Stuff and Nonsense (LONG)
Stephen Foster
Steve F
(P.S. add a good ending to that message and you've a fairly decent novel!)
Janet Moe
responses to Mr. Berry.
____________________________________________
To: ALL
From: Jeff Berry
Re: Stuff and Nonsense
It was brought to my attention, recently, that time on this forum was
being taken up with the rehashing of some pretty stale stories. I was
pretty amused that most of what was passing for reasonable discussion was
the usual mix of misconceptions, half-truths, and fallacies that have been
drifting around for over a decade. Also as usual, no one seems to have
checked the documentation that still exists - still in Wes Posthlewaite's
files, I believe.
For the record, on Tekumel copyrights, the following works were
copyrighted by their authors:
Empire of the Petal Throne
Original Manuscript Prof. Barker
TSR Edition TSR, later sold to Zocchi, later
reverted to Barker
the little "Dungeon" board game
[whose name escapes me, at this remove]
Original Manuscript Prof. Barker
TSR edition TSR, later Barker when commercial production lapsed
Book of Ebon Bindings
all editions Prof. Barker
Deeds of the Ever-glorious
all editions Prof. Barker
The Tsolyani Language
all editions Prof. Barker
Armies of Tekumel One and Two
all editions officially Prof. Barker; actual work by Smith,
Brynaldson, et al.
Man of Gold
all editions (DAW) Prof. Barker
Flamesong
all editions(DAW) Prof. Barker
Swords and Glory One - the Sourcebook
all editions Prof. Barker
Missum - miniatures rules
Imperium Pub. only Gary Rudolph and Craig Smith
The Tsolyani Language Primer
all editions Curtis Scott
Military Magic
all editions John Tiehen
The Northwest Frontier Maps
all editions Craig Smith
The Northwest Frontier Map Gazetteer
all editions Tom Thompson; actual work by Ken Fletcher
Armies of Tekumel Three, Four, Five
all editions Smith, Brynaldson, Panshuscyn, et al; check
surviving copies for names.
Qadardalikoi - miniatures rules
all editions He Who Cannot Be Named, sold to Wes Posthlethwaite
[for a whole dollar!]
Articles in any of the Tekumel magazines
Unless otherwise noted in the specific magazine, all rights were
considered to revert to the individual authors upon publication of the
article.
The chief problem with all of this is that while the world of Tekumel
was and will always be Prof. Barker's creation, there were some legal
speed bumps that came up. The original problems stemmed from TSR
copyrighting the published version of EPT, which differed in some ways
from the original version [copies of both in the old archives]. When TSR
started screwing with the royalty payments, as well as demanding royalties
from the sales of the proposed novels, Prof. Barker found that he had no
real recourse except to refuse to publish anything else. Nor do I blame
him; I got to read through all of the files when it came time to do the
contract with Zocchi.
In the meantime, TSR sold the rights to produce the miniature figures
to Old Guard. Old Guard did the figures from drawings supplied by Prof.
Barker, Craig Smith, and Dave Sutherland [see archive]. Old Guard later
sold these production rights, as well as the existing stocks of figures,
masters, molds, etc. to Ral Partha, who later sold them to He Who Cannot
Be Named. He Who Cannot Be Named later traded the existing stocks of
figures, masters, molds, and the casting equipment to Tekumel Games, Inc.
- the company incorporated by Prof. Barker [majority stockholder and
chairman of the board], Dave Arneson, and Michael Mornard [president and
chief executive officer] - in return for stock shares in the new company.
Despite several promptings by He Who Cannot Be Named and the law firm
that did the paperwork [Moss and Barnet, Arneson's lawyers in the famous
TSR suit, and Prof. Barker's former lawyers], Michael Mornard did not
execute the legal paper work provided to transfer the production rights
for the miniatures to the new company. As was clearly put by Moss and
Barnet to Mr. Mornard, failure to complete the transfer meant that He Who
Cannot Be Named would retain the production rights to the miniatures.
