What an Indie Needs to Know About Copyright

A number of indie developers and other people involved in software development make erroneous claims regarding copyright. Sometimes they think that copyright is solely about protecting their games, or they believe that there is a lot of work involved to get a copyright. Some people think that you can copyright a title to a game or a symbol on a website. All of them have the wrong idea about copyright.

And it’s no wonder! Copyright laws are a confusing mess. Even if you were to read all of the existing laws in the books, you would still need to know about every lawsuit involving copyright to get a good grasp of the laws. You won’t find laws specifying everything a person can and cannot do since a lot of these permissions were provided or restricted in court decisions. Sometimes later court decisions reverse those same permissions.

Copyright laws can be a mess to wrap your head around, but it is important that an indie understand it. You want to understand your rights and know what to do to avoid infringing on someone else’s. Hopefully this article can help you to understand copyright, or at least give you a basis from which to start doing research.

The following is based off of what I know about copyright law in the United States. Due to various treaties, it might not be accurate in your own nation. If you are confused or unsure about an aspect involving copyright, and copyright law IS confusing, you would do well to consult a lawyer.

What is a copyright, and what exactly does it mean to have a copyright on a work?

A copyright is an exclusive right of an author to do certain things with his/her creations, including copying, distributing, performing, and selling the works. Creating derivative works, or works made based on a previous work, is also exclusive to the copyright holder. If you write a book about a man who finds himself in the middle of a conspiracy involving the Catholic Church and Leonardo DaVinci after reading The DaVinci Code, you could be in violation of the copyright since only Dan Brown has the right to create a work based off of that book. Similarly, translations are also derivative works. After all, a Spanish or Chinese translation of Dan Brown’s novel is still a work based off of his novel.

How exclusive these rights are can actually change according to the whim of Congress, and there are many cases of exceptions. For instance, students are usually allowed to make photocopies of pages from research materials, even though doing so would otherwise be a violation of copyright since the copying may be unauthorized. Also, if you purchase a book, the copyright owner of the book would not be able to claim infringement if you decide to sell it to someone else. There is more information on exceptions to copyright later in the article.

What can and cannot be protected by copyright?

The Copyright Office has answered this question: What Works Are Protected? and What Is Not Protected by Copyright?

Suffice it to say that copyright can apply to your video game, marketing materials, documentation, and website, but cannot apply to the name of your game or an idea about a game. You can’t get a copyright for a witty slogan or a listing of ingredients.

Some things can be protected through other laws, such as trademark or patents. A slogan or symbol might be a trademark, whereas a new device might merit a patent.

Also note that you can’t copyright a game mechanic. That is, no one has the copyright on the idea of falling blocks disappearing when they form lines. You can’t copyright the idea of people running out of the way of oncoming vehicles. If you are interested in protecting similar kinds of ideas, you may want to look into software patents.

What is the purpose of copyright?

Article 1, Section 8 of the US Constitution specifically says that Congress shall have the power to “promote the Progress of Science and useful Arts”, and it specifies how Congress shall do so: “by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries.” Source: Archives.gov

A number of people believe that the purpose of a copyright is to protect the author. These people mistake the mechanism for the purpose. The purpose is to promote progress in science and the useful arts. Copyright is just one means to that end. The idea is that you could encourage people to create new works by granting for a limited time a legal monopoly on the rights associated with copyright. As more new works are created, more benefits can come to society. Creating a new work can take some time, effort, and/or money, and many people would not want to invest those resources if anyone could simply take the end result without compensation. Even if the creator wanted to give away the work, he/she may want to ensure that credit is given where it is due. Without copyright, someone could legally take a work you created and pass it off as his/her own.

How do I obtain a copyright for my work? Do I need to register it formally? What can or can’t be protected by copyright?

While copyright law has changed throughout the years, the current laws dictate that simply by putting your work into a tangible medium, you have the copyright to that work. There is no need to register the work formally. If you think up a poem and write it on a napkin in a bar, you have the copyright to that poem. Congratulations!

If your video game, including its source code and related media, is on your hard drive, on a server, on a CDROM, or even printed out for some reason, it is considered fixed in a tangible medium.

