Wednesday, June 6, 2007

Copyright: What Every Gamer, Developer, and Aspiring Game Developer Needs to Know

A recent UK court decision brought to mind a recurring problem out in the world:A broad misunderstanding of Intellectual Property. As such, I will be posting four articles in the coming weeks, covering Copyright, Trademark, Trade Secret, and Patent. Hopefully, it will help everyone understand what these four very different concepts embody.

The Basics of Copyright

At the most basic level, a copyright is the protection of an expression, not an idea. The famous case of Baker v. Selden solidified that point. In Selden, a series of accounting books had been copyrighted, and the author contended that the copyright protected the accounting system because the books containing the system were copyrighted. The court explained the distinction between copyright and patent, which is simply that copyright protects expression, and patent protects ideas.

The Right of Copyright

Copyright originated in England with the printed word. Today, copyright protects expressions from the written word to the audio recording to the motion picture to software. Copyright itself boils down to a bundle of rights, often compared to a bundle of sticks. These rights include: the right to create copies of the work, the right to distribute copies of the work, the right to create derivative works, and the right to public display/performance. For example, if I wrote a book, I would have the right to grant permission for the publication of that book, or if someone wished to write a continuation using some of the characters, I would be able to allow or stop that work as a derivative.

To get protection, there are typically two requirements: authorship and a work fixed in a tangible medium. In plain English, you have to create something, and that thing has to be a finished product in the real world. A book, a painting, a sculpture, and a movie are all fixed in a tangible medium before release.

Copyright and Video Games

So what does this mean for gaming? Copyright's application to software is still a relatively young field (compared to the printed word), but on the basic level the rule is the same: Copyright protects the expression, not the idea. This is probably more easily explained through a series of short examples, which will all be video game specific, rather than explain the law word for word. This list is not exhaustive, but it covers many of the bigger issues. Of course, these are all hypothetical examples, and specific facts may have a different result.

1. Making an unauthorized copy of a game and selling it is, quite clearly, infringement. For example, if I burned a copy of Doom II on CD and sold it to you, I would be infringing on id's copyright.

2. Making a backup copy of a game you own a license to is not infringement. For example, if I made a copy of my Half-Life 2 DVD and put it in my safe, that would be acceptable.

3. Making a backup copy of a game you own a license to and distributing it is infringement, no matter what. For example, if I made a backup copy of Magic of Scheherazade and put that ROM online for others to download, it is infringement even though the game is no longer in production (and a bit hard to find).

4. Copying significant elements of the source code of the game would be infringement, even if the game looked completely different. For example, if Gears of War wasn't authorized to use the Unreal 3 engine, that would be infringement.

5. Taking a major character from a series and making your own series is infringement, and this includes machinima. For example, if I made "Halo 0: The Cortana Story" to tell the backstory ofCortana, I would be infringing whether that was a video game, movie, book, machinima series, etc. because it is a derivative.

5. A Game Genie (or Action Replay or Game Shark) is not infringement, but a card that plugs into an arcade machine to speed up play is. (It's a bit confusing, but those are the actual cases.)

6. Copying major element of the GUI (the "look and feel") may be infringement, but so far, it hasn't been (although it arguably could have been, were it not for the Windows 1.0 license). This is, unfortunately, a very complicated area that hasn't been as well defined as other areas. For example, Microsoft Word and Corel WordPerfect both have menus that have File, Edit, etc. This is not infringement. But if I were to make a game that had an identical in game menu and GUI system as World of Warcraft, down to the smallest detail, it would likely be infringement.

7. Example: Reverse engineering Diablo to play on an open source alternative to is infringement.

8. Making a game that re-uses a general game idea that is already copyrighted is not infringement. For example, if I were to go make a new golf video game, EA couldn't claim infringement simply because they already make a golf video game.


As you can see, the concept of copyright is far more narrow than many people think. In the software realm, it is also not as well defined as with other media. It is still important to protect your game, however, with copyright. In fact, it is now even possible to preregister for copyright protection before the work is done. On the other end, as a gamer, it is important to not actively infringe on the copyright of the developer. After all, they put a lot of time and money into creating the game you're enjoying.

Keep watching Law of the Game for the upcoming basics of Trademark, Trade Secret, and Patent articles.


Mark N. Barker said...

And here we go.

You pretty well stumbled onto the exact reason that IP law is so confusing in the first paragraph of your article. Copyright protects the expression and not ideas.

This may be all very clear in your mind, but it is a semantics nightmare when put into a position where you have to express the difference between what an expression is and what an idea is. I have an idea for a game that involves a multiple personality prince from the 1500's who can alter time using... I don't know... water. But that idea has already been expressed in Prince of Persia... unless your story is a science fiction RPG that focuses on the real life struggles of people with psychiatric disorders... and so it continues.

This is not, of course, any flaw in the article, just a reality of society and intellectual property rights. Although I do not approve of the appeal to how hard those game designers work to respect this legislation, it has been overdone before.

One question and one comment. I know in a number of countries IP is inherent upon creation (i.e. I create a new cartoon character, I own IP rights to it), where is this true and where is it not.