[Beats me why he didn't do it; I never got the piece of paper to sign...]
Oddly enough, the people who had put up the money that was used to
purchase the miniatures from Ral Partha [Prof. Barker, Geoff Stone, He Who
Cannot Be Named, etc.] were all given shares in the new company in order
to compensate them for their investment in the physical plant of the
miniatures production. In addition, Dave Arneson got stock shares to
compensate him for all of the remaining copies of Adventure Games' Tekumel
publications.
Further complicating legal matters was the problem of the exclusivity
clauses that granted "sole and exclusive rights for the publication of the
World of Tekumel" in each of the contracts in force between Prof. Barker
and his publishers: Zocchi/Gamescience, DAW Books, Adventure Games, He Who
Cannot Be Named DBA Tekumel Journal, and Tekumel Games, Inc. The last of
these absorbed both Adventure Games and Tekumel Journal, thus cleaning
things up a bit, but the basic solution was a "gentlemen's agreement"
between all of the various parties that each would specialize in
publishing certain specific items, agreed upon by all. A later version of
this pact was also negotiated with Different Worlds, after they got
involved.
Complicated reading, isn't it? You should have had been the one to
have had to do the actual paper work! It should also be noted that all of
the above can be checked against the originals of all of these contracts,
agreements, etc, now held by Wes Posthlethwaite. Please don't think that
you have to take my word for any of this, either; all of the records of
the various contracts, agreements, and documentation were part of the
Tekumel material that had been built up over the years - I never threw
anything away...
When the first Feist novels were brought to our attention, I did the
same legal legwork that Moss and Barnet did for Dave Arneson's successful
case against TSR; I did a side by side comparison of the bits in the Feist
books with the Tekumel references. This research material was sent off to
Don Wollheim [DAW, of DAW Books] by Prof. Barker, with a request for DAW
to initiate legal action for plagiarism against Mr. Feist. DAW's lawyers
took the position that:
a) the offending references came from the TSR version of EPT;
b) DAW didn't own the copyright or publication rights to same - TSR had
the copyright, originally; Prof. Barker via Zocchi/Gamescience did, by
this time;
c) Mr. Feist's books had been published before Prof. Barker's had been
(raising the spectre of a counter-suit by Mr. Feist's publisher; and
so:
d) DAW wasn't going to sue.
However, Don Wollheim offered to assist with any action that Prof. Barker
wanted to undertake before the Arbitration Committee of the Science
Fiction Writers' of America [SFWA].
Prof. Barker got very, very upset, and swore that he would never
write another book for DAW again, unless DAW sued Mr. Feist. Prof.
Barker, in his persona of Tekumel Games, Inc.'s chairman of the board of
directors and majority stockholder, then instructed Tom Thompson, the
corporate CEO of the time, to sue Mr. Feist for plagiarism. Tom pointed
out to Prof. Barker that Tekumel Games, Inc. [Prof. Barker's own company,
remember] also did not have any rights to EPT , or for that matter to any
publications that predated the Feist books. Tom also pointed out that one
of the continuing problems with getting Tekumel Games going as a viable
company was Prof. Barker's continuing refusal, in his persona of Tekumel's
creator and primary author, to sign a contract with Tekumel Games to
produce his own role-playing games.
Tom pointed out, and this is the crux of the whole question over
copyrights, that the only legal basis for the participation in a
plagiarism suit over Tekumel by Tekumel Games was the company's
contractual rights to produce the publications covered by the individual
copyrights held by the individual authors of those publications. Tom
pointed out a number of things that directly came from this fact:
a) any suit by Tekumel Games, Inc. based on these legal grounds would get
either get tossed out of a court without a hearing, or be lost just as
soon as counsel for the defense got copies of the copyright documents
and compared the publication dates of the Tekumel publications and the
earlier publication dates of the Feist books;
b) basing a suit on these grounds would establish the various individual
Tekumel-based copyrights as being of equal importance to Prof.
