Suing WoTC?

[taalyn]

Hey all,

Ages since I've been here - life's been busy! But I need to get some feedback from you folks.

I just discovered today that one of my fonts has been used illegally for a series of WoTC products (Dungeon Tiles). I figure I need to talk to a lawyer, and go from there. Does anyone have any additional input?

What I'm looking for is to be paid and credited. A bajillion dollars would be nice, but I certainly don't expect it...

[taalyn]

Oh, and apologies if this is in the wrong spot...

[Ron Edwards]

You're definitely in the right place for this topic.

Which is not, necessarily, to say that you're going to get the best advice. I'm not sure what there is to say except for the "talk to a lawyer" part. But input from someone who's been involved in a similar case would be very valuable for everyone.

It also strikes me that font ownership is a bigger/wider issue than, for example, game concepts or mechanics, and so there may be a wider and more productive legal history about it that will serve as your basis for what you can do next. A lot of people who post here work in commercial publishing in their regular jobs, so they might know a lot about that too.

Best, Ron

[Eero Tuovinen]

Do let us know what you decide to do and how it goes; I don't have any glad-iron useful advice, but I'm certainly interested in how WotC reacts. Most likely something like this is an innocent mistake or cynical carelessness (the attitude that nobody's going to complain anyway, so who cares), both of which should be correctable by simply letting them know about it and determining your fee (+100% or whatever to compensate for the infringement). I don't see a real company grudging such minor expenses, unless they have an actual legal basis for not paying and crediting you.

[guildofblades]

You should talk to the folks at Crystal Caste, who recently won a lawsuit against Hasbro for patent infringement for a patent they have on their dice. I expect they are as close as you can get to an expert at this as you are going to get.

Ryan S. Johnson
Guild of Blades Retail Group - http://www.guildofblades.com/retailgroup.php
Guild of Blades Publishing Group - http://www.guildofblades.com
1483 Online - http://www.1483online.com

[guildofblades]

That being said, you can always try to up front approach first. Call WOTC and see about speaking to the brand manager who is in charge of the product that is utilizing your IP. Inform them about the copyright violation and tell them that you are willing to settle the issue amicably, assuming WOTC is willing to obtain a proper license for the use of your IP. Then ask who would be the most appropriate person at WOTC whom you should be speaking with.

If attempts to contact them by phone in this manner get stonewalled, send them a similar letter by registered mail, including a cease and desist until such time that it is worked out so that WOTC has the appropriate license for use.

If your licensing fee is at all reasonable and you can verify appropriate ownership of the IP (who knows where they got it from...), then settling with you to become a legal licensor should prove to be a whole lot less hassle for them than a lawsuit. That and lawsuits run the risk of negative PR (something public companies tend to avoid like the plague) and of considerably higher costs due to lawyer fees and potential penalties if they lose.

So absolutely, don't rule out the direct, civil and business like approach. Could be you will walk away satisfied without ever having to pay a lawyer. They don't want to go that route, then none of us here can advise you as a lawyer can. So, best to get a lawyer at that point.

Ryan S. Johnson
Guild of Blades Retail Group - http://www.guildofblades.com/retailgroup.php
Guild of Blades Publishing Group - http://www.guildofblades.com
1483 Online - http://www.1483online.com

[iago]

Taalyn, can you tell us what the font was, as well?  A number of us do layout and have "the eye" for spotting fonts in use; maybe we can keep an eye out for its use in other places too.

Best of luck with this.  I think the suggestion to contact Crystal Caste is a very strong one.

[taalyn]

hey guys,

Thanks for the feedback. All of it it useful. I will definitely contact Crystal Caste - if nothing else, they may be able to direct me to the right person to talk to. I am going to talk with a lawyer, just to make sure I understand my rights and the issues correctly, but I don't want to go the lawyer / litigation route either. I'm really broke.

The font in question is called "Glyphis". A google search will bring up a number of uses, but the best place to get it is probably here, one of the original websites I released it to:

http://www.miskatonic.net/pickman/mythos/shop.htm

Plus, the website is kinda cool.

I have licensed the font to another Forgite for his game (apparently dead) - Stranger Things, I think it was called. Otherwise - personal, non-profit use, I'm fine with. It's when you make money off it...

Aidan

[Veritas Games]

Aidan, if they used your specific electronic font files without permission, then that is copyright infringement.  If they copied your font style (your typeface) down to the pixel, then it isn't copyright infringement.  Type faces are not copyrightable in the United States of America.  Font software (the font file for Windows/Mac) can be.  Outside the U.S. font faces may be copyrightable in some jurisdictions.  If you need case law citations, etc., I'll provide them.  Prove that they embedding your font software in PDFs or that they copied the font software for illegal use and bang, they're hurtin'.  Prove that they got their hands on a PRINTED version of your alphabet and copied it down to the pixel, and you're proving only that they are doing something entirely legal (although admitted harmful to you).

