Posted by LawGamer (207 posts) -

Yeah, so this happened.

Not only is this yet another example of how hopelessly out of touch with reality Nintendo is, it provides a perfect opportunity to discuss the vagaries of copyright law as it relates to video games. Since copyright law is a really, really big topic, this is going to be broken up into several posts. This first one will primarily be a primer on just what a copyright is and the underlying policies behind the current structure of copyright law. This will probably be followed by posts on just what the hell is happening with Nintendo and Let's Play. After that, there might be a final post debating whether or not copyright law is really capable of handing these kinds of disputes.

A word of warning before we start; I'm an estate planning wonk, not an intellectual property wonk. My exposure to IP law was limited to first year property and an additional smattering in Internet Law and Media Law classes. Therefore, most of this is going to be pretty general as I am by no means an expert on copyright law. That said, I have been through three years of law school, which means I'm more of an expert than you. So there. To quote Craig Ferguson, "I look forward to your angry tweets."

I. Patents and Copyrights and Trademarks, Oh My!

Before really getting into a discussion of copyright, we need to discuss the different concepts that fall under the umbrella of "intellectual property;" patents, trademarks, and copyrights. It is important to get a good understanding of how these differ because they each do different things. They are also frequently confused. To wit:

Trademarks are particular symbols or phrases that identify a product with a particular seller. The quintessential example are the McDonald's "Golden Arches." The purpose of protecting trademarks is to stop people from confusing consumers by using the same or similar trademark, which would either allow them to "mooch" off the success of the original trademark holder, or damage the mark holder's business by selling inferior products under the same banner.

Patents are temporary monopolies on unique inventions or ideas. When a person creates a new invention, they may apply for a patent. Provided that it meets the requirements, such a demonstrating novelty or innovation, a patent is issued that gives the holder the right to exclude others from "making, using, offering for sale, or selling the invention in the United States or 'importing' the invention into the United States." This right lasts for a limited time, typically 20 years, after which the patent expires and the invention may be produced by others (i.e. "generics").

Copyrights protect the creative expression of an idea. A copyright gives the holder the exclusive right to do things like produce, copy, perform, display, or adapt their work. The holder of a copyright may choose whether to publicly disclose their work, offer it for sale and determine how many or how few copies of their work will be produced.

Patents and copyrights are the two forms of intellectual property protection that are most often confused, so here are a few of their differences to help you keep them straight:

  1. The term for a patent is much shorter than that of a copyright. A patent usually lasts for 20 years, with no opportunity for renewal. The period of a copyright is a little trickier to figure out, as it depends on when the initial copyright was filed. For recent works (1978 or later), the term is 95 years. Copyrights used to have to be renewed, but this requirement has more or less been done away with under more recent copyright law.
  2. A patent protects the underlying idea, while a copyright protects the form the idea is expressed in. One way I have seen people describe the difference is that patents protect things and copyrights protect ideas, but that is a little too simplistic and also slightly backwards. As mentioned, patents protect ideas, not copyrights.
  3. A patent protects not only against literal copies of the item patented, but also from derivations of the item that are not truly unique. For example, if you were to patent a single engine jet-powered flying car, then that patent would protect you not only against people making an exact copy of your idea, but also against people making a flying car using twin-jet engines, because the twin-engine car is not a truly unique idea, it is just a derivation of what you already created. Copyright, on the other hand, protects only the literal form of expression. If you were to write best selling novel, you could copyright it and be protected from people creating other books that use the text of your novel. However, this would not protect you if someone later wants to make a painting of a scene from your book because that is a different expressive form, even if it is based on your copyrighted novel.
  4. Patent rights are exclusive, meaning that the holder can keep people from producing the same product, but don't necessarily have the right to produce the product themselves. For example, you could patent a new type of medicine and prevent others from producing it, but you wouldn't be able to produce the medicine yourself until you complied with any required governmental regulations. By comparison, copyright provides affirmative rights. If you hold a copyright, you have power over the form, timing, adaptation, etc. of your work and are free to produce as many or as few copies of your work as you please.

