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 did see that. Is that a correction or retraction of the earlier statement? I didn't read it that way, but I'm happy to admit to making a mistake.
I can't comment on that case. However, UQM is explicitly not engaging in commerce via its license.
If this is all true then i am very sorry to hear that.
I assumed that was the case in my earlier post. However, I'm no longer sure that "non-commercial" products (generally meaning available for free) can't be considered to be "used in commerce" (as applies to trademark issues). The law review article I cited suggests that this is not a simple issue. Are you stating a legal conclusion (as a non-lawyer) that this is a settled point of law? If so, could you provide a counter-citation?
I'm stating that they are not engaged in commerce because they are not engaging in commerce. Are you suggesting UQM is a business entity? This is what happens when people who aren't familiar with the topic begin to opine.
The reason UQM has been safe is that it has been treated as a fan community all these years. It would be to that community's detriment if it were to start trying to claim trademarks or copyrights for itself as the rights owners would need to defend themselves in that case.
Available for free was never the hard and fast test for whether something is "used in commerce" versus not. Intent behind the creation of the product, regardless of its means of distribution or cost to the ultimate consumer, plays as much a role as anything else. Frogboy's example of Star Trek fan films is a case in point. There is a cottage industry, and for the most part Paramount doesn't go after them because there's no confusion between those films and the films that Paramount itself produces, nor do the people creating these films attempt to parlay their creations into some larger commercial venture. There's no question of which film is an official one and which is a fan creation that fans are doing for fun. There have however been fan films that Paramount has gone after, because they took on a commercial angle even while being nominally free. The whole charlie foxtrot over Axanar being the most prominent one in recent memory, where the people behind that project were starting to look like they were using the money, a substantial amount of money in fact, raised to ostensibly fund the fan film to also build up infrastructure that could be used for commercial ventures. In that case, even though the fan film itself was supposed to be available for free, the way the project developers marketed it plus the background infrastructure building caused it to veer into what Paramount judged to be a commerce usage of their trademark of Star Trek.
UQM being considered non-commerce usage therefore is due to a combination of two things. The first is that the community as a whole has worked to avoid stepping on any of the more obvious red-lines that would force the trademark owner to need to actively assert itself. The second is that Stardock, the current owners of the trademark, has made a deliberate determination that the activities of that community do not create confusion with their products. If such a time arises that Stardock makes a new determination that UQM does somehow create confusion because of some new project of theirs, the fact that UQM did not previously create confusion does not protect it.
Please, don't encourage him. He keeps derailing the thread with this subject despite being told multiple times to make a new thread about it.
The only thing I opined on was that the answer to this question wasn't as clear-cut as pointing to the license, or the fact that the software is freely distributed. I'm looking for more insight - ideally a clear legal reference - as to whether or not (or in what circumstances) common-law trademark rights might attach to names used in a free community project.
For example, imagine a free community open-source space strategy project called "Legends of the Astrallian Quadrant", that had alien races like the "Astrallians", but had not registered any trademarks. Could a company swoop in, trademark all the race names from the community game, and create their own similar game using those names? Could they then order the original project to shut down, or forbid it from deciding to commercialize? Or would the original project have common-law trademark rights that would either (at a minimum) protect itself, or block the company's attempted registrations entirely?
I'm not convinced that the Creative Commons license usage of 'commercial' - "primarily intended for or directed toward commercial advantage or private monetary compensation." - is the same as the Lanham Act's 'in-commerce' - "a mark shall be deemed to be in use in commerce ... on goods when ... the goods are sold or transported in commerce".
To me it seems quite possible to be 'non-commercial' (with respect to the CC BY-NC-SA) and 'in-commerce' (with respect to the Lanham Act) at the same time.
I agree - assuming the UQM project is not also the rights owner.
So, this is where another question creeps in: Let's assume that at the moment that the last SC3 sale was made (around 1999?), Accolade did have a common-law right in the name "Spathi". My understanding (feel free to correct me) is that the longer that right lies fallow, the weaker it becomes. In 2001, the UQM project began using the name "Spathi", with no special permission asked or given, such that it was the only public use of that name.
How does the rights situation with respect to the common-law "Spathi" mark change as time passes? If 50 years of that status quo went by, could Accolade (or its successor) still claim that mark by virtue of having had it first, and potentially enforce it if the UQM project were to try to commercialize? Or is there a point - eventually - where the common-law trademark is deemed to have been forfeited?
It's an honest question; I'm not asserting an answer either way. I'm also aware that there are other factors relating to the GoG sales that started in 2011. But right now, I'm trying to figure out what the state of things would have been in 2010, before starting to think about 2011.
So, this is where another question creeps in: Let's assume that at the moment that the last SC3 sale was made (around 1999?), Accolade did have a common-law right in the name "Spathi". My understanding (feel free to correct me) is that the longer that right lies fallow, the weaker it becomes. In 2001, the UQM project began using the name "Spathi", with no special permission asked or given, such that it was the only public use of that name.How does the rights situation with respect to the common-law "Spathi" mark change as time passes? If 50 years of that status quo went by, could Accolade (or its successor) still claim that mark by virtue of having had it first, and potentially enforce it if the UQM project were to try to commercialize? Or is there a point - eventually - where the common-law trademark is deemed to have been forfeited?It's an honest question; I'm not asserting an answer either way. I'm also aware that there are other factors relating to the GoG sales that started in 2011. But right now, I'm trying to figure out what the state of things would have been in 2010, before starting to think about 2011.