Barker's own copyrights, even if the suit was thrown out or lost;
c) once this equal importance was established, the world of Tekumel was
going to be in the public domain, as Prof. Barker had not executed
formal licensing agreements with the individual authors who had
individually copyrighted various aspects of Tekumel [it must be noted
that each of the individual authors had gotten informal permission
from Prof. Barker to publish their works, but no formal agreements
existed.];
d) Not to sue was just as bad an option, as failure to defend copyright
usually results in the subject matter being treated as being in the
public domain, as indicated by existing case law, so;
e) the only way that Tekumel Games could sue with a prayer of success was
if Prof. Barker [the author] signed an agreement with Tekumel Games
[Prof. Barker, Chairman of the Board and Majority Stockholder] to
allow Tekumel Games, Inc. to be the publisher of the Tekumel role-
playing games, and without that contract in hand:
f) Tekumel Games, Inc., wasn't going to sue.
Tom pointed out that it was Prof. Barker's game and his world, and as
Prof. Barker had been so adamant about not signing any sort of publishing
contract with Prof. Barker's own company, Prof. Barker could defend his
own copyright. Prof. Barker got very upset, and refused to either sign a
contract with Tekumel Games, enabling the company to sue on his behalf, or
to sue on his own behalf to defend his own copyright.
[When I talked to Raymond Feist about this matter at ConFrancisco, in
1993, he told me that he had been under the impression, from information
given to him by Kevin Bloom of TSR, at the time he wrote the Midkedmia
books that Empire of the Petal Throne was out-of-print and was not under
copyright. When he was apprised of the problem by DAW, he told me that he
and his publishers had been willing to negotiate some sort of settlement,
but were never contacted. He did, however, mention EPT in the front of
one of the later books.]
This affair was the beginning of the end for the company. Prof.
Barker allowed as how he could fire Tom Thompson as CEO, and get somebody
who would sue in Tom's place. After all, Prof. Barker could force the
issue, as he had a large majority of the shares in the company. Tom, in
response, pointed out that he had purchased all of the shares held by Dave
Arneson, Michael Mornard and He Who Cannot Be Named; these purchases gave
him a close parity with Prof. Barker, with each of them holding something
like forty percent of the outstanding stock. The last of these was kept on
in the sinecure position of Marketing Manager, and was used to shore up
flagging sales with his enthusiasm for Tekumel. The remainder of the
shares were held by a number of small minority shareholders, who had been
sold their shares by the previous CEO, Michael Mornard, or had gotten them
at the time of the company's incorporation in compensation for their part
in the absolution of Tekumel Journal. Unfortunately, Mr. Mornard had
neglected to issue most of these stockholders their shares, or for that
matter inform them of stockholder meetings, etc. To say that there were
some irregularities in the way the company was run would be an apt
comment.
The upshot of all of this unpleasantness was that Don Kaiser was
installed as CEO, Tony Ravenscroft as the first CFO [Chief Financial
Officer] in the company's history; Prof. Barker signed yet another
exclusive contract for publishing Tekumel, with Different Worlds [on Dave
Arneson's advice, Dave now being employed by Different Worlds]; He Who
Cannot Be Named got sent off to Origins by Tekumel Games to dicker with
Tadashi-sama to bring him into the "gentlemen's' agreement" mentioned
above, said dickering being successful; Prof. Barker then repudiated said
agreement, over the objections of his own Board of Directors, CEO and CFO;
He Who Cannot Be Named, the CFO, two of the five Directors, and the rest
of the volunteer staff then turned in their resignations at 6:00 PM,
August 27, 1987, effectively ending the active life of the company. It
was also suggested, in a rather pointed manner, that the three surviving
Directors (Prof. Barker, Tom Thompson, and I believe Don Kaiser, who was
also the CEO] could get their back inventory, their molds, masters, and
casting equipment out of the basement of He Who Cannot Be Named and the
CFO's house, so that the surviving Directors could get a staff that they
were happy with and get on with the business of the Company. Don Kaiser
asked us if we could keep all of the stuff in the basement and keep things
moving until the affairs of the company could be wound down. We tried to
do so, for a while, but gave up from a growing lack of interest; the
various personal attacks on Don, and others, finally convinced us to give
up. No one from Tekumel Games, Inc. appeared to claim the company
property, despite occasional rumblings of threats of legal action from the
direction of Elmwood Place.
