"Ouch! MicroFleet taken down by ADB!" Topic

Hmmm. Looks like they've taken down all of his ST inspired designs, even the ones ADB had no rights to whatsoever. On the other hand, some of those were a bit too close to IP held by Paramount, so maybe Shapeways went for the whole shebang.

But his very nice retro designs are still up, and tempting.

I think his mistake was calling them "leerans" and posting that he was making something based on ADB designs. All ADB had to do is send a link to shapeways and they are almost guaranteed to take the designs down.

The designs themselves consist of very simple generic shapes. If those ships violate ADB's IP then Northrop better watch out: link

Lockheed too: link

The designs themselves consist of very simple generic shapes. If those ships violate ADB's IP then Northrop better watch out: link

Lockheed too: link

Shouldn't it be the other way around?

That's my point. Those designs pre-date ADB by about 30 years.

They were clear copyright violations of ADB designs, he said so, and he named them almost identically. What did he think would happen?

It doesn't matter at this point what I thought would happen. The Trek-ish MicroFleet line is currently on hold until Shapeways makes a decision one way or the other.

However, doing some research did provide some interesting insights:

Physical products cannot be protected by copyright. In Kemp & Beatley v. Hirsch, 34 F. 2d 291 (1929), the 2nd Federal District Court stated:

Moreover, the classification which the Librarian of Congress has promulgated, in accordance with the Copyright Act, reasonably defines the scope of section 5, subdivision (g). The "Rules and Regulations for the Registration of Claims to Copyright" sets forth:

"Rule 12. (g) Works of art and models or designs for works of art. – This term includes all works belonging fairly to the so-called fine arts. (Paintings, drawings and sculpture.)

"The protection of productions of the industrial arts utilitarian in purpose and character, even if artistically made or ornamented depends upon action under the patent law; but registration in the Copyright Office has been made to protect artistic drawings notwithstanding they may afterwards be utilized for articles of manufacture.

"Toys, games, dolls, advertising novelties, instruments or tools of any kind, glassware, embroideries, garments, laces, woven fabrics, or similar articles are examples. The exclusive right to make and sell such articles should not be sought by copyright registration."

Cole's claim to have an exclusive licensing agreement with Paramount/CBS is also somewhat dubious. He stated in an interview in 2011 that:

When my partner and I started Task Force in 1979, we dumb lucked into the phone number for Franz Joseph Designs, who gave us a license to print Star Fleet Battles. That was all before the first movie, at a time when Star Trek had been off the air (except as reruns in college towns) for a decade. By the time the movies and The Next Generation showed up, we had already printed dozens of products with a vast amount of newly created material. Paramount contacted us, figured out we were legal, and gave us an "agreement that includes a license" to keep printing the Star Fleet Universe. That contract notes that the Star Fleet Universe (SFU) is "separate" from Trek and that we are not an "official licensee" even if we are completely legal. We have Vulcans but not Spock, and while the Enterprise is on our official ship list, we never use it in fiction or scenarios. We have many new species, but not the ones created in TNG and beyond.

link

So his own words cast doubt on his claimed copyrights and official license on Star Trek-based miniature starship designs.

That same interview also makes clear the fact that any of my ships that were inspired by Star Trek: The Next Generation (annotated in my product names with "TNG") and Star Trek: The Motion Picture ("TMP") would be outside the boundaries of his claimed licensing rights. In his own words, he stated:

By the time the movies and The Next Generation showed up, we had already printed dozens of products with a vast amount of newly created material. … We have many new species, but not the ones created in TNG and beyond.

This directly undermines any claim he could make to hold copyrights to the ships in my "Coalition (TMP)" and "Coalition (TNG)" lines, as well as to select ship designs in my "Space Mongol" and "Praetorian" lines which were inspired by ship designs featured in the Star Trek movies and the subsequent TV series (especially Star Trek: The Next Generation and Star Trek: Deep Space Nine). I have asked Cole for a copy of his licensing agreement with CBS/Paramount, but haven't received any response as of yet.