Lee Valentine
President
Veritas Games Co. LLC

[taalyn]

heya Lee,

What you say is all true - though I can't imagine how I'd prove they were copying it pixel by pixel.

The font, which was created over 3 months, each glyph drawn by hand as I sailed through southeast Asia in the Navy, is pretty identifiable. Since it's not a Roman alphabet font, issues of art come into play, and I feel pretty strongly that it would hold up in court, copyright recognized or not. There are precedents.

The specific use is in the packaging and product of Dungeon Tiles, where they are used as artistic elements - not surprising since it's an artistic font. It's not like my font differs from others only in the way that the serifs appear and the extremity of the x-height...

In other words, it's a work of art distributed via a font, not a font in the legal sense.

Crystal Caste will likely be in touch today to talk about specific advice. We've just played tag via email, so he's gonna call.

[taalyn]

I have an appointment with an intellectual property / copyright lawyer on Friday. In the meantime, I talked with Michael at Crystal Caste, and he directed me to David Kenzer (of Knights of the Dinner Table fame), who recently had almost the exact same problem - use of his artwork illegally. Hopefully he'll have some input / advice for me - and since he's a lawyer as well, apparently, I may be able to hire him if it comes to that.

After I've talked to Kenzer, and the lawyer, I'm planning on starting the process with a civil call to the brand manager. We'll see how things go from there.

[guildofblades]

One thing to keep in mind.

On copyright, trademark and trade dress violations, typically when seeking monetary compensation through a court of law the amount of "reward" you are most likely to get is an actual accounting of the monetary lose (damages) the violation is purported to have caused. Ala, if I were to start selling a car and called it a Chevy, how much loss of sales or devaluation of the brand due to brand confusion derived from that action and how much total loss of revenues did this cause GM?

So while WOTC has deep pockets themselves and Hasbro even deeper, at the end of the day your pursuit for compensation is still tied to the actual damages the illegal use has caused. You can always "request" a court force them to pay a "penalty" and court costs in addition to the damages, but the later two are very often whimsically applied or not by the judge. If you were to opt to sue its in the realm of possibility that the amount of damages you could claim may be small and that a judge might not opt to force WOTC to pay for your legal fees and hence the amount you owe you lawyer could easily surpass the amount of the judgement you could win, if you won (unless your lawyer took the case on contingency). Just something to keep in mind while you weigh your options.

Ryan S. Johnson
Guild of Blades Retail Group - http://www.guildofblades.com/retailgroup.php
Guild of Blades Publishing Group - http://www.guildofblades.com
1483 Online - http://www.1483online.com

[taalyn]

heya Ryan,

Yeah, I'm aware of that. That's why the polite call is the first step. That I can do without a lawyer involved. Hopefully, it won't need to go farther. Also, I'm not concerned about making lots of money. I'm concerned about being credited, mostly, and being paid fairly for what's been done with it so far. Once that's sorted out, I'd likely be happy to let them continue using the artwork for a small fee.

[taalyn]

So, I've talked to the lawyer, who confirmed I have a case, and that I will likely have no problems registering my copyright, and be eligible for "enhanced" rights. Specifically, that I will be able to sue for up to $150,000 in punitive damages in addition to any other awards.

The lawyer recommends a certified letter with a deadline for response, which is what I'll do. After the deadline, the suit will begin in earnest.

David Kenzer hasn't gotten back to me, but that's likely because of issues relating to his own suit. Another gaming industry leader, who must remain nameless for other legal reasons, has suggested that I find out how many of the infringing product has been sold, and to prepare for them to stall, a lot. He also suggested looking over EVERYTHING I can get my hands on, to see if they've used my work elsewhere.

I'm preparing for the stalling. Does anyone have any idea about how to get sales numbers? And if anyone has an eagle eye to look through materials, if you spot anything that looks like Glyphis, your help would be MUCH appreciated.

Aidan

[guildofblades]

>>I'm preparing for the stalling. Does anyone have any idea about how to get sales numbers?<<

Track down the game buyer responsible for buying WOTC product at each of the major game distributors, corner them at a convention, drag them to the local bar and buy all their drinks and get them stinking drunk. Then ask them.

That'll give you a ballbark for hobby game sales on the product. Then see if the product in question has also been stocked and sold outside the game industry. Ala, Borders, Barns & Noble, Hastings, etc. You aren't too likely to find the buyers for those chains at many game conventions, if any, so you'll have your work tracking them down. But once you do, contrive to get them into a bar, nice and liquored up, and ask again.

Most probably, unless WOTC gives you its sales figures, voluntarily or otherwise, that's data you just aren't going to be able to get. If you talk to a few of the all knowing industry vets, they could likely give you ballparks though.

Ryan S. Johnson
Guild of Blades Retail Group - http://www.guildofblades.com/retailgroup.php
Guild of Blades Publishing Group - http://www.guildofblades.com
1483 Online - http://www.1483online.com