For Holy Terra Because space is scary

The great Games Workshop v. Chapterhouse debate – I weigh in.

Note: I am not a lawyer, nor do I play one on TV.  I obviously buy a lot of Games Workshop products.  I have also purchased Chapterhouse Studios products.

The rumormill is buzzing with talk that Games Workshop (GW) may be holding up its production schedule until this little unpleasantness with Chapterhouse Studios (CHS) is settled.  For those of you who don’t know what the deal is, the short short version is GW claiming that CHS has infringed on its intellectual property (IP) and wants them to stop.  CHS says that they’re not, and they’d like to not stop, because stopping would basically mean they would cease to exist as a company.

When this case initially came up, I was firmly in Chapterhouse’s court.  When I first heard about the case, GW seemed to me to be pressing a losing issue based on CHS’s product line and claims of “after market” products.  To me, it looked like GW was essentially trying to argue that no one could make anything compatible with their product line and strongarm a small business into folding.

However, in the intervening time since this case started, Chapterhouse got a lawyer and then seemed to have double down on the issue.  Instead of selling “Flaming Fist Shoulder Pads” (which is what they were when I purchased them), they now sell “Shoulder Pads for Flaming Fist – Tactical Marines” which “works well with any loyalist or Imperial Fist (Crimson Fist) or second founding space marine® chapter.”

In short, CHS is no longer selling after-market upgrades for GW products, they are actively selling GW’s IP as their own.

GW wasn’t selling shoulder pads for Crimson Fists when I bought some from CHS a few years back.  They had in the past (and would again), but those shoulder pads were and are in no way similar to the ones that Chapterhouse was selling at the time, in either design or description.  CHS’s are generic enough to not actually infringe on GW’s IP… at least until they are explicitly described as such.  But it didn’t end there.  CHS came out with an “upgrade” pack for the Tervion, and things really got ugly.

Just so everyone understands what I’m talking about why I ironiqote “upgrade,” I’m going to compare for you two different CHS products:

Stormraven “TRU Scale” upgrade kit vs. Tervigon upgrade kit.

The Stormraven upgrade is simply that – an upgrade.  GW would likely have no case if it tried to sue over this.  CHS has created an upgrade kit that is compatible with an existing kit to enhance that kit in an aesthic only manner.  It has no game value, replicates no rules, and in no way impedes GW’s ability to release a similar model that they could reasonably be assumed to want to release.

The Tervigon kit, on the other hand, does all of those things.  It has game value – they have essentially created a model for something GW created without license from GW to create that model.  In doing so, they have replicated rules.  And, most importantly, they have impeded GW’s ability to create their own version, because if the courts were to rule that CHS has the right to do this, CHS would then be within its legal rights to sue GW if GW ever made a Tervigon model that looked even remotely like theirs (you know, the way GW described a Tervigon) - even though GW (by legal definition) created the concept of the Tervigon, and described it in both physical parameters and game use terms.

“Upgrade” or not, what CHS has done is attempted to establish itself as the creator of the physical version of a an actual GW concept, and that infringes on GW’s ability to effectively market their own IP.  I think GW has more than a solid argument that they haven’t just copyrighted an “idea” of a Tervigon, but rather that they have published an accurate description and specifications for use for it, and therefore have the right to decide who can create the physical representation of it.

Now, some people have argued not necessarily on the merits of the claims, but that by winning, GW would then be free to kill all of the other aftermarket sellers.  That is simply not the case (nor is it a good argument).  There’s a huge difference between these shoulder pads and these, and this vehicle upgrade and this one.  CHS leaves no room for misinterpretation – they are selling specific upgrades for specific chapters and are even using copyrighted chapter logos without license.  Scibor, on the other hand, is selling shoulder pads and plates that just happen to fit GW products (and maybe other 28/32mm products), and just happen to use concepts that GW has used but are by no means exclusive to nor copyrighted by GW.  We’ve got blatant copying vs. broad strokes.  CHS started at the line between those two, and when they were told that they were at the line, they ran straight over it.  The net result is, in the short term, GW’s product release schedule has been held up over legitimate legal concerns.  In the long term, the effect will either be an end to CHS (and more fanboy ranting about how horrible GW is), or GW’s IP being diluted, which will lead to higher prices and lower quality (and more fanboy ranting about how horrible GW is).  It seems like a lose-lose for GW, except that fanboys were ranting before this case and will be ranting long after it fades into memory.  Personally, I’d rather wait for GW to put out their own Tervigon (well, actually, I don’t care about the Tervigon, but I want a an actual Jes Goodwin-designed Eldar Farseer on Jetbike model).  And just remember – even if CHS loses and folds, there’s still plenty of legitimate non-infringing aftermarket sellers out there making good product, so you can keep on converting and individualizing your toy soldiers.

One final word:  I’m glad that CHS has found a real law firm to represent them pro bono. (and as a U2 fan, I am always pro-Bono BADUM-BUM! I’m here all week). With solid legal representation, being smacked down by the courts isn’t just GW rolling some chump for everything he’s got or bullying them into submission for lack of ability to defend themselves.  This won’t be David v. Goliath. It’s going to be an actual argument of law, and is likely to pave some important legal highways.  So congrats, 40k players, you’re involved in a hobby that will likely have a lasting effect on our legal system.