Series Info...Trials, Triumphs & Trivialities #146:

Online Games & The Law, Part One: IP & Copyright

by Shannon Appelcline

Ah, tax day. It's been just a few weeks since I wrote out a check for Skotos' estimated taxes in 2004 and today's the day that the actual signed tax forms for 2003 go out. It's enough to remind one of a point I often make in this column: that releasing online games in a professional capacity requires a lot more than just a game.

Today I'm going to start a discussion of one of the unhappiest aspects of running any business: the law. In the weeks ahead I'm going to try and do a brain dump of everything I've learned in the 11 years I've been working in the professional world about business and the law. This includes: IP & Copyright (week 1), Trademarks, Patents & Trade Secrets (week 2), and further down the road: terms of service, liability, employees, volunteers, taxes, business licenses, the vagaries of online law, and more.

At the start of this I want to say, very clearly, I'm not a lawyer. I've got about a decade of professional experience during which I've worked over a lot of legal issues for a number of different companies, but my experience is all practical, not book learning.

Beyond that, I think a lot of what I have to say is relevant to every small business, but my core focus will be on games, as appropriate.

The Heart of IP

Before I get started on a few weeks discussing IP, it's useful to define what IP is exactly. The abbreviation stands, of course, for Intellectual Property, and that's a catch-phrasey way of saying: any substantive and original creative endeavor. If you have something original that's sprung forth from your mind, it's probably IP (subject to rules about originality and derivation that I'll discuss particularly in relationship to copyright, below).

Broadly, there are four different types of major IP as recognized by the U.S. government, and most other governments around the world:

  • Copyright: Protection against copying the embodiment of a substantial creative endeavor (e.g., a book, a song, a TV show).
  • Trademark: Protection against the use of a particular name, logo, slogan, or trade dress for marketing a product.
  • Patent: Protection against the use of a particular idea, invention, or process.
  • Trade Secret: Protection for a piece of IP, usually an invention or a formula, that is done by secrecy rather than specific IP protection.

This week I'm going to tell you everything I know (or at least remember), and that you should know, about copyright.

Copyright Law

Copyright law, essentially, protects the right to make copies of a work. If you are the originator of an original piece of IP, then you have the right to decide who can make copies of your work and how (subject to fair use, described below). Here's the most common mistake made by people who don't understand copyright: copyright has nothing to do with whether folks make money off of your work or not. If you are the originator of an IP, you have the right to say that no one can copy your IP for the term of your copyright, whether they're making free copies for their friends or selling them on the Home Shopping Network.

Copyright covers any substantial original work that's not an invention. This typically includes: stories, novels, printed game books, movies, TV shows, programming code, songs, records, etc.

There are three fairly important aspects that affect whether your IP is copyrightable or not: originality, length, and embodiment.

Originality just says that your IP has to be truly original. This is usually the case when you're talking about a substantial original work because every story, movie, TV show, etc. tends to be clearly original unless it was a purposeful rip-off of something else.

However, copyright can also cover fairly small aspects of your overall work. For example, copyright covers not just Star Wars, but also "Luke Skywalker" and "the Jawas". Clearly Luke and the Jawas are very original works in and of themselves, as the case of most everything in the Star Wars films, and so meet the originality requirement. However if we were instead talking about CSI a random police officer without any distinguishing features who showed up in the show wouldn't be protected. (Remarkably, Sam Spade, the famous detective of The Matlese Falcon was ruled to not be protected by copyright 50 years ago, because he was just a vehicle for the story, not an original character in his right!!)

Length merely states that for something to be copyrightable it has to be substantial. You can't copyright a word or the letter "x". You probably couldn't copyright a couple of lines of text, but once you get up to song or poem length, things are protectable.

Embodiment means that you're not copyrighting an idea, but rather a specific embodiment of an idea. This is another common mistake for folks who don't understand copyright. I might come up with this idea: "a board game about dinosaurs, where each type of dinosaur has a special power" (in fact, I have; it's in my board game/idea file). Clearly that's not protectable due to length, but even if it were, it wouldn't be protectable because it's not an actual embodiment of that idea. If one of the readers of this column were to run off and write a game based on my idea, that game would be theirs, lock, stock, and barrel, not mine.