If you're still having trouble, try to "follow the money." Where is the value in the item? If the value is in the actual underlying concept, you are probably dealing with a patent. If the value is in the particular form of expression, then you are probably dealing with a copyright. For example, a SmartPhone is an example of a patented object, because the value lies in the concept surrounding the actual physical device. By comparison, a book is an example of copyrighted material. The value lies in the actual text on the pages, not on the physical structure of the book.

Understand all that? Good. From here on out, the discussion is going to be almost entirely devoted to copyrights.

II. Why Copyrights Exist

Copyright law is in a sense plagiarism protection for the real world. Whereas in school you would be expelled for stealing someone else's idea, in the real world you get hit with a copyright suit. The rationale underlying both concepts is also the same - we want to see people get credit for their work. Whereas in the academic world this is so that the authors can get credit and recognition for their research, outside of academia the recognition is primarily so that people can earn money from their ideas. The money angle is important because like it or not, money it is one of the primary drivers of innovation, and innovation is exactly what copyright law is attempting to encourage. Any innovation typically requires an initial outlay in money, time, effort, planning or some combination of these. If people can't be certain of making their investment back because of others stealing their work, they are less likely to start up a project in the first place, which slows down the pace of innovation. Hence copyrights to protect the work and investment contained in a completed idea.

Take for example the highly successful game Super Meat Boy. If you are like me, you found it a ton of fun. It was also a massive amount of work for the creators, Edmund McMillen and Tommy Refenes. If you have ever seen Indie Game: The Movie, then you know those guys spent almost two years producing the game and nearly went bankrupt in the process. Clearly they had a massive investment, both financial and emotional, in the success of the game. Thankfully, the game was a smash hit, and the money earned from the game not only saved McMillen and Refenes from destitution, but also made them fairly wealthy (I seem to recall Refenes was able to buy his parents a house). Since Super Meat Boy was an original work, they were able to use copyright law to protect their creation, which ensures that all of the financial benefit of their effort actually goes to them and not to someone else looking to make a quick buck by copying their idea.

Now assume a world where copyright law doesn't exist. I come along and notice the initial success of Super Meat Boy and see that it is going to make a TON of money. Since I like money, I decide that I want to tap that market too. However, I have no appreciable programing skills to speak of. Now, I could go and learn some programming so I could make my own game, but I'm also lazy and learning programming would be a lot of work and probably cost money. I'm also not very creative, so coming up with something as original as Super Meat Boy might be tough. I'd rather just steal an existing idea. Therefore, I learn just enough programming to figure out how to unlock the game code, pallet swap some stuff and put everything back together (yes, I am aware this probably isn't how it works. I'm a lawyer, not a computer geek. I don't even do my legal research online - I use print books). I release the game without changing anything else, except for the title, which I switch to "Super Meet Boy." Since there is no copyright, I'm able to do this without getting sued, and I siphon off some of the people who would otherwise have bought Super Meat Boy but buy my version instead. Since I was only making changes to an already completed product, my financial and time outlay was much smaller than that of the original designers, so I likely come out ahead; if not in absolute terms then in the sense of return on investment.

Understanding copyright's role in driving innovation is important because it will factor into later discussions (assuming I get around to them) about just whether copyright law as currently structured is really capable of handing the problems of intellectual property in the digital age. I definitely get the sense from looking around online that people feel Nintendo is abusing the system a bit. That's entirely possible, and it might very well mean that changes are necessary to make the system fair again (if you believe it isn't now). However, understanding the reasons for copyright law will help make suggestions for change a bit more constructive.

So that's my really vague primer on copyright. Next up, an explanation of just what is going on between Nintendo, Let's Play, and the uncomfortable middle-man YouTube.

P.S. Does anyone know if it is possible to save a draft of a blog on these forums? This stuff takes a considerable amount of time to write, and I typically don't do it one sitting. I've been writing on blogspot just so that I can copy and paste it over here when I'm done. Cutting out the middle-man would be nice.

P.P.S. If you have any questions about the material, post them below and I'll try to answer them. Mileage may vary - graduation is this weekend and family will be here so I'll be pretty swamped.

