How much of that IP could we own?

Do we own any of the intellectual property for major settings we play games in? Or could we actually own most of it..?

I'm going to make a relatively long and mostly hypothetical argument, but I recommend following it if you have time - it could be quite literally game-changing. I'll use bold text to highlight key or useful passages in case it is too long.

I'm going to focus on Games Workshop and the tabletop wargame Warhammer 40,000, but this could be relevant whatever your most-loved, explored and developed IP. I'll be using the core example of GW's space marines all the way through, for consistency and general familiarity.

I will say before we go that I'm not a lawyer - not even a rules lawyer. This isn't legal advice, and before any of us gets carried away, it would seem worth looking deeper.

Here goes then.

Some of us have been playing 40K for nearly 25 years. The game may have influenced our thinking and become a central part of our lives. We could well have supported GW financially and spiritually, and given that support through thick and thin as their games and staff came and went. We may have been a heart and soul of the hobby as individuals and part of groups, clubs and local and international communities.

My own personal feeling is that our investment is potentially as valuable as GW's, and arguably far more so, especially since the firm became a public limited company and became answerable first and foremost to its shareholders, not all of its stakeholders.

But even after a huge quarter century of engagement, what actually belongs to us?

If I create my own chapter of space marines - convert the miniatures, paint them in my own colour scheme and write narrative for them - does the chapter belong to me?

Arguably, by converting a GW miniature the artist is creating a derivative work. GW's own website seemed to hint at this the last time I looked at the legal info. If so, then we're infringing GW copyright, right? Or wrong? Definitely pick me up on any misstep in the thinking. In theory then, the same would be true for a paintjob. 

If so, the company seem willing to overlook it in the name of practicality, not to mention profit - if they clamped down, they could lose sales of parts and paints for a start.

Can you guess where I'm going with this?

Before we go there, let's stick with converting and painting. Could one of us make a living converting, painting and selling GW miniatures? Moot point maybe - many people seem to do this already. GW may not notice the smaller players, or turn a blind eye, but may even encourage the larger with a discount; after all, GW earn on the sales.

But what if the business grows? What if one firm's interpretation is so good that their version of a space marine becomes the new standard, that they change the market so that people look to them for the future direction of space marines? Tricky.

But here's the crunch: what if that company produced parts, art, literature or rules for those new marines? Acted as if marines really did belong to them? Many would likely expect GW to send a cease and desist letter, and follow it up in court if need be.

But again, if I create my own chapter, does that chapter belong to me?

It seems from the above reasoning that the answer is no, that I wouldn't own it any legal sense, and certainly wouldn't be allowed to try exercising ownership past a certain point. According to that reasoning, while it may seem fine to act as if I own it, in that for some time at least no one actually claims pops up to claim I don't, or actually sends out that cease and desist letter, the cease and desist could still come at any point.

But what if I'd poured love into the chapter for several years? What if I had dated documents or photographic evidence to prove it. Let's imagine, quite realistically, that I'd played dozens if not hundreds of games in that time, some in tournaments away from home, that I'd taken a high place in a painting competition and sculpted part of a chapter master model, had various images of the army printed, drawn battle scenes and written fan fiction and published it on a forum? What if a large proportion of the gaming community had seen or heard of my chapter and all the while GW said nothing?

Again, what if GW didn't actively stop me, or even make particularly clear in that time I couldn't do it? This would presumably be because the channels available are too broad, and the message could alienate the wider community, and eat into that profit. But still. Would that mean they hadn't actively enforced their copyright as regards my creative work? We do hear that activity helps the holder in a claim of infringement.

If so, would it weaken their claim? Make it more likely they couldn't pursue it successfully? At what point would we pass a point of no return? Could it be enough to win me ownership if the claim went to court? Could the chapter then belong to me?

Considered cautiously like this, to me as a non-lawyer the case does seem stronger.

But still, how much would I really own if so? Presumably I own the parts that are wholly original, my own new work, where these are not derivative of GW's work, making no substantial reference. If my chapter was a thousand monastic transhuman warriors, I'd guess all was well. If they had a father who was an emperor and a deity, it's not so far off Dune. If he was martyred in a fraticidal war ten millennia ago, the empire had fallen into decay and foes were at the gates, things might be getting perilous.

How much would the vital gene-seed be mine? What about the design of the marines? They're not necessarily space marines without the bulky armour, its pauldrons, the backpack and bolter. What about the names and visual elements that are trademarks?

My chapter couldn't exist as I know it without the core elements. Does that mean I'd share ownership of them? If not, how could I exercise the ownership of the parts that are my own work? If my own battle-worn chapter master Porkius was still just a generic GW-brand space marine, would I be prevented from doing anything more with him than I already had done? Could I write a novel in which he featured if I couldn't describe him in full, or commission an artist to draw him for the cover? Hire another, more capable sculptor to produce a far more polished tie-in miniature?

But wait. In that hypothetical history higher up, I did something similar. I wrote fan fiction. I drew my own sketches. I converted models and sculpted whole new armour sections for good old Porkius. The work was publicly acknowledged. GW quiet.

Would that make it mine by default?

What if we all had our own chapters? Or Ork Waaaghs! or Eldar craftworlds. Would we all own the related IP together? Could the hobby be one great shared space, under law? That would be impractical surely, especially if we all wanted to make a living developing them for gaming, sculpting our own minis and writing our own materials.

So would it all just be available to everyone, as a commons? Like common land, with a nominal owner, but multiple users, or maybe a generic trademark woven deeply into a culture? Because it seems to me we may be getting to that point. Have a look at this post up today at BoLS - some of us even tattoo protected symbols onto our bodies because the IP speaks to us so strongly. It can literally be part of who we are.

But if so, and we could own it, does GW recognise that? Could they be sitting on the knowledge that we have a potential resistance to any claim, hoping we don't realise it?

If the thinking in this post is correct, their lawyers would surely be good enough to see it too, wouldn't they? Who would make the next move? Could we test the waters, or do they? Is it theirs until we prove otherwise, or ours until they prove otherwise?

Whichever, if do we want to take ownership of our own efforts, it could make sense to start gathering evidence, even if only to demonstrate a lack of active enforcement.

Photographing everything, with a proof of date, the converting, sculpting and painting. Backing up the writing, drawing and posting. Maybe even recording avoidance of GW parts, paints and ideas, to demonstrate lack of association, creative independence.

And that's not even mentioning all the feedback GW must have received by letter and email, at Games Days and through Golden Demon entries, even via the retail chain.

Looking back, could a large part of the past 25 years have been our work?

If you have answers to any of these questions, I'd love to hear them.
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