Restored: CGL Discussion THread Part 2 Options

[Calbeck]

I have to say I was actually shocked to hear this rumor...and, right now, I refuse to consider it anything more than that, at least in terms of who's specifically responsible for what dollar amounts. The positive side is that CGL has publically admitted there was a problem rather than deal with it under the table or not at all, with a focus on getting the money back into the proper CGL accounts. That, if it works out, can only be good for the company. The negative side of course is that no matter who's at fault, this undermines relationships with employees of any stripe, who already have a record of broken promises to look back on.

I'm actually commenting, though (rather than just lurking --- a friend directed me to the original thread), because some folks were asking questions about Battletech freelancing issues. Be advised right off the bat that I am extremely small potatoes, had few contacts with CGL, and have great respect for Loren Coleman on basis of the handful of communications I've had with him.

My experience dates back to Sam Lewis and FASA Corporation, September 1993. Sam had just written me with his personal assessment of a novel outline I'd proposed regarding the Eridani Light Horse, saying his only issue was my lack of a published record. He suggested I write an Eridani Light Horse Scenario Pack based along the lines of "McCarron's Armored Cavalry".

So I did. And that was the start of the trouble.


FASA
Scott Jenkins was Line Developer at that time, but apparently also something of a flake. He barely acknowledged that the Pack had been received before leaving the company, to be replaced in the interim by Mike Mulvihill. Mike was great --- informative, responsive in a timely fashion, and constructive --- and requested the one and only significant rewrite of the Pack, which I did and sent off within a couple weeks.

After Mike was replaced, though, the process began taking twice as long as FASA's purported "90-day turnaround". It usually took 90 days just to receive a notice that the newest rewrite had been received, and another 90 to cobble up a paragraph or two of minor edits...nothing that couldn't actually have just been handled over the phone in a few minutes. Aside from Mike's rewrite, all the others took about an afternoon to type up and send off. So I would spend a day working and then six months waiting for another paragraph or two of directions, often contradictory to what I'd been asked in the last one.

My overall FASA experience was right in line with Mike Stackpole's noted report: little or no communication combined with little concern for agreements or promises.

Contrast that with my meeting Sam Lewis at DragonCon in...either '94 or '95 I think. I was wearing my 3rd Armored Cavalry ballcap with my nametag clipped to its side, and walked up expecting to have it out --- I'd just found out that the Eridani (whose Scenario Pack I was writing, remember?) had been blown in half by the Clan Invasion. This, despite not appearing in any of the battles listed in any source material to that point. How was I supposed to keep the Pack in line with fiction I didn't know existed?

Sam looked up at my approach, actually beamed with recognition, and said: "Hey! Third Armored Cavalry! Do you know Scott Malcomson?"

We'd never met, only corresponded, but he remembered my Gulf War service and seemed actually excited to meet someone who might possibly know me. I revolved my hat to show him my badge, and we fell to talking shop. For the record, his response about the ELH casualties were "I don't know...maybe they lost it in a big raid?". But Sam's influence, if he actually had any in the process or actually cared, meant little: in the end FASA sat on the project cycling through the same glacier-slow process for three full years. It was finally Randall Bills who sent the rejection letter (without actually even calling it a rejection) in September 1996.

And that really should have been the end of it. I'd done my work "on-spec" and never signed any contract. I owned copyright in my original work, but not in the Battletech elements used therein. It was a wasted three years that soured me on trying to freelance anywhere at all --- if this could happen when I supposedly had the Vice-President of the company rooting for me, what treatment could I expect elsewhere?


WIZKIDS
Fast-forward to October 2001 and the launch of ClassicBattleTech.com. According to the website's "Terms of Use", it was "owned and operated by WizKids LLC". It included an extensive section of canonical history, and for the section on the Eridani Light Horse...was the seven-page working-draft "ELH History" I'd cobbled together for the Scenario Pack.

Most of this, as a working draft, was simply a matter of collating what had already been written on the ELH, editing it to fit together, and adding extra material to fill gaps (such as by revealing ELH involvement in the SLDF Gunslinger Program and Ronin Wars). So it was entirely possible someone had mistaken this material as FASA-owned despite the new stuff and rather obvious editing. I sent an email off, resulting in a speedy and profuse apology --- as well as a request to keep using the material. They liked it that much. I was flattered.

I made a counter-offer: I would create a new version to replace the working-draft, would be accredited for it, and would retain my rights. All of this was done, with the new version and accreditation appearing in the same spot on the website in August 2002. I never signed any contract of any kind, preventing any transfer of copyright.