(As I often tell people, ideas are cheap; it's actually working those into a completed piece that takes work.)

Copyright Variants

OK, I'll admit, I simplified copyright in my above description. Yes, it's mainly about the copying of a specific, embodied IP that you've created, but there are some extensions that have appeared over the years. Here's a discussion of them:

Derivative Copyright: It's not just your specific, original work that's protected. People also can't create works that are directly derivative of your work. (I've had at least one coworker who swore that this variant of copyright wasn't well-tested, but it's actually a core part of the definition of what copyright protects.)

Derivative copyright usually refers to specific characters and locations described in a copyrightable work (which is why my above discussion of characters falling under copyright was relevant). This means that you can't run out and write a novel about Luke Skywalker or one set on Tatooine. (But, apparently, you can write about Sam Spade.) Yes, any amount of fanfic or slash is in violation of derivative copyright law, but is allowed to exist because the copyright holder doesn't really care. (Again, this has nothing to do with if people are making money or not, at least under the law.)

Look-and-Feel Copyright: Now this extension of derivative copyright is, I think, still much more untested and controversial. The core claim for look-and-feel copyrights is that how your product (particularly a computer program) looks and works is also protected by your copyright. The most famous case is probably Lotus suing Borland for copying the way the menus used to control their Quatro Pro spreadsheet looked from Lotus 1-2-3. However, the appeals court said that the menu structures are "an uncopyrightable method of operation".

There hasn't been as much discussion of look-and-feel copyrights in recent years, though I'm aware that the owners of the original Tetris tried to start going after clones in 1999 and I've seen the occasional warning that web sites could violate look-and-feel if they looked too much like an existing product.

Frankly, I think look-and-feel is a pile of crap. I think that clearly different embodiments can't be copyrighted even if their outward face is the same (though they might fall under trademark issues, as discussed in two weeks). Some disagree.

Compilation Copyright: Less controversial is the idea of a compilation copyright. This means that an editor or publisher can claim the rights over a specific collection of copyrighted works, even if they don't own the individual copyrights. For example, I own a short story called "Keystones" which was published in Legends of the Pendragon. The story is copyright me, but the collection is copyright the editor, James Lowder. I can do what I want with my story, as can all the other authors, subject to the terms of our contracts. However none of us could gather together a set of stories that was substantially similar to the book as published without James' permission--even if we had the permissions of all the individual authors.

Copyright Length

Copyright ain't forever--though under current laws it might as well be.

In the United States, copyright is governed by the Sonny Bono Copyright Term Extension Act. U.S. Copyright lasts for the life of an author plus seventy years for copyrights owned by individuals or 95 years total for copyrights owned by corporations or for items published before 1978. So, take my "Keystones" story, which was written in 2001 and published in 2002. Assuming I live to the ripe age of 80, it'll be protected until the year 2122, which is to say for 120 years after it was written. It's good to know my great-great grandchildren will be able to earn money off of my work.

(I've written elsewhere (TT&T #71) that the current length of copyrights is utterly ridiculous and that it's stifling community creativity. Nonetheless, we're being forced into this situation by corporations like Disney, who don't want other people to be able to publish the exploits of Mickey Mouse--in fact, the Sonny Bono Copyright Act is often called "The Steamboat Willie Rule" because it was passed just in time to keep Mickey Mouse protected, much as had happened the last time Mickey came close to falling out of copyright a few decades before.)

In the United States it's also worth mentioning the Digital Millennium Copyright Act. The DMCA is an absolute trainwreck of a law trying to clarify copyright on the Internet and other digital mediums. It doesn't change the term of copyright, but it does institute gestapo-like tactics to protect copyright online--okaying the violation of privacy policies to search out offenders, jailing people who create programs which could be used to violate copyright, and threatening criminal jail time for copyright violators.

