Harmony Gold suing Tatsunoko

[Seto Kaiba]

11 hours ago, M'Kyuun said:

I concur; it's nice to have someone knowledgeable concerning legalese who can explain it to those of us, such as myself, who know little or nothing about such matters.

Credit where credit is due, it helps immeasurably that my relatively paltry formal legal education is supplemented by an infuriating amount of on-the-job experience with the limitations of licensed IP owned by other companies and bolstered by the experience and insight of several friends from my current employer's OGC who are only too happy to give an informal once-over to something that's not "another bloody NDA" in their spare time.

 

11 hours ago, M'Kyuun said:

Your explanations of both the situation between the various companies involved, as well as legal terms and meanings, is most appreciated, Seto Kaiba.

There are occasions, like that very brief summary of the difference between a copyright and a trademark, where I fear I may be oversimplifying too much and losing context as a result.

 

11 hours ago, M'Kyuun said:

With the situation between HG and Tatsunoko likely strained, it's hard not to get hopes up that they'll finally lose their iron grip on Macross  outside of Japan. Couple more years until the moment of truth.

We can only hope... but I have to wonder if Big West is even interested in waiting.  Macross Delta: Passionate Walkure is set to be the third major "domestic" Macross release sporting official English subtitles.  One has to wonder if they intend to do an end run around Harmony Gold and Tatsunoko by the simple expedient of putting English subs on all their domestic Macross releases and arguing that it isn't breaking any laws or contracts if fans in other countries import the domestic Japanese physical media.

Any way you shake it, it seems likely that Harmony Gold is going to end up paying for the various legal shenanigans surrounding its payment of royalties to Tatsunoko.  I wouldn't be surprised if it ended with Tatsunoko cutting Harmony Gold off entirely, but if they do offer HG a renewal I'd be shocked if it wasn't much more expensive and on much stricter terms.  You can bet the language that enabled HG to use royalty money to pay for lawsuits will be gone, and they'll probably crack down on the usage of their IP from MOSPEADA and Southern Cross in Robotech as well.

From Tatsunoko's viewpoint, the downside to cutting Harmony Gold off completely is they'll lose a modest stream of licensing revenue from Southern Cross and MOSPEADA.  Neither of those shows was ever a big earner, but a little bit is better than nothing.  Their best bet for an all-fronts victory would probably be re-upping Harmony Gold's license for Southern Cross and MOSPEADA only, and then dangling the newly-freed Macross rights and associated trademarks in front of Big West as an opening move in negotiations aimed at getting Tatsunoko distribution control of Macross's sequels (and thus the share of sequel profits Tatsunoko coveted badly enough to sue for in 2005) outside of Japan.

[Focslain]

9 minutes ago, Seto Kaiba said:

We can only hope... but I have to wonder if Big West is even interested in waiting.  Macross Delta: Passionate Walkure is set to be the third major "domestic" Macross release sporting official English subtitles.  One has to wonder if they intend to do an end run around Harmony Gold and Tatsunoko by the simple expedient of putting English subs on all their domestic Macross releases and arguing that it isn't breaking any laws or contracts if fans in other countries import the domestic Japanese physical media.

Third? I thought the Delta series was the first, so the movie would be the second.

What was the other? (So i can see if CDJapan sells it and will be taking more of my money)

Edited May 1, 2018 by Focslain

[Seto Kaiba]

Just now, Focslain said:

Third? I thought the Delta series was the first, so the movie would be the second.

What was the other? (So i can see if CDJapan sells it and will be taking more of my money)

The first was one of the re-releases of the Macross Frontier movies (the 30th d Shudisuta b box), the Macross Delta series was the second, and Passionate Walkure is the third.

It's been sold out for years, came out back in 2014.

[Focslain]

3 minutes ago, Seto Kaiba said:

The first was one of the re-releases of the Macross Frontier movies (the 30th d Shudisuta b box), the Macross Delta series was the second, and Passionate Walkure is the third.

It's been sold out for years, came out back in 2014.

Oh lovely, the ONE thing I wanted too... welp cross fingers for a re-release then.

[Chronocidal]

That is an interesting take on the English subtitles.  You think Big West might be sowing the seeds of HG's downfall by spreading official Macross material to the world to establish a precedent, and possibly brand recognition apart from HG, even before their licenses run out? 

I don't know whether that would have any legal effect, but it's going to make HG look even worse if more and more new material starts leaking out of Japan, while they sit twiddling their thumbs and re-releasing Robotech for the umpteenth time.

[Focslain]

8 minutes ago, Chronocidal said:

That is an interesting take on the English subtitles.  You think Big West might be sowing the seeds of HG's downfall by spreading official Macross material to the world to establish a precedent, and possibly brand recognition apart from HG, even before their licenses run out? 

I don't know whether that would have any legal effect, but it's going to make HG look even worse if more and more new material starts leaking out of Japan, while they sit twiddling their thumbs and re-releasing Robotech for the umpteenth time.

Maybe, though valks have been shipped out of Japan for a while and I don't think HG has tried to sued for an embargo. 

Honestly I'd say the the first official 'shots fired' will be when a officially translated version of a Macross manga hits the shelves.

[Chronocidal]

1 hour ago, Focslain said:

Maybe, though valks have been shipped out of Japan for a while and I don't think HG has tried to sued for an embargo. 

Honestly I'd say the the first official 'shots fired' will be when a officially translated version of a Macross manga hits the shelves.

