From: Martin Wallace <martinwallace@********>
Date: Wed, Feb 11, 2009 at 8:13 AM
Subject: AoS
To: Keith Blume <keithblume@********>
Hi Keith,
I either need to talk to Rick or yourself about the situation with Age of Steam. As I have already informed you, the title logo for the game is copyright Martin Wallace. I have a number of documents that back this up. I'm willing to discuss a financial deal to allow you to use the artwork. Otherwise I will have no choice but to seek an injunction.
Please call me on **************** or ****************.
Regards
Martin
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Rick Soued <rjsoued@********> |
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Martin Wallace <martinwallace@********> |
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Sun, Feb 22, 2009 at 6:13 PM |
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your recent attempts to contact me |
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Dear Martin--
I arrived home yesterday after 3 weeks on the road to the Nuremberg
and the New York Toy Fairs.
I also have now read and heard about all of your attempts over that
time to contact me.
I am very disappointed to read your threats of an injunction and legal action.
For the past 13 years, both Funagain and more recently FRED, have
given you nothing but excellent support and patronage.
We have always purchased good sized quantities of your games, and paid
for them on and ahead of time. We have helped you sell Mordred,
at no profit to us, to raise money for your TSUK charity. We bailed
you out, at your request, of a surplus of Brass when you needed help.
We have purchased several designs from you. We have not pressured you
to provide us with a design that you still owe us (acknowledged in
writing by you) by virtue of a contract you signed and have received money for, with
Glenn Drover and Eagle Games -- a contract which we now own.
In short, we have given you no cause for such threats of injunctions
and legal action. We have only and always performed in good faith on
your behalf.
As to Age of Steam, it is copyright 2001 Winsome Games (John
Bohrer)--a fact acknowledged on both of your Warfrog editions of the
game. We have a contract with John wherein he guarantees his rights to the
game, and the defense of those rights should they be questioned. We
do not know the details of your past squabbles between you and John. Those are between you and John to sort out, and we will leave you to do so. Though we
thought they had been resolved, any further copyright issues are also between the two of you and do not concern us. You will need to take those up with John.
As to an injunction, you would be wasting your time and money. The
entire edition that we just printed of Age of Steam has been sold out.
It has been delivered to us from China and it has then been delivered by us to all
of the retailers and distributors around the world who preordered it
from us.
Again, Martin, on both a personal and business level I am very
disappointed that you feel this way and I hope that you will
reconsider these ill feelings
that you apparently continue to harbor against us for no good reason.
We wish you and Mayfair (as I have done in person to Larry) good luck
and success with your print run of Steam.
Regards--Rick Soued
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Dear Rick,
I think you need to go and look at copyright law, it's not the same as trade mark. John's copyright covered the rules, not the artwork. You have used the artwork which is clearly copyright Warfrog. In the UK copyright exists even if it is not made explicit on the image. I would also be very surprised if a clause in a contract would protect you. Normally there is an indemnification clause, which would allow you to sue the person licensing the design to you. You are still the publisher and should have checked that what you were publishing was legal.
I would accept that over the years FRED and Funagain have been supportive. However, this breakdown in the relationship is entirely the fault of FRED and Funagain. Let me list the reasons:
1. Publishing Age of Steam without notifying me, even though you must have been aware of legal issues. Even a polite message would have been nice.
2. Using original Warfrog artwork without asking permission, even though Matthias Hardel told Keith that it was copyright Warfrog/Martin Wallace.
3. Intending to publish another of my designs under a new name but without my name on it - RRT/Railways of the World.
4. Not accepting that the original deal I made with Glenn Drover was that I would take £5000 to design a game, on which completion I would receive another £5000.
As far as I am concerned I want nothing more to do with FRED or Funagain. You have shown yourself to have questionable business ethics. Under these circumstances it would be best for us to end all financial ties. I would like all the potential royalties for Brass calculated, including foriegn productions, and paid to me. From this sum you can deduct the advance for the UK Rails game. I would like that and the Brass contract returned to me as I do not want any further games published by FRED. I would like all remaining copies of Mordred forwarded to Mayfair Games.
I will be contacting an attorney forthwith and instructing them to issue an injunction. Please note, the fact that the games have been sold does not stop the court awarding a fine based on the profits made. I suggest you seek legal advice yourself. There is still time for a settlement to be arranged, my conditions are:
A sum of $25,000 to be paid for the use of the artwork for this production run only.