When you go out to the rest of the world, copyright varies from nation to nation. Generally, most of the world's first-world nations are signed on to the Berne Convention which says that copyright will be at least 50 years longer than an author's life. Individual nations are welcome to extend that length ... and boy, have we.

[Author's Note: This is all an area that's changing as fast as I can write. Just after I did my final edit of this article, I learned that Australia is adopting copyright laws that closely match the DMCA and the SBCTEA, as the world slowly falls beneath the heel of megacorps.]

Things that fall out of copyright fall into the public domain, which means that anyone can use them as they see fit, subject to extendable IP like trademark. Copyright and patents are the two main types of IP that go into the public domain. As a result of the Sonny Bono Copyright Act, no new copyrighted works will enter the public domain until 2019.

Fair Use

There's one main method which can be used to publish a work that's otherwise copyrighted: fair use.

There's a ton of rules for what constitutes fair use, and what doesn't, and even with all of that it's still partially subjective. The general idea is this, though: it's only fair use if you're copying a small part of a whole; if it doesn't affect the value of the original; and if it's used in a "fair" way (non-profit, reviews, etc.).

A book review can get away with quoting portions of the book, as an example, even if the book review is being sold. However, when I was in college, publishers started to crack down on college readers, which tended to include 10-40 pages each from numerous different books; presumably this crackdown was based on the fact that the sale of the readers directly impacted the value of the original works, which otherwise students might have bought.

A few weeks ago, a web site started stealing forum posts from RPGnet for their own forums. When politely asked to stop, the copyright violator said that the posts, which he was copying 50-100% of, fell under fair use because he was using them for purpose of criticism (which he wasn't).

Suffice to say, be very, very careful if you're trying to make fair use of someone else's copyrighted work, and as a copyright holder, be aware that you have definite rights even in this area.

The other main exception for fair use is when you're creating something for purpose of parody. A Weird Al song or a film like Scary Movie might otherwise violate derivative copyright, but even if they did they'd probably be fine due to the parodic exception.

Defending Your Copyright

Before closing out, it's probably worth talking about defending a copyright.

First, you don't have to register a copyright. You might want to if it's a property that's particularly valuable or particularly likely to be stolen, but it's not necessary. All that copyright registration does is: give you a clear date where you can say you'd created the IP; and give you the ability to sue for more money.

Second, you don't have to defend your copyright either. If someone is violating your copyright and you know about it, you don't have to do anything. You can't lose your copyright due to inaction. (This is different from trademark law, and often confused as a result.)

There are two caveats to this:

One, if you don't defend your copyright, this may lessen damages if you defend it in the future, particularly if you sue someone who you knew was violating your copyright and you let them do so for an extended period.

Second, if someone isn't just violating your copyright, but is also claiming they own it, you need to do something once you become aware of it (technically, you need to do something before the statute of limitations runs out, currently in four years). If you fail to, the other person can actually gain joint ownership of your copyright. Again, this isn't an issue if they're just using your copyrighted material, but only if they're claiming to own it.

Copyright & Online Games

So, what does this all mean for your online game?

The game itself is copyrighted, which means that the code you used to write the game is protected, and if anyone swipes your code base, they're violating your copyright.

Your background and major characters are almost definitely protected, as a part of derivative copyright.

The mechanics you use to underlie your game are almost definitely not protected by copyright, because they're not a concrete, substantive, and original work. If you want to protect them, you need to take out a patent, or just hold them tight as a trade secret. (We'll talk about both next column.)

The way your game looks, which means the general layout of the screen and the keys you use for commands may or may not be protected, depending on what you think of look-and-feel copyright.

All sound like a mess? Well, welcome to the world of the law. We'll be staying here for a while.

Before I close off, let me repeat one more time: I'm not a lawyer and this isn't legal advice. If I got anything wrong, please correct me in the forums below.

I'll see you in two weeks as we move through other IP.

[ <— #145: How to Cheat at Online Games | #147: Online Games & The Law, Part Two: Copyleft & Trademark —> ]

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