Unfortunately for Paul and Fred, a jury will get to see all the evidence.  They won't be going on Paul and Fred's press friendly but legally meaningless claims.

Here is something I wrote on the UQM forums that the super fans just completely ignored but I think it's worth posting here where people who have less emotional investment in the outcome may find interesting:

Quote:

Again: No one forced them to do what they did.   You [Elestan] also keep insisting that the 1988 agreement has expired.  Without going into the legal background on that, you are mistaken in assuming that that is a fact. 

However, again, Stardock has not exploited that licensing agreement. 

Remember: It's not like Stardock responded to their flagrant violation of our trademark by including the SC2 aliens and ships in our game.  

Instead, Stardock responded by changing the name Super-Melee everywhere in the game to Fleet Battles even though we were having a private dispute in order to placate them.

To suggest that there is a "fair use" to call your new game a sequel to someone else's product -- one that is actively in development, 5 days before it goes live with its big beta day that had been planned for a year is not reasonable.  Do you have any idea how many products you use every that that are purely licensed with a brand (trademark) slapped on it?  Do you really believe, for a second, that the company licensing the detergent, technology, food, display could announce a new product and represent it as a direct sequel or successor to the other company's product?

The only thing that Stardock did that you could argue offended them was make the game available on Steam http://steamspy.com/app/358920 which they receive royalties for.  There's no damage there.  If the stars align and they were to win that case they'd get some percent of the $10,000 in sales from that. Maybe.  That's assuming the jury wasn't so angry at being hauled in from work to go through a trial over something so trivial because Paul and Fred were "very very" angry on principle that they came up with a fitting "award" for them.

Stardock and Paul and Fred obviously disagree on whether the license is in effect.  But right now, it's a trivial disagreement.

By contrast, they did something that did tangible harm to us in the form of confused consumers, marketing dilution, etc.  They completely took the wind out of our Star Control: Fleet battles announcement because suddenly the press believed there was a second new Star Control game coming. How much in sales will they have cost us due to the lost marketing time, the confusion by fans, having to compete with a vaporous product that uses our own brand to compete with us?  Pick a percent.  We'll have spend just over $9 million on this game by the time it's released.  We expect it to make multiples on that.  Go ahead and pick your own best-guess (we will have both our own analysis and expert witnesses that will do that as well).  And that is all before their public attacks on us designed to maximize damage to our reputation and good will.

And now, because Paul and Fred violated rule 408, the judge has ordered the parties not to publicly discuss settlement which takes away our ability to even brainstorm with the fan community on different ideas that might work to solve these disputes impossible (remember how on Reddit their fans insulted me for not understanding rule 408?) 

Like I've tried to tell you, Elestan, I've been in a lot of IP litigation over the years -- patents, trademarks, copyrights.  We were once sued for violating an obscure fax machine UI patent in one of our products that any Internet lawyer would tell you was absurd.  That's not how it works.  Litigation and IP law are complex things that are best avoided.   Disagreements should be handled with people talking to each other, preferably over beer.

I have continued to be astonished that the fanbase, which includes a lot of people my age, can't see through their emotion at the basics here.   Companies slap their trademark on products whose contents they licensed all the time.  Every time you go to the grocery store you see it.  Almost every laptop, computer screen, etc. is literally made by someone else and then released with someone else's brand on them.   

And people know, with basic common sense that the people who licensed content to be branded and sold by someone else don't magically get the right to claim their new product is the sequel to someone else's product.  

That's why we haven so shocked that this has made it this far in the first place.  They should simply have stopped doing what they were doing, hired a decent IP attorney to walk them through their exposure and work with us to find a fair way to make us whole while still letting them proceed with their game.  Instead, they escalated and escalated and now have, in essence, taken the fan base hostage: Do what Paul and Fred did or we will set fire to all that good will that people have in Star Control.  We are all witnessing this right now.  And it's a real shame.