For three years, everything was hunky-dory. I had a legitimate Battletech writing credit, had contributed some small amount to a game I dearly love, and could put that on my resume when shopping around to do other work. If I wanted. I was still soured on the FASA-era mess and was pretty sure WizKids agreed to my terms in order to avoid the possibility of a copyright infringement suit. I doubted Randall Bills wanted to work with me if he could avoid it, though I had cordial (if brief) relations with Warner Doles and Herb Beas.


RENEGEMENT
In August 2005, my ELH History was removed from the site without notice or comment and replaced with another version. That's not the renegement, of course; it was an update, using another author's contribution. I did find it annoying that no references to any of my original material was included, which turned out to be a matter of the new author simply not being told it existed. Because my work only ever existed in electronic format on the website, and never appeared in print publications, he simply wasn't aware of it. WizKids hadn't told him about it, either.

Because WizKids hadn't actually renounced my work, and because most of my original material wasn't contradicted by the new version, I considered myself to still be an accredited BT author.

This is where the problem came in: the day AFTER the new version was published, various of the CBT.com volunteers began openly declaring that my work was not, and never had been, canon. None of them had claimed any such thing before, and some were actually involved in a thread where I was discussing a potential third edition of the ELH History. They were excited, involved, and making suggestions, such as what kind of WarShip the Eridani would "properly" have been assigned during the Star League Era. The one-eighty was so sudden and dramatic (with Jason "Deathshadow" Knight being the main detractor) that I thought someone at WizKids had put a bug in someone's ear.

From August '05 to August '07, sporadic mini-flamewars would erupt when someone would inquire on CBT as to the legitimacy of my work, it would be degraded in rather nasty terms by the forum mods, and I would respond in my own defense. At one point, Cannonshop wrote me a lengthy nastygram including quite a bit of foul language and claiming a "plot" on my part to "evade a ban under cover of a general amnesty". I hadn't even been aware I'd been banned, because I hadn't been on the site in over a year. He summed up by threatening a lifetime ban (which, to his credit, he did not carry out).


CGL
Finally, in Aug '07, I demanded via CBT a clarification from WizKids as to whether or not my work had ever BEEN canon. WizKids didn't respond, but CGL Operations Manager David Stansel-Garner did, declaring that material not currently on the website was not considered canon. This was too ambiguous: it seemed to mean my work had been canon when it was on the site, which is what I wanted, but the forum mods took it as flat-out rejection of my work altogether.


TOPPS
I finally decided that enough was enough, and sent a certified-mail letter to WizKids demanding satisfaction: if my work had not been published as canon, it was a breach of our agreement and cause for two counts of copyright infringement, one for each published version. This was, of course, only the case if the forum mods were correct in their claims. I still wanted vindication more than litigation.

That letter, plus other letters, plus emails to Randall Bills, all fell into a black hole. I finally called WizKids' Customer Relations Line (as they had no other publically-available phone number), and was told all the company's legal issues were handled by Topps.

EDITSTART: In May 2008, Loren Coleman called me about this issue. He was, rightly, concerned what any potential lawsuit would mean to the future of Battletech. He was very courteous, considerate, and clearly stated he was NOT representing CGL in this mess --- he was only involving himself as "a concerned Battletech fan". He proposed to hash out some basic terms for a settlement which he would then forward to WizKids. He and I did just that: initially, I said I would be willing to give up all claim of copyright in exchange for doing the "Final Eridani Light Horse History" under a proper contract.

WizKids' response, according to Loren, was surprise I would be willing to settle for so little. That gave me cause to think...really, I was only asking for terms similar to those WizKids had already reneged on. I felt I was owed a little something extra for more than two years of personal attacks by self-appointed Battletech "authorities". So I added one more stipulation: co-ownership of the throwaway character Roy Calbeck, whom I'd adopted as an online RP persona as early as 1991.

Roy Calbeck exists in only two places in BT canon. One is the original 1987 Mercenary Handbook, where he appears as "Sergeant, Galleon Tank, Veteran" and nothing else. The other is a short blurb in my ELH History. As little as there is of the character, I certainly contributed more than half.

That was too much for WizKids. They simply did not respond. And that's where Loren Coleman's effort died. EDITEND

Emails, snailmails, and phone calls to Topps' Legal Department also all fell into the same black hole. I could get no further than the Legal Department receptionist, who kept claiming I would be responded to. For three months.

November 2008 rolled around. Topps closed WizKids. CGL began negotiating with "senior Topps executives" (said Randall Bills in Battlechat) to purchase Battletech and Shadowrun. And, because WizKids had never said my work was not published as canon, this meant that my own copyrights were actually on the line in any such sale.

I sued Topps the following month.

