image I originally wrote this intending to read it aloud as part of a prerecorded episode of my Space Station Liberty podcast—but I then realized it was getting much too long for that. So I’ll go with a much-abbreviated version when I record my next show. But I didn’t see why this background research should go to waste.

In recent days, two different companies planning to release content based on the original BattleTech game have had their efforts stymied, apparently by Robotech-owner Harmony Gold.  This article looks at the history behind the legal enmity. To note, I am not a lawyer, a paralegal, or even a single legal; this is all based on my layperson’s reading of the information I have been able to find.

Back in 1984, roleplaying game company FASA came out with the BattleTech wargame, and subsequently the MechWarrior role-playing game, in which armies of giant robots slugged it out on the field of battle. They had just one problem, though: they needed some giant robots. At the time, it was cheaper to license giant robots that someone else had created than to design their own. So they turned to a model importer, Twentieth Century Imports.

Accounts vary as to whether TCI actually had the rights to license those images. Some people say that TCI did have Import Derivatives Rights; others say they didn’t. FASA claimed in one of its filings that Harmony Gold’s license specifically excluded Japanese model kits produced for export—but the judge in that case was not convinced.

Whether they had the rights or not, the mechs used in BattleTech included a number of mecha from several Japanese animated series—one of which was Macross. BattleTech mechs known as the Wasp, Stinger, Phoenix Hawk, and Warhammer, among others, all derive from those designs.

Meanwhile, Harmony Gold licensed the overseas distribution rights to—and indeed became co-copyright-owner of—Macross, and Macross-derived elements such as mecha designs, with Tatsunoko Studios in Japan. This included those Macross mecha designs. In January, 1985, Harmony Gold sent FASA a cease-and-desist letter, sparking “an exchange of correspondence between the parties including numerous cease and desist letters from Harmony Gold.”

But FASA kept on using the designs, and Harmony Gold never filed any legal action against them. Probably at least part of this was because of a period of hibernation Harmony Gold went into during the late ’80s through early ’90s, in which they basically just rubber-stamped any Robotech-related tie-in that came across their desks. This was also when they let Macross II and Macross Plus slip by into licensehood without asserting that they owned the rights.

Fast-forward six years to the early 1990s. In 1991 and 1992, FASA was looking into expanding its BattleTech line—already the subject of roleplaying games, computer games, and novels—into other media. First they pitched a toy line to Playmates, who had been looking for a giant robot toy line. Playmates considered it, but finally decided they weren’t interested. Subsequently, FASA entered into an arrangement with Tyco to produce BattleTech toys, and with Saban to produce a tie-in animated show about those toys.

The show lasted 13 episodes, and aired in 1994. BattleTech-the-game fans weren’t terribly impressed at the way the cartoon played fast and loose with the BattleTech canon (that’s with one ‘n’, I’m not talking about PPCs) and the toys were described by many as some of the ugliest things they’ve ever seen.

But meanwhile, PlayMates had came out with its Exosquad line and cartoon, which lasted 52 episodes from 1993 to 1994. Given that ExoSquad had some suspicious similarities to BattleTech, in 1994 FASA filed suit against Playmates, alleging copyright and trademark infringement among other things.

But meanwhile, it was FASA’s bad luck that Playmates had buddied up with newly-awakened Harmony Gold, and was selling reissues of some of the old Matchbox Robotech toys under the Exosquad brand name.

So, in 1995, Harmony Gold came to the defense of its merchandising partner and filed suit against FASA for using those Macross mecha designs in its early BattleTech editions. We’ll come back to that case later, but let’s look at FASA vs. Playmates first.

As FASA asserted in its filing, the Exosquad storyline shares a remarkable number of similarities with BattleTech: most notably, the use of neurally-controlled giant robots by humans to fight an invasion by genetically-modified humans using similar robots. It even used the name “Draconis”—one of the BattleTech houses—for a character. FASA also pointed out that one of the Exosquad “e-frame” mecha strongly resembled a BattleTech Madcat, and the others resembled other BattleTech mechs. And, funny thing, Playmates had several months in which to look over the material FASA sent them as part of its own toy pitch—some of which they never actually returned.

In 1996, Judge Ruben Castillo found “that FASA has established certain protectible (sic) copyright and trademark rights but has failed to prove any facts which establish liability on the part of Playmates.” But feeling they brought the case in good faith, Castillo declined to force FASA to pay Playmates’s legal bills.

(This did not prevent Playmates’s lawyers from filing an appeal to try to get FASA saddled with those bills, but the appeals court remanded the matter back to Castillo, who wrote a hilariously sarcastic fourth opinion in the case noting that if Playmates didn’t understand his reasoning, they should have just asked him about it at the time instead of trying to go over his head.)

It’s not terribly relevant to the matter at hand, but I think worth noting, that a May 13, 2009 article in the Chicago Sun-Times mentions that Ruben Castillo is on Obama’s short-list for Supreme Court nominations. We may very well end up with a Supreme Court judge who decided a Robotech-related case.