Formal registration of the copyright with the United States Copyright Office isn’t required, but it does give you some benefits. One important benefit: you can sue for infringement, something that you cannot do if your copyright is not registered.

Registering your work involves actually sending something tangible, and as far as I know, the Copyright Office does not accept servers or hard drives. A CDROM and possibly hard copies of some or all of the game’s source code may be sent, although there are a variety of things you could send. For information on how to register a computer program, see Copyright Registration for Computer Programs.

Long ago, copyright was for 14 year terms, and those terms were renewable. Today, you cannot renew copyright for works created after 1978. Just keep in mind that works created prior to that year may have the option to be renewed.

How long does copyright last?

Changes have been made to copyright law a number of times, but the current law states that copyright lasts for the life of the author plus 70 years. If the author is a corporation, the term is 95 years from publication or 120 years from creation, whichever is shorter.

While some people would prefer that copyright last forever, the Constitution is specific in stating that the term of any such protection would need to be limited.

Once the term has expired, the work is considered in the “public domain”, which means that anyone can then take advantage of the rights that were normally exclusive to the author. For instance, Disney was able to make use of public domain works such as old fairy tales to make animated motion pictures as derivative works; however, no one can take a Disney film and create a derivative work until the copyright on that film has expired. Of course, anyone can still make use of the original public domain works. Disney does not have a monopoly on animated films about Snow White or Sleeping Beauty or The Little Mermaid. They simply have the copyrights to their own films, although trademark may have a say in what you can call your own film or how you portray your characters and scenes.

I learned that a company has produced films called “Snow White” and “Sleeping Beauty”, and while they can’t sing the same songs or use the same exact sets as Disney, they can base their films upon the original stories, just as Disney did.

What constitutes infringement of a copyright?

Sometimes it depends on the work. Generally, one is not allowed to make unauthorized copies of a work. Taking a cool font you found and redistributing it with your game’s executable may be a violation of copyright if you were not given the right to do so by the author. Whenever a person sends someone a file that includes the files associated with a game without the author’s permission, it is a violation of copyright. You can’t create derivative works without authorization either. A game based on on Half-Life, including characters, scenes, events, or other such things depicted in the game, would be technically a copyright violation, even if it was created completely from scratch, and even if Valve does not decide to pursue you for it.

Interestingly enough, copyright does make a distinction between owning the rights to your work versus owning the rights to any similar work. If you independently create the exact same thing as someone else without knowledge of his/her existing work, you technically own the copyright on your work! Obviously it would be difficult to prove that such a work was indeed created independently of any knowledge of the existing work, but it is conceivable that someone else could own the copyright to a work that resembles a work of Disney’s.

Usually, a violation of copyright occurs whenever someone does something that is an exclusive right of the author without the author’s permission. Penalties for copyright violation can be severe. Of course, there are exceptions, as I have listed below.

When people use the words “piracy” or “theft” in relation to copyrighted works, they mean “copyright infringement”. I personally prefer not to use the words “piracy” or “theft” because they are emotion-laden terms that imply things that just aren’t true about copyright. Copyright is confusing enough without muddying the waters with ideas of “stealing” someone’s copyright. It does not make it any less terrible a crime, but there is a difference.

What is the public domain? How do I know that a work is in the public domain?

A work is in the public domain if there is no law that prevents the public from using or exploiting the work. Generally, works published before 1923 are in the public domain, but after that year, a work may still be under copyright protection.

Since the law has changed multiple times in the past century, and the requirements for copyright and term limits governing it have changed as a result, some works may be in the public domain while other works that were published in the same year might not. It is sometimes not possible to know if a work is in the public domain. A lack of a copyright notice, such as “Copyright 2007 by Gianfranco Berardi”, is not enough.

More information on the public domain can be found in The Public Domain: How to Find Copyright-Free Writings, Music, Art, and More from Nolo Press and The Rights of Authors, Artists, and Other Creative People: The Basic ACLU Guide to Author and Artist Rights from the ACLU.

An interesting case is the popular Christmas movie “It’s a Wonderful Life”. When it was first released, no one cared about it. Then it entered the public domain because National Telefilm Associates didn’t renew the copyright, every television station aired it multiple times, and everyone associated Christmas with this movie.