HG hasn't been able to lift a finger for people buying from shops in Japan, but they pitched a fit when BBTS tried selling the Bandai Frontier valks.  They got pulled off sale pretty quick.

[Seto Kaiba]

31 minutes ago, Chronocidal said:

That is an interesting take on the English subtitles.  You think Big West might be sowing the seeds of HG's downfall by spreading official Macross material to the world to establish a precedent, and possibly brand recognition apart from HG, even before their licenses run out? 

Obviously I can't claim any insight into Big West's global strategy for Macross, but I doubt that the goal was to undermine Robotech.  Harmony Gold does a good enough job of that on their own, no outside help necessary.  Doing it out of spite would be unprofessional, so I expect Big West is just acting on the discovery of an emerging market... and spiting Harmony Gold in the process is just a happy accident.

Fansubbing has done far, FAR more to spread word of Macross than having the official releases in stores in the west.  It's probably what drew Big West's attention in the first place.  Fansubs are an effective tool for measuring interest in a legitimate release of a series.  It sounds paradoxical, but several distributors have noticed that shows with fansubs tend to sell quite well when a legitimate release comes out thanks to the presence of a pre-existing following for the series, and that when shows stream as simulcasts or on short delays after airing in Japan via services like Crunchyroll or Hulu Plus, the number of illegal downloads is greatly reduced.

 

31 minutes ago, Chronocidal said:

I don't know whether that would have any legal effect, but it's going to make HG look even worse if more and more new material starts leaking out of Japan, while they sit twiddling their thumbs and re-releasing Robotech for the umpteenth time.

Really, I think that ship sailed back in about 2008... if not earlier.

The internet and the rise of internet fansubs have made it next to impossible for Harmony Gold to continue kidding themselves and their fans that Robotech is a thriving franchise.  They could keep their fans largely in the dark back in the early to mid-90's, when the only coverage Macross's new releases were getting was in specialist hobby magazines like Animerica, Mangazine, Mecha Press, and Protoculture Addicts.  If a series didn't get picked up for distribution in the US, it may as well have not existed at all. 

I think Macross Zero was probably the first big wake-up slap.  Distributors were mentioning it at conventions, sites like ANN were following it and posting news.  The online Macross fandom was making noise about it, and there were fansubs available online.  Harmony Gold couldn't bank on having it fly under the radar, and that left them looking bad.  The cat was out of the bag.  When 2008 rolled around and we got Macross Frontier, there was just no escaping news of it.  Internet connections were fast enough that joe average could download a fansub and watch it.  Contrast between Macross's progress and Robotech's stagnation had never been quite so stark, and it did draw a lot of attention from Robotech's quarter.

(There were some really crazy theories Robotech fans bandied about in an attempt to dismiss its hype.  The weirdest being one chap who persistently pushed the idea that Macross Frontier was intended to be the last Macross series, based on an English title on a Newtype article about the movie Sayonara no Tsubasa that said "THE FINAL".)

 

22 minutes ago, Focslain said:

Maybe, though valks have been shipped out of Japan for a while and I don't think HG has tried to sued for an embargo. 

Back in 1999-2000, Harmony Gold did aggressively pursue US-based import sellers to stop carrying imported Macross goods.  The cease and desists they sent as the crux of that effort contained that false claim to have exclusive merchandising rights to all Macross titles rather than just the original series, which kicked off the Big West v. Tatsunoko copyright confirmation filings in Japan that are discussed so often here.  (HG's goal was to avoid having the Toynami Mastepriece Collection VF-1 toys competing with higher-quality Macross VF-1 toys from Japan.)

Harmony Gold succeeded in scaring those import sellers away from carrying Macross goods, but it only really resulted in transferring their business to export sellers based in Japan.  Harmony Gold's rights under license exclude Japan, so there wasn't anything they could reasonably do to keep the online stores based in Japan from catering to the desires of the fans who had previously used the US-based import sellers.

[cjcastan]

Considering speculation HG uses robotech as a loss leader tax shelter to write off real estate profits, I can’t imagine HG would pony up the money needed to block the consortium of big west / Bandai / and the possible content providers (Netflix / crunchy / Sony).

The big questions probably are- will Tats and BW agree on an amount each will get in the distribution of the macross catalog and future projects be tolerable. Or will one or both not agree to work together because the split isn’t workable.

 

 

 

 

[Seto Kaiba]

2 hours ago, cjcastan said:

Considering speculation HG uses robotech as a loss leader tax shelter to write off real estate profits, [...]

Does it still only count as speculation after Frank Agrama's already been tried, convicted, sentenced, fined, and only narrowly avoided serving his prison sentence because his age enabled him to exploit an amnesty law meant to reduce overcrowding in Italy's prison system?  

After handing the family business off to his daughter Jehan, she's embroiled in her own tax evasion scandal after criminal prosecutors in Italy informed the US Internal Revenue Service that she failed to disclose income from a foreign corporation called Byram Enterprises Ltd. for a whopping 22 year span between 1982 and 2004.  She got slapped with a $900,000 tax penalty, which was upheld in court.  The last update, filed this past March, indicates she's appealing the summary judgement in the IRS's favor.  (Amusingly, the basis for petitioning to have the ruling overturned is not that she didn't commit the crime, but that the evidence proving her guilt was improperly obtained from the Italian courts, a claim the lower court didn't find remotely convincing.)

 

 

2 hours ago, cjcastan said:

I can’t imagine HG would pony up the money needed to block the consortium of big west / Bandai / and the possible content providers (Netflix / crunchy / Sony).

