Copyrights and Commercial Games by Thomas Ward
March 14, 2008 When I first began writing my own accessible games in 2004 I had many dreams of creating games like Tomb Raider, Star Wars, Star Trek, etc and selling them. I honestly hadn't thought much about the copyright issues involved in making my own versions of Tomb Raider, Star wars Jedi Knight, or Star Trek Elite Force. All I knew is I wanted to create my own games, and do my best to clone the games I use to love to play. However, soon after completing my first game, Star Trek Final Conflict, I attempted to legally obtain the rights to publish, sell, and make games based on Star Trek, Star Wars, etc. As it turned out contacting the parent companies involved was a very difficult task. Even when I did make contact with the parent companies who owned the copyrights it was made very clear to me that if you don't have millions of dollars to license the copyrights, a team of lawyers working for you, and you aren't a major company you might as well forget it. People like Paramount, Lucas film, etc tend to only deal with major companies with money and legal power to license their trade marks for toys, games, and other products. So I began researching U.S. copyright laws to see if there were any legal way to get around paying millions of dollars to company x to use Lara Croft, Darth Vader, or the starship Enterprise in my next game title. Before we can actually talk about copyright law we need to first understand what can and can not be copyrighted by an individual or company. Under U.S. copyright law a copyright can only be granted if the copyright is an original work or creation, the copyright is unique, and is fixed in a medium such as a motion picture, audio recording, photograph, painting, book, etc. Certain elements of a work may not be copyrighted if it is not an original work, if the creation is common, or it is an idea. If that all sounds confusing here is some real world examples of what can and can not be copyrighted in a commercial game. Let us assume that you want to create a cops and robbers style game. Under U.S. copyright law you can not copyright generic game characters such as policemen, robbers, prostitutes. You also can not copyright everyday items such as police revolvers, police cars, police radios, etc. You can not copyright actual places such as New York, Washington DC, Boston, etc. Now, let us assume you name your detective Dick Tracey and the crime boss Big Boy Al Caprice. You decide you want your cops and robbers game to be set in Chicago. Now, do you have something you can copyright yet? Not exactly. Just because you have named your characters and set the story in Chicago doesn't make it an original work you can copyright. In order to turn your cops and robbers game into a copyrighted work you must create a unique story and profile for the characters that will qualify it as an original work. For example, in the chart below I will create a profile that will make my Dick Tracey character an original character. Name: Dick Tracey Age: 35 Height: 6 ft. Weight: 165 lb. Race: white Clothing: brown pants, trench coat, and hat Books: murder mysteries and true crime Music: opera Employment: Chicago police detective Girl friend: Tess Trueheart Home: Chicago Weapon: 357 Magnum At this point we can obtain a copyright and trade mark for Dick Tracey as we have created a unique identity for our game character. While individually none of the items in the profile are unique as a whole they create an established character. We now know that Dick Tracey wheres brown pants, trench coats, and hats. He carries a 357 Magnum, has a girl friend named Tess Trueheart, works for the Chicago police, is a detective, etc. If we come up with some photographs and images for Dick Tracey the game character for all intents and purposes is an original creation, and now falls under copyright protection as well as any supporting characters such as Al Caprice and Tess Trueheart. One of the most difficult questions I have had to research is once a character, story, game, song, etc has been copyrighted can I use it in my own games? Well, it is actually a difficult question to answer because current U.S. copyright law is not clear where copyright protection ends and fair use begins. There are, however, some general guidelines in the copyright laws on fair use that helps give us a clearer idea of what we can and can not do with accessible games based on movies, books, and commercial games that are copyrighted. Under current U.S. copyright law there are some provisions for fair use of copyrighted works including commercial games. A copyrighted work may be used for criticism, research, news, advertisement, non-prophet educational instruction, etc. In addition any copyrighted works used under the fair use provisions must come with a disclaimer or citation of the original copyright owner and their copyright rights. A copyrighted work can not be resold, traded, transfered, or copyrighted without the copyright holders permission. As I currently understand the U.S. copyright laws if a game developer such as USA Games, PCS Games, GMA, etc wanted to make a Harry Potter, Spider Man, Tomb Raider, or Star Wars style game it would have to meet the following provisions. The game would have to be free, be redistributed as educational or research software, and have to include a disclaimer of the original copyright holder/holders. Basically, in short