Those who are in the right, and on the side of good, don't need a propaganda campaign.  Only those who are in the wrong, and know that they cannot win based on merit and truth, need a propaganda campaign.  This is really all I need to know of this situation at this point.

Star Control 2 is my all-time favorite game and I am a die-hard fan. But as a businessman who's got a good grasp of not just the law but how good business is done, I am in full agreement with Brad. Paul and Fred's behavior have been downright childish. They have not made a single move to try to come to agreement. Everything they've done so far has been highly provocative. I'm not surprised Stardock took the route they did. I'd do the same thing in their shoes. Stardock offered to sell them at cost which is already ridiculously generous. Fred basically laughed in Stardock's face thinking that Stardock's purchase of StarControl assets was worthless. Then they turned around and found out oh it actually is worth something, so they just go on a nasty smear campaign. What the hell is wrong with them? Any decent human being would have just reached out to Stardock and come to a private agreement that both parties could live with and then bring in the lawyers AFTER that simply to codify the sentiment of the agreements in a legally binding manner.

Instead Fred basically spat in Stardock's face at every turn and has just acted in a condescending high-handed way as if it's outrageous for Stardock to have ever even assumed they had any claim to Star Control. If Fred and Paul had honest intentions, and if they from the beginning believed that Stardock did not have any claim to the Star Control franchise then they would have told Stardock YEARS ago that their purchase of the franchise was fraudulent and that in fact the 1988 agreement had lapsed, so Stardock should back out of that deal and not waste their money. This is what ANY decent person would do. Why in the hell they would be excited and talk about a possible collab with Stardock if they knew from the outset that Stardock's claims to Star Control were nonexistent?

Their behavior has been horribly inconsistent and malicious and it's really saddening to me because it's my most cherished game of all time. I can't imagine what Brad's going through having poured millions of dollars and his professional career at risk trying to revive this franchise only to be met with this kind of reaction. It's truly shameful of P&F and really makes me question their character as people. 

Either

A) They knew Stardock bought a worthless claim to Starcontrol and should have informed Stardock as soon as Stardock first reached out to them about the deal going down. 

Or They are now intentionally sabotaging Stardock's attempts at reviving the franchise despite knowing that Stardock has a real legal claim to the franchise through their $300,000 purchase.

These are the only two possible realities. And it's insane to me that there are fans out there who don't see that. But what's even more tragic is that in either reality P&F are the villains. Their actions are incomprehensible to me. You didn't see the creators of Fallout create this kind of uproar when the franchise was bought over by Bethesda. Even though the situation is quite similar.

And what's even worse is Paul and Fred had decades to come back to the Star Control project.They simply chose not to because they wanted to milk the cash cow spyro franchise and Tony Hawk games. They went fully commercial for the sake of money. Hell, if they really wanted to do more Star Control games where were they when Star Control 3 came out? Where was the uproar there? All the original races were in that game. I don't know. Overall I'm just disgusted with this whole situation and I hope Stardock comes out the other side with the SC:O project intact. Would be a real shame to see it dragged into the mud by P&F's shenanigans. 

Lol at you guys... seriously...

Watching part 1: "This is a pretty good video. This guy seems balanced and takes great care not to let any opinions get in his way"

Watching part 2: "Wow this guy is a paid shill, I bet he makes a living from F&P's PR firm's donations"

Might that be because Video 2 was so different and a lot less "balanced" than video 1? No, that can't be it, it must be that people here are inconsistent.

:Rolling eyes emoji, whatever the fuck that's called:

Okay, I have a somewhat different view of this than most of the founders (these e-mails are interesting and made me reconsider a couple of secondary things, but haven't changed my opinion that much as a whole) and don't want to get into an argument here on the whole legal matter. But I do want to address one small point:

They clearly mean that in January 2014, they had never met you, not that they never met you at any time. Later the counterclaim actually acknowledges meeting in 2015.

If I say "In 2013, I had never been to Europe" that's not the same as saying "I have never been to Europe."

