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Subject: Martin Wallace accuses Winsome/FRED of copyright infraction rss

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Bruce Murphy
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RDewsbery wrote:

Eh ... generally yes. Look up "works for hire" sometime. I fear that your treading into the realms of lacking legal knowledge that you yourself counselled against in paragraph 2.


It is, as usual, nowhere near as clear as you paint it. The work for hire law varies with type of work and from country to country.

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lamplite wrote:
...especially if I can figure a way to get them signed by Wallace and Bohrer both. I know it's a snowball's chance though...


You'll be wanting to think carefully about who gets to sign which game.

Essen would be your best bet, I imagine. There would be a certain novelty in a visitor taking games /to/ Essen.

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Drew1365 wrote:
thepackrat wrote:
It is, as usual, nowhere near as clear as you paint it. The work for hire law varies with type of work and from country to country.


There is no "work for hire" law. "Work for hire" is a form of contract and is going to vary depending on the wording agreement the parties come to.

Actually there are laws. These form the default of what happens to ownership/rights when someone is working for hire in the absence of specific rights assignments in a contract. They vary a great deal in different media (ie photography and writing) and from country to country, for example.

Now most people avoid all this nastiness by creating a nice solid contract explicitly stating which rights go where. In all jurisdictions I'm aware of, such a contract specifically overrides the default laws, and usually takes the form of assigning copyright. Of course, it's pretty stunning weird to have copyright assigned to you as the paying party of a work-for-hire contract and then publicly claim otherwise on not one but two editions of a game.

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All of this conflict seems to stem from the fact that agreements were made in good faith or as a favor and that no actual written contract exists. And that one party was very happy to exploit the fact that no contract existed.

It's possible that every use of the "Age of Steam" logo on all of the expansion maps was a violation of copyright law, but no one went to the trouble to press charges. Doesn't make it legal, just makes it . . . "overlooked" (purposefully or not).

Now you appear to be misunderstanding copyright law. In civilised countries, violation of copyright lives in the civil domain, so people seek to recover damages rather than have penalties enforced by the state. Copyright law assigns certain rights and protections so one doesn't 'violate' the laws, so much as be found to be using something someone else owns or controls.

Often such bodies of law also have handling for 'passing off', which encompasses selling of fake Gucci handbags and whatnot, but that's misleading to consider together.
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Given how shrill Winsome was about anyone daring to create home made maps for their paper-and-hex train games, their behavior here is quite ironic.

Shrill? You must have been reading different threads. Polite requests is what I saw, shrill is more along the lines of the friends and relations of Wallace.

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The following is full of weasel words. I'm sorry about that.

RDewsbery wrote:
clearclaw wrote:
Garry wrote:
The AoS title on the new box is an exact duplication of the original, by that I mean it was probably scanned from the original or, more likely, off the box lid of a previous version.


That artwork in digital form has been being provided to Age of Steam map developers for some years.


By whom?


I believe by Winsome. I never received a copy of the logo from them, I never licensed my maps (others did that for me) and I was not privy to the details.

Quote:
Quote:
That's a little less clear. Relationships between Warfrog and Winsome (I won't call them contracts as there seem to have been none) could easily result in that license transferring to Winsome. The fact that Winsome were handing out the logo for many years to Age of Steam map developers and licensees puts established and accepted behaviour on Winsome's side as there was no debate raised by Warfrog at that time (that I know of).


Then you don't understand copyright enforcement particularly well. unlike a trademark that has to be protected at all turns or future protection is lost, with copyright infringement you can choose when - or if - to go after the infringers. If I copy one CD for my own use, chances are nothing will happen to me. If you then copy that same CD at a duplication plant and start selling it out of the back of your car, you have to expect the record company's lawyers will come after you, and saying "But Richard copied it first, and you did nothing about him" won't work. At all.

If Winsome are going to claim that artwork commissioned and paid for by Warfrog is owned by Winsome, they'll need to do a lot better than pointing to a logo on the back of a box.


AIUI a lot of contract law comes down to intent rather than the letter. As there apparently were no contracts in this case, my understanding is that the legal approach is to determine the effective contracts, the agreements that were adhered to by practice and behaviour of the various parties and to then work as if those had in fact been written contracts (along with a large dose of interpretative generosity because they have no actual written contracts and thus must default to generous in their interpretations).