That all royalties for Brass are paid as mentioned above.
That you inform John Bohrer of the situation and tell him to cease registering the Age of Steam trade mark.
That FRED/Funagain undertake not to publish any more copies of Age of Steam.
Unless all of these conditions are met by the 6PM GMT Wedensday 25th February I will continue with the injunction.
Yours
Martin Wallace
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Martin--
1) Age of Steam is copyright 2001 Winsome Games--as confirmed by you
on your Warfrog editions of this game, and much more recently
confirmed by the USPTO. Our legal advisor concurs that this copyright
covers the artwork of the game. John Bohrer has paid you, in
September, 2002, for the artwork that you recently (1/28/09) attempted
to copyright -- again. You have no rights with regard to Age of Steam
and no ability to prevent us from publishing it.
2) We are not intending to publish Railways of the World without
crediting you--you will receive the same credit you received on
Railroad Tycoon. We have no idea where you got this notion from.
3) We have no intention of returning either the Brass or the Railways
of England and Wales Agreements to you. We are totally in compliance
with these Agreements and have spent thousands of dollars on the
development and production of these games. We will continue to meet
our responsibilities under these Agreements and we expect you to do
the same as you have no right whatsoever to cancel these Agreements
under the present circumstances or for the reasons you presented.
4) We owe you a royalty statement and payment at the beginning of
March for Brass and you will get that statement and any payment due to
you ( for ours and the German royalties) in a timely fashion.
5) This is to inform you that we will be partnering with QWG of the
Netherlands in doing a Dutch/French edition of Brass later on this
year.
6) There is no mention of Glenn Drover owing you anything additional
for the additional "unnamed title" mentioned in the contract we now
hold between the two of you.
You are in breach of that contract.
7) If you want Mayfair to pick up Mordred, you will need to make those
arrangements with them and
provide their agent with written authorization that he tenders to us.
You will need to pay any expenses involved--upfront.
Your demands are unreasonable and unfounded. Your attitude toward me
is equally unreasonable and unfounded.
Regards—Rick
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Wallace 2/25/09 in response to Soued 2/25/09:
Rick,
1) Age of Steam is copyright 2001 Winsome Games--as confirmed by you
on your Warfrog editions of this game, and much more recently
confirmed by the USPTO. Our legal advisor concurs that this copyright
covers the artwork of the game. John Bohrer has paid you, in
September, 2002, for the artwork that you recently (1/28/09) attempted
to copyright -- again. You have no rights with regard to Age of Steam
and no ability to prevent us from publishing it.
The USPTO confirmed that we could not register the name as a trademark. The only reason for that decision is because Mayfair and I abandoned the case as being too expensive. Please understand that there is a difference between trademark and copyright. That does not mean John holds the trademark, at least not the registered trademark. He placed the tm on 3rd party expansion maps without my knowledge or consent. There is no tm on the Warfrog games or maps as in the UK you can only put tm if you officially register it, which is very expensive. Please please understand that John is a crook, he has stolen property that is legally mine and avoids the consequences because he has free legal advice. He is not a man you should be associating with.
The copyright covers the expression of the rules. You cannot copyright a game. The copyright does not cover the artwork as at the time of production I was under the impression that the artist, Peter Dennis, retained the copyright. He has since explained to me that the copyright transfers to the company that has requested the work. John has never paid Warfrog for any artwork. John is not a reliable source of information. John has no contract between myself, the designer, and Winsome, the supposed publisher. Please tell me how he can own a game that he has no contract with the designer for. I am prepared to go to court to fight this case. You should have checked with me before signing any agreement with John. The fact that you did not only goes to show that you have no respect for me as the designer of the game.
Matthias Hardel told you that the copyright for the artwork belong to Warfrog. He has written a statement to that effect. I have a statement from the artist saying that he did the work for Warfrog and that the copyright was transferred at that point in time. Claiming the copyright for something you have not paid for or created is illegal. John managed to steal the common trademark because in tm law you are forced to defend each infringement or lose the mark. Copyright is permanent and not affected by prior use.
2) We are not intending to publish Railways of the World without
crediting you--you will receive the same credit you received on
Railroad Tycoon. We have no idea where you got this notion from.
On BGG the game has Glenn Drover as the designer.
3) We have no intention of returning either the Brass or the Railways
of England and Wales Agreements to you. We are totally in compliance
with these Agreements and have spent thousands of dollars on the
development and production of these games. We will continue to meet
our responsibilities under these Agreements and we expect you to do
the same as you have no right whatsoever to cancel these Agreements
under the present circumstances or for the reasons you presented.
