very similar to our software agreements except ours aren’t quite as one sided (we’re nicer than Accolade).
When people give you a hard time, Elestan, it is because you say things like “not working under a typical contractor arrangement” as if you know what you’re talking about. There’s nothing unusual in the contract other than it’s pretty draconian on not allowing Paul and Fred to even use the trademarks “in any way”.
Assuming the contract expired, which is their position, the rights they granted Accolade revert to them. That doesn’t include any of Accolade’s property. Only things you own that you’ve granted others use of can revert to you.
Thus, if it has expired you have to go through what, specifically, they have that is protected by copyright. This is where PF fans tend to hand wave because they don’t like the answers.
Feel free, Elestan, to specifically list what you think they have a copyright to and why Stardock would care about it except for distribution the old games. Some art? Ship designs? A user manual? DOS source code that no one appears to have?
I can tell you what I’d care about: certain specific alien art designs that are fairly unique and the classic ship designs. But that would require knowing who actually owns them and can prove they made them (Which arguably they were derived from other things as Kavik endlessly tries to argue).
But even then, how much is that worth? Compare that to the confusion in the marketplace and illwill they caused with their actions prior to any legal filings?
By contrast, if you think your competitor can represent their new product as a sequel to your product, why have trademarks? Why not just claim your product is the sequel to Minecraft or Halo and get a bunch media coverage and confuse people into thinking there’s two new Halo games or Minecraft games coming out.
That's interesting; so are you saying that most game developers only yield the trademark to their publisher, while retaining the copyright? If so, that's quite different from what I've seen in other parts of the software industry.
I'll assume that this counts as a waiver on your earlier request that I avoid discussing the case here.
At this point, I need to make a "Not a lawyer" disclaimer, to make it clear that I'm speaking as a layman and not a professional. If anyone relies on what I say to make a legal decision...they're an idiot. I'd also request that any lawyers who might be offended by the mere act of speaking on this topic refrain from derailing the thread with attacks on my already-acknowledged lack of legal qualifications.
With that said, the generic answer is that anything with a creative aspect to it is covered by copyright. That would normally include art, music, fictional setting, characters, dialogue, plot/story, fictional history, etc., to the extent that they expressed creative decisions. But in this case, there seem to be at least three extra twists:
First, the music is special, because it seems like it was probably non-exclusively licensed from third parties like Riku, so P&F would not be able to control it.
Second, some of the other creative elements may have been made by others, without getting a copyright assignment. My assumption is that Paul is getting those assignments, such that most or all of these will eventually get resolved in Paul's favor, unless he's fallen out with or cannot reach some of the people involved. Greg Johnson's earlier posts on this forum certainly indicated support for Paul being the primary origin of the game's creative aspects.
Third, Paul&Fred did not register their copyright within five years. My understanding is that this means that they actually have to prove what they created, instead of it being presumed as stated. My assumption on this is that they will be able to do so; it'll just mean that have to do a lot more work digging through their old notebooks, etc., and end up paying a much higher legal bill.
And yes, Stardock could claim that, for example, that the flying saucer aliens in their games are creatively derived from the generic flying saucer alien trope that's been in SF for ages, and not creatively derived from the specific flying saucer aliens in the UQM universe. Or that its other elements are not similar enough to infringe.
But my understanding is that the similarity question is ultimately a jury decision, which makes it highly unpredictable. If the case actually goes to trial on those issues, my non-lawyer opinion is that it's probably going to be a crapshoot (and I've heard the same opinion from actual IP lawyers).
It seems to me that calculating damages here is also in the realm of guesswork. SC:O hadn't even been released yet, so there's no telling whether it would have been another GalCiv or another Elemental, nor can we say with any certainty to what extent P&F's post changed things. We also can't distinguish harm caused by P&F's post from harm caused by Stardock's own litigation choices.
My own opinion is that if you compare this reality to the alternate reality where P&F avoided using the phrase "Star Control" in their post, there aren't going to be many differences outside of the lawsuit itself. The media and fans for whom "Star Control" meant anything would all have connected P&F to the original games anyway, whether they referred to them as "Star Control" or "The Ur-Quan Masters".
I don't think these examples are very applicable; since Minecraft is a builder and Halo is a shooter, they have minimal literary elements. A better example would be "Betrayal at Krondor", where the story was created and copyrighted by Raymond Feist, and the game took place in his fictional world, but was developed and trademarked by Sierra (which was eventually bought by Activision). I'll grant that SC2 was less literary than BatK, but certainly moreso than Minecraft or Halo.
Semantically, "sequel" could legitimately be used to denote either a literary successor or a successor product. But I don't claim to know enough to resolve the legalities of its use in the context of a copyrighted creative work that is also a trademarked product, with the trademark and copyright ownership separated. Who has the right to use the word "sequel" in such a situation? You've previously said that you have case law on this topic, and I'd love to see it.
FWIW, my progression has been similar. If people go back far enough, my opinions were originally leaning a bit toward Stardock; particularly in that that P&F should have been talking privately with Brad, not making blog posts, and that they had erred in not revealing their IP claims earlier. And I think the PR firm they used hurt them more than it helped.