Personally I am confused as to how "Spathi" can be a trademark at all right now - there is no product called "Spathi" being sold or distributed - there is only copyright, protecting the depiction of the Spathi as they appear in the existing games, but not the word "Spathi" by itself. There could be a trademark in the future ('SC:O:Spathi(tm)' DLC?) but it should not affect the use of Spathi in UQM as they are not distributing "Spathi".
"The UQM isn't engaging in commerce." is the sum total of relevant response. All else is immaterial and off-topic.....at best adding confusion for others.
"looking for more insight" ....have you thought about going to school? ...
I understand that is Brad's position, but respectfully, I don't consider his statements to be the final word on such things. A clear citation to statute or precedent is what I was really hoping someone would come back with.
I've already got a couple of degrees, but yes, I've still thought about it.
I'm just trying to make sure I understand you; are you saying that you believe that:
This, (though I am no more a lawyer or have knowledge in the field than you do).
Or he can always hire a lawyer
Even after hiring one he probably won't get an straight answer however.
It IS 'the final word' when it comes to the SPECIFIC topic of this thread, however. Why is it you find some compunction to go beyond reality and delve into irrelevances?
When did "Stardock response to Paul and Fred [Update]" become an open invitation to investigate the entire world of case Law, and, as stated more than once, cloud the issue?
Here's an analogy.
Brad is an astronaut....and posts a thread about just completing a flight where he orbited the earth 10 times.
Others ask..."what was the effect of turbulence on re-entry?" and a conversation ensues.
Elestan comments..."I read online there is a ground-swell of opinion that the Earth is, in fact, FLAT, ergo I cannot accept Brad's description of turbulence as valid. He may not have been in space as he claimed......but notice I have been careful with my choice of words."
Well, Frogboy pretty clearly disagrees, and he does have enough experience that I give his opinion weight. Plus his lawyers are arguing it, and I doubt they would attempt that argument if it didn't have some kind of foundation. So I think this question could still really use a reference.
I do like the citation you provided earlier regarding the trademarkability of free software; one notable quote is:
However, it goes on to cite other factors in attaching trademark rights, which UQM might or might not satisfy. It's also an 11th Circuit precedent, so it wouldn't be binding on the current litigation in the 9th Circuit.
There is no case law being discussed here. I've not seen one holding cited in this (or any) thread. That is the point I have been trying to impart to Elestan, to no avail. Broad legal concepts have no meaning when applied to actual disputes. The few legal concepts that have been stated here have been so basic that ANY possible outcome could result from discussing it from a place of ignorance. If you are biased towards one side, you are likely to sway yourself in that direction.
An analogy for the legal discussion taking place here is if one partially digs for the foundation, stops at this point, and believes they've built a house.
Please read reply #598, where wibblenz cited https://caselaw.findlaw.com/us-11th-circuit/1481575.html. Or the post immediately prior to your own, where I thanked him for doing so.
So...I can't help but notice...yesterday you accused me of never citing a source of law, when I had done so the prior day; and now you asserted that you've never seen a holding cited here, when in fact there had been one mere hours earlier. I really do appreciate constructive criticism, but if you're going to berate people for not being rigorous enough, you might want to use a little more care in checking your own statements.
I don't think that fits. It implies (if I understand your analogy correctly) that someone thinks they've actually proven how a court would rule on something. Nobody is under any illusions of that. We all know it's just a hole, and we're standing around it speculating on what kind of house might get built when the work crews arrive.
Okay, that's fair; I do want to respect the thread's subject, so if this thread is reserved for Stardock's statements on the case, then other opinions or observations about it should go elsewhere. Is there another place in these forums where such comments would be on-topic, or does Stardock want all views but its own on the case to go to other venues?
Th is my opinion nonething concrete. This post is probably go on until the case is settled. Brad has the final word here, but the jurors will have the final word.
What is protecting ur quan masters if brad wins is probably good will.
Does star control 1 and 2 have a gnu license, and if brad wins is this license genuine. Whatever that is in the license is protecting you.
This thread has survived starfleet Battles, it can survive anything.
That said, please stop trying to litigate the case as if you have litigation experience. It’s misleading and unhelpful.
For instance, UQM isn’t engaging in commerce. That’s a fact. Not an opinion. The case laws you bring up have nothing to do with UQM. There isn’t even a business entity behind UQM. It’s a fan community.
Stick with broad topics. Example, copyrights and trademarks. You can argue that all you want until you try to reach for a legal conclusion.
Let readers make up their own minds.
What Taslios said ...
Once Brad has declared there is no issue with the status of commercialism [lack of] with UQM then that particular question is closed - done and dusted.
At the top of this page is a link/button called 'New Topic'. Clicking on that will allow a user to post....a new topic, one even that can have the heading "What constitutes commercial use in fan art/communities/games?" [or whatever one wishes to title it] and the tangent/s can be explored ad infinitum.
The issue with attempting to continue on a divergent course within the one thread is that your reader/s can be misled through inference that there is still some doubt when it has already been stated otherwise....
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