AFAIK Winsome were regularly distributing the logo to Age of Steam map designers and Warfrog were undoubtedly aware of this. Almost every map out there, commercial or not has the age of Steam logo on it. My understanding is that Winsome offered the logo as part of the licensing for the expansion. Arguring that Warfrog were unaware of this is a tough sell. I understand that Warfrog could have merely ignored this trespass, as is their right, but given the otherwise previous bon homie between the companies this is questionable, especially if there's an earnest attempt to reconstruct the effect contractual relationship between the companies as Winsome were distributing the logo during the period that the companies were in each other's good graces. The apparency is that Winsome had the right to distribute the logo. Now if I'm wrong on this reconstruct-the-relationship aspect, and I may well be, then the picture is very different. It is possible that this area also differs strongly between British and American law. What I've written is my amateur understanding of the American system (based on a contract dispute and resolution I went through some time back).
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Drew1365 wrote:
thepackrat wrote:
Actually there are laws.

I admit to not knowing the laws of Switzerland.

I don't know them either. Hardly relevant in the situation, is it. Better to assume I was referring to one of the relevant countries, no?
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thepackrat wrote:
Shrill? You must have been reading different threads. Polite requests is what I saw, shrill is more along the lines of the friends and relations of Wallace.


Well, no question where you stand, is there? cool

I stand on the side that snipes at people who are being stupid. One of the sides in this spat has a lot more of them, and they're a lot more vocal about it.

I take it you're on the side of the people who burn games?
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As far as I know, this is the first time the relatives of Martin Wallace have been subject to abuse, though. What did they ever do?

You try to lighten the mood by referring to children's fiction and look where it gets you.

B>
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Zimeon wrote:
If someone pays you to write a novel, and you do, it does NOT mean you've lost your right to the novel. Doesn't matter if Bohrer was paid in advance or afterwards for the development of the game; the work is still his (or Wallace's). The money you get paid for doing something, translating something, designing something, is for a one-shot use only. Any reprint is to be paid for - again. You release a pocket-version of a novel? Pay the author - again. You change the cover illustration? Pay the author - again. If the right to the whatever-you-were-paid-to-develop was explicitly transferred to the paying company, or if you're employed at the company in question, then that's another story. But you don't lose rights to something you've done just because someone pays you.


A developer is not an author.
I doubt developer Stefan Brück has received any payment for any of the games he has developed that are now being published by other publishers than F.X. Schmied, FX, and Alea.

He was paid to do the work, but the rights remained with the publisher, and eventually reverted back to the designer, who was free to sell his games to other publishers. Without having to disregard any rules/mechanisms created by the developer.

Same goes with each and every other publishing house. To keep you own analogy with the books: all published books has a 'developer' - a book editor, who change chapters in the book until he is satisfied. But once the book is published he doesn't get paid again for each new print of the book.
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Richard Dewsbery
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thepackrat wrote:

Now you appear to be misunderstanding copyright law. In civilised countries, violation of copyright lives in the civil domain, so people seek to recover damages rather than have penalties enforced by the state. Copyright law assigns certain rights and protections so one doesn't 'violate' the laws, so much as be found to be using something someone else owns or controls.


Oh dear. I guess that all of the people I've prosecuted - in the criminal courts - for copyright violations were innocent after all, whatever the law of the land said.

Here in the UK, violations committed deliberately in the course of a business *for profit* usually are criminal offences. Carrying a potential prison sentence.

But perhaps you'd like to imply that I don't live in a civilised country? Any more ad hominem attacks to add to that? I've already noted your rank hypocracy on the issue of personal insults, by the way.

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Bruce Murphy
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Drew1365 wrote:
thepackrat wrote:
Drew1365 wrote:
thepackrat wrote:
Actually there are laws.

I admit to not knowing the laws of Switzerland.

I don't know them either. Hardly relevant in the situation, is it.


I think it is. You come in here claiming to know all about copyright law, and you don't even know the copyright laws of your own country.


As per numerous posts, it's not my country. Do you feel silly now?

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While I appreciate the eforts of Winsome games to publish good titles, I think that their handling of this matter is unfortunate. This dispute reminds me of the problems currently afflicting the recording industry and RIAA.

In short, we have the two sides:

Martin Wallace: game designer with a following who has now has his own publishing house. Future business implications: Publishing and distribution contracts with Martin/Warfrog/Treefrog will undergo a higher degree of legal scrutiny and Some publisheers may choose not to work with Martin because of the dispute. This has not stopped other publisher/distributors from acquiring the rights for his designs. Martin's business is less dependent upon distributors/publishers.

