jmac talks about copyright

[prog]

A colleague just asked me about copyright for some reason. Well, I suppose because I've found myself in plenty of situations over the last few years where I've had to make some educated guesses about copyright law.

Just for amusement, here's my response. If I got anything hilariously wrong I'd love to hear about it.

What happens to the graphic and sound assets from old 8-bit or arcade games that have an expired copyright? Could an iPhone app developer make clones of old semi-popular games (assuming the popular ones have renewed copyrights). What about iPhone apps for board games that have expired copyrights?

Unless you're talking about arcade games produced before 1910 or so, your notion of "expired copyright" might need some revision. Copyright law is a real minefield, and it's very wide. You should probably assume that all the works you're interested in sampling or deriving from are still under copyright protection, unless you seek out works that are explicit about being in the public domain or in the Creative Commons (which I do with my own stuff, whenever possible).

IANAL, but practical experience suggests that you can confidently make all the game-clones you want so long as you don't literally copy any source code, art, text, or other assets from the original, and name it something different. If the game is _patented_, then all bets are off, so consider doing a patent search for the original.

If you do wish to lift assets out of another source (like music from an old video game) directly, here are your choices:
• Don't. Either create your own soundalikes, or find some at a resource like freesound.org.
• Ask for permission.
• Go ahead, and have a contingency plan in mind should the sample's copyright holder send you a cease-and-desist order.

Examples of contingency plans:
• The ability to argue that you're using the sample as part of a parody, a review, etc.
• The ability to re-release your work with the offending samples removed.

It's the responsibility of a work's owner to defend its copyright, so you won't get a cease-and-desist letter unless all the these are true:
(a) They still exist as a legal entity
(b) They notice your use of their material
(c) They give a shit about it

If you're confident that any one of these is likely to be untrue, you can risk using it anyway.

Comments

[radtea.livejournal.com]

It's a total quagmire. I am not a lawyer, and my expertise, such as it is, runs more to patents than copyright, but I've had to deal with some of the latter (and some trademark law, which is even worse!)

Here's a good article that deals primarily with cartoon characters that may be relevant:

http://www.publaw.com/graphical.html

It points out that fictional graphic characters may have protection under all of copyright, trademark, and unfair competition laws.

Fair use defences are tricky and courts are fickle. I doubt very much that a court would find a reproduction of the essential elements of a game for a new medium fair use unless the game was clearly parodic, but unfortunately what's "clearly a parody" to one party may be a blatant copyright violation to another, and such any litigation is insanely expensive and the outcome impossible to predict.

In general, obedience the law is to be highly recommended, and despite the possibility of getting away with it--and the frustration of knowing you are avoiding orphan works that could be used illegally but with impunity--I would very strongly recommend obeying the law, however stupid, in all cases, unless you are planning to break it good, hard and in public.

So finding CC or public domain content is a good idea.

[novalis.livejournal.com]

That article is from 1998, before Dastar.

[radtea.livejournal.com]

Gah! Thanks--good catch.

[jadelennox]

1923, to be precise, although there are some other dates in there where things get messy.

[tahnan.livejournal.com]

Really? Not 1928?

[jadelennox]

it's incredibly messy (Cornell has a great chart with all the details), But yes, 1923. Steamboat Willie comes in under the extension which was probably put in place for that reason among others, but the actual starting date of the various copyright acts in the United States hit 1923.

Prog, the jargon buzzwords for two of the things you are talking about there with copyright are transformative works (The ability to argue that you're using the sample as part of a parody) and orphaned works (They still exist as a legal entity). If either the spectra on which your potential reuse will be defended, those would be the terms to investigate.

Also keep in mind that international law has different terms, and copyright law varies from country to country. Somebody pursuing a lawsuit will do so in the jurisdiction where they think they are most likely to have a favorable outcome if they can possibly argue that jurisdiction as legitimate for the case.

[wrog]

so consider doing a patent search for the original

and if you're using the IBM site or other patent search engines, make sure you use an anonymous proxy for doing your searches; they do log IPs and if things get to trial and you're found to have knowingly infringed, then it's treble damages.

[mmcirvin.livejournal.com]

That detail has always struck me as incredibly counterproductive. It's a tremendous disincentive to do a patent search or ever even look at a patent database, so that you can be sure that any violations you accidentally commit could not be plausibly interpreted as knowing violations. This defeats any possible purpose of patents.

[chocorisu.livejournal.com]

Man just about every iPhone game is already a rip-off of an old game already. Why not make some NEW games?

That is my unhelpful suggestion.