So can you do whatever you want with this movie? Actually, no. It turns out that the story that it is based upon did have its copyright renewed, and because of the result of the case Stewart v. Abend, it turns out that the movie is out of the public domain. As I said, court cases make things confusing.

What is fair use?

More information can be found in Limitations on exclusive rights: fair use, but the idea is that the copyright owner does not always have exclusive rights to the copyright. Sometimes the public might be able to do certain things that do not require the permission of the copyright owner. As mentioned above, photocopying portions of a text for research purposes is a perfectly valid thing to do without the author’s permission.

There are certain factors that need to be considered when determining if an infringement is actually fair use. Educational purposes and a lack of an impact on the market value of the work are a few things that might indicate that the infringement is fair use and therefore valid.

Other fair use examples include making parodies, reverse engineering software or hardware, and quoting portions of text in a review. Time shifting is another fair use. Any time you use a VCR or PVR to record television for later viewing, or using podcasting software to record radio for later listening, you are time shifting. Technically, you’ve made a copy of a copyrighted work, but the courts have ruled that time shifting is a perfectly valid fair use. Generally, watching an episode of Battlestar Galactica a day or a week after it actually aired isn’t going to hurt the popularity or the profit potential of the show.

On the other hand, using scenes from the show to put together your own competing television show would be a violation of copyright and would not likely be considered fair use.

Are there any other exceptions to the exclusive rights of authors?

Lawrence Lessig documents a number of them in his book Free Culture. Autoplaying pianos and radio performances are two examples. Specifically for a radio performance, the songwriter is reimbursed an amount specified by Congress each time a song he/she wrote is performed. What this means is that whenever a radio station plays a song performed by Madonna but written by someone else, Madonna isn’t the one who gets paid for it. I believe there was a street performer who was sued by a famous singer and songwriter. More recently, Internet radio stations were required to pay for each song being played, which made it prohibitively expensive for many of the stations to continue.

After 1976, you could not copyright fonts in the United States, even though other nations, especially those involved in the Berne Convention, do allow for fonts to be copyrighted. Of course, you cannot take any font you find and use it for your game, especially if you wish to distribute it internationally.

You can’t always believe that copyright will prevent anyone from doing things that would otherwise be your exclusive right. In the case of video games, the copyright to your game will most likely grant exclusive rights to you, but you must be careful incorporating different elements, such as a font or a piece of music, into your game.

What is the Digital Millenium Copyright Act?

The DMCA was signed into law in 1998, and it changed copyright law in a fundamental way. Specifically, it made circumventing copy protection into a felony. In fact, simply owning the means to circumvent copy protection was a felony. It did not matter if there was an infringing use of the copyrighted material.

Long ago, the MPAA was concerned that VCRs would be the end of the movie industry. There was fear that people would simply copy movies, never buying them. They wanted VCRs to be made illegal, but the courts ruled that just because they can be used to infringe copyright, it doesn’t mean that they should be banned. It was enough that there were plenty of non-infringing uses for the VCR.

With the DMCA, such logic doesn’t apply. If you can circumvent copy protection, it is a felony. Obviously a lot of researchers, scientists, developers, and end users are now criminals. After such people made a lot of noise, exemptions were made, so it isn’t as terribly restricting as it once was. Prior to these exemptions, there were concerns that copy protected works would not be archivable, or that published works could subsequentally become un-published at the whim of the copyright holder.

Still, the point is that the DMCA individual copyright owners a lot more power over their creations than they have enjoyed previously. So-called digital rights management is now enforceable by law. If you try to circumvent it, whatever form it takes, not only are you potentially infringing on someone’s copyright, you are now committing a felony.

The DMCA also allows copyright holders to send takedown notices to web hosts and ISPs. If you believe that one of your copyrighted games are being hosted illegally, you can send a takedown notice to the ISP. The DMCA says that if the ISP takes down the material, it will not be held liable. Generally, the ISP complies to avoid any potential liability.

Are there concerns about the DMCA?

WARNING: I tried to figure out how to write the following without going into rant mode, but I believe I failed at the attempt. I am not a fan of the DMCA or so-called digital rights management, and the following makes my position clear.