The whole point about returning them is that there is a complete breakdown of trust between myself and your company. I do not want to deal with a company that does not respect its designers.
4) We owe you a royalty statement and payment at the beginning of
March for Brass and you will get that statement and any payment due to
you ( for ours and the German royalties) in a timely fashion.
5) This is to inform you that we will be partnering with QWG of the
Netherlands in doing a Dutch/French edition of Brass later on this
year.
6) There is no mention of Glenn Drover owing you anything additional
for the additional "unnamed title" mentioned in the contract we now
hold between the two of you.
You are in breach of that contract.
That was a verbal agreement. Glenn know that and if he says otherwise then he is being dishonest. He paid me £10,000 for Railroad Tycoon, £10,000 for Struggle of Empires, and £5000 as an advance on the next game, with another £5000 on completion. If you think I am in breach of contract then please feel free to sue me.
7) If you want Mayfair to pick up Mordred, you will need to make those
arrangements with them and
provide their agent with written authorization that he tenders to us.
You will need to pay any expenses involved--upfront.
I will arrange with Mayfair.
My demands may be excessive, but that is partly to balance the amount of money that Mayfair have had to pay out to deal with John Bohrer - some of that money will go to them to off-set their legal costs. You decided to get involved with somebody who is doing his best to steal my work and destroy my reputation. I am at a loss to understand why you cannot see why I would be upset over this.
I have set my terms for coming to a settlement. In the not so distant future money will have to be paid to lawyers, by both of us. I think you will find that if you do not settle you will end up losing a lot more.
Regards
Martin 2/25/09
This posting was made to BGG by Martin Wallace on 2/26/09:
Martin Wallace wrote:
I regard the new edition of Age of Steam as stolen property. There was never a 'real' license from Winsome to Warfrog. The 'licensed from... ' was favour to John to help big up Winsome, in the same way that John published Prairie Rails with my name on even though I never designed it. The game was never submitted to Winsome for publication, it was always designed to be a Warfrog game. John was paid to develop it, that is all.
Even if Winsome did own the license then there should also be a contract between Winsome and the designer. There is no such contract. Even if there was one the fact that Winsome have paid me no royalties for the design would mean they were in breach of contract. I'm sure John is never tired of telling people in private about the money I owe him but that's all in his head. After AoS was released Warfrog and John made an agreement to share the profits on Winsome designed maps. John later reneged on this deal and demanded 1 Euro per map printed, as well as more money for the second printing of AoS. As a third of each of the maps are still unsold that meant Warfrog losing money on them. However, we agreed a sum and I paid him all monies owed. He then came back the following year demanding more money - hence why we have fallen out. Please note that the original deal was witnessed. For some reason John cannot remember it.
Winsome has never had to risk money publising AoS yet wishes to claim it as its own design. Warfrog took the risk to publish it and yet is not regarded as the legitimate owner.
Now it gets even better. Not only does John find a company stupid enough to reprint Age of Steam but he also convinces them that he paid for the original artwork. Please note that the title boilerplate is from the original version. The copyright for this artwork lies with Warfrog, since they paid for the artist to do the work. FRED were told last October by another person that the artwork was copyright Warfrog but they ignored the warning. They did not even bother to email me to ask who the rights belonged to. Winsome has never paid for artwork - notice the use of covers that are in the public domain. I will be taking this matter further as copyright law is much more straightforward than trademark law.
As far as the trademark issue goes that's simply as case of not having enough money to see justice done. As John receives free legal advice he is always going to win on the grounds that the opponent does not have enough money to fight him. That does not mean he is the legal owner of the trade mark.
FRED are in receipt of stolen property. There has been enough discussion of the ownership of the game to warn them of the issues surrounding it. Instead of contacting me about this they chose to publish it without my knowledge, even though we have been in regular contact about other matters. You'd think a simple, 'hey, we're printing AoS' would not have been too difficult.
As far as I am concerned I want nothing more to do with FRED or Funagain, they being the same company, and am doing my best to terminate the existing contracts I have with them.
Sorry for ranting but I'm a bit brassed off about the situation. It used to be that companies did not behave in this manner, as the public reaction would bankrupt them, (see Hexagames as an example). Today it seems that some companies believe that it's OK to rip designers off.
Martin Wallace