That action is still ongoing, but any freelancer should fear what Topps' lawyers have trotted out regarding their view of copyright. In short?

That the company, by virtue of "overseeing" any freelance work, has "control" over it and therefore holds all copyright. And as of this point, Judge Murray Snow of the U.S. District Court of Arizona has agreed with that claim. I am fighting to have that assessment overturned.

This post has been edited by Calbeck: Mar 27 2010, 03:14 AM

[OneTrikPony]

Personally, I would be happy if, should they need to scale things back due to cost, they just release the GM screen. The other things listed on the sell sheet are nice, but to me, they don't seem to be as helpful as a new GM screen, compatible with and includes the rules for the Anniversary Edition. And then, perhaps in a future release, and once things calm back down, release the other extras as the 'Runner Toolkit.' Just a thought...

Actually the PACKS was the only thing that had me interested in the GM screen. I've never bought one before. Anything that saves the GM from the usually massive amount of work it takes to do the job is a really good investment

AH- I don't think you can claim to have originated the idea of pre-generated gear loadouts by archetype. GM's been writing those up for years. You DID how ever sell the idea to the publisher, write them and give them a much cooler acronym. PACKS is much smoother than P-GGLbA. I think you need to hurry and trade mark your acronym.

Take that JM Hardy! Now not only do you need to hold together a sinking ship with your teeth while getting checks cut for crew that are allready in the life boats and keep the captain from stealing the silverware while you navigate the whole mess to safe harbor by dead reconing BUT now you have to come up with a Whole NEW ACRONYM! HAAAAAHAHAha.
Hang in there dude. For what it's worth coming from a faceless occaisional dumpshock poster, I would like to add my thanks to you for bothering to spend any time talking to us at all.

[Ancient History]

That action is still ongoing, but any freelancer should fear what Topps' lawyers have trotted out regarding their view of copyright.

Let's slow down for a moment, because I'd like to make a few things clear:

1) To the best of my knowledge, Malcomson (AKA Calbeck) and his shenanigans have nothing to do with CGL's current situation.

2) Calbeck has a longer and more involved version of the above events, where he basically makes the case that he's a co-owner of the BattleTech property, which I can generously say may call his reputability into question.

3) To the best of my knowledge, none of the freelancers currently displeased with CGL have in any way begun any legal proceedings against Topps, and there's no real reason they would since all their contracts would be with IMR/CGL.

[Calbeck]

Let's slow down for a moment, because I'd like to make a few things clear:

1) To the best of my knowledge, Malcomson (AKA Calbeck) and his shenanigans have nothing to do with CGL's current situation.

Nor have I suggested such. I made quite clear that my response was in regards to folks asking about BT freelancer experiences.

And using loaded terminology, especially as an opening salvo, is hardly kosher.

2) Calbeck has a longer and more involved version of the above events, where he basically makes the case that he's a co-owner of the BattleTech property, which I can generously say may call his reputability into question.

Any Battletech author not engaged under a work-for-hire contract, whose work had been published as canon, would be. That is, after all, the entire point of work-for-hire: to prevent exactly this sort of situation by transferring copyrights from the author to the company, which becomes the author in legal terms.

A joint work is, per copyright law, created when multiple authors merge contributions with the intent they become an interdependent entity. My decision to create the work for inclusion in Battletech, and WizKids' decision to merge it into the continuity, satisfied those requirements. The only reason other BT authors cannot make this claim is that they signed away their copyrights...I did not. And it is US copyright law which establishes that co-authors of a joint work are co-owners.

Your disbelief is based on magnitude, not merit.

3) To the best of my knowledge, none of the freelancers currently displeased with CGL have in any way begun any legal proceedings against Topps, and there's no real reason they would since all their contracts would be with IMR/CGL.

And if I had signed a contract with IMR/CGL, that would be relevant.

As Topps is the copyright owner, and this is a matter of determining copyright co-ownership, they are the proper party to sue.

It is also of concern to note that Topps claims copyright ownership of all submissions regarding its licensed properties, on grounds of "oversight" amounting to "control" of the actual process of creation. This puts the copyrights of ALL freelancers working on BT/SR material in potential jeopardy.

This post has been edited by Calbeck: Mar 27 2010, 04:40 AM

[Calbeck]

Point of clarification, BTW: the actual company which was WizKids was not sold to NECA. NECA bought WizKids' name and trademark. WizKids itself was renamed "Former Games" and continues to be held by Topps as a wholly-owned subsidiary. Topps has claimed in court that "Former Games" owns Battletech (and, presumably, Shadowrun). At this point, the court has held that Topps holds Battletech "through WizKids and FASA", establishing Topps as the controlling entity.