Even assuming, arguendo, that Cole/ADB held a patent (including a design patent) on his starship miniatures, my products, while similar, are substantially and significantly distinguishable from his. The US Supreme Court established the key test for patent infringement in the case of Gorham Co. v. White, 81 U.S. 511 (1871). According to Gorham, there is infringement:

"if, in the eye of an ordinary observer, giving such attention as a purchaser usually gives, two designs are substantially the same, the resemblance is such as to deceive such an observer, inducing him to purchase one supposing it to be the other."

There is no possible way that my miniatures, which average only a half-inch in length, have integral flight stands, and are devoid of most surface detail, when held side-by-side with one of ADB's miniatures, which tend to be 3 to 4 inches in length, are multipart models without integral flight stands, and generally have significant surface detail, could be confused with his to such a degree that an ordinary observer would be induced to purchase one of mine while thinking he was actually purchasing one of ADB's.

Also, there is no patent or copyright protection for specific arrangements of geometric shapes. Unless my miniatures were exact reproductions in size and detail, they would not represent patent infringements. That's assuming Cole even has a patent on those designs, which he doesn't. I searched the US Copyright Office and US Patent and Trademark Office at length and found nothing at all concerning anything other than his printed manuals, handbooks, etc. He has no registered protections on his starship miniatures, and unless he can prove that mine are exact copies, I don't think he can win a lawsuit over copyright or patent infringement.

For that matter, Lyra is a constellation whose name and documented description predates ADB by, oh, 3,000 years, and the Kzinti belong to Larry Niven and Baen Books, so even if someone used the name "Lyrans" to refer to beings from the Lyran constellation or "Kzinti" to refer to outer-space cat-people, it's questionable if Cole could make a successful claim in court. I'd be happy to rename any of those product lines, frankly, if I thought that would mollify ADB.

And Mr. Cole, since you are undoubtedly watching this thread, you have my email address already. Drop me a line if you'd like to talk about some kind of compromise about this.

FYI, Niven himeself adopted his Kzinti story "The Soft Weapon" as the animated episode "The Slaver Weapon."

Also, while we have covered copyright and patents, has anyone looked into trademark and trade dress?

Yeah, I know that Niven wrote that episode, which is why ADB can legitimately use it, but he then went on to write and edit the Man-Kzin Wars series fifteen years later, so I would assume that Niven and/or Baen Books own the copyright to the "Kzinti" name and mythos. That being the case, it's questionable if ADB has exclusive rights to the term "Kzin" or "Kzinti".

On trade dress and trademarks, I've looked into both of those and I still don't think ADB could prevail with either. The trade dress has to do with the promotional aspects surrounding a product, such as packaging, presentation, and whatnot, rather than the product itself. Likewise, trademarks only apply to names, logos, and other marketing devices, not the functional products themselves. It seems that the acid test for the courts is still whether the consumer could be tricked or duped into thinking they are buying one company's product by misleading or infringing promotion by another company for its own product.

All in all, I'm prepared to make some compromises to avoid stepping on his toes, but since Mr. Cole chose to go medieval on me and demand that everything besides my pulp rocket ships be taken down, including all the stuff he couldn't possibly have any claim to, I'm not willing to give in without a fight.

Got to say I'm surprised it took this long for them to get taken down.

At very first glance, any gamer would see that these were intended to resemble the ADB designs.

Simple geometric shapes or not, the variations were patterned after, and named (BC/DD/CA) to match the ADB designs.

The question of 'Kzinti' names, etc. is rather moot. The ADB designs don't match anything from the Niven books or the STAS show, so they are original designs.

I've had some stuff on Shapeways… it was patterned after some stuff from the TV shows. Got my takedown notice, and closed up shop. I found it odd that the notice covered the designs that WEREN'T copies of the screen ships, but in the end it really doesn't matter that much – they have more lawyers working for them, and they're probably right anyway.

One of these days, if I wanted to 'get rich' selling toy spaceships, I'd make up my own designs and make the whole issue moot.

Interestingly, the original line was called "MicroTrek". CBS sent a takedown order, I renamed them to "MicroFleet", and everyone was happy. They took no issue at all with the actual designs of the ships, and it seems to me that they would have more aggressive lawyers than ADB.

At very first glance, any gamer would see that these were intended to resemble the ADB designs.