Fair enough.  My personal opinion is that they intended to give the impression that I was exaggerating or misrepresenting the level of communication we were having.   

Initially, they not only were interested in working with us but also helped set us up with Riku and gave us book suggestions and had subsequent meetings with Activision.

The effect of what I think were grossly misleading claims by them can be seen in the comments of the YouTube video where the narrative is basically "Spurned fanboy plots to steal IP."

HE was reading the documents.  The second video was mostly reading what Paul and Fred said...OF COURSE it was discussed from that side.   He isn't part of this community, he doesn't read this post. He ONLY has the court documents to read from.

To be fair, he has to read both sides. 

I tried to make as much sense of the contract  as I could.  

So the 1988 contract says the Publisher can do whatever they want with the ip so long as the Developers get royalties as defined by #7 of the contract.  Otherwise if the payments stopped one would assume the contract is void at that point no?  If the payments never stopped then the contract is still in good standing. If it does go to court a lot of back in forth will be spent on #7.

Whats weird is why now?  Do you know how long I've waited for a SC reboot or a sequel to SC:2.  They could have done it 10yr, 15yr, 20yr anniv, but when Stardock announced their version, all of a sudden they got there version being announced to.

I call B.S. someone's egos got hurt that the game that made them famous was being re-made by someone else.

Good luck Brad, I really believe they are trying to pull a fast one on you but I think its gonna come down to how strongly you guys can prove and enforce that contract is still valid.

Yes, I agree - that is the impression many here have been left with.

It's strange also that there is (likely) no competition between the games. If I buy the one, I'm likely to buy the other too.

Furthermore Stardock's is coming out (probably) in 2018. I expect Fred & Paul's will only come around in 2021 (unless they are well well well further in development than I suspect they are).

There is no competition between these titles.

These may be dumb questions, but I haven't seen clear answers to them.    For context, I think Stardock operated in good faith throughout, and I'm extremely surprised at how some outlets are treating P&F like two befuddled indie devs who had their life's work stolen before they had the chance to make a sequel.   The fact that P&F used "insider" knowledge freely given by Stardock to time their sequel "announcement" to sabotage SC:O is very scummy.

The emails Brad quoted here have several points where P&F say they aren't comfortable with someone using their characters, that they hold copyrights for all the aliens in SC1+2, etc, and Brad agrees, or at least I don't see him saying "We can use them if we want."   

More recently, Brad has said that Stardock can and will create a future Star Control game using the UQM aliens, just as Accolade was able to make Star Control 3 using the UQM aliens.   This makes sense to me as well.

Putting aside all the ridiculousness around P&F claiming that UI/UX elements and use of ship builders are part of their copyright:

-Does Star Control:Origins with no SC1/2/UQM aliens require royalty payments to P&F since it doesn't use any of their copywritten material?

-Would a theoretical Star Control X developed by Stardock that includes aliens and ship designs from SC2, etc, require royalty payments to P&F under the same terms as Star Control 3?

-In a step further, could a theoretical Star Control Y directly continue the story of SC2, referencing plot elements and story from that game? I don't think Stardock would want to do that anymore, but do they have the legal right?

Great questions.

So we have to separate what Paul and Fred may own vs. what they don't own.

The 1988 agreement, that Paul and Fred say has expired, provided a license for all their copyrighted work.  That would be the lore, setting and specific characters.

Stardock's position has been that the agreement was active and thus we could use them if we wanted to pay a 10% royalty.  However, since they'd only be in as a cameo, we didn't want to pay 10% to them just for that so I repeatedly tried to get a new license agreement for things like just having the ships in Super-Melee or just the Orz which they declined on in both cases.

On the other hand, Stardock has the trademarks to the *names* of the aliens and given that Star Control: Origins is in a different universe, the lore and characters would be different anyway.

