Simplifying Copyright for the Modern World

Thanks to Scott Macmillan of Macguffin Games, I learned about an article by Cory Doctorow called Digital Licensing: Do It Yourself.

Doctorow suggests a fascinating idea: self-service licensing. Let’s say you create a game, and someone wants to create plush toys of the characters and sell them online. Technically, it’s illegal unless they get your permission. Disney, for instance, would want you to negotiate an agreement with their expensive lawyers…which requires you to hire your own expensive lawyer. Unless you’re a huge manufacturer and intend to sell to hundreds of thousands of customers, it’s not worth the expense and effort.

But you’re an indie. You don’t have an army of lawyers on staff. Your staff might consist of just you, in fact. So if someone wanted to make a plush toy out of your video game characters, and you had no problem with people doing so, even for commercial gain, but wanted to make sure you were protected, what could you do?

Your options used to be sticking your head in the sand, risking the dilution of your trademark, giving permission but worrying about what legal rights you might accidentally give away, or preventing people from making what are essentially derivative works without your consent. But why not just give them consent? After all, it isn’t your core business, and they’re taking all the risk. Wouldn’t it be nice if you could make an agreement with them without having to negotiate over the course of weeks or months?

Doctorow suggests some general wording that covers your obligations to your own trademarks and rights while also allowing others to understand what they can and cannot do and how you expect to be paid from their profiting off of your works.

The key part is simplicity:

Complexity is your enemy here. Two or three sentences are all you want, so that the idea can be absorbed in 10 seconds by a maker at three in the morning just as she embarks on an inspired quest to sculpt a 3D version from your logo using flattened pop-cans.

The secret to simplicity here is in the license fee, the payment schedule, and the enforcement regime.

What’s exciting is that such simplified, self-service licensing opens up potentially multiple market research opportunities! Someone can make plush toys and determine if they sell well WITHOUT you needing to invest in it. They carry the risk, and you can earn royalties if it works out for them. Someone else can do paper-craft, or craft some earrings, or create a movie, or make a painting, or any number of possible derivative works, carrying all the risk of seeing if there is a market for these things, and if it turns out that there is, you always have the option of doing something bigger with them.

Without self-service licensing, you have to dictate everything yourself. You need to prevent everyone from doing fun crafty things based on your work, but you also only have so much time to dedicate to your own business, which means less time to do anything that could potentially create new markets based on your work.

When I was younger, I drew pictures of Super Mario Bros characters. I tried to sell them at a garage sale and also at a shopping center. Now, keep in mind, I was a child trying to sell pictures I drew, and I had no idea that I was infringing on Nintendo’s copyrights and trademarks. Nintendo wasn’t going to do anything to me because they didn’t even know I existed. But if I had done it today, you could imagine that I would be using eBay or some website, which means the entire world could find me. Suddenly, my personal little craft is just that much more dangerous. Nintendo could shut me down if they wanted to. A lot of the creators of Nintendo-themed woodwork and art are only getting away with it because Nintendo hasn’t pointed their legal team at them. But if Nintendo had a self-service license, it would simultaneously protect their trademark while also allowing fans to create and sell crafts on a small scale. My Nintendo-themed drawings could be sold, legally and without harm, and Nintendo gets a small cut of any revenues I get.

Now, Nintendo might not care too much about the relatively small amount of money that would come their way through such a system, but what about you? Do you have fans that would love to create works based on your game? Wouldn’t it be nice if they were given a simple, safe way to do so? One that would give them peace of mind that they wouldn’t get sued by your company on a whim, and that also lets them kick back some extra money towards you?

And even if self-service licensing doesn’t appeal to you (although I would strongly suggest reading Cory Doctorow’s article to see a much better explanation since it might change your mind), the idea of simplifying your licenses in a Creative Commons way would only help. Copyright is confusing, and most people don’t know what it is, let alone why they should pay attention to your EULA. Why provide 37 sections of legalese when you could tell them what you expect in 4 plain-language sentences?