The only reason that we could think of for the Directors of the
company [by this time down to Prof. Barker and Tom Thompson; Don Kaiser
got the sack for telling us to store the company property until they
figured out what to do with it...] to not recover their corporate assets
[i.e., get their crap outta our basement] was that by that time Tekumel
Games, Inc. was under investigation by a number of the minority
stockholders, who retained legal counsel to determine what rights they
had. Their lawyer, who went on to become the Legal Attaché to the U. S.
Embassy in Copenhagen, determined that Tekumel Games, Inc., was in
violation of a number of provisions of Minnesota statutes relating to
corporations. In this determination, he was also assisted by the original
firm of corporate lawyers, Moss and Barnet, who pointed out that all of
the legal problems that had been built into the original corporate
structure by the original incorporators, [whose signatures appear on all
of the relevant documents: Michael Mornard, David L. Arneson, and Prof. M.
A. R. Barker] had done so against the advice of their own lawyers, i.e.
Moss and Barnet. Counsel for the minority stockholders also found that
Tekumel Games, Inc., had failed all seven of the legal tests used by the
State of Minnesota to determine whether or not a corporation had been
established for fraudulent purposes by the incorporators. Under Minnesota
State law, this made the Directors of the corporation liable for not only
the debits of the corporation, but also liable for repayment of stock
shares at their face value. As of the summer of 1987, the total liability
was some $30,000 in shares outstanding, and some $26,000 in debit owed.
Total assets amounted to only $3,100. Our guess was, as time went on,
that the surviving Directors had gotten legal counsel of their own, who
had pointed out that if they had the assets, then they had the
liability...
And I'll leave you with several odd footnotes to this whole turgid story:
After I moved into my house in 1988, and done the usual postal change
orders, utilities accounts, phone numbers, etc.; and had moved all of the
Tekumel archives, miniatures, etc., into storage in the garage [as per my
last instructions with the last officer of the company that I had spoken
to], the story arose that I had vanished off the face of the earth with
all of this stuff. If this is the case, then I can tell you that being
the only Jeff Berry in the Minneapolis phone book [for years] is the best
disguise one could ever hope for...
After I moved into this house, which then vanished off the face of
the earth, a number of Prof. Barker's associates, gamers in one of his
campaigns and former Directors of Tekumel Games, were asked by Prof.
Barker if they knew where I lived. They said nope, nada, zip; he done
vanished, sahib! And yet, not a week later, the very same people were in
the garage casting up Mu'ugalavyani infantry...
After I moved into this house, which then vanished off the face of
the earth, some of the people in Prof. Barker's other gaming group were
asked by Prof. Barker if they knew where I lived. They said nope, nada,
zip; he done vanished, sahib! And yet, not a month later, they were
asking if they could get copies of some of the material in the archives
for their characters to use in the campaign...
After I moved into this house, which then vanished off the face of
the earth, Dave Arneson tried to sell the Tekumel miniatures line to two
of his former Adventure Games associates, John Grossman and Gene
Hendrickson. Both gentlemen found this curious, as Dave had not been
associated with Tekumel Games, Inc. for several years, and indicated in
his letter to them that while he was trying to sell the molds, masters,
and casting machine, he - ah - didn't know where they were. The two
gentlemen found this curious, even for Tekumel Games; they looked in the
phone book, contacted me, contacted their lawyer, and informed Mr. Arneson
that unless he could show that he had clear title to the material in
question, they were not interested. Mr. Arneson never replied.