Could a new Star Control game continue the story of SC2? I don't know.  I would rather Paul and Fred do that or fans do that.  After 25 years, it's not commercially viable to try continue that story which is why there was never a scenario that we would try to continue that story ourselves under any circumstances.

Now, when we talk about "the aliens" we have to break that up into 4 IP areas:

1. The name. This is a trademark and Stardock claims those names now.

2. The character (lore, story, words) these are presumably owned by Paul Reiche.

3. The artistic expression of the alien.  This is a big unknown.  So far, Paul and Fred have shown no evidence they own these any more than they owe, for instance the music.  However, let's say he does own them, this would only cover that particular expression and derivatives of them.  However, most of those aliens aren't very distinct because their designs are derivative (I think the Spathi would come close and perhaps maybe the Ur-Quan to a certain degree).  But for instance, birds, dinosaurs, crystals, robots, etc. are not really covered.

4. The artistic expression of the ship.  I recall hearing once that Paul made most of the original ships in Deluxe Paint.  If so, he would own those artistic expressions.  However, many of those ships are derivative.  The Ur-Quan is just a green Galactica. There are a couple of pretty blatant Klingon ships, there's a literal rocket ship, a literal flying saucer.

I've seen some people on forums suggest that if the new Pkunk were a bird it would create confusion because the old Pkunk was a bird.  However, confusion falls under trademark, not copyright and given we claim the trademark, we're covered.

From a practical matter, you would need to do a visual update on all the aliens just from a 2018 graphics standard.  So it's safe to say that the Pkunk in Star Control: Origins is likely to be a bird just like the Yehat are likely to be a pterodactyl.

Another question that comes up is whether we would use our trademarks to block Paul and Fred.  The answer is, no.  If they want to continue their universe we would support them.  We just need to make sure they don't use their IP claims to harass us again or to interfere with the release schedule of Star Control: Origins.

Ok...I know star control 3 is pretty reviled.....but does stardock control all of that part of the IP?  There are things in there that may be salvageable....

Yes. Stardock owns all elements of SC3 except whatever material Paul and fred can show was licensed.

I would likely be alone in celebratifying the triumphialistic returnification of the mighty-thewed K’Tang and their ulferior motivations.

Hmm, well, been a few months since I checked in on how things are going, I wonder wha... Unholy hells why are the walls on fire!

...

Well, this is a hell of a thing. I went back into my work burrow not long after P&F's announcement. Thought when I heard about it, especially on that date, that "Oh, they're trying to signal boost each other" because I found out about them through you... And then wondered why they didn't have anything to show except some text, and why they didn't mention your game. Guess I know why the latter now, but as they still have shown nothing...

And IANAL and all, but from my experience... And given their settlement terms, how they had the opportunity to correct you from the start (but didn't), how they went about things (going for the trademarks), and this starts to feel to me like they wanted to come in when you were nearly done and just take over/take it all, or cannabalise the work so they could make their own game (that whole thing with the shipbuilder, in particular makes me wonder that). Not the first time seen that happen in the industry, either. 

I just have trouble imagining another reason to go about things in this particular way. If they somehow had some strange variation of a work for hire agreement that somehow gave them terms for a lapse/return and actual gifting of everything owned by Atari (as is implied in their settlement requirements), then they knowingly let you buy a dud, and develop on it for years. And Atari would have had to have been a hell of a flexible/kind/non-standard publisher to have something like that though. Even that one term that they imply is the crux of it, reads to me that the distributor just has to pay royalties in the years the sales are active, not that it requires an unending chain of royalties every year (which doesn't make sense anyway, because some years that would be 0, even if it was still actively available for sale). So... 

Eh, all conjecture though I guess, especially without knowing/seeing the full agreement and how/why they think they have these rights. But, well, even if they are correct about what they own, their behaviours and unwillingness to remotely compromise or even discuss anything and letting all your employees suffer (one way or another) instead of just saying in those first emails, "Oh shit Brad, Atari sold you a big empty box", just makes me see them as the Druuge now, which is great considering how much I admired them... 