Right now, they don't need to... since they can hold everything hostage with those trademarks they filed for.

It's not clear if their license agreement with Tatsunoko includes a first right of refusal when it comes to renewals, but if it came down to a bidding war they definitely couldn't outbid Big West/Bandai for the rights.

 

 

2 hours ago, cjcastan said:

The big questions probably are- will Tats and BW agree on an amount each will get in the distribution of the macross catalog and future projects be tolerable. Or will one or both not agree to work together because the split isn’t workable.

That's the big question, yeah.  

Tatsunoko has coveted a share of the profits from Macross sequels for over a decade, so much so that they went to court in an (unsuccessful) effort to get it.  I think if Big West decides the time has come to sit down and talk, Tatsunoko will be game and they'll hash out some kind of compromise.

[DestroidDefender]

OMG. I've been living this nightmare for 30 years now. I'm not sure I can believe HG are finally going to get the boot.

I do have a tangential question about Macross/HG/Battletech. Why have the rights holders for Fang of the Sun Dougram never sued Battletech/FASA for using a bunch of their designs in Battletech? There were about as many FSD designs as Macross mecha (and one from Crusher Joe) in the first iteration of the game ("BattleDroids") and they never became "unseen" IIRC.

[Dynaman]

I wouldn't get too excited yet.  We have to wait and see who gets the rights in 2021 (IIRC).  With the pathetic output of HG I can't imagine them wanting to pay to renew the license but stranger things have happened.

[TehPW]

6 hours ago, DestroidDefender said:

OMG. I've been living this nightmare for 30 years now. I'm not sure I can believe HG are finally going to get the boot.

I do have a tangential question about Macross/HG/Battletech. Why have the rights holders for Fang of the Sun Dougram never sued Battletech/FASA for using a bunch of their designs in Battletech? There were about as many FSD designs as Macross mecha (and one from Crusher Joe) in the first iteration of the game ("BattleDroids") and they never became "unseen" IIRC.

Well they were all Unseen at one point, prior to Project Phoenix. Now? But thanks to modern computing (SCIENCE B*LLSH*T!) and advanced CAD methods, MWO made some pretty nice Reseen/NuSeen designs that muddy the waters... As for FotS:D? Well, if someone ponies the cash to buy the rights for a remake/update, they just might go back to being Unseen again. Personally, i just wish TPTB just went with PP as the base line and not even court any risks... I just more BT stories and Lore to be told on the big screen.

[Seto Kaiba]

9 hours ago, DestroidDefender said:

Why have the rights holders for Fang of the Sun Dougram never sued Battletech/FASA for using a bunch of their designs in Battletech?

Fang of the Sun Dougram wasn't exactly a big ticket property in Sunrise's catalog of works.  Studios in Japan weren't exactly paying attention to what was going on in America in the late 80's and early-to-mid 90's either, which is how Harmony Gold licensees like Antarctic Press flew under the radar as serial copyright infringers.  It's likely Sunrise wasn't even aware the Dougram mecha designs were being used.

(There's also the remote possibility that Sunrise may have considered the matter in capable hands, since Takara licensed its Dougram kit line to Revell for Robotech Defenders, which gave rise to the Harmony Gold Robotech series after many shenanigans.)

 

9 hours ago, DestroidDefender said:

There were about as many FSD designs as Macross mecha (and one from Crusher Joe) in the first iteration of the game ("BattleDroids") and they never became "unseen" IIRC.

They did join the ranks of the Unseen, though they were never as iconic as the designs FASA had stolen from Super Dimension Fortress Macross.

Late in the proceedings of Harmony Gold et al v. FASA in 1996, shortly after FASA discovered that it was up so far up sh*t creek that it had passed sh*t river and reached sh*t falls in their leaky canoe without the benefit of an oar or life preserver, FASA agreed to an out-of-court settlement under the terms HG dictated... which included a prohibition on using designs they didn't create.  All the stuff they'd stolen from Macross, Dougram, and Crusher Joe became off-limits... the first, and until very recently, only example of Harmony Gold doing another company a solid.

[Dynaman]

> All the stuff they'd stolen from Macross, Dougram, and Crusher Joe became off-limits... the first, and until very recently, only example of Harmony Gold doing another company a solid.

 

I wouldn't say that. the original FASA designs for BT were simply horrid.

[Seto Kaiba]

49 minutes ago, Dynaman said:

> All the stuff they'd stolen from Macross, Dougram, and Crusher Joe became off-limits... the first, and until very recently, only example of Harmony Gold doing another company a solid.

 

I wouldn't say that. the original FASA designs for BT were simply horrid.

Now, you'll hear no disagreement from me on the subject of FASA's original designs being hideously ugly.  I'd probably extend it to most of the BattleTech designs I've seen in general.  It's like a Worst of Pat Lee featurette in there most of the time.

All the same, it wasn't FASA who Harmony Gold arguably did a favor when they rammed a blanket ban on "secondhand" designs down FASA's throat in the Harmony Gold v. FASA settlement.  That'd be Studio Nue and Sunrise, whose Crusher Joe and Fang of the Sun Dougram IP (respectively) HG also protected from FASA's copyright infringement without being asked or making those IP owners party to the lawsuit.  They saved Studio Nue and Sunrise a fair amount of time and money.

[Dynaman]

OK, yup, gotta agree with you there.

