Eridani Light Horse lawsuit

In what colloquially became known as the Eridani Light Horse lawsuit among the BattleTech fan base, plaintiff Scott "Calbeck" Malcomson unsuccessfully sued Topps, Inc. for joint ownership of the BattleTech intellectual property.

The dispute was rooted in a piece of fiction pertaining to the history of the Eridani Light Horse (ELH) mercenary unit written by Malcomson that had been published online on what was then the official BattleTech website for a time; many circumstantial details remained disputed.

Background

Scenario Pack draft

In the early 1990s, BattleTech fan Scott Malcomson contacted FASA with the proposal to write a novel centering on the Eridani Light Horse. This was a high-profile mercenary unit within the BattleTech universe that, however, had very little information about it published at that point. FASA declined the proposal, but suggested Malcomson should write a scenario pack centering on the unit 'on spec', which meant FASA retained the option to reject the work even after Malcomson submitted his completed manuscript. Malcomson subsequently submitted a manuscript in 1993. The work on this submission continued into 1996, with several letters concerning its content exchanged between Malcomson and FASA; FASA determined not to publish the submission in September 1996. Per the terms of the 'on spec' agreement, Malcomson retained all rights to original content in his manuscript in the event FASA did not contract for its use or ownership, going so far as to state he could "rework it for sale to other companies". This was standard fare for Battletech authors of that era and was part of the agreement boilerplate.

Malcomson subsequently incorporated parts of his manuscript, including the entirety of his version of the Eridani Light Horse History, on a fan site of his creation with a copyright notice in his name attached.

FASA ceased active operations in January of 2001, and the BattleTech IP was transferred to WizKids LLC, who in turn licensed the rights to what was now branded as Classic BattleTech to FanPro. WizKids was bought by Topps, Inc., in 2003.

Roy Calbeck character

In BattleTech canon, one Sergeant Roy Calbeck had been named as a Galleon tank commander with the 71st Light Horse Regiment of the ELH in the original 1987 Mercenary's Handbook but had virtually no other information published about him.

Calbeck became a high profile character in the ELH history as written by Malcomson, where the 71st was effectively annihilated in a disastrous battle on Orkney against Clan Jade Falcon and Clan Steel Viper, with Roy Calbeck the only survivor after the Clan forces returned to massacre the wounded.

Malcomson adopted the Roy Calbeck character, using "Calbeck" as his online handle and also as his alter ego and Fursona.

Website

As of 2001, BattleTech fan Warner Doles maintained a private website named classicbattletech.com that was well known and much used by the fan base. In 2001 WizKids/FanPro adopted classicbattletech.com as the official Classic BattleTech website.

No later than October 2001 this website, already listing WizKids LLC as its primary owner and operator at the time, featured a History section for the ELH, among others. The text in this section had been written by Malcomson (implicitly, it had been part of the aforementioned submission), but he was not initially credited or mentioned on the website. Notably, although a portion of the site had been set aside for fan fiction and art, the material in question was incorporated into the site's official online database for articles pertinent to various in-game factions. The history sections for other factions were apparently all taken directly from canonical BattleTech publications.

While the court documents do not dwell on the origin of the text, according to Malcomson a web admin testified that it had been "copypasta'ed" from Malcomson's own private website, incidentally suggesting Malcomson had himself published it online there first.

It remains unclear if the original ELH history write-up was uploaded to the website before or after it became the official Classic BattleTech website.

On discovery of this, Malcomson lodged a complaint with the site's webmaster and threatened legal action, allegedly receiving an apology in response followed by a request to continue using the work. Malcomson then submitted a revised version of his work which was subsequently used instead of the initial ELH history text; the exact circumstances remained disputed. This time, Malcomson was credited for the ELH writeup on the article's page and in the website's formal "Credits" section.

Following this, there was a disagreement and eventually a falling-out between the parties. The text in question (the revised version) was removed from the website in August 2005.

Lawsuit

Malcomson asserted that the publication of his work in the canonical section of the official homepage, under WizKids' aegis, meant that his work had deliberately been adopted into BattleTech canon. The courts ultimately agreed with this, with the 9th Circuit Court of Appeals stating that Malcomson's works were "contributions". Topps, when approached by Malcomson prior to his filing suit, stated "we will not negotiate, only litigate". Topps went on in this vein throughout the case, to the point of refusing a court order to negotiate with Malcomson "face to face" and "in good faith". Topps' response to the court was only that this would be inconvenient.

In 2008, he sued Topps, Inc., initially filing only for recognition of his contributions to Battletech and the copyrights in those contributions. During discovery, evidence came to light indicating that, as a matter of basic copyright law and the original contracts/agreements under which Malcomson had first worked with FASA and then WizKids, a technical claim to co-ownership in the entire Battletech property could be made. Topps' continued insistence on refusing to settle the matter by any means other than lawsuit spurred Malcomson to amend his complaint to seek co-ownership of the entire BattleTech property.

The 9th Circuit Court of Arizona, Judge Murray Snow presiding, ultimately subjected Malcomson's co-ownership copyright claim to the three-pronged "Al Muhammed" test established by the 9th Circuit in 2000. Each prong dealt with assessing the value of a contribution within a given property, and under this test Malcomson's works were found insufficient to rise to the level of co-ownership. Contrary to popular belief, the lawsuit was never dismissed, either procedurally or on the merits. In fact, when Malcomson initially motioned to amend his original complaint to include the co-ownership claim, Topps attempted to dismiss the case at that point, but Judge Snow denied the dismissal motion.

On appeal, Malcomson's contributions to Battletech were confirmed specifically, but at the same time the lower court's decision in applying the three-prong test for co-ownership was upheld. Malcomson is therefore a contributing author, and still owns the sole copyrights in his contributions to Battletech, but he is not a co-owner, nor does Topps own any portion of his contributions.

The BattleTech Line Developer has erroneously asserted that the ELH history as written by Malcomson and published via classicbattletech.com for a time is now considered non-canon (i.e. not apocryphal), but that would be making a claim on Malcomson's copyrights and ownership of the material in question. While Topps and any of its licensees have the absolute right to create new material which "updates" and even "overwrites" previous material, they cannot lawfully make any decisions affecting content they do not own. Malcomson's work is therefore apocryphal in nature at this point.

External Links

• ELH History in question (classicbattletech.com, archived)
• Court order granting summary judgement in favor of Topps
• Denial of appeal
• Denial of Supreme Court hearing