we are talking about a totally free, probably open source, game that gives the original copyright holder/holders full rights to the game and story line. One question most people ask about is fan fiction. Everyone usually wants to know if they can use Star Wars, Tomb Raider, Star Trek, and Harry Potter in their own stories, games, etc if it is done as free fan fiction. Under current copyright law the matter is usually determined by the copyright holder's end user license agreement for the copyrighted work in question. Some copyright holders are more open to fan fiction than others. Some have no problems with fan fiction, and others are known to be fanatically protective of their copyrights. For example, in my research I discovered Universal Pictures the copyright holder for such TV shows as Xena Warrior Princess, Hercules Legendary journeys, and Battlestar Galactica are very open to free fan fiction. There are a number of Xena Warrior Princess fan fiction sites that have been awarded approval from Universal Pictures. On the other hand there are also copyright holders such as Lucas Film Limited which are extremely fanatical about their copyrights to Star Wars and Indiana Jones. In reading their copyright agreements any and all fan fiction is forbidden and offenders could be sued by Lucas Film for damages. This obviously makes it difficult for anyone to legally use Star Wars or Indiana Jones trade marks in any stories, games, or fan fiction work available to the Audyssey community. In short if you are thinking of something Harry Potter, Spider Man, Super Man, Xena, Star Wars, or Star Trek for your next game the first place to start is read the end user license agreement related to the material on the copyright holders web site or supplied with the product. If the copyright holder is extremely strict about copyrights, even if you claim fair use, there is a possibility of being sued. If the copyright holder is ok with fan fiction or indifferent to it then you can probably legally make accessible games using your favorite characters, stories, and so on provided they are free and meet fair use guidelines. What happens if you are sued for copyright infringement? the court can issue an injunction to stop production of your work, order your work to be destroyed, and possibly award the plaintiff monetary damages from $200 to $100000. However, in order for the copyright holder to sue for monetary damages it must prove to the court that they have suffered financially do to your copyright infringement. As fan fiction has proven over the years to help sales, not hurt sales, most court cases involving fan fiction never go to trial or never go passed a simple injunction to stop production of your work. Finally, I've heard a lot of people on the Audyssey list ask what about accessibility. Why can't we make a copy of Jedi Knight since the original game is not accessible? Why can't we adapt something to our needs? I've been doing some research into this area, and the U.S. copyright laws are still unclear about where we stand as far as adapting copyrighted materials for accessibility purposes. What I can say if a game developer were to attempt to adapt Tomb Raider, Jedi Knight, Halo, etc to an accessible format they would probably stand a good chance in court under the fair use copyright provisions. Especially, if the game was free, designed in a specialized format for the blind only, and a disclaimer acknowledges the original copyright holder of the work. For example, under the fair use provisions, U.S. Public Law 9-22, states that written materials such as books, magazines, articles, may be reproduced in a free and specialized format such as braille, audio, digital, etc. While Public Law 9-22 has nothing to do with games it does show how the fair use provisions of the U.S. copyright laws may be used as a mottle for games, descriptive video, and other forms of entertainment that is normally denied to us through inaccessibility. However, until the matter is settled in court writing accessible games using copyrighted game stories, characters, etc is still a complicated and tricky business for accessible game developers. For the purposes of this article I primarily referred to the current state of U.S. copyright law. If you live in a country other than the U.S.A. you should review your own country's copyright laws. I've discovered there is no such thing as kooky cutter, one size fits all, copyright rules that applies world wide. The European Union has a much stricter view of copyright laws and rights than does the U.S.Under France's copyright laws certain license agreements such as the General Public License agreement used for Linux and other open source software is not applicable in France. This has made things difficult for companies such as Novel, Sun, Red Hat, etc that use open source GPL type licenses on some of their software products. So just because it is legal to do one thing in one country it may not be legal in your own country. --- Gamers mailing list __ [email protected] If you want to leave the list, send E-mail to [EMAIL PROTECTED] You can make changes or update your subscription via the web, at http://audyssey.org/mailman/listinfo/gamers_audyssey.org. All messages are archived and can be searched and read at http://www.mail-archive.com/[EMAIL PROTECTED] If you have any questions or concerns regarding the management of the list, please send E-mail to [EMAIL PROTECTED]
