Eridani Light Horse lawsuit
The following link was material written by Scott Malcomson and published by WizKids LLC to its official Battletech website "ClassicBattleTech.com" in August of 2002.
In October 2001, WizKids LLC (listed in the site's legal documentation of the time as its primary owner and operator, in partnership with unnamed "affiliates") published a version of this work which had originally been developed 'on spec' by Malcomson and FASA Corporation in 1996. According to later court testimony provided in writing by former website administrator Jason Knight, Malcomson's work had been "copypasta'd" from his personal website by someone working for ClassicBattleTech.com. Although a portion of the site had been set aside for fan-fiction and art, the material was incorporated into the site's official online database for articles pertinent to various in-game factions.
This version of the work did not include credit to Malcomson for his contributions, but it did include an illegal claim of copyright for WizKids regarding the article in its entirety.
On discovery of the plagiarism, Malcomson lodged a complaint with the site's webmaster of the time, receiving an apology in response followed by a request to continue using the work. As the 'on spec' material used had been a working draft, and was thus both incomplete and riddled with typographical errors, Malcomson provided a finished version which WizKids published without complaint in the same fashion as it had the first. This time, Malcomson was not only credited on the article's page, but also in the website's formal "Credits" section.
This material remained on the website, presented as official Battletech fiction, until May 2005 when it disappeared from the site without notice or explanation.
Nor was any forthcoming. Malcomson's inquiries on the site's forums were met with a denial from site admin Jason Knight (who had taken over in 2003, a year after publication) that the article had never been considered official. Knight proceeded to attack Malcomson as a plagiarist himself. Malcomson warned on several occasions that continued defamation of his work and character would result in legal action. He attempted to communicate with WizKids, but after receiving no response wrote a formal notice of concern via registered mail addressed to the company's legal department. He repeated the effort after several months, and then finally called WizKids directly, only to be informed that all legal affairs were handled by WizKids' owner of the time, The Topps Company.
Topps, having ignored Malcomson's previous communications, continued to ignore them again. When Topps declared in November 2008 its intent to sell WizKids (and likely with it Battletech), Malcomson had been attempting communications for over a year. Faced with continuing defamation from Knight and various persons affiliated with him, Malcomson filed suit against Topps to assert not only the validity of his contributions to the property, but his possession of copyright specific to his own original elements. Unable to afford a lawyer, Malcomson represented himself _pro se_.
Only at this point did Topps communicate with Malcomson, and then only to state it would not discuss the matter with him except by litigation. This extended to a decision by Topps, during the case, to refuse a court order that the company meet with Malcomson for "face-to-face good-faith negotiations".
During the case's discovery process, Malcomson found old records from his 'on spec' agreement with FASA showing three important pieces of data:
- FASA had guaranteed that if they did not cut him a contract for use of his work, he was free to rework it for sale to other companies. While he held (and claimed) no copyrights in Battletech's original elements, he did retain rights to all original elements he had created.
- He had been required to create the material with the intent that it "merge cleanly into the game universe", which established his own original intent to create a joint work.
- Randall N. Bills, Battletech's Continuity Editor at the time WizKids published Malcomson's work, had also been one of the Line Developers FASA had assigned to work with Malcomson, and thus knew the original intent of the work when WizKids decided to publish it as official Battletech material.
Malcomson believed, on this basis, that he might have a claim as co-author in Battletech, and amended his existing suit before the court to reflect this. Again, Topps moved to have the case dismissed as without merit, but the court declined to eject it. If Malcomson could prove he was a joint co-author to the property as a whole, he would have a right to develop, publish and profit from new derivative material.
Also during discovery, Malcomson received an email from Jason Knight himself as a CC: attachment to an extensive statement Knight had sent to Topps. In it, Knight repeatedly attacks Malcomson both personally and professionally, while making various denials about WizKids' responsibility for anything having to do with the website or Malcomson's work.
At the same time, however, Knight continually made statements which deeply implicated WizKids --- for example, the statement that Malcomson's work had been "copypasta'd" (his term). Knight immediately offered excuses for this, despite not having been involved in the site's operation until the following year, and having no idea who copied Malcomson's work to begin with. Other unintentionally-incriminating statements:
- WizKids had provided the site's legal documentation, affirming that "this website is owned and operated by WizKids LLC and its affiliates" was the site's operating agreement at the time of publication.
- WizKids exercised oversight and veto power over the site's contents.
- A company representative had actually directed Knight, during a rebuild of the site, to re-accredit Malcomson's work ("and this was done").
- Subsequent to that order, Knight somehow confused Malcomson's work with material from the 1987 Mercenary's Handbook. When Knight realized the two were different, he concluded (without input from anyone at WizKids) that Malcomson's work was an act of "theft and plaugarism" (sp). Rather than being directed by WizKids or FanPro to remove the material, he removed it himself, whereupon he proceeded to attack Malcomson's work in the site's public forum. All of this ignored the company's existing directive regarding the work.
Topps did not enter Knight's testimony into evidence, but Malcomson did. It is likely that these series of statements ultimately led the Ninth Circuit Court of Appeals to assert that Malcomson had indeed made "periodic written contributions to a small portion" of the Battletech property.
"THE STATEMENT OF FACTS"
Although it has been claimed by Topps that Malcomson provided no "statement of material facts", just such a document appears in the body of his Motion for Summary Judgment, a common means in federal courts of doing so. Because this did not meet an Arizona Revised Rule requiring that the statement of material facts be filed as its own separate document, the court declared that Malcomson had not filed such a statement at all. The court further ignored Malcomson's citation of Federal Rules of Civil Procedure, which state clearly that such an error (non-willful failure to comply with a local Revised Rule regarding requirements of form) could not be used as a basis for judgment.
Having chosen to ignore Malcomson's statement of facts, the court then declared it was relying on Topps' claims to interpret Malcomson's. Topps proceeded to make numerous claims, including on Malcomson's behalf, many of which he had never asserted. Topps's allegations often provided nothing in support, beyond the allegations themselves, but were accepted at face value in "absence" of Malcomson's own countering claims.
The Arizona District Court, in finding for Topps, did so as a matter of having eliminated Malcomson's own testimony, replacing it with Topps' own unsubstantiated claims. The core of its decision was that Malcomson had failed to show his work met the "three-factor test" for joint-work claims, established by the Ninth Circuit in Aalmuhammed v. Lee.
The Ninth Circuit affirmed on the same basis of Malcomson not meeting the three-factor test, simultaneously stating that Malcomson had indeed made "periodic written contributions to a small portion of a popular science fiction gaming franchise". The District Court opinion also asserted that Malcomson's works were a contribution, even while denying that they sufficed to support a joint-work claim against the property as a whole.
Although Topps has since asserted that Malcomson has no claims of copyright in his work whatsoever, and that none of his works are contributions to the property at all, Malcomson himself has accepted the decision of the Ninth Circuit. He currently holds that he is a contributor to "a small portion" of the property, and that since he was never signed to a work-made-for-hire agreement, these contributions made in collaboration with WizKids exist as jointly-created material.
While he did not succeed in his bid to establish co-authorship in the property as a whole, it seems that in the end he got what he originally requested and then had to sue for --- simple recognition as a contributor to Battletech.