*sighs* Welp, good luck out there. Hope it all turns out for the best.

Probably not much.

They would have been better off arguing that the 1988 agreement hadn't expired. 

But since they say it has expired then what they could potentially own, best case:

• Specific art for various aliens
• The user manual
• source code for the DOS version (if they can find it)

That's about it.

There are trademarks, copyrights, and patents. 

They have no trademarks. Common law or otherwise.  Trademarks don't simply come into existence because you typed an interesting word and copyrights don't protect words, ideas, concepts, recipes, general background stories, etc.

Copyrights protect specific, unique expressions of creative work.  That's it.  Which is great for a painting or a book or any other specific creation.

Trademarks are what protect against confusion and Stardock legally acquired that from Atari.  There is an uninterrupted chain of trademark renewals from the 1990s till today. 

This was why we've been so annoyed at Paul and Fred's behavior.  Do you guys now see how much we were bending over backwards by not having the Ur-Quan, Syreen, Spathi, etc. in the new Star Control game? What a sacrifice this was.   Even if the 1988 agreement had expired, we could still have these aliens in the game.  We would have had to make sure they were expressed visually differently enough (which is pretty much a requirement in a modern game over one made 25 years ago) but that's about it.  Brief bits of dialog? Not protected under copyright.  Timelines? No protected by copyright.  Descriptions of alien races? Not protected under copyright.

Like I said, best case scenario Paul and Fred own some alien artwork, a user manual and some source code.  And Stardock was willing to not touch anything that even extended from that just out of deference even though it caused us a PR headache.  There was no legal reason. Just fanboy admiration.  Anyone reading this could do the same thing provided the trademark holder (i.e. if what the reader did caused confusion) didn't object.

The Star Control: Origins timeline has its own history and we're at the beginning of our story.  How aliens from the Star Control universe from 2112 on come into play remains to be seen as we are only in 2088. 

Here's what I can tell you:

1. Many fans of the classic series expect to see Star Control aliens in Star Control games.  They will be *frumple* if they don't see them. 
2. We were willing to voluntarily stay away from this in exchange for good will from Paul and Fred in the hopes that one day they would return to the Star Control universe.  
3. Paul and Fred have made it clear they won't be returning to the Star Control universe and see their universe as separate.  We cannot allow them to use aliens, copyrighted or not, in games that aren't part of the Star Control multiverse as this would create confusion (the purpose of a trademark is not about a "name" it is to protect consumers from confusion).   We wish them well in future endeavors but the Orz, Ur-Quan, etc. are not theirs to take.  They never were.  They were always part of Star Control and I think most reasonable people understand this.
4. You, me, most people reading this work every day and they create things. That doesn't mean they own them.  Paul and Fred were paid, up front, to work on Star Control.  Paul was, literally, a contractor.  That doesn't diminish is amazing talent.  There are a lot of amazingly talented people who work on Star Control.
5. A competing product cannot simply claim to be a sequel to your product.  It doesn't matter if some of the people who worked on a previous version of your product are involved or not.  If this was permissible, why have trademarks at all? Let the guy who worked at Coca Cola announce he's making the true successor to Coca Cola and see how that works out.
6. Star Control has been dormant for 25 years.  We all know that.   We have built something amazing here.  We think it will appeal to fans old and new alike.  I would have loved to have Paul and Fred involved.  I practically begged them to be involved.  But they couldn't and later, didn't want to be involved.  That's their choice.   
7. Luckily, we have had some amazing talent on the new Star Control. Riku, for instance, who did the music you proabably remember most from SC2 is the main composer in SCO.  He's done far more music for SCO than he was able to do in SC2.   There's a lot of amazing men and women who I am honored to call my friends who have spent 4 years of their lives on this creating this.  

Who are the creators of Star Control: Origins? We all are.  You, me, the team.  We have done this together.