The Electronic Frontier Foundation’s attorneys argue that it is too easy for someone to send takedown notices, which essentially allows for a chilling effect on free speech. A few years ago, FatWallet.com received takedown notices from Best Buy and Wal-mart, among other companies. FatWallet.com, which allows users to post deals at various stores, had a few price lists for Black Friday sales that were not supposed to be published. Somehow the prices leaked, and someone posted them on the website. As far as I know, a price list isn’t something that can be copyrighted, and I doubt copy protection was involved in any way, but since it is in FatWallet’s best interest to comply with the demands of the corporations, they took down the price lists. The next year the same thing happened, and this time Best Buy and Wal-mart asked for the names of the people posting the price lists. FatWallet.com refused, and a lawsuit was pending. It seemed like nothing more than a scare tactic since the suit was dropped after Black Friday passed. The companies had succeeded in preventing the prices from being listed before the sale.

A more recent example: Viacom sent out takedown notices for a large number of videos on YouTube. Over 100,000 videos had to be removed from the website. It turned out that at least a few of those videos were not owned by Viacom and so should not have been taken down. YouTube, and Google as the parent company, clearly have a good incentive to comply with Viacom’s demands, regardless if those demands are valid. If you were to try to find one of these videos that were not owned by Viacom, you might have instead found a message from YouTube explaining that the video was taken down for a violation of copyright infringement. They have since changed the wording in such messages to make it clear that there are merely claims of copyright infringement.

Can a political organization send takedown notices to censor an opponent’s message? Can someone’s reputation get tarnished if their work is replaced with a message from the ISP regarding the violation that may never have happened? These are all very real concerns. There are reforms currently under way, and laws such as the Digital Media Consumers’ Rights Act are being proposed to return the balance of copyright to favor the public again.

There is also a concern that the DMCA actually reduces competition by restricting the options customers have. The DMCA made it easier to create proprietary platforms that are difficult for competitors to work with. Imagine if the telephone companies created separate networks, and people in one network couldn’t talk to people in another unless there was some way to interoperate. Some companies make it incredibly difficult to do so, cutting competitors off from potential customers. For instance, Apple’s so-called DRM, FairPlay, allows you to play the music on your iPod that you purchase from iTunes, but you can’t play it on another company’s player unless Apple licensed the technology to that company. If you decide to purchase NewMusicPlayer Plus, and Apple didn’t license this company to use FairPlay, you won’t be able to play the music you purchased from iTunes on your new device. What incentive do you have to purchase NewMusicPlayer Plus, then? It is not a real option, especially if you have purchased a lot of your music from iTunes. All of those songs would have to be repurchased simply because Apple has a proprietary lock on the data.

Microsoft recently got around this barrier to market by essentially repurchasing all of the music on your iPod for its Zune product. You get a new player and still get to keep the music you purchased. As far as the customer knows, the music was “transferred” from one device to the other, but it is not likely that such a transfer would work as well in the other direction. Of course, not everyone can afford to create a new product AND pay for the rights to all of the music for millions of customers, and to do so would simply create yet another proprietary, locked down platform. DRM, and the DMCA that provides the legal threat for non-compliance, restrict customer choices and reduces competition.

DRM becomes an inconvenience or a hassle for legitimate customers while doing nothing to prevent those who would illegally copy the floppy, CD, or DVD from actually doing so. DVD “pirates” simply make bit-for-bit copies of DVDs that work exactly the same as the original, DRM and all. Meanwhile, it is a felony for someone to watch a DVD on a Free operating system? There seems to be some disconnect about who the criminal is.

Conclusion:

I hope this article has been useful. If you don’t know everything you need to know about copyright, then you should know enough to conduct further research on the topic. At the very least, you should see how confusing it can be whenever a new lawsuit involving copyright changes an aspect of the law. If you would like more information, consult the Resources section below.

Resources:

• Archives.gov: Constitution Transcript
• Copyright Office Basics
• Free Culture by Lawrence Lessig
• It’s a Wonderful Life article on Wikipedia
• The Rights of Authors, Artists, and Other Creative People: The Basic ACLU Guide to Author and Artist Rights from the ACLU

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