[TehPW]

6 hours ago, Seto Kaiba said:

Fang of the Sun Dougram wasn't exactly a big ticket property in Sunrise's catalog of works.  Studios in Japan weren't exactly paying attention to what was going on in America in the late 80's and early-to-mid 90's either, which is how Harmony Gold licensees like Antarctic Press flew under the radar as serial copyright infringers.  It's likely Sunrise wasn't even aware the Dougram mecha designs were being used.

(There's also the remote possibility that Sunrise may have considered the matter in capable hands, since Takara licensed its Dougram kit line to Revell for Robotech Defenders, which gave rise to the Harmony Gold Robotech series after many shenanigans.)

 

They did join the ranks of the Unseen, though they were never as iconic as the designs FASA had stolen from Super Dimension Fortress Macross.

Late in the proceedings of Harmony Gold et al v. FASA in 1996, shortly after FASA discovered that it was up so far up sh*t creek that it had passed sh*t river and reached sh*t falls in their leaky canoe without the benefit of an oar or life preserver, FASA agreed to an out-of-court settlement under the terms HG dictated... which included a prohibition on using designs they didn't create.  All the stuff they'd stolen from Macross, Dougram, and Crusher Joe became off-limits... the first, and until very recently, only example of Harmony Gold doing another company a solid.

FASA didn't steal those images. They bought them from TCI. I wish you would please stop calling it theft. It wasn't and it wasn't meant to be. Theft is that Chinese VF-1J knock off fighting mutant rats. What FASA did and got for their troubles, was the deed to the Brooklyn Bridge... a piece of paper, completely worthless.

[TehPW]

5 hours ago, Dynaman said:

> All the stuff they'd stolen from Macross, Dougram, and Crusher Joe became off-limits... the first, and until very recently, only example of Harmony Gold doing another company a solid.

 

I wouldn't say that. the original FASA designs for BT were simply horrid.

you mean the art from TRO 3025?

[Dynaman]

1 hour ago, TehPW said:

you mean the art from TRO 3025?

ANYTHING FASA did on their own.  I stopped buying stuff decades ago, sometime in the eighties.  I have what I think is second edition (under the BT name, 3rd perhaps if counting Battledroids as an edition).  I think there was a FASA original design or two in the original game and the first technical manual may have had more.  All were dreadful stuff.

Later on I saw the Japanese art for the game, a real shame they didn't (couldn't?) use that in the US version.

And to finish off the whole thing - the prices for the game are insane, I was thinking of picking up a copy till I saw how much it was costing now.

[Seto Kaiba]

1 hour ago, TehPW said:

FASA didn't steal those images. They bought them from TCI. I wish you would please stop calling it theft. It wasn't and it wasn't meant to be. Theft is that Chinese VF-1J knock off fighting mutant rats. What FASA did and got for their troubles, was the deed to the Brooklyn Bridge... a piece of paper, completely worthless.

If you take something that doesn't belong to you without the consent of its owner, you are a thief.

If you take something that doesn't belong to you without the consent of its owner, because someone you know full bloody well is NOT the owner or even directly connected to the owner said you could, you're a thief and an idiot.

If you make off with your neighbor's car and use it to start an unlicensed taxi service because your neighbor's pool boy said that it would be OK, you kind of forfeit the right to act surprised when you get arrested for grand theft auto.  Stupidity is not a defense.

I don't buy the claim that FASA didn't know TCI couldn't authorize the use of that art for one second.  They KNEW what kind of an outfit TCI was, because they met the at a bloody trade show.  Thinking that TCI could authorize them to use the kits and designs from Crusher Joe, Dougram, and Macross would be like thinking the secondhand record salesman at the flea market can sell you the exclusive rights to The Beatles complete discography.  There are people on this planet who are THAT stupid, but they're few and mercifully far between.  For FASA to believe their license was legitimate would mean nobody there did any kind of checking into TCI's standing whatsoever - not even the most basic due diligence - and that everyone there including their lawyer(s) was a barely functioning congenital imbecile with less brainpower than a bowl of collared greens.

 

1 minute ago, Dynaman said:

Later on I saw the Japanese art for the game, a real shame they didn't (couldn't?) use that in the US version.

They paid for that art, there shouldn't have been any obstacle to them using it in the US.  

Why they didn't, I have no idea.  It was a lot better looking than anything else they had.

Actually, that might be it.  It was a LOT better looking than anything else they had.  They would've had to step up their art game for their product to not look horribly inconsistent.

[TehPW]

On ‎5‎/‎24‎/‎2018 at 10:45 PM, Seto Kaiba said:

If you take something that doesn't belong to you without the consent of its owner, you are a thief.

If you take something that doesn't belong to you without the consent of its owner, because someone you know full bloody well is NOT the owner or even directly connected to the owner said you could, you're a thief and an idiot.

If you make off with your neighbor's car and use it to start an unlicensed taxi service because your neighbor's pool boy said that it would be OK, you kind of forfeit the right to act surprised when you get arrested for grand theft auto.  Stupidity is not a defense.

I don't buy the claim that FASA didn't know TCI couldn't authorize the use of that art for one second.  They KNEW what kind of an outfit TCI was, because they met the at a bloody trade show.  Thinking that TCI could authorize them to use the kits and designs from Crusher Joe, Dougram, and Macross would be like thinking the secondhand record salesman at the flea market can sell you the exclusive rights to The Beatles complete discography.  There are people on this planet who are THAT stupid, but they're few and mercifully far between.  For FASA to believe their license was legitimate would mean nobody there did any kind of checking into TCI's standing whatsoever - not even the most basic due diligence - and that everyone there including their lawyer(s) was a barely functioning congenital imbecile with less brainpower than a bowl of collared greens.

