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Games Workshop Proves It Would Rather Bully Authors Than Be A Culture Participant
from the authors-unite dept
Back in December, I informed you of an unfortunate Amazon takedown of a novel by M.C.A. Hogarth, Spots The Space Marine, due to Games Workshop, maker of the Warhammer series claiming trademark over the term "space marine." As I noted at the time, that term has been around for at least the better part of a century, becoming so common place as to be the placeholder name for anonymous characters in games like the original Doom. That said, one can't feign surprise at Games Workshop's actions, considering how they've treated their own fans in the past. Still, I had rather hoped at the time that cooler heads would prevail, some agreement would have been worked out between both parties ($1 license, anyone!?!?!?), and yet another novel would have been offered to a public in sore need of a good story.
Sadly, my hopeful optimism has proven once more to be a fool's stance. Despite ongoing conversations between Hogarth and the company, it appears no arrangement could be constructed and the only options are a court case or the disappearance of a piece of culture. Considering the potential costs of a trial and the villianous myopia of Games Workshop's legal department, the likely outcome would appear to be the latter, save some rescuing group swooping in at the last minute. Don't underestimate the company's bravado in this instance, since the precedent it sets is a dangerous one.
Hogarth, for her part, isn't some IP abolitionist either, lest you get the wrong idea.
Which conjures another interesting question. Where are all of the author's groups that are supposedly built to protect their flock from this sort of thing? What good are groups like the Science Fiction Writers of America, The Writer's Guild, and their like if they refuse to get involved in cases like these? These groups are supposed to be about a great deal more than handing out their proprietary awards. They're supposed to be advocating for culture as well. Why they haven't in this case is a mystery to me.
Sadly, my hopeful optimism has proven once more to be a fool's stance. Despite ongoing conversations between Hogarth and the company, it appears no arrangement could be constructed and the only options are a court case or the disappearance of a piece of culture. Considering the potential costs of a trial and the villianous myopia of Games Workshop's legal department, the likely outcome would appear to be the latter, save some rescuing group swooping in at the last minute. Don't underestimate the company's bravado in this instance, since the precedent it sets is a dangerous one.
In their last email to me, Games Workshop stated that they believe that their recent entrée into the e-book market gives them the common law trademark for the term “space marine” in all formats. If they choose to proceed on that belief, science fiction will lose a term that’s been a part of its canon since its inception. Space marines were around long before Games Workshop. But if GW has their way, in the future, no one will be able to use the term “space marine” without it referring to the space marines of the Warhammer 40K universe.Feel free to point out that the trademark only covers certain markets if you like, but the claim by the company so far overreaches what trademark was intended to be that such an argument fails to find many footholds. Hogarth may be one author and this claim may be over one book, but for a cultural term like "space marine" (snicker if you like, but that's what it is now) formerly shared, but now locked up in corporate perdition, the impact is all of ours. For a company to lock it up as though it birthed the term is disgusting.
Hogarth, for her part, isn't some IP abolitionist either, lest you get the wrong idea.
I used to own a registered trademark. I understand the legal obligations of trademark holders to protect their IP. A Games Workshop trademark of the term “Adeptus Astartes” is completely understandable. But they’ve chosen instead to co-opt the legacy of science fiction writers who laid the groundwork for their success. Even more than I want to save Spots the Space Marine, I want someone to save all space marines for the genre I grew up reading. I want there to be a world where Heinlein and E.E. Smith’s space marines can live alongside mine and everyone else’s, and no one has the hubris to think that they can own a fundamental genre trope and deny it to everyone else.It's difficult to imagine anyone but Phobos' fictional imps disagreeing with her. Still, while several lawyers she's spoken with have agreed to take on the case, the costs are predictably prohibitive. In her blog post, Hogarth seems bewildered that these are the only choices she faces: spend more money than her writing earns income in a legal battle, or relinquish her novel to the ether.
Which conjures another interesting question. Where are all of the author's groups that are supposedly built to protect their flock from this sort of thing? What good are groups like the Science Fiction Writers of America, The Writer's Guild, and their like if they refuse to get involved in cases like these? These groups are supposed to be about a great deal more than handing out their proprietary awards. They're supposed to be advocating for culture as well. Why they haven't in this case is a mystery to me.
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Nigel
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WAAAAAAAAAAAAAAAAAAAAAAAAUUUUUUUUUGH!!!!!
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Oops. Fixed.
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lawyers puh!!!
Surely the court must recognise that this is a form of bullying as the defending party does not have the money for a true representative.