Comment: So many people I have run into have tried to explain to me that you can use any image or text as your own work if you change it by 30%. So as your readers know, this is grossly incorrect (and undoable you cannot apply an measurement standard such as percentage to something as laissez faire as "change") and I just may pop the next person who says that to me right in their concept of ownership.

Alan said...

"Making a backup copy of a game you own a license to..."

A license? What is the license? Who granted it to me? What's the law behind it?

I hear the idea that I when I purchase a video game that I'm somehow actually buying a license quite frequently, but I've never seen the legal basis for it. Absent some evidence for it, I don't believe such a license exists.

As far as I know, when I buy a book, or a music CD, I'm not buying a license; I'm buying single physical copy of the object. I don't need any license to read the book or play the CD. I have those rights by default, to the same extent that I am free to make use of any other physical product I purchase. Instead copyright law outlines a specific set of things I'm prohibited from doing. If I wanted to, say, publicaly perform the work, or distribute copies, I would then need a license.

So instead of a book or CD, I buy a PS2 game. How does anything change? I'm not presented with a license, let alone asked to agree to one. Things might be different when EULAs enter the mix, but console games where you're not playing online, there is usually absolutely no EULA. Half-Life 2 definitely has a EULA, but I'm pretty sure Magic of Scheherazade doesn't.

Anthony Bailey said...

Yes, I also believe the "license" part of the back-up scenario is not the right wording, and that we're just talking about a game that one has legally come into possession of a copy of (usually by buying it.)

The article reads like a good copyright primer to this amateur in the field, but perhaps it is lacking in not making any mention of EULAs (End User Licensing Agreements.) They are related to (built on) copyright, and important for work that uses a game but that is not itself a derived work of the game - more than a few machinima have been good examples of this. It is not uncommon for a game to come with a EULA that says you can't use it for commercial purposes, so this matters if you want to create this stuff for a living.

Suppose a machinima is rendered using some game engine, but does not reuse any of the copyrighted art assets from that game - the creator uses all new models, textures, etc. The machinima is not a derived work of the original game: the machinima itself does not infringe on copyright.

However, copyright is still lurking behind the EULA. Suppose the EULA says you can't use the game commercially: then if you use the game to render a machinima that you sell, you are breaking the EULA. The way copyright comes into it is that you had to make a copy of the game in order to run it; and you have to agree to the terms of use described in the EULA in order to be given permission to make that copy. Without copyright, you'd have no need to accept the EULA in the first place.

To the best of my knowledge, there is a lack of case law in the area and at least some uncertainty about just how enforceable click-through install license agreements are.

Mark Methenitis said...

I have been reading these comments, and I will be writing a whole new post to further explain the copyright thing. Unfortunately, it probably will not be up until next Monday/Tuesday as this week has seen a number of important other legal issues pop up. Sorry to keep you all on hold, but rest assured I will be explaining this further.

Mark N. Barker said...

As I posted earlier, this is a kettle of fish as far as the law of the game is concerned (and I hope I did not break an trademarking or copyright laws in typing that previous sentence)

As I understand, and Mark can correct me if I am wrong, but isn't the purchase of a usage license an intrinsic component of buying any software package. i.e. you buy a copy of photoshop, or windows, or starcraft and you buy the rights to use the software in a certain context defined by the type of package you purchased (for us, usually for private use maybe educational) and these rights are spelled out in various parts of the software and in the packaging that laymen (like us) rarely agree to.

When you click "agree" you are entering into a binding contract that describes what you can and cannot do with the software. Licensing issues are described in that.

This is also why purchasing and usage rights for businesses who may have more than one station using the same software get tricky, you can't just buy one copy of Adobe suite and Mac Panther at London Drugs and then install them on thirty machines.

dreamweavr said...

Very, very useful. Thanks a lot! But is it possible to create a Patent for a game principle, e.g. Tetris? - Moritz Hofmann from Germany

Sociopath said...

And what about gameplay videos? I want to capture gameplay movies and upload them to YouTube to show others how I perform in a game. Would it be an infringement?

Thomas said...

Game play video are not an infringement but it is kind of a gray area

most game developers turn a blind eye because let's plays are free advertising and the experience that the lets player got will be different to what you will when you play through

Hendawg of the middlelands said...

Hey, I was curious (thanks for the read was great) but basically I am planning on doing a animation inspired by Syndicate (1993) the video game.

I created my own weapons for it, characters, two based on elements in the game (laser gun and the persuadtron) and will include a minigun which is a element of the game. It will be cyberpunk theme like in the games, similar clothing for teh characters i.e the long coat and for the police a similar appearance to how they appeared in the old game, slightly different.
I also was hoping to use some of the old music that Russell Shaw made for it. Cant find a contact for him to ask for permission. He was original composer for the game he currently works at lionhead studios with other members of the team that worked on it. but it isnt going to based on any missions in the games, or the storylines in the games. I have also created my own corporations as well for it and it will be based in a city of my own creation.

I was wondering if I would be copyright infringing to the extent that they could have it removed from youtube for example (EA seem to own the rights when the original creators do not) or I can be fined.