EDIT: Part II can be found here. Part III can be found here.

#1 Posted by Slag (4386 posts) -

Does anyone know if it is possible to save a draft of a blog on these forums?

It is not to my knowledge and have heard others say the same. I generally write longer pieces elsewhere and copy it over as you did.

#2 Posted by Hailinel (24804 posts) -

@slag said:

Does anyone know if it is possible to save a draft of a blog on these forums?

It is not to my knowledge and have heard others say the same. I generally write longer pieces elsewhere and copy it over as you did.

This is also fairly good advice in general in the event that the blog gets eaten by a posting error.

#3 Posted by Daneian (1229 posts) -

That was great, thanks. I have a few questions that hopefully you can answer.

Outside of flat out reproducing a work, what parts of story content is copyrightable? Themes, ideas, structures and plots aren't protected, but that's not necessarily the case for content that have proper names, right? I can't have a character named 'Indiana Jones' or use the 'Death Star' as a setting because they are protected but a name like John Smith can be used a thousand times, so where does that distinction end?

I'm curious because I've been sitting on a character name for a decade and just recently found out there is a band or group that also uses it. What would prohibit me from using it anyway?

#4 Posted by LawGamer (207 posts) -

@daneian: Thanks for your question. Before I answer it though, I need to get something out of the way first:

I am not your attorney. You are not my client. What follows is merely an explanation, not legal advice. If you want legal advice, find a good attorney.

Sorry about that, but after three years of law school, the professors have made us pretty paranoid about saying things online and getting sued for them. Now to you question:

You might be surprised to learn that characters like Indiana Jones or Darth Vader and not, in fact, copyrighted. So how then are they the subject of so many copyright lawsuits? Well, you might think of them as receiving a sort of "pseudo-copyright." Confused? Let me try to explain:

Copyright is designed to protect a work as a whole. The Star Wars movies, for example, are copyrighted. By copyrighting the central work, the creator gets protection for the work and all of its constituent parts, in this case the character of Darth Vader. Any time some sort of licensed merchandise comes out (t-shirts, keychains, action figures, etc.), you will notice that LucasFilm is pretty quick to copyright that too in order to make sure they are covered.

Now, a copyright gets violated either when the entire work is copied, or more commonly, when someone copies a "substantial" part of the work. Since Darth Vader is a central character in the film, the character falls under the umbrella of the overarching Star Wars copyright. Therefore, when someone makes an unauthorized product containing Darth Vader, they are violating a LucasFilm copyright because they are making an unauthorized use of a "substantial" part of the copyrighted Star Wars product, not because they are using Darth Vader per se. Interestingly enough, each individual frame of a movie gets treated as its own separate work, so someone can't get around the issue by making something based on a single frame of the movie. This means that the use of even minor characters could trigger a suit; even if they aren't a major character, they would be a "substantial" part of the individual frames they are in.

Keep in mind too just because something is protected by one form of intellectual property law doesn't exclude it from being protected by others as well. Although Darth Vader isn't copyrighted, the character is trademarked (and his breathing sound has a separate trademark). This makes sense when you think about it; the character of Darth Vader, or even just a silhouette of him, is immediately recognizable and associated with the Star Wars product. If someone were to use the character to sell their stuff, they would be benefitting from a mark owned by someone else. Therefore, just because someone manages to get around one form of protection doesn't mean that they wouldn't be subject to some other type of intellectual property suit.

This all ties in to your central question about more generic names like "John Smith." Clearly, if authors were allowed to copyright a specific name, then we would quickly run out, and other authors would be forced to name their own characters things like "xxXJohnSmithRulzXxx". Instead, the issue of copyright in this case would boil down to how similar the underlying characters are to each other.

For example, let's say you make a character named "John Smith" who is a hard-boiled detective in New York with a Colt in one hand and bottle of Jack Daniels in the other. Now I come along with my own "John Smith" character except that mine is an investment banker in Peoria dealing with his recent divorce. In this instance there isn't any problem; although out characters are named the same things, they are very different and clearly the product of our own individual creative thinking.