 

They paid for that art, there shouldn't have been any obstacle to them using it in the US.  

Why they didn't, I have no idea.  It was a lot better looking than anything else they had.

Actually, that might be it.  It was a LOT better looking than anything else they had.  They would've had to step up their art game for their product to not look horribly inconsistent.

You are thinking using 2018 logic, NOT 1984 logic. You get your news spoon feed on your phone. in 1984 you got your news every morning in paper. at 1800 hours on your local and from the big THREE. Film at 11 actually had a meaning. The only thieves was TCI. Why? because greed is good in 80's America and why the flipping &^%$ would a two-bit outfit, using a derivative name of 20th Century Fox, give a damn about selling a bunch of cells to some 20-somethings gamers wanting to create something in the 80's? It was just $$$ in TCI's pocket, just like something i would expect from folks in Cally, specifically. Nobody knew that those images were or would be radioactive right then. That insight only came from experience, xp FASA only got to spend in the 90's. Please, STOP calling them outright thieves. Jim Bakker was a thief. The folks at FASA? Victims of inexperience is appropriate. Do you even understand the reference to the Brooklyn Bridge? Then you are either too young or not American* if you were born in the 70's or previously.

 

* Not every is perfect, mind you.

Edited May 26, 2018 by TehPW

[Seto Kaiba]

1 hour ago, TehPW said:

You are thinking using 2018 logic, NOT 1984 logic.

When it comes to the relevant copyright laws, there really isn't a difference between "1984 logic" and "2018 logic".  The last major update to US copyright law occurred in the Copyright Act of 1976.  It'd been on the books for eight years, and fully in force for six, when FASA began using stolen IP.

Using someone's copyrighted work for commercial purposes without their consent is a crime.  That's been true in the US since the Copyright Act of 1790.

There is literally no excuse for their behavior.  FASA knew going into it that Twentieth Century Imports did not own the intellectual property behind any of the merchandise they carried, and even the most basic due diligence during license negotiations would've revealed that Twentieth Century Imports was not a licensee of any party holding intellectual property rights to the titles those kits were merchandise for.  The copyright notices are printed on the model kit's packaging, on the instruction manual, and in a couple cases directly on the model itself.  There's no way to miss it.  There are only two explanations that don't involve everyone on both sides being a congenital imbecile with less brainpower than a piece of broccoli: either FASA lied to TCI about its intentions to get the art and knowingly used it illegally because they figured they wouldn't get caught, or FASA and TCI both knew that it was illegal and were trying to fabricate a veneer of legitimacy in the hopes that nobody would look too deeply into it and they could get away with large-scale copyright infringement.

 

1 hour ago, TehPW said:

The only thieves was TCI. Why? because greed is good in 80's America and why the flipping &^%$ would a two-bit outfit, using a derivative name of 20th Century Fox, give a damn about selling a bunch of cells to some 20-somethings gamers wanting to create something in the 80's? It was just $$$ in TCI's pocket, just like something i would expect from folks in Cally, specifically.

Do you have anything to back that up, or should I just put on "The Safety Dance" while we take a trip down 1980's movie stereotype lane?

 

1 hour ago, TehPW said:

Nobody knew that those images were or would be radioactive right then.

Maybe not, but anyone doing even the most basic fact-checking that any company would do before entering into a partnership of this type would've known pretty much right away that this was all unauthorized and therefore illegal.

The fact that they went forward with it anyway means that they're either a pack of short bus seatwarmers or that they knowingly committed a crime because they thought the chances of getting caught were negligible.  Note that stupidity is not a defense, so that doesn't change the fact that they committed a crime.  Ignorance of the law doesn't excuse one from a responsibility to obey the law, or from being punished for violating the law.

 

1 hour ago, TehPW said:

Please, STOP calling them outright thieves. Jim Bakker was a thief. The folks at FASA? Victims of inexperience is appropriate. Do you even understand the reference to the Brooklyn Bridge? Then you are either too young or not American* if you were born in the 70's or previously.

No, I will not stop calling them thieves.  I'm just calling a spade a spade.  They are thieves.  If you take something that isn't yours and you try to sell it, you are a thief.  Even if a third party said it was OK, you're a thief... the other guy's just an accessory to that crime.

Yes, I understand the Brooklyn Bridge reference.  The problem is it's not a correct parallel.  If you purchase a phony deed to the Brooklyn Bridge, you're an imbecile.  If you try to enforce that phony deed and put up a toll booth or sell the bridge to someone else, you're a criminal regardless of whether you knew the deed was phony or not.  I don't know why this isn't sinking in.

[Dynaman]

I give FASA the benefit of the doubt about not knowing TCI did not have rights.  They are guilty of not following through with due diligence but not outright theft.  Any wargame company at the time (and today) almost certainly skimped a bit on lawyers and keeping proper track of licensing rights of anime designs is something you really need a specialised lawyer to do correctly - even more so at that time.

How FASA managed to snag the Star Trek license (well, one of them) would make for interesting reading, not interesting enough for me to look it up mind you. 

[Seto Kaiba]

On 5/26/2018 at 2:19 PM, Dynaman said:

I give FASA the benefit of the doubt about not knowing TCI did not have rights.  They are guilty of not following through with due diligence but not outright theft.

There are some occasions where giving an offender the benefit of the doubt is merited... this is emphatically NOT one of them.