John Bohrer(sp?) publisher/distributor with a following. Future business implications: Designers will seek a higher degree of legal scrutiny with respect to contracts with John/FRED/Winsome/Funagain. Some designers may choose not to work with John because of the disute. This has not stopped new designs from being published by John. John's business is more dependent upon designers for new product.

I may have missed something, but in the long run, I think that this whole dispute hurts John a lot more than Martin and its in John's best interest to settle this and move along.
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RDewsbery wrote:
thepackrat wrote:

Now you appear to be misunderstanding copyright law. In civilised countries, violation of copyright lives in the civil domain, so people seek to recover damages rather than have penalties enforced by the state. Copyright law assigns certain rights and protections so one doesn't 'violate' the laws, so much as be found to be using something someone else owns or controls.


Oh dear. I guess that all of the people I've prosecuted - in the criminal courts - for copyright violations were innocent after all, whatever the law of the land said.

Oh, so you're the person providing Martin's side with free legal advice. How delightful. Please to meet you Mr Lawyer with a weekend hobby in borderline defamation.
Quote:

Here in the UK, violations committed deliberately in the course of a business *for profit* usually are criminal offences. Carrying a potential prison sentence.

I find it utterly unsurprising that you removed the second paragraph where I made specific exception for the here irrelevant class of things also considered under copyright laws that include passing off.

So, since you've taken the opportunity to remove my examples, and since you've been so helpful to include the weasel word 'usually' in your statement, why don't you give examples of things that fall on both sides of that line. It's not especially helpful to compare this to someone selling a dodgy copy of a DVD out of their car boot. Don't forget to make specific reference to the section of the copyright act dealing with delays in asserting rights and their effect on this case. You might also want to consider the (you claim) false claims of copyright made on the Warfrog boxes.
Quote:

But perhaps you'd like to imply that I don't live in a civilised country? Any more ad hominem attacks to add to that? I've already noted your rank hypocracy on the issue of personal insults, by the way.

No, the UK qualifies as a civilised country (oh no, doesn't your attack look foolish now!). It hasn't been aggressively creating laws to provide pointy criminal penalties for every aspect of copyright law.

Obviously this doesn't apply to every person in it. Some of them enjoy game-burning or molesting hedgehogs to give two examples.

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Richard Dewsbery
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thepackrat wrote:

Oh, so you're the person providing Martin's side with free legal advice. How delightful. Please to meet you Mr Lawyer with a weekend hobby in borderline defamation.


I'm not. And if you want to accuse me of defaming you, PM me and I'll provide you with an address at which legal papers can be served on me. I take such matters seriously. If *anyone* wants to accuse me of defamation, they can issue proceedings against me or shut up.
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RDewsbery wrote:
thepackrat wrote:

Oh, so you're the person providing Martin's side with free legal advice. How delightful. Please to meet you Mr Lawyer with a weekend hobby in borderline defamation.


I'm not. And if you want to accuse me of defaming you, PM me and I'll provide you with an address at which legal papers can be served on me. I take such matters seriously. If *anyone* wants to accuse me of defamation, they can issue proceedings against me or shut up.


Dear Chuckles. I'm not accusing you of defaming me. At best you're being amusing misguided in your ill-directed barbs, with the key word being 'amusing'. Including your careful ignoring of 'borderline' in the above quote.

I speak instead to your many assertions about people's actions in this whole AoS mess. (And it is really a mess). If it does continue to spiral relentlessly out of control, I wonder how many people who consider themselves on the sidelines could be dragged in.

B>

ps. Presumably papers could just be served at your chambers, no?

pps. I'm sorry to hear you aren't among the set of people who could actually win as a result of this.
 
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Drew1365 wrote:
thepackrat wrote:

As per numerous posts, it's not my country. Do you feel silly now?


Not at all. I'm flying the American Flag!


Thumbed

B>
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Ok This is now getting beyond a joke.

Gamers threatening to sue gamers.shake

This is a dispute between Martin, FRED and Bohrer.

Can I suggest all the ill informed people, who actually don't know squat about the situation, just take a step back and let them get on with it.

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DrPhibes wrote:
Can I suggest all the ill informed people, who actually don't know squat about the situation, just take a step back and let them get on with it.

