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External Links
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.
* http://web.archive.org/web/20020804162508/www.classicbattletech.com/ELH.html
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.[citation needed]
This version of the work did not include credit to Malcomson for his contributions, but it did include a 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.[citation needed] 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 until May 2005 when it was removed from the site without notice.
Malcomson's inquiries on the site's forums were met with a denial from site admin Jason Knight that the article had never been considered official. Knight proceeded to attack Malcomson as a plagiarist himself.[citation needed] He wrote a notice of concern to the company's legal department. He repeated the effort after several months, and then called WizKids directly, and was informed that all legal affairs were handled by WizKids' owner of the time, The Topps Company. Topps did not respond to any communications from Malcomson.[citation needed]
When Topps declared in November 2008 its intent to sell WizKids, 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. Malcomson represented himself _pro se_.
Topps communicated with Malcomson, and and stated that they would not discuss the matter with him except by litigation.[citation needed]
During the case's discovery process, Malcomson raised old records from his 'on spec' agreement with FASA, and used these records as the basis for three assertions:
- 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. 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.
KNIGHT'S COMMUNICATION
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.[citation needed]
Knight continually made statements which deeply implicated WizKids --- for example, the statement that Malcomson's work had been "copypasta'd" (his term).[citation needed]
Other 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 over the site's contents.
- A company representative had directed Knight, during a rebuild of the site, to re-accredit Malcomson's work ("and this was done").[citation needed]
- Subsequent to that order, Knight somehow confused Malcomson's work with material from the 1987 Mercenary's Handbook.[citation needed] When Knight realized the two were different, he concluded that Malcomson's work was an act of "theft and plaugarism" (sp).[citation needed] 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.[citation needed]
Topps did not enter Knight's testimony into evidence, but Malcomson did.
"STATEMENT OF FACTS" DEBACLE
Topps claimed that Malcomson provided no "statement of material facts", and while a document appears in the body of his Motion for Summary Judgment, this did not meet an Arizona Revised Rule requiring that the statement of material facts be filed as its own separate document, and the court declared that Malcomson had not filed such a statement at all.[citation needed] Malcomson attempted to cite the Federal Rules of Civil Procedure to allow for the statement of material facts' acceptance, which failed.[citation needed]
THE JUDGMENT
The Arizona District Court found for Topps, the core of its decision being 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, while affirming Malcomson had indeed made "periodic written contributions to a small portion of a popular science fiction gaming franchise", much in the same way that published fan letters contribute to comic issues. The District Court opinion asserted that Malcomson's works were a contribution, while denying that they sufficed to support a joint-work claim against the property as a whole. He did not succeed in his bid to establish co-authorship in the property.
Topps has since asserted that Malcomson has no claims of copyright in current and official Battletech works, and that none of his works are contributions to the Battletech property proper, while Malcomson 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.[citation needed]