But since then, Stardock's actions, together with the evidence that has been revealed about what was going on behind-the-scenes, have slowly caused me to re-evaluate my opinions to be less favorable to Stardock. I'll refrain from going into detail here so as not to drag the thread into a quagmire, but I would be happy to discuss the evolution of my views elsewhere or in PM if desired.
Even so, like Tinkagol, I try to stay open-minded, and evaluate each new piece of evidence with fresh eyes as it is revealed. And like him, I could be swayed back if enough new facts came to light. I look forward to examining more trial exhibits, and continuing to re-evaluate my opinions, as the discovery process continues.
I'm not a lawyer nor have any knowledge about law, even more so USA law but this is the impression I got from reading up until now.
If P&F have this contract which says the (EDIT: trademark or any copyright sold by atari to stardock) reverted back to them since 2001 and give them control over what Stardock bought. Then how could this be possible:
1. Why not get control over the trademark in 2001 from Atari (Infogrames at the time)?
2. Why allow Atari renewal of the registration of the Star Control trademark in 2007?
3. Why allow Atari to put SC games on GOG in 2011?
4. Why allow Atari to sell SC trademark to Stardock in 2013?
5. Why wait until now to say that they own SC trademark because of this contract? Why allow Stardock to develop it's own game for years to say later that everything had already been reverted back to them in 2001?
The only thing that I can conclude from this is that it's a weak claim.
Let's say for example that P&F are indeed the owners of the trademark, they not only allowed the situation to develop like that but they also made Stardock waste money buying the trademark and developing a game over it. They should be the ones paying damages to Stardock for not communicating the real situation of the trademark to all the parties involved.
But if P&F are not the owners of the trademark then it makes sense, they got this weak claim that they are just throwing to see if it sticks.
EDIT: I'm just talking about this contract in question, of course there are many other elements at play which can also change in favor of one or the other. I just wanted to point that if P&F contract is real and has legal value over the trademark then this makes them the worst in my vision.
They have not claimed (as far as I can see) that the trademark reverted back to them. Their claims include (among other things):
1. That the "Star Control" trademark essentially lapsed due to lack-of-use in the early 2000s (in which case nobody would have it).
2. That the particular way they used the trademark in their post was permitted by a 'fair use' exception.
3. That the exclusive copyright license that was needed to publish the earlier games and create new games using the same creative material expired in 2001 or before, replaced by a weaker 2011 license with GoG that only allowed publication of prior games, and which has now been ended.
Stardock has counterarguments to these (some of which I agree with), but that is what P&F are claiming. And then there are other arguments about exactly what is covered by their copyright, and whether Stardock can claim an unregistered trademark on other names and phrases from the original game besides "Star Control".
I understand that sentiment, as I shared a similar view in this thread (reply #176) a couple months ago (though regarding the copyright license rather than the trademark). However, it has since been revealed (by the emails in Stardock's Q&A, among other things), that Stardock did receive a full copy of the 1988 agreement when they bought Atari's assets, so their lawyers were able to review it. Brad also should have been aware of the potential risk of the trademark having lapsed, as this was discussed in a 2013 thread including Paul's views on what was purchased on the UQM boards in which Brad participated.
This link isn't working.
EDIT: They do ask for one trademark to be cancelled. Their counter suit would make the trademark Stardock bought invalid or just part of it regarding SC1/2/3?
EDIT 2: The link not working as Elestan said is reply #176, the first one from page 8 https://forums.starcontrol.com/486284/page/8/
Sorry; I seem to have trouble getting direct-to-reply links to work here. It's reply #176.
It would make the old trademark invalid. The argument for saying it should be cancelled was that Atari renewed it on false pretenses back in the early 2000s (trademarks have a requirement to be used, so if they weren't using it or planning to use it, they shouldn't have been able to renew it). One counterargument is that the games started to be sold again (with everyone's permission) on GoG in 2011. I'm not qualified to say whether that cures the prior lack-of-use problems or not.
However, Stardock has since filed for a fresh trademark on "Star Control". To my understanding (and Brad can certainly correct me if I'm wrong), this means that even if the old "Star Control" trademark got cancelled, Stardock could still release their new game as "Star Control: Origins", and keep others from making games called "Star Control" in the future.
The thing is Atari did use it, Star Control III was under the Atari banner as well as Star Control IV "Simplistic flash game that was hosted on Atari's site which got launched just prior to renewing the trademark again"
Star Control III was published in 1996, and had probably stopped selling by around 1999, and the GoG sales didn't start until 2011. Three years of non-use is enough to establish a presumption that a trademark has been abandoned, absent evidence to the contrary.
I remember that flash game; it was much commented on in the UQM forums. Atari went to this flash development shop a few days before the trademark renewal deadline, and told them to make a space shooter game over a weekend. The game was posted on Atari's website for a brief time, and then disappeared. The consensus on the UQM board was that this would be considered a token use of the trademark. Since 1988, token uses are not considered bona fide uses capable of protecting a trademark against abandonment claims.
I think it depends, if P&F get the old trademark cancelled they might as well try to get all of them cancelled.
Did Stardock got just this trademark from Atari or were others as well?
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