Now assume that I make a character called "Sam Doe," who is a hard-boiled detective in New York with a Colt in one hand and a bottle of Jack Daniels in the other. Now I'm more likely to be in trouble; the character has a different name, but all the other characteristics are similar. Even if I changed his location to Chicago I might still lose a copyright suit due to the similarities. Ultimately, each case will be handled on a case by case basis, and will turn on how much similarity there is between the characters and the overall storyline.

Note that even if an otherwise copyrighted work is used, the maker may fit into an exception under the "fair use" provisions of copyright law. I gave a high level overview of what this entails in another post here. In a nutshell, if you are using a copyrighted work in a manner that qualifies as a parody, critical commentary or education purposes, you might be allowed to use the character or work even though the use would otherwise trigger a copyright suit.

#5 Posted by Daneian (1229 posts) -

@lawgamer: That cleared up a bunch of my questions. You rock.

#6 Edited by Sergio (2127 posts) -

I don't think this is explained sufficiently:

However, this would not protect you if someone later wants to make a painting of a scene from your book because that is a different expressive form, even if it is based on your copyrighted novel.

A movie is a different expressive form than a copyrighted novel. However, the movie is a derivative work of the novel. Someone cannot simply make a movie without the permission of the novel's copyright owner.

A “derivative work” is a work based upon one or more preexisting works, such as a translation, musical arrangement, dramatization, fictionalization, motion picture version, sound recording, art reproduction, abridgment, condensation, or any other form in which a work may be recast, transformed, or adapted. A work consisting of editorial revisions, annotations, elaborations, or other modifications, which, as a whole, represent an original work of authorship, is a “derivative work”.

The painting of a scene from the novel would be allowed based on other factors. It would also probably have to be a recognizable scene or recognizable characters to even warrant checking it out.

Edit: The script for Star Wars would also be copyrighted as a dramatic work.

Edit 2: I just want to elaborate on your Super Meat Boy example. One of the things that is copyrighted is the actual text of the code, which is why you can't do what you pointed out that can't be done. It's also why if a programmer were to leave one employer, they can't reuse the exact same code they had written for them with their new employer, since the copyright is owned by the previous company. You can still make a clone name Mega Beat Girl using your own code, artwork, music, and sound effects. Now if the code of Super Meat Boy contained innovative code or design that was patentable, and you couldn't make that clone-perfect Mega Beat Girl without infringing on that patent, that's another thing. An example is the patent of playing a game during a loading screen that has been mentioned on the Bombcast before.

#7 Edited by ChrisTaran (1610 posts) -

All this just reinforces to me that copyright should not exist.

#8 Posted by Sergio (2127 posts) -

All this just reinforces to me that copyright should not exist.

Because of the whole Nintendo-"Let's Play" thing? If there were no copyright, there's less incentive to develop games to begin with, and there would be fewer games for "Let's Play" videos. There are issues with copyrights, like the increased duration because of Disney or orphaned copyrights, but they do serve a purpose to ensure the original creator gets paid for their work.

#9 Edited by Cerberus3Dog (336 posts) -

@lawgamer said:

2. A patent protects the underlying idea, while a copyright protects the form the idea is expressed in. One way I have seen people describe the difference is that patents protect things and copyrights protect ideas, but that is a little too simplistic and also slightly backwards. As mentioned, patents protect ideas, not copyrights.

I got a little confused here about patents. Why do people describe the difference between the two as patents protect things and copyrights protects ideas if they do exactly the opposite? The 'follow the money' example helped me understand this point though. It clarified this for me a little bit.

Why do I never hear of bands who play covers of songs sued for copyright infringement? I thought it was weird when copyright holders deem 'music sampling' as something they can sue for however, though I understand that sampling can be exploitative as well.

You'll probably touch on this in a future blog regarding Nintendo, but do you believe most copyright holders apply the power they have over copyrights using good intentions (protecting brand identity, product quality etc)? Fan-made work is almost always endearing, it seems wrong on some moral level to punish (or take advantage of) those showing appreciation for your product. Then again, Nintendo did make the product, or they own it at least.

Considering this, though I guess I've always kind of known, it makes complete sense why GB would never do another Endurance Run. I guess it's pretty lucky they got off scott free with the ERs they have done.