After I moved into this house, which... oh, you get the idea..., for
some six years the subject of the missing Tekumel miniatures would come up
for discussion at Prof. Barkers' gaming sessions. Much dark muttering was
made regarding finding the Lair of He Who Cannot Be Named, doing battle
with the Evil One, and Saving Tekumel For All Time. And people who were
friends of mine, and gaming with or working on projects with Prof. Barker,
would pipe up and suggest just simply calling me, setting a time, and just
picking the stuff up. I had made no secret of the fact that I was about
as interested in Tekumel as in getting the clap from a cow, and would they
please come and get their junk outta the garage. And yet, nobody
called...
So the rest, as they say, is history. I had already sold off my
collection of Tekumel figures to a couple of the local Tekumel fans - all
of the military figures, the personality figures, all of the scratch-built
models of people, ships, palanquins, and the like. As for the rest, Wes
got the lot; all of the Tekumel archives that I had built up over the
years, maps, charts, travel logs, ship plans; my autographed copies of the
novels, all of those fascinating business records from all of the years we
published Tekumel; and, of course, the miniatures, molds, and the casting
machine. They filled up a full-sized van with the stuff. [Wes, if you
are on this forum: I did find the big ladle for the Sro bodies - where do
I ship the damn thing?] The state saith that you need only keep unclaimed
merchandise for a year; we kept it for six, with no effort by its putative
owners to recover it. I sold him all of my rights to the miniatures game,
Qadardalikoi, for a dollar; likewise a whole buck bought the rights to
produce the 25mm miniatures that came from Ral Partha so long ago. Why
Wes, when I could just as easily have tossed all of the stuff into the
trash? Because I wanted the stuff to go to a Tekumel fan, who would
appreciate and keep the collection intact for other fans to use. Wes took
the time and trouble to speak to me, and got the lot.
The only things we kept were our suits of steel armour that we won
two prizes at the '88 World Con with - my Priest of Vimuhla and my wife's
Ksarul Temple Guard, the great sword of the Legion of the Searing Flame
and the ritual Moon Sword of Ksarul; Princess Vrisa's steel mail hauberk;
the originals of Kathy Marschall's paintings and artworks of Si Nte and
Chirine, and the cover for Qadardalikoi. (As they were gifts of the
artist, it seemed churlish to toss them out with the rest... ) All else
is dust, save for one thing; an old tulwar, in a beat-up scabbard, that
was given to one by another who said to a friend who proved false - "This
is for the son I never had..."; And we, the silent dead of the past, mourn
for a father that we never had, poisoned by that same false friend who
came in the dark night of our soul with promises of help and assistance.
Let it go, people, let it go. The past is past...
Ah, yes; one other comment. This is Brett Slocum's forum for
discussing the world of Tekumel. If you want to waste more time vilifying
me, please have the courtesy to do it someplace else, as a courtesy to
those who are discovering the world where I spent a fascinating decade.
When I was originally shown the strings from this forum, I thought of all
sorts of cutting replies, nasty remarks, and the like. But why bother? I
have a different life then what resides in this forum - Technical Support
Director for three World Cons, with a crew of my own doing lights, sound,
and video; lighting two Guthrie cabaret shows; building props and effects
for half-a dozen more; doing the bases for the Hugo Awards in 1994; my
model railroad layout; my friends in SF fandom and model railroading from
Australia to the United Kingdom; and most important of all, my wife of
some six years.
So let it go, people. From what I've seen in this forum, most of you
are repeating old canards and stories that have assumed the status of
modern myth. Some of you have personally described to me, in detail, what
terrible things I am supposed to have done - without realizing who you are
talking to. [Which actually can be pretty funny, when you think about
it.] Yes, we made mistakes, and some of them real whoppers; sometimes we
succeeded, and sometimes not. But, when you go through all of those old,
moldering boxes of papers, as Wes and his lawyer did when they picked the
stuff up, we succeeded more often then not.