I for one would be ignoring them and telling them to take me to court, then when the case starts advise the court of evidence you have gathered and that you cannot afford a lawyer. if he continues with the case then take out a loan for a lawyer and pay it back from the damages you get , surely you can be guaranteed damages if you win and it is shown that the aggressive party had access to the same evidence you gave to the court, namely the fact that there is so much pre-art or whatever you call it. Then could you not also start in small claims court before they start in a more expensive court.
I am just confused here, what happens if someone with money takes someone else to court and the defendant cannot afford a lawyer, is one appointed by the court or is the case just given to the rich as you cannot afford to defend yourself?
What about approaching the EFF and seeing if they will fund your case and what about other places that might fund you, also what about lawyers that would see this as a case they cannot lose doing it pro bono or whatever it is called.
Sadly this is the type of case that needs to be fought, but the attackers will only attack those they know cannot afford to defend themselves and that is a broken judicial system.
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Re: lawyers puh!!!
"Is there no way to represent yourself in America, I thought that was something done a lot but then I only know the American justice system from what I have read in the internet and watched in movies." (ftfy)
It's harder than any movies or anything depict. At least at that level. Lawyers have a tendacy to talk in legal jargon, know the technicalities, can work a judge/jury, and worst of all has resources to search/reference previous cases. Since so many cases in America are based off common law, that gives them a huge advantage. An average American has trouble with any one of those things let alone all of them.
"I am just confused here, what happens if someone with money takes someone else to court and the defendant cannot afford a lawyer, is one appointed by the court or is the case just given to the rich as you cannot afford to defend yourself?"
Someone with more legal knowledge than me can answer this question for sure, but isn't that only for criminal cases? In a civil lawsuit you're on your own.
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Re: lawyers puh!!!
If you represent yourself the Judge doesn't even want to talk to you. He will ask the opposing attorney to ask you questions and will threaten rule against you if you speak up for yourself. He will adopt a condescending tone when speaking at you and when eventually forced to rule in your favor because you were better prepared than the attorney, will act as though you were incredibly lucky and it is only because he is the kindest person to walk the earth since Mother Teresa that you are winning the case.
Going it alone against a competent attorney would be foolish.
Oh and they Judge and attorney discussed in open court how they had previously discussed the case over the phone. Neither of them ever contacted my wife by phone. The entire experience left me with the desire to obtain a JD just so I could represent people like this.
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Wow! I'm going to make an assumption that being in 'open court' meant there was a transcript? And if so wtf happened?
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At first I thought it was an euphemism, but then they stated they are a "blended" family, which took me back to sperm donor.
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@G Thompson. Yeah they were so arrogant that they didn't even sidebar, just talked into the microphone like it was perfectly normal.
The attorney was a big screw up, plus his client was lying to him so he had a bunch of errors in his filings which my wife had pointed out in hers. So the judge had called him to make sure that on the day of the hearing he had all the corrected documents. So they just walk over and drop a 1 1/2" thick stack of documents in front of my wife. I was really surprised we prevailed after that, I figured nothing she said would matter.
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Re: lawyers puh!!!
Ah.. I see where your confusion comes from. Welcome to the US legal system and their process of not abiding by procedural fairness or the system of "loser pays"
Basically it works like this. If you have enough money to claim some sort of legal wrong has been (or about to be) committed against you, even though you might not win (though there needs to be some sort of merit) you can basically bankrupt some poor individual by making them pay exorbitant legal fees (especially in a niche and specialised area like trademarks) and even if you lose the case the respondent (the defending party) can very rarely obtain legal costs or damages against the plaintiff (the bully)
Some parts of America have Anti-Slapp laws that come close to providing a 'loser pays' system but they only really work if the case is absolutely at face merit-less. In this case there are a lot of grey areas and no real affirmative defences. Also its mostly about obtaining a declaratory judgement that Games Workshop is pissing up a rope with there threats.
In other words Hogarth would be the plaintiff here and is up for costs at the very start no matter what. Which is why a call for pro-bono help has gone out amongst the legal and sci-fi blogosphere
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Welcome to the American Legal System:
Justice for sale!
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Re: lawyers puh!!!
Plus, don't forget about all the legal fees just for filing paperwork and responses.
This is why even a small corporation can easily outspend an average author or artist.
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Alternative is change the name of the storiy
Spot The Space Μαrίnέ
or
Spot The Spαcέ Marine
which shouldn't affect too many people even if they don't speak greek.
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Re: Alternative is change the name of the storiy
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Re: Re: Alternative is change the name of the storiy
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This move should be surprise to no one. As they would rather sue every fan artist out of existence and have all that "imaginary revenue" that wouldn't have been made to themselves.