Maybe, but that isn't the test the courts use. Would those same gamers be tricked into buying my ships when they thought they were buying ADB's ships? Highly doubtful.

And the two-letter designations are US Navy standard hull classification symbols. Nothing about that could be the intellectual property of ADB.

Anyhoo, I'm waiting to hear back before making another move. It might be that you're right, and I'll just need to abandon the Trekkish stuff for more original designs. We'll see.

I am a bit confused with this action due to past history. Did not Companion Games make 10 or 11 Galactic Empire SSD books for their Card game? I have like 7 of them and they appear to be designed to shoehorn right into the old Commander edition rule books, rule numbers and all. The first 2 empires went as far as to be place in the FnE map, 1 at the junction of Gorn/ISC/Roms. And the other near Klingon/Kzin/Wynn space A much more serious attempt to ride the ADB train. And as for the Kzinti thing IIRC the ONLY reason SVC was allowed to use them in SFB is because they were on the cartoon Star Trek show. It seems the Niven Was protective of the name after some really bad fan fiction came out.

"Leerans" isn't an issue. Neither is "Lyrans," because it is, as has been pointed out, a common name. One can't copyright such a thing anymore than one can copyright "British." In fact, as an original word, Jav has more potential to claim exclusive rights to Leerans than ADB does to Lyrans (or, for that matter, Andromedan, Federation, or Vulcan, all of which are simply common words turned into names. Even Romulan, being simply a Latin singular name turned into an collective one, is suspect as a copyrightable term). Tholian and Klingon and Kzinti are probably original words (I haven't bothered to research those. But Kzouti, for example, is quite simply a parody, as is Leeran. ADB would have no claim to those terms (nor would Mr. Niven, either). Even "Starfleet," as an obvious combination of common words, is probably not copyrightable. (Trademarkable, yes. But that has to be applied for and granted, like a patent. Copyright requires no formal application or recognition from the government; it exists when the work is created, whether a government knows the work has been made or not.)

So the only thing really at issue then is the artistic design of the ships themselves.

I think Jav's listing of the section on Toys and games is interesting; It's hard to tell the context, though, and I suspect it is referring to patent law, not copyright law, which are not the same thing. Patents only cover the functionality of devices and processes, not the aesthetic elements of a specific item. What is important with an engine, for example, is the way it works, not how it looks. But that doesn't mean that certain elements of a device might not have aesthetic protection, for example I believe that the "look and feel" of software is an aesthetic issue, and a copyrightable one.
I cannot see how a court would rule that a copyright holder loses the rights to a sculpture or an illustration simple because the copyright holder has duplicated it for use as a toy or game. Clearly this is not the case; toys are copyrightable in their aesthetic design (one can't simply make an exact duplicate of a Lego mini-fig, though one can make a unique mini-fig). Now, as a whole a game probably isn't a copyrightable thing; indeed, the idea for the process of a game is not copyrightable (though it might be patentable). However, the individual components, each being a specific and separate work of art, are each covered by copyright. Thus, you can make a Monopoly-like game that is identical in function and play, but you cannot make a Monopoly game that exactly duplicates the actual Monopoly product in its various aesthetic elements (the names on the board, Mr. Moneybags, the pieces, etc..).

As for confusion, it is not simply relevant whether the items might be mistaken for ADB products, but rather whether they substantially interfere with the right of ADB to sell its aesthetic work, that is, the designs of its ships, in whatever form it wishes. Scale is irrelevant; if the design copies ADB's design, it doesn't matter if the product is the size of a Tic-Tac or a Lincoln Continental, it's a violation of copyright, confusion be damned.

So it really does come down to what exactly is covered by the aesthetic look of ADB's products, and what is not. How far from (or how close to) the original can one sway and wind up being an artistically distinct design? That's what a court is for, really. I fall back again on the standard of whether a work is easily identifiable as not being the work it mimics. "That looks like the Enterprise, but clearly isn't," is probably okay. "I can't tell the difference," is not.

IANALNDIPOOTV, so don't bet your livelihood on anything I say, of course!

PDF link

It's a settle matter of law. The Leerans are definitely a copyright violation.