What happened here was not an oversight that could occur within the bounds of what we might call "ordinary stupidity".  To have entered into contract negotiations with another company to license a property which you have full foreknowledge they don't own AND are not affiliated with the owners of, without having seen documentation proving they have those rights and the authority to delegate them under license, is cocking up on a level that would be beneath even a first-year law student.  This is literally like you buying a house without checking that the deed is in the seller's name.  It's such a basic, fundamental thing that the idea that they failed to do so and carried on in blissful ignorance of the illegality of their actions for OVER A DECADE without once troubling to check that everything was above board even after getting sued by LucasFilm for trademark infringement, is so patently absurd it doesn't merit consideration.  Much more believable is TCI's contention that FASA never properly communicated to them what its intentions for the art were.

The only explanation that doesn't involve legendary levels of stupidity on FASA's part is that they knew.  That they were aware TCI had no rights to Macross, Dougram, and Crusher Joe, and went forward with it anyway because they thought they would never get caught.

Also, like I keep saying, stupidity is NOT a defense.  If you were to buy a fraudulent deed to a house and start renting that house to whomever, when the owner catches you and presses charges, the claim that you didn't know the deed was fraudulent will not save you because it's your legal responsibility as a buyer to check this kind of thing.  This is why FASA ended up settling out of court... it knew full bloody well stupidity was not a defense, and that if they didn't settle on HG's terms the judge would proceed to throw the book at them followed the library one brick at a time.  Even if they really are so unthinkably stupid that they didn't check to ensure the license was valid, that doesn't exonerate them from having taken and used those designs illegally.  There is no "not thieves" option here because there's no denying that they committed the crime... they are either thieves or very stupid thieves.

 

 

On 5/26/2018 at 2:19 PM, Dynaman said:

Any wargame company at the time (and today) almost certainly skimped a bit on lawyers and keeping proper track of licensing rights of anime designs is something you really need a specialised lawyer to do correctly - even more so at that time.

Ah, no.  Quite the opposite, in fact.  Most game publishers who deal in licensed properties have a licensing manager whose job it is to keep this stuff straight and do the relevant diligence to ensure that everything is above board and all obligations are met.  Having contract law and intellectual property law specialist attorneys on hand is also pretty much standard, with the larger publishers often having permanent stables of 'em on hand to pursue copyright and trademark infringement cases.

(Games Workshop, for instance, is famous for the aggression and anal-retentiveness of its lawyers.)

Even Harmony Gold, who we all know as the gold standard for incompetence, does at least this much.

[JB0]

18 minutes ago, Seto Kaiba said:

(Games Workshop, for instance, is famous for the aggression and anal-retentiveness of its lawyers.)

Even Harmony Gold, who we all know as the gold standard for incompetence, does at least this much.

In fairness, both of these companies are famous for having lawyers that aggressively check OTHERS, not lawyers that make sure their OWN products are clear. I believe the Robotech comics were actually infamous for frequently taking stuff HG hadn't licensed.

On the other hand, HG mostly sues other companies. Games Workshop sues the fans.

[Dynaman]

> Also, like I keep saying, stupidity is NOT a defense.

I never said it was either, I said it was a different kind of crime.  I see this seems to be highly emotional for you for some reason so will leave it at that.

[Seto Kaiba]

53 minutes ago, JB0 said:

In fairness, both of these companies are famous for having lawyers that aggressively check OTHERS, not lawyers that make sure their OWN products are clear.

Not exactly true... their legal departments are more famous for aggressively checking the work of others, but both are known to be fairly aggressive about checking themselves as well.  For instance, Games Workshop did a major sweeping renaming of much of their miniatures lines starting in Age of Sigmar and rolling thru 40K and 30K after their legal counsel told them that trademarks on many of the names would be nigh-impossible to defend if challenged.  Harmony Gold's legal counsel used to be a frequent source of complaint, as they took weeks to approve proposed news posts and vet future product content, to the extent that the marketing coordinator begged for permission to move news to Facebook to get around them (and was not shy about admitting it in public).  (In fact, one of the anecdotes from Macek c.1995 about sequel development was how they had to frequently check themselves to avoid using IP they weren't allowed to and had to jump thru all manner of hoops for the proper approvals.)

When it comes to working with someone else's intellectual property under license, you make damn sure you've dotted the i's and crossed the t's, because if you step over a line and piss off the company who holds your license, there goes your license and all your work was for nothing.  That's true regardless of what industry you're in.  It's really easy to turn a profit center into a massive loss if you do something to breach the terms of your license or you get caught using material you don't have rights to.

 

53 minutes ago, JB0 said:

I believe the Robotech comics were actually infamous for frequently taking stuff HG hadn't licensed.

The old ones, yes... though that was their licensees, mostly Antarctic Press, and that reportedly played a role in HG's decision to revoke their license. 

 

53 minutes ago, JB0 said:

On the other hand, HG mostly sues other companies. Games Workshop sues the fans.

Games Workshop also likes to sue third party miniature makers if they use anything that smacks of a GW trademark.

 

37 minutes ago, Dynaman said:

> Also, like I keep saying, stupidity is NOT a defense.

I never said it was either, I said it was a different kind of crime.  I see this seems to be highly emotional for you for some reason so will leave it at that.

Not highly emotional, I just don't have a ton of patience for repeating myself.  I'm sorry if I came off a bit terse.

It's not a different kind of crime either, whether a crime was committed knowingly or unknowingly doesn't change the nature of the offense except in charges where motive is strictly relevant like murder vs. manslaughter or a fraud charge like uttering and publishing.  Motive isn't necessary to establish that a count of copyright infringement has been committed.