[Method]

I don't know anything about copyright law and I don't know anything about Calbeck or his history with BT but...

It doesn't seem like official records support his interpretation of the judge's...er... judgement.

[Calbeck]

It doesn't seem like official records seem to support his interpretation of the judge's...er... judgement.

Quite the contrary...

First, Malcomson did not have "superintendence" over the Submission or the Revised Submission. Aalmuhammed, 202 F.3d at 1234. Instead, Topps, through FASA and WizKids, exercised control over these works. The very nature of Malcomson's original Submission, which was submitted "on-spec," meant that FASA had control because it "retain[ed] the option to reject the work"...To the extent that Malcomson exercised some control over the content of his ELH Submissions, WizKids had ultimate control because it had the unilateral right to reject whatever Malcomson submitted...Hence, Malcomson "lacked control over the work, and absence of control is strong evidence of the absence of co-authorship."

Italics mine.

The 9th Circuit, In Aalmuhammed (v. Lee), was defining what constitutes an author. "Control" was the primary factor considered. The entire argument that I "lacked control" revolved around denying my authorship, even in my own submissions, and even in those submitted "on spec".


This definition effectively strips all freelancers of all copyright claims by transferring authorship to the "controlling" employer...without need of contract.


This idea didn't come from the judge, either.

It came from Topps.

Judge Snow simply accepted it at face value, arguing that I had "admitted" to all Topps' claims by not treating an improper filing as legitimate. In that filing, Topps combined a Complaint with an Answer --- Federal Rules state that it has to be one or the other, not both, to qualify as a pleading. The judge also ignored several other Rules, as well as parts of his own declared legal standards, to arrive at this conclusion.

When I pointed out these errors in a Motion to Amend, Judge Snow simply ignored them.

Curiously enough, this mirrors an old and supposedly defunct legal doctrine called the "Actual Control Test". Its basis was that any employer who provides any amount of direction to a project they commission (however slight) owns total copyright. The Fifth Circuit denounced this as in violation of the 1976 Copyright Act (which is the current basis of copyright law), a view picked up and affirmed by the US Supreme Court over a decade ago. The 9th Circuit has also ruled against this form of "test".

Hence the appeal currently underway.

This post has been edited by Calbeck: Mar 27 2010, 06:51 AM

[Keats]

I read the open letter that Randall Bills sent out where he named the Colemans as taking the money. Yeah, there are personal reasons to keep a friend, but is it really good for Shadowrun to keep someone that you know took the money and have them stay in the company?

[Dread Moores]

I read the open letter that Randall Bills sent out where he named the Colemans as taking the money. Yeah, there are personal reasons to keep a friend, but is it really good for Shadowrun to keep someone that you know took the money and have them stay in the company?

What open letter?

[OneTrikPony]

I read the open letter that Randall Bills sent out where he named the Colemans as taking the money. Yeah, there are personal reasons to keep a friend, but is it really good for Shadowrun to keep someone that you know took the money and have them stay in the company?

Wow. That was the quietest bomb I've ever heard anyone drop. Way to Go.

[Khyron]

I sued Topps the following month.

That action is still ongoing, but any freelancer should fear what Topps' lawyers have trotted out regarding their view of copyright. In short?

That the company, by virtue of "overseeing" any freelance work, has "control" over it and therefore holds all copyright. And as of this point, Judge Murray Snow of the U.S. District Court of Arizona has agreed with that claim. I am fighting to have that assessment overturned.

What does this have to do with anything? Did you come here just to wank on about your lost lawsuit of crazy? The Shadowrun community doesn't care about this crap. Take your SOB story somewhere else.

[Method]

Quite the contrary...

I think the record is quite clear. I especially liked Judge Snows insight here:

Indeed, to the extent that Malcomson's Submissions were ever part of the BattleTech Property, they constituted only a small portion of that property. The BattleTech Property consists of over 100 novels and over 300 source books and rule books. ELH is briefly mentioned in these materials about twenty times. There simply is no evidence that these twenty references provided any contribution to the success and audience appeal of the BattleTech Property.

[Calbeck]

I think the record is quite clear. I especially liked Judge Snows insight here:

That's entirely correct, too. I never said anything different.

And before we go any further, I did not come here to argue my case. I commented on my experience regarding the treatment of Battletech freelancers, because several people have asked about that in this thread.

As you have brought portions of the judge's ruling into the matter, I'm answering the issues you raise.

That's really kind of pointless, though, since as I've said the judge violated a number of court Rules and his own legal standard in order to arrive at this decision. As you seem to prefer to take the decision itself at face value (understandable, as it IS the ruling until and unless overturned), the end result would be total derailment of this thread as we proceed to mutually talk past one another. While I have no qualms about defending my claims, this is not the thread for arguing that.