Gosh, jeez. I didn't realize the judge in the case was holding it up until such time as the debates raging on BGG were resolved. Thanks for letting us know that our 'discussion' here was impeding the judicial system.
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GreyLord wrote:
Hammy wrote:
Martin tried to trademark the name "Age of Steam", John objected and because he has access to free legal support Martin did not succeed with his trade mark application or at least that is my understanding of some of the more recent sillyness.


Martin tried to trademark "Age of Steam?" You gotta be @#$%@ me.

If that's true, Martin didn't lose because he didn't have lawyers, he lost because a judge who saw common sense said...you're WHAT?

Just how much did you pay the originators of that term? You know, the guys from several decades before you? Just how much did you pay every flunking historian who's written a book with that title in it?


You appear to have a misunderstanding about trademarks. Does Apple not get a trademark for computers because the word "apple" has been around for centuries? No, of course not. On the other hand, can Apple, with its trademark, prevent you from selling apples (or rubber bands or monkeys) under the brand "Apple"? Also of course not.

The point is, a trademark indicates the source or origin of a particular product or class of products, and protecting it -- by registration or under common law -- helps prevent consumer confusion. So applying for registration of "Age of Steam" as a trademark for boardgames, or strategy games, or what-have-you, is not contra common sense, is not ridiculous, is not absurd. It's perfectly reasonable. It would only protect those words as they apply to board games, of course (though it might be possible to claim a region beyond strictly board games, such as computer railroad games, which may be a natural extension of the brand). It certainly wouldn't be negated by the fact that there was a historical period called the Age of Steam, and it certainly wouldn't prevent someone from writing history books or selling non-game products called "Age of Steam" (irons, maybe?). What it would do is prevent someone else from selling a board game called "Age of Steam" that would confuse the market as to the source or origin of the game, i.e., make people think it was Martin Wallace's "Age of Steam" when in reality it was Joe Shlabotnik's "Age of Steam."

With all that said, I don't know the facts about the trademark aspects of this situation, so I can't say how it should or shouldn't have turned out (or did or didn't turn out). But your incredulity at the concept of trying to register a trademark for "Age of Steam" is misplaced. ("Monopoly," "Risk," and a zillion other game names derived from common words or phrases are already registered. Why would "Age of Steam" be different?)
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DrPhibes wrote:
Ok This is now getting beyond a joke.

Gamers threatening to sue gamers.shake

Sounds like fun. Where was that?
Quote:

This is a dispute between Martin, FRED and Bohrer.

Can I suggest all the ill informed people, who actually don't know squat about the situation, just take a step back and let them get on with it.

I think it's the 'who don't know squat' part that's the problem here. Apart from the guy in the other thread who said something like "I've never played Age of Steam but Steam is cool! yeah!", people admitting their ignorance hasn't been a core feature of this discussion.

B>
 
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Call me uninformed, but I had no idea about the tensions between the various parties involved over this game. For that reason, I am actually glad to be better informed about the issues surrounding this game through this thread. It has not been pretty, but then again, why should it?

My own avatar is the subject of an intense ownership debate in the comic book industry. That continuing saga has gone on for a long time (10 years at a minimum) and has not been resolved yet. Like this thread, it has been full of acrimony and bitterness. Simply put, there are interests involved, and when that occurs, people will vigorously participate.

Calls for silence on a topic may be motivated by a love of civility. But I would point out that the absence of discussion can effectively serve to bury or hide a substantive issue. The old social movement claim that "Silence = Death" illustrates how issues, when not discussed, can disappear into the memory hole.

For that reason, I would much rather see an ugly debate online than see an important issue such as creator/publisher rights and ownership be deemed as unworthy of attention and discussion.
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GreyLord wrote:
Trademark is a VISUAL thing...normally not just a bunch of words. Going by simply the word and phrase is possible, but if a common use term used in other areas (such as a historical phrase like Age of Steam) probably will get you so many refutions and exclamations against it that it's never going to give you the trademark. NOT smart...and you're probably going to lose that legally...and everyone else won't even need a rights lawyer to defeat it!!!!