#10 Edited by chrismafuchris (1088 posts) -

@sergio: I think the outright elimination the copyright system would be pretty foolhardy, considering, as you said, protection is essential to the creation of new creative works, but I do think it would be nice to see restrictions relaxed so as to make sharing of information easier, without punishing holders too severely. For insistence it is the belief of the United States Pirate Party that would should reduce copyright protection to 14 years, rather than 96, which I think is a very nice goal to shoot for.

#11 Posted by Sergio (2127 posts) -

I can only guess that they might have a licensing agreement with ASCAP, SESAC, and/or BMI.

Earlier this year, there was an issue with Glee covering Jonathan Coulton's cover of Baby Got Back. Coulton bought a license to distribute his version of the song. However, since it was a derivative work, Coulton didn't own the copyright for his version with slight lyric changes even though Glee used the same melody that was in his cover. He was investigating if they used part or all of his audio in their cover of his cover.

Why do I never hear of bands who play covers of songs sued for copyright infringement? I thought it was weird when copyright holders deem 'music sampling' as something they can sue for however, though I understand that sampling can be exploitative as well.

#12 Posted by Sergio (2127 posts) -

@chrismafuchris: I don't completely agree. It'd suck to write a novel, then in your lifetime have a big studio make millions off a movie adaptation without paying you anything, just because 14 years had passed.

#13 Posted by tourgen (4500 posts) -

I have a little experience with patents. You basically list out a set of claims that are fairly specific and deal concretely with how the thing you are patenting will operate or how it is built. You patent different "embodiments" of your idea, but it's important to note that you are patenting the implementation of the idea and not the idea itself. You cannot patent for instance, the idea of a levitating skateboard. You have to patent an ACTUAL implementation of a levitating skateboard. I think it's clear why.

I think talking about patents as protecting ideas is misleading for this reason. You patent actual things or processes that actually exist, and in fact patent specific instances (embodiments) of those things.

Someone can come along and build something very similar to what you have patented but if they do not violate any of the claims laid out in your patent they are free to do so. This doesn't mean they can patent their implementation though. Patents must be "unique and novel", such that an expert in the field would not necessarily think of it by trivially combining what's already available. So yes, they may not violate any claims of existing patents, but the bar is higher than that to be granted a new patent.

source: I have patented a few things at work and have spent many hours with patent lawyers trying to get the claims written as vague and all-encompassing as possible :P

#14 Edited by Brodehouse (9950 posts) -

Excellent informative topic and I'm glad it got promoted to front page. Would read again.

#15 Edited by Costello (84 posts) -

@cerberus3dog: "

2. A patent protects the underlying idea, while a copyright protects the form the idea is expressed in. One way I have seen people describe the difference is that patents protect things and copyrights protect ideas, but that is a little too simplistic and also slightly backwards. As mentioned, patents protect ideas, not copyrights.

I got a little confused here about patents. Why do people describe the difference between the two as patents protect things and copyrights protects ideas if they do exactly the opposite? The 'follow the money' example helped me understand this point though. It clarified this for me a little bit."

The key word for patents is "industrial applicability". A patent protects an idea too, but an idea that has potential for being used in some kind of industry. Check this link http://en.wikipedia.org/wiki/Industrial_applicability for a good explanation.

And to clarify, be sure to understand that when I say "industry", I mean it in the strict sense of the word, not in the broad sense, as in "movie industry".

#16 Posted by Sergio (2127 posts) -

It looks like Part 2 got buried quickly.

#17 Edited by chrismafuchris (1088 posts) -

@sergio: it's difficult to serve both masters in this case, but I think we can agree that 96 years is simply too many. There's probably a sweet spot somewhere in the 20-40 year range that someone's going to figure out. Maybe lawmakers could devise some sort of partial ownership program, wherein the actual content of a work would go into the public domain, but the author would still be paid royalties for derivative works. For example, after a certain number of years, a book could be freely downloaded and other authors could use significant parts of it so long as they used only the actual words of the book, but the author would still get paid if a movie were to be made.