[BlackRose]

That the owners of Battletech keep trying to use those designs even though they know they're not allowed to kinda doesn't fit with the idea that the first time was innocent.

If the first time was an innocent misunderstanding then that would have been it, you know?  They would have let those designs go and let it be.  But they keep coming back to them and trying to use them and they keep getting in trouble for it.  That says that they know it's wrong and they don't care and are going to keep trying until they find a way to get away with it.  

They're privately owned, right?  Cuz if they had shareholders those shareholders would be pretty mad that they keep wasting cash fighting this lost cause fight.

[JB0]

3 hours ago, BlackRose said:

That the owners of Battletech keep trying to use those designs even though they know they're not allowed to kinda doesn't fit with the idea that the first time was innocent.

If the first time was an innocent misunderstanding then that would have been it, you know?  They would have let those designs go and let it be.  But they keep coming back to them and trying to use them and they keep getting in trouble for it.  That says that they know it's wrong and they don't care and are going to keep trying until they find a way to get away with it.  

They're privately owned, right?  Cuz if they had shareholders those shareholders would be pretty mad that they keep wasting cash fighting this lost cause fight.

At one point, I believe they did ground-up redesigns and then got sued because they were "derivative works". And then HG also took the time to claim a bunch of original designs were derivative works too.

 

Also, things have been sold a couple of times, so the guys on deck now weren't around for any of the old drama. The current rights holders were apparently wildly unaware of some of the issues, given they made a big deal out of bringing the "unseen" back and released a couple of very short-lived things(an artbook and video game trailer) with Macross-derived art in them. The current rights holders claimed they were unaware of the original settlement, and blamed the confidentiality clause.

And really, if you wanted to sneak some of the old designs back in in defiance of that settlement, you wouldn't START with Macross, and certainly wouldn't announce it to the world ahead of time.

...

And if this article is right, it all started because Playmates bootlegged the Mad Cat, which was FASA's own original design to start with, and the HG suit was just petty vindictiveness.

...

And if THIS writeup is right, they had already stopped using the, ummm, "disputed designs" before the infamous settlement, having exchanged legal correspondence with HG over a decade before the suit was filed. 

 

 

In conclusion... Jesus, what a mess. That's my complete take.

[Seto Kaiba]

7 hours ago, JB0 said:

At one point, I believe they did ground-up redesigns and then got sued because they were "derivative works". And then HG also took the time to claim a bunch of original designs were derivative works too.

The BattleTech/MechWarrior franchise has oscillated back and forth between trying to find ways to go about using the Unseen as-is and getting slapped for it, and trying to develop replacement designs based on them and getting slapped for that.  Currently the pendulum has swung back to the derivative works slap phase.

 

7 hours ago, JB0 said:

Also, things have been sold a couple of times, so the guys on deck now weren't around for any of the old drama. The current rights holders were apparently wildly unaware of some of the issues, given they made a big deal out of bringing the "unseen" back and released a couple of very short-lived things(an artbook and video game trailer) with Macross-derived art in them. The current rights holders claimed they were unaware of the original settlement, and blamed the confidentiality clause.

The guys "on deck" now may not have been around for the old drama, but that doesn't constitute a waiver of their legal obligation to apprise themselves of any relevant restrictions or applicable judgements on the property like court rulings and binding settlements from lawsuits or arbitration.  The previous owners would've been legally obliged to inform them of the existence of any restrictions on the property resulting from court judgements, binding settlements, legislation, and so on.  That they didnt pull a 180 and sue the previous owners for failing to disclose this after Harmony Gold slapped them with their first Cease and Desist is a strong indication that a disclosure WAS made but that they didn't follow up on it until Harmony Gold's C&D arrived.

Realistically, legally, even the first offense doesn't merit the benefit of the doubt because they knew about the previous lawsuit and that the Unseen were Unseen for a legal reasons.  The subsequent offenses just don't have any bloody excuse.  They got slapped with their first C&D in ~June of 2009 over BattleTech: 25 Years of Art & Fiction and again barely two months later over the use of the Macross designs in MechWarrior 5.  They seem to get sued for copyright infringement every 2-3 years!  Jump to 2011 and it's Topps suing them for copyright infringement over a MechWarrior cartoon.  At what point do we stop presuming they're just VERY stupid and go with the more logical assumption that someone who commits that much copyright infringement is probably NOT doing it accidentally.

 

7 hours ago, JB0 said:

And really, if you wanted to sneak some of the old designs back in in defiance of that settlement, you wouldn't START with Macross, and certainly wouldn't announce it to the world ahead of time.

Oh, they were NOT sneaking... they were openly boasting about bringing back the Unseen even though their later apology for it did admit they KNEW that the designs were Unseen for legal reasons, they knew they didn't own them and weren't supposed to use them, but they thought they'd found a loophole.

 

7 hours ago, JB0 said:

And if this article is right, it all started because Playmates bootlegged the Mad Cat, which was FASA's own original design to start with, and the HG suit was just petty vindictiveness.

Eh... not quite.  I'd like to say it's in the ballpark, and suffers from being oversimplified.