You're just wrong. Trust me on this. Hasbro owns several registrations for just the plain word MONOPOLY. The earliest is from 1935, No. 0326723, for "EQUIPMENT COMPRISING A BOARD AND MOVABLE PIECES FOR USE IN PLAYING A REAL ESTATE TRADING GAME." Then there's No. 0338834 (from 1936), for "TOY MONEY AND RACKS AND TILLS SUITABLE FOR HOLDING SAME FOR USE IN THE PLAY OF GAMES"; No. 1349672 (from 1985), for "EQUIPMENT SOLD AS A UNIT FOR PLAYING A BOARD GAME"; and more recent ones for computer game programs and motion pictures. They also own registrations for the visual form, with Mr. Moneybags and the distinctive Monopoly lettering, but word marks are very common, and MONOPOLY is one of them.

Same goes for RISK -- Hasbro owns word-mark registrations for RISK for "equipment used in board games" and for "computer game programs." Try selling a different game named "Risk" and see how far you get.

Quote:
Hence why he'd lose the claim anyways, since Age of Steam is already utilized in a fashion that would cross over into granting the rights to the phrase "Age of Steam." if someone else wanted it. He's not going to win the battle on that phrase simply because too many already have the ability and rights to use it before him...if it were ever given up....which at this point...due to it's common usage...probably won't be.


Your conclusion does not follow. If Martin Wallace was the first person to use "Age of Steam" for a board game, then he would have priority over the next person to come along and try to do the same thing. He also would arguably have priority over someone doing a computer game under that name. The fact that others have used the phrase to refer to an historical period doesn't have anything to do with whether it's a viable and protectable trademark for board games.
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Golux13 wrote:
Your conclusion does not follow. If Martin Wallace was the first person to use "Age of Steam" for a board game, then he would have priority over the next person to come along and try to do the same thing. He also would arguably have priority over someone doing a computer game under that name. The fact that others have used the phrase to refer to an historical period doesn't have anything to do with whether it's a viable and protectable trademark for board games.

Didn't Martin call his version Brummie Rails?

B>
 
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thepackrat wrote:
Golux13 wrote:
Your conclusion does not follow. If Martin Wallace was the first person to use "Age of Steam" for a board game, then he would have priority over the next person to come along and try to do the same thing. He also would arguably have priority over someone doing a computer game under that name. The fact that others have used the phrase to refer to an historical period doesn't have anything to do with whether it's a viable and protectable trademark for board games.

Didn't Martin call his version Brummie Rails?

B>


No Martin called HIS version Age of Steam

Brummie rails was the name used in playtest.

The name Age of Steam was assigned to the game formally known as Brummie Rails whilst certain people were eating a curry in the Nawaab curry house on Rochdale Road,in Manchester. The name Age of Steam was thought of through a discussion by various members of Warfrog, none of whom was called John Bohrer.

The artwork for Age of Steam (not Brummie Rails) was commissioned from Peter Dennis and was first seen in Peter Dennis's kitchen by 2 people only. This occurred in February 2002 as Martin and myself were travelling down to Ramsdencon, which took place at Ramsden Hall School in Billericay in essex.

The artwork was placed in the boot of my Jeep, and, once we arrived at the school where the games convention was taking place, was shown to various con attendees to many oooohhs and aaahhhs!
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RDewsbery wrote:
Oh dear. I guess that all of the people I've prosecuted - in the criminal courts - for copyright violations were innocent after all, whatever the law of the land said.


Is this you?

Mr Richard Dewsbery

I don't see copyright or intellectual property law listed there. While legal records aren't the most public of things at best, I'm also having difficulty finding history of Chambers' work in copyright and IP (my search-fu may be weak).
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Drew1365 wrote:
Not at all. I'm flying the American Flag! :p


Good one. That's worth at least 50 silliness points all by itself.
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DrPhibes wrote:
The artwork was placed in the boot of my Jeep, and, once we arrived at the school where the games convention was taking place, was shown to various con attendees to many oooohhs and aaahhhs!


And very nice artwork it is! I confess that I'm a big fan of the AoS box and map art. It is worthy of Oooos and Ahhhs.
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Drew1365 wrote:
BillJ1967 wrote:
Calls for silence on a topic may be motivated by a love of civility.


In this case I think they're motivated by a love of "I'm right, everyone else shaddup!" :cool:


I suspect rather that the situation is rather painful for those involved, most especially for people like Geoff Brown and James Hamilton who have strong personal and emotional connections to the people involved but aren't one of the two principles. I imagine a very reasonable plea of, Can we just stop talking about this painful subject for a while? It hurts! That and the fact that the endless furor here on BGG really isn't helping matters resolve. It is kind of difficult to get on with business when there's a constant stream of eggs being thrown and landing about you.
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