Copyright law is kind of messed up. Actual copyright law is actually a combination of codified law and legal rulings to clarify or provide exceptions for such laws. For a primer on copyright law for indie game developers, see What an Indie Needs to Know About Copyright.
The Copyright Clause of the U.S. Constitution states that Congress is empowered “to promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries.”
That is, copyright is a tool to promote science and art, and it does so by providing a temporary monopoly for creators.
It is NOT meant to provide monopolies for creators as an end in itself. It’s just the means to an end.
Once the temporary monopoly’s time period expires, the work in question enters the public domain.
The public domain is the set of all creative works that are available to the public. There are no licenses required, no fees to pay, and no patents to worry about. That is, someone was able to benefit immediately from creating it, and in exchange, for the rest of posterity, everyone can benefit from it and build upon it. That’s the way it should be.
The nature of creation isn’t completely independent invention. Instead, a new creation tends to rely on existing creations. For example, the invention of the electric motor relied upon the knowledge produced earlier on the nature of electric currents and their interactions with magnets. Another example is the popular BBC television series “Sherlock” which is based upon writings of Sir Arthur Conan Doyle from the late 1800s.
Unfortunately, copyright law keeps extended the “temporary” monopoly indefinitely and there doesn’t seem to be an indication that it will stop, which means the public domain has been frozen in place for decades. So while, for example, Disney was able to build an empire off of freely available public domain works, such as the story of Snow White and the seven dwarves, no one has been allowed to build off of Disney’s works in turn. Basically, some people got some advantages from free culture and aren’t returning the favor, and what’s more, they are actively lobbying to ensure they won’t have to.
Lawrence Lessig is the author of Free Culture, which explains more about how copyright law used to work and how it no longer does. I highly recommend reading that book if you want to understand the vital importance of a healthy and constantly replenished public domain.
But what are we doing today? The public domain that exists, as stuck as it is, still has plenty of great works to build upon. And yet, when it comes to games, are we seeing a lot of unique work?
We have the ubiquitous space marines (including Relic’s Space Marine), zombies, and military shooters. We have the Tolkien-esque fantasy games, the interstellar wars with hostile aliens, and the dudebro hero’s journey.
And yet, there is so much more out there to build games upon.
Enter The Public Domain Jam.
I announced the Public Domain Jam a month ago as a reaction to the over-use of some themes in the indie game scene, but since then, I’ve been flooded with nothing but enthusiasm from people over their love of works in the public domain.
The tagline for the jam is “Because there’s more out there than zombies.”
To encourage the publication of games that immediately contribute to free culture, “Nothing to Hide” creator Nicky Hide has donated a $1,000 prize to be awarded the top rated game published under a Creative Commons Zero license.
There are a number of other incentives, including free art and sound assets, free licenses for cross-platform game engines, and more.
I think it sounds like a fantastic idea. The only concern goes back to my assertion at the top of this post: copyright law is messed up.
Years ago, I wrote about Zorro, the public domain, and derivative works. The Curse of Capistrano is the first story to feature Zorro, and it is in the public domain. The Mark of Zorro was the 1920 film about the story. It’s also in the public domain.
Except, copyright law is different from one country to another, which means that while you can make your game based on this story in the United States, you might not be able to distribute your game in some countries where the story is not yet in the public domain.
Moreover, even though the copyright for some stories about Zorro are in the public domain, the trademarks for Zorro do not expire.
Which is why Zorro Productions is able to exist. If you want to make a Zorro-based film, TV show, comic, game, or book, you probably want to license the rights from them to avoid legal trouble. The claim is that the original story does not describe Zorro the way people expect to see him today. Characters such as his horse Tornado are introduced later in works not in the public domain.
There have been a number of lawsuits, including one last year involving a musical based on the public domain works that Zorro Productions claims is a violation of their trademarks and copyrights. The creator of the musical sued them, and it will be interesting to see if this case plays out in its entirety instead of being settled out of court like they usually do.
So, again, the Public Domain Jam sounds great, but copyright law is complex, and everyone should be careful because otherwise public domain works might have certain organizations asserting they own some piece of it. And in the case of international distribution, they might be right in some cases depending on the laws of certain countries.
But remember, the entire point of the Public Domain Jam is to get us away from building “Yet Another Game About XYZ”. The rich variety of source material available in the public domain should provide plenty of innovation and without as much legal risk.