FASA filed a lawsuit against Playmates alleging that ExoSquad was a ripoff of BattleTech.  It was basically the same allegation that the creators of Babylon 5 leveled at Paramount over Star Trek: Deep Space Nine... that an agent acting on their behalf had pitched a concept that was rejected, and shortly thereafter a suspiciously similar product came out from that company.  In this case, FASA's agent had pitched a BattleTech toy line to Playmates, who considered but ultimately rejected the pitch because their ExoSquad toy line had been in development for some time already and a licensee property wasn't attractive enough to make them abandon their original, fully-exploitable work.  The kicker is that, not only did the courts rule in Playmates favor that ExoSquad was not a ripoff of FASA's BattleTech, it was FASA who got Harmony Gold involved in the first place by naming the ExoSquad Robotech toy line in the suit as examples of ExoSquad toy designs that allegedly infringed on FASA's copyrights (along with the Mad Cat).

"Whoops" doesn't quite cover the magnitude of THAT cockup... not only did FASA wind up sued for copyright infringement and the usual array of "deceptive trade practices" that goes along with that charge, they also got sued for making false statements as to the origin of those designs.

 

7 hours ago, JB0 said:

And if THIS writeup is right, they had already stopped using the, ummm, "disputed designs" before the infamous settlement, having exchanged legal correspondence with HG over a decade before the suit was filed. 

Nothing to support that contention appears in the legal briefs from the case.  By all accounts, FASA was actively using those designs through their initial lawsuit with Playmates into their lawsuit with Harmony Gold.

It is known that the two companies exchanged cease and desist notices between January 1985 and 1995 and that FASA did not reply to Harmony Gold's demands for disclosure of the source of their alleged license at any point... which practically screams "we knew this wasn't legal".

 

7 hours ago, JB0 said:

In conclusion... Jesus, what a mess. That's my complete take.

Oh man, this isn't even the half of it.  The court documents for this read like a bad farce, one of those terrible plays where the villain not only sets up his own defeat but practically commits suicide with minimal involvement from the hero.  You can almost hear the judge's eyes rolling with every new motion for summary judgement against Playmates or motion for dismissal against Harmony Gold.

If the proceedings had had background music, FASA's BGM would've been Weird Al's "Dare to be Stupid" or maybe Julius Fucik's "Entrance of the Gladiators"¹.

 

1. The iconic band piece commonly associated with circus clowns.

[slide]

Just now, Seto Kaiba said:

If the proceedings had had background music, FASA's BGM would've been Weird Al's "Dare to be Stupid" or maybe Julius Fucik's "Entrance of the Gladiators"

meanwhile in their head they're hearing Fanfare for the Common Man

[TehPW]

OK. The case is closed (apparently) between PGI and HG (and by circumstance, CGL). What happens now, for each of the IPs involved?

 

1. Macross
2. Battletech
3. MWO
4. Battletech PC

[Seto Kaiba]

16 minutes ago, TehPW said:

OK. The case is closed (apparently) between PGI and HG (and by circumstance, CGL). What happens now, for each of the IPs involved?

It's a confidential settlement, so likely we'll have to wait a year or two for the next time that either BattleTech or MechWarrior screw up and get sued to find out precisely what they agreed to.

What we know for a fact, from the non-confidential documentation is that:

1. Catalyst and Piranha abandoned their argument that Harmony Gold's license was not valid and withdrew their demand for a letter rogatory.
2. The terms of the confidential settlement permit them to continue using the disputed designs.
3. Catalyst and Piranha are prohibited from discussing the terms of the settlement.

What we can surmise based on the available facts is that Catalyst and Piranha were likely the ones who threw in the towel, given that they withdrew their challenge to the validity of Harmony Gold's exclusive license to those designs when negotiations began¹.  That the settlement permits them to carry on using the disputed designs - in a sharp contrast to the original binding settlement - would suggest that they've probably agreed to pay royalties to Harmony Gold over the designs allegedly being based on designs from Super Dimension Fortress Macross.  It's probable that they ended up footing part of Harmony Gold's legal bills as well.

 

16 minutes ago, TehPW said:

1. Macross
2. Battletech
3. MWO
4. Battletech PC

It means sod-all to Macross... Harmony Gold's rights under license inevitably survived their latest legal challenge, meaning Harmony Gold have nominally prevented infringement of Big West's and Tatsunoko's copyrights.

For BattleTech and MechWarrior, it means they can carry on using the new designs for the Unseen and don't have to design a new round of replacements.

 

If it hadn't taken a year and cost both sides a significant sum of money, you could call it win-win... but it's more like a Phyrric victory for Catalyst/Piranha/HBS and a moral victory for Harmony Gold.  The BattleTech/MechWarrior partnership technically won in that they can continue to use the new designs, but they're apparently under HG's thumb now and spent flipping great wodges of cash in court for over a year to get that far... a victory essentially as bitter as defeat.  Harmony Gold didn't succeed in stopping the use of those designs, but they did manage to make sure those designs are used on their terms, also having spent rather a lot of money to reach that conclusion.

 

1. Given that Catalyst's predecessor FASA tried that same tactic when Harmony Gold first sued them back in '96 in Harmony Gold v. FASA with no success, it's highly doubtful they actually suspected it to work.  My suspicion is that, as everyone knows Harmony Gold is on lousy terms with the owners of Macross, it was a calculated move intended to get Harmony Gold to back down by forcing them to repeatedly nag Tatsunoko and Big West for documentation.

[renegadeleader1]

Tatsunoko lost nearly half a million US dollars last year.

https://www.animenewsnetwork.com/news/2018-06-28/tatsunoko-productions-takes-50-million-net-loss-in-2017/.133507

 

This is something to keep an eye on as it may have repercussions down the road especially if Tatsunoko sees selling the Macross license as the only way to stay above water financially. There could also be issues if Tatsunoko declares bankruptcy before the arrangement between them and HG runs out.