The case is of concern to this thread only because it demonstrates Topps' belief (which the court has upheld) that freelancers have no claim to copyrights.

As several folks here are freelancers who are concerned with their control of copyrights (because they use that control as leverage to get paid), this can affect them too.

This post has been edited by Calbeck: Mar 27 2010, 08:24 AM

[Khyron]

The case is of concern to this thread only because it demonstrates Topps' belief (which the court has upheld) that freelancers have no claim to copyrights.

As several folks here are freelancers who are concerned with their control of copyrights (because they use that control as leverage to get paid), this can affect them too.

Well it's a good thing they're dealing with CGL and not TOPPS then isn't it?

[Saint Sithney]

Calbeck, all the freelancers who have canceled contract or withheld their work have defined legal agreements over owenrship.

Are you implying that because someone like AH canceled his contract that all his proposed/submitted drafts default to Topps because of the legal precedent from your BT lawsuit? I think that's sort of a dangerous idea to just put out there..

[Calbeck]

Well it's a good thing they're dealing with CGL and not TOPPS then isn't it?

Topps is the copyright owner. CGL is the licensee.

Topps didn't oversee my work, either. FASA did, and WizKids did. I signed no contract with any of them, nor with FanPro or CGL. The Court ruled that Topps "exercised control" through FASA and WizKids. Don't ask me how, since FASA was dead long before Topps bought WizKids...but that's the decision. By the same argument, Topps "exercises control" through CGL for both Battletech and Shadowrun.

This post has been edited by Calbeck: Mar 27 2010, 08:37 AM

[Calbeck]

Calbeck, all the freelancers who have canceled contract or withheld their work have legal contracts.

Yes, they do.

Are you implying that because someone like AH canceled his contract that all his proposed/submitted drafts default to Topps

I'm not implying it. That's the court's decision: that "right to refuse" is sufficient to establish "control" over a submission.

The entire point of "control" was a matter of determining who could claim to be an author.

Thus, whether or not there is a contract involved, any submission presented to a company which has the right to refuse it automatically becomes the property of that company. That is the argument Topps used to claim I lost authorship merely by submitting a proposal "on spec". The court allowed that argument.

[Khyron]

Topps is the copyright owner. CGL is the licensee.

Topps didn't oversee my work, either. FASA did, and WizKids did. I signed no contract with any of them, nor with FanPro or CGL.

Well there's your problem right there. The SR freelancers who are unpaid did have a contract. With CGL. Not Topps.

[Calbeck]

Well there's your problem right there. The SR freelancers who are unpaid did have a contract. With CGL. Not Topps.

And what part of the SR copyright are you suggesting CGL owns? Since, after all, we're talking about freelancers' ability to claim copyright in order to enforce their payments.

EDIT: It's 1:40am here. One thing I'll point out before heading off to bed is that copyright is not created by a contract. None of the freelancers own any of the elements they borrow from SR or BT...but they do own the original material they pile on top of all that. What little new material I created, was mine in the same way.

By law, copyright cannot be transferred from the author without a signature. In absence of a contract, an author automatically retains their copyright.

What's going on here is that the court has declared Topps, through its licensee(s), to be the author by dint of "control".

...and at this point, I'm repeating myself, so good night.

This post has been edited by Calbeck: Mar 27 2010, 08:53 AM

[Stahlseele]

I read the open letter that Randall Bills sent out where he named the Colemans as taking the money. Yeah, there are personal reasons to keep a friend, but is it really good for Shadowrun to keep someone that you know took the money and have them stay in the company?

Yes please, WHAT open letter?

[SecGuard]

What letter? Anyone got a link?

[Stahlseele]

Doesn't look like it.

[Redjack]

Please do not try to do the job of the forum staff. If you have an issue that you would like to see addressed, PM a moderator and we will take a look at the situation.

This includes such actions as telling people what to post or not post, asking people to leave or stop posting, or telling someone that you are reporting them to forum staff, among other things.

Do NOT tell people they cannot post on Dumpshock. If you have issue with the content of a post, report it and the staff will deal with it.

[Stahlseele]

Do NOT tell people they cannot post on Dumpshock. If you have issue with the content of a post, report it and the staff will deal with it.

who was this aimed at?

[Redjack]

who was this aimed at?

What does this have to do with anything? Did you come here just to wank on about your lost lawsuit of crazy? The Shadowrun community doesn't care about this crap. Take your SOB story somewhere else.

I perhaps should have said "do not tell people what they can post", but the thought is pretty much the same and this struck a nerve with me.