At least we got up off our butts and tried.
Yours in the Flame
Lord Chirine baKal
of the Clan of the Iron Helm;
Kasi of the Tenth Cohort of the Legion of the Searing Flame;
Kasi of the Staff of the Legion of Mnashu of Thri'il;
Tenth Circle Military Priest of the Temple of Vimuhla;
Acting Governor of the City and Province of Hekellu and of the
Chaigari Protectorate;
Holder of the Gold of Imperial Victory
[Deceased]
Postscript to Mr. Chang:
I agree re your comments about what an unfortunate thing Tekumel
becoming a public domain property would be. We had this discussion off and
on between 1979 and 1987 with Prof. Barker, and we always tried to make it
a cornerstone of our efforts to bring all of the scattered part of Tekumel
back under one roof; preferably one firmly under Prof. Barker's own
control. Don't ask me what went wrong; I stopped trying to figure that out
years and years ago.
I should also like to point out that in polite Tsolyani company, it
is considered bad taste to call someone that one has not met "nakome". It
is also bad taste to do so to one whose clan is older that the Seal
Imperium itself. Regarding your comments about Dallas, I will be delighted
to meet you at a time and place of your choosing; I will be in San Antonio
for the '97 World Con as a consultant to the Technical Director, and I
believe I can find some time in my schedule to impart to you just why I am
not amused with people who insult my wife. Lord Chirine's steel armour
still fits me quite nicely, by the way.
If my wife should indicate that you have modified or retracted your
rather declasse comments, I will accept her judgment. After all, Imperial
Governors [even dead ones], shouldn't indulge in common brawls...
Chirine
Postscript to Mr. Alberti:
Actually, by your criteria I've managed to take in and scam The
Guthrie Theater, the State of Minnesota [several departments], the
Securities and Exchange Commission, various utilities, three World Con
committees [with one partial], the Hugo Awards Committee of the World
Science Fiction Society, assorted lawyers, the United States Federal
Government [several departments], The Federal Government of Canada
[several departments], The Government of the Province of Manitoba [several
departments], and a fair number of local and regional conventions
I must also admit, albeit with some modesty, that my crowning
achievement has got to be the successful gulling of both last year's and
this year's Minicon Committees - my crew is doing the technical support
for Minicon again this year. I should, therefore, like to suggest that
rather then being the biggest scam and rip-off artist in the Twin Cities,
I am the biggest scam and rip-off artist in the entire universe.
It must be the orbital mind control lasers. Keep up the good work,
and keep up the pace of the propaganda effort. With a little luck, and
your help, I'll never have to put up with the whole gamer/fandom
subculture again.
Chirine
--
Janet Moe
moex...@gold.tc.umn.edu
Marcus Shields
Dear Mr. Berry:
After reading your Usenet post, I've got this great idea for a FRP
game... see, you get this whole bunch of gamers together, and they get
together (Gasp!) just to play GAMES, ok? and then they all sue each other
and argue about who said what about whom, and... well... you get the idea...
The story you tell in this post sounds depressingly familiar to me; it
differs only in detail from half a dozen similar tales I have heard
throughout the FRP industry, dating from my own first encounters with it
in the mid-1970s. (I got stuck in the middle of one myself, upon the
demise of a games club at Simon Fraser University in Vancouver, B.C., in
the early 1980s.)
It's sad to see such a talented writer and game designer as M.A.R. Barker
having to waste so much of his time and mental energy on this legal BS;
but I suppose he's in good company with most of the rest of the games
industry in having been screwed first by TSR and then by parties too
numerous to mention.
I've from time to time been approached by publishers (semi)-eager to help
me turn my own FRP system, _Shakhan_, into a commerical product. After
reading your article, I honestly think I'd rather leave it in the public
domain, so the lawyers know there's nothing in it worth suing about.
Nganjja Pa Ssu!
Marcus Shields
bc...@freenet.toronto.on.ca