What makes me excited the most is the idea that we get to build a universe together over the next decade or two.

Not a lawyer, so where I get a bit lost is with point 3 is where you've said they hold the copyrights by can't use Orz & Ur-Quan. If they hold the copyrights, can't they use the aliens in their own works? (In the same way that the person who held the copyright on K9 from Dr Who was able to do a non-Dr Who K9 series as well ( https://en.wikipedia.org/wiki/K-9_(TV_series) ) as get paid when the character was in Dr Who? Or another Dr Who example, where the estate of writer of the original episode of that included the the Daleks has yes/no power on their use even though a BBC employee actually built the iconic look of the Daleks themselves). 

I can certainly see how both sides got to where they are, especially given each has an incommensurable view of what was actually purchased by Stardock (and it sounds like a court has to rule on that). There's certainly some resonance with the current Harmony Gold / Catalyst Games Labs / Piranha Games litigation where the court is in part trying to determine whether the group that licensed certain rights to HG actually was in a position to license those rights or if an earlier Japanese court case had found that the licensor actually didn't have the rights they asserted they had, but that this was only determined after many years and detailed litigation)

I do wonder if P&F didn't avoid a Starcon continuation for years not through a lack of will, but an understanding that sorting out who owned what and who could publish what would take more blood, sweat, and tears than building the game.

Re the aliens:

If a new game comes out and has the Orz, Ur-Quan, Spathi in them do you believe people might think the game is associated with Star Control? If yes, it’s trademark infringement.

Also: shortly after acquiring the Star Control IP we offered to transfer it all to them at cost. They declined.  They could have had it all.

This has always been the key thing for me. Even if they thought at the time you had purchased fairy dust, by not telling you as such then, and doing this now, they've revealed their lack of character. That's bad business. All of this comes off as nothing more than a cash grab.

I wasn't a fan of the original games, but I know you, the team, and others are, and I feel terrible that people you've held in such high esteem don't seem to be worthy of that respect. Regardless, I'm very much looking forward to this game, and hope that all your bets pay off when it finally releases.

Just to see if I've understood: from your point of view, Brad, if I were to dream up a comic book with my own characters, backgrounds, associated artwork/appearances, etc., and then publish them under some fictional publisher (Accolade Comics?), if it could be shown that Accolade Comics hired me to do this, they would own the trademark, and I would be credited for the work.  So if 25 years later Stardock Comics bought the trademark to that same comic book, you would have to acknowledge me somehow, I presume? But I couldn't stop you from doing whatever you wanted with the characters, appearances, etc..

Furthermore, if fans asked me for years (all 15 of them, cause I'm sure I'd be reaaallly famous) to continue the story, I'd need your permission.  It sounds to me like if I ever do something like this I should make sure to own the trademarks to my stuff... 

I remember hearing that H.R. Geiger got rather upset because one of the Alien movies didn't credit him with the creation of the Alien. I haven't heard that Geiger ever tried to make any Alien material (which, according to your arguments he wouldn't have the right to), but presumably the owners of the Alien design weren't allowed to ignore who made it.  Does that mean P&F will receive some form of creativity credit?  Your position so far has been that they were designers, not creators, but angry rifts aside, do you have acknowledgement obligations in the new Star Control: Origins?

The short version, when it comes to engaging in commerce, you need the trademarks.

To take your comic book idea further:

Imagine if you had a general idea for a comic book. But you weren’t an artist. You couldn’t do the pencils, the coloring or the lettering. So then you get Accolade to pay for artists to do all that and the artists contributed a great deal to the story themselves. And then picture it’s Accolade who owns the trademark to the comic and the artists own the copyrights to the art. Who is THE creator? I’d say no individual in this example can claim that credit.  

The only reason people think Paul and Fred are the creators is because that’s what Paul and Fred have said so. I believed them.  So do most others.  But then you start to dig and it turns out they didn’t have any rights to the music, the art, much of the writing, etc. all this time.