Scale isn't sufficient to create originality – and originality in design is a necessity for indpendent copyright to stand. Even converting something from a 2d picture to a 3d object isn't sufficient to orginate – if the new object is obviously derived from the source material. Hard to argue originality when you named them a slight derivation obviously in order to associate them with the ADB created ships.

I'm no fan of the way Cole runs his shop either, but this was too brazen a rip off. A few minute chat with a copyright lawyer would disabuse you of your current POV.

Thanks for the info, Demiurgex! Although I don't think any matter of law is truly settled, ever. I'll read through this and see if it changes my position.

Here is an ADB Lyran fleet:

And a closeup of a single Lyran DN:

Here is Jav's DN:

Now, remember that copyright is based upon distinctive artistic design. General shape isn't sufficient; one statue of a swordsman does not grant one rights over all other possible statues of swordsmen. It is the distinctive design and artistic details that makes the difference. If a design is too generic, does it count as artistically copyrightable? Are general shapes copyrightable?

A bit subjective, isn't it?

It seems to me that ADB's design is so generic overall-- basic geometric forms stuck together-- as to be barely artistically distinct. The metal miniature appears to have little actual detail, except perhaps in the nacelle structures (hard to tell in these images, really). It's the sort of design that just about anybody could do. Might as well claim IP on three ping pong balls stuck together with toothpicks.
It's just bland, unremarkable and unoriginal. Copyright over the sculpt themselves is of course present, but over the general design, not so much. Even the Enterprise herself offers no claim to saucers and cylinders stuck together, but to the distinctive curves details and proportions of her elements.

More and more, I think ADB's claim is flawed, the fault of their own poor artistic effort in the first place.

But it remains subjective.

Looks more like a C-clamp than a spaceship to me.

Thanks, Parzival. I greatly value your input!

@Demiurgex: I read through all 30 pages of that paper, and it's an excellent study on the topic, but it didn't really change my position at all. I do appreciate the information, though!

Jav, I will say that yes, you are copying the ADB design, and for you, that's where the rub lies-- but what's to their design? Looking at the miniature, it has no detail whatsoever. It could be bits of sprue as much as ship parts. (It reminds me of three chisels lined up side by side and welded together). It just doesn't have any artistry, like a sculptor's dolly (maybe less, actually). Is such basic effort sufficient to grant IP rights over anything similar? I don't know, but more and more I question that idea.

Let's consider a popular spaceship approach seen in recent years, which I call "the flying gun" design. You know the look; it resembles nothing so much as a military rifle with a descending grip/magazine clip. Several lines use it, though Cold Navy sticks out the most in my mind. The concept itself is generic; anybody could do it (and many do). But each of those competing lines make the ships look very different through all the detailed artistic elements that make one "flying gun" design very different from another. That's hard work, it's artistic work, and it's in the details where that hardwork creates the copyright and the IP, not in the generic "rifle" shape.

Similar approaches can be scene in another current favorite "gum pack" approach (long, slender rectangles turned up on one edge or the other). Zandris IV, Brigade, Studio Bergstrom and others offer these. Yet each applies details and "greeblie" bits that make their versions unique and distinctive, though the general concept is fairly basic.

It is this detail and distinctiveness which I fail to see in ADB's efforts here. I see something knocked together to create an easy line to sell, but no effort on aesthetic. It says "spaceship" like four wheels and a couple of box shapes says "car," but that's about it. Does that even constitute a claim of "art" on their own design? If I were them, I don't know that I'd want that tested in court.

Still, Jav, maybe in the end your best approach is to walk away from ADB's realm altogether, and just design your own original fleets of your own look and background concept. I don't think that many people are clamoring wildly to play ADB's various sub races outside of SFB itself anyway, which your small fleets are obviously not intended for, and getting away from known properties in your case could be an advantage.

I'll probably end up going that way anyway, but it saddens me that there is such a dearth of reasonably-priced Trek-ish minis out there. Even the mass-produced Attack Wing minis are $15 USD each. If only the MicroMachines were to come out again… *sigh*

I agree with you about MicroMachines and it would've been nice if they were able to do other ships like the Akira,Steamrunner and other Borg ships.

As for myself I have a sizable FASA Star Trek collection 400 plus at last count including ships that FASA never got around to making but someone did and I'm happy to have them.