Getting back to the other case, that of Harmony Gold vs. FASA, the details are sketchy as I was only ever able to find two documents relating to it in legal-search databases. One of them was a denial of a motion for summary judgment on the part of FASA—they hadn’t made a good enough case for that—and the other was a denial of a motion from Harmony Gold asking that FASA return some documents Harmony Gold had mistakenly sent them.

We may never know whether TCI actually did have the rights to sell those mecha designs or not, because in 1997 a FASA representative posted to Usenet that the case had been settled out of court and dismissed. As one condition of the settlement, FASA was not permitted to talk about the settlement. The FASA representative also announced that the mechs under contention had been phased out of the game universe and would not be seen again. BattleTech fans started referring to them as “the Unseen.”

Since that time, FASA has gone out of business, and the BattleTech rights have gone through a number of different hands. The computer game rights went to Microsoft, and the print-game rights went to WizKids, a company founded by FASA-founder Jordan Weisman, and were then transferred to Catalyst Game Labs. Another company founded by Weisman, Smith & Tinker Inc., has re-licensed the BattleTech computer game rights from Microsoft and is making MechWarrier 5 in partnership with another company called Piranha. And this is where things get interesting.

Just recently, Catalyst announced they had reobtained the rights to use original images of the “Unseen” mechs and would be publishing them again—until they were brought up short when an unnamed company contacted them about terms of the confidential settlement which included an agreement “that the sole and exclusive world-wide right to [the Macross] mecha (outside of Japan) would rest with another US company.” Catalyst insisted that none of the people it had contacted about the matter prior to this had known of the settlement, but it was complying and hoped to work with the unnamed company in the future.

Meanwhile, a certainly-not-unnamed company, Harmony Gold, has been sending cease-and-desist orders to websites hosting the MechWarrior 5 trailer, on the grounds that it features one of the Unseen—a Warhammer, otherwise known as a Macross Tomahawk or Robotech Excalibur.

When I had Harmony Gold representative Kevin McKeever on my live Space Station Liberty talk show the other day (mp3 download here), I brought up the Catalyst Game Labs issue. This is what Kevin had to say, starting approximately 1:03:30 into the show:

Right now I can only simply say this: Harmony Gold has not been stripped of any rights. We entered into a confidential settlement agreement that I can’t discuss. […] There is one thing I want to point out, that Harmony Gold still continues to enjoy exclusive control of the Robotech property, and imagery contained within it.

I should emphasize that this statement was given in response to the question about Catalyst Game Labs. At the time, I had no knowledge of the MechWarrier 5 trailer issue, though I suspect Kevin’s response if I asked him about that would be identical. Smith & Tinker has already told IGN they have no comment in the matter.

I have to wonder what the companies were thinking. At the least, it would seem that both Catalyst and Smith & Tinker failed to do their homework, or what in business is called “due diligence,” before embarking on that action. For Catalyst, this is somewhat understandable given that it is a third party to the legal case. But Smith & Tinker was founded and is led by FASA founder Jordan Weisman—and if anybody should know the terms of that settlement, he should.

The icing on the cake is that a legal dispute has been going on over in Japan over the last few years as to who really DOES own the rights to those mecha designs. Harmony Gold’s claim that they advanced in the ’90s court case comes from their partnership with Tatsunoko Studios, who was one of the companies involved in producing the Macross TV series. However, even though the Japanese courts have given Tatsunoko the “author’s rights” to the series, they have given ownership of the character and mecha designs to Studio Nue, the company that designed them.

If this is in fact the case, Harmony Gold would not have a legal leg to stand on when it came to preventing BattleTech from using Macross mecha—in an ironic echo of FASA, they licensed them from a company that didn’t have the right to grant them. (Though judging from Kevin McKeever’s “have not been stripped” comment above, clearly Harmony Gold does not believe this to be true.) And FASA has worked with Studio Nue itself; they commissioned Nue to redesign those “Unseen” mecha for the Japanese edition of the BattleTech game.

Update: As I have been informed in comments below, this is not the case after all. I was misunderstanding what the divided rights meant. In fact, they mean that Tatsunoko (in Japan, and hence Harmony Gold outside of Japan) has the exclusive right to distribute and merchandise the Macross show that’s been made already and all elements within it; Big West and Studio Nue have the exclusive right to make new derivative works based on those elements. This could have interesting implications for the planned Robotech live-action movie. (Though it does set up the question of whether the BattleTech game would legally be considered merchandising of the Harmony Gold-owned Macross, or a derivative work based on the Nue-owned mecha designs.)

So, is Jordan Weisman intentionally setting up for a legal rematch with Harmony Gold? It doesn’t seem to make sense. Only hardcore BattleTech fans would care one way or the other whether the Unseen mechs come back, and the legal fees Weisman is risking are out of proportion to any possible financial gain. But it seems really weird for a Warhammer to show up in a MechWarrior game “by accident” after the long legal history it’s been a part of.

Given the lack of representatives from any of the companies involved to comment, apart from Harmony Gold, guesswork is all we have right now. But I would be delighted if representatives from any of those companies would agree to appear on my show and present their side of the story.

Also, I’ve posted all the public legal documents from the 1990s cases at http://www.eyrie.org/~robotech/hg-fasa . There’s some fascinating reading in there. Enjoy.

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