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"That said, one can't feign surprise at Games Workshop's actions, considering how they've treated their own fans in the past."
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"To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries."
The question becomes: is Games Workshop the first and rightful author of the term 'space marine'? The answer is ...no.
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Misusing the law needs to be punished.
I'm not familiar with common law when it comes to actual law, I didn't think it applied.
The lawfirm sending the nastygrams needs to be hauled before whatever bar has the misfortune of having certified them and suspend them until such time they are practicing the law and not just making crap up.
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Common Law (sometimes called case law) is a term applied to all law that is set by precedent ie: by judges and tribunals and not by statute which is what criminal law and administrative law is based on (not tort). Well that's the simple explanation anyway.
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Books and Trademarks
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Re: Books and Trademarks
According to the comments at mcahogarth.org, the original email claimed that the infringement covered both the title and the text of the ebook. The way Amazon is set up, GW would have to write a letter to Amazon saying that all was settled; it is unclear whether, even if the author complied with changes like "space trooper" or "space soldier," GW would bother to ever write that letter. (I suspect there is some missing data; from what I know of the author, if there were a choice that was likely to get her book back in action, quickly, it seems more plausible that she'd have gritted her teeth and made the changes rather than raising a ruckus.)
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Writers organizations...
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It appears most things in life are a complete mystery to you.. SNAFU
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Nice try, but...
I think the real issue here is that if the trademark did apply to any markets, Games Workshop wouldn't own it.
Even in the fairly specific market of tabletop war gaming with miniature models, there was a Fantac game called "Space Marines" that came out in 1977 and a FGU follow-up that came out in 1980. For reference, Warhammer 40K was created in 1987.
In books, Bob Olsen published "Captain Brink of the Space Marines" in 1932 and a sequel in 1936. Doc Smith wrote about Space Marines in the 30s. Heinlein wrote a couple of books about them in the late 40s and early 50s. Oh, and GURPs came out with a rule-book for playing in the Lensman universe in 1988, and that also included Space Marines.
Games Workshop should be awfully careful about claiming common law trademark on a generic term, especially when the term has been used in print for longer than the company's been in existence.
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Re: Nice try, but...
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Re: Nice try, but...
So in America the Justice system can be used to steal something from another person and the courts would protect them from any repercussions.
No wonder the prison system is the largest in the world by far. The court is creating criminals from honest hard working people. Talk about corruption, this is just as bad as any third world country, it is just created to look like you could possibly get justice....if you have the money to buy it.
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Re: Nice try, but...
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idea
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Abuse vs Free Speech
GW is trying to steal a generic term here. They did not invent it, they did not popularize it, and it has only a passing reference to their miniatures project.
GW are trope thieves.
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I'd like to pose a question to my fellow TD readers and editors: wouldn't this trademark be easily torn apart using the prior art defense or something like?
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Bought some of Hogarth's e-books
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Games Workshop
Below is a copy of what they sent me in their eamil. As you can see it doesn't say anything.
Thank you for your email to Games Workshop Group PLC's legal department.
· If your email is in respect of an infringement of Games Workshop intellectual property, such as counterfeiting, we would ask you to kindly forward that email to
infringement@gwplc.com
Please be aware that any emails that are not related to an infringement of Games Workshop rights will be deleted from the infringement@gwplc.com mailbox.
· If your email is in respect of a legal query, we would encourage you to review in detail our Intellectual Property policy on the internet. This policy contains comprehensive information in relation to what you can and cannot do with our intellectual property without a license. Please log on at: http://legal.games-workshop.com. Any query that you have in respect of Games Workshop’s intellectual property should be answered by that policy.
If in the unlikely event that your query is not answered by the IP policy or if your query is not about intellectual property matters, we would ask for your patience with regard to a detailed reply as, unfortunately, some emails are inadvertently identified as SPAM by our filters. If you have not had a response within a reasonable period of time we would invite you to forward your email to LegalQ@gwplc.com To speed up the process we would encourage you to prefix the subject header of your email with the words: "Legal Query".
This is an automated email response.
Yours faithfully,
Games Workshop Group PLC Legal Department
Games Workshop Group PLC
Willow Road
Lenton
NG7 2WS
+44 (0)115 9168100
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Re: Games Workshop
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Gamers on Games just did an interview with Maggie Hogarth
http://youtu.be/JnSTuSW5w7E
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"...Creators of such memorable characters like Space Elves, Space Orcs and Space Wizards."
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What a cheek!!
In fact, the whole Warhammer 40K game evolved from this film. I know. I was there when the prototype game was being developed (it was a fore-runner called Space Hulk).
Maybe 20th Century Fox or James Cameron should sue GW.
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