No One Can Hold The Wind: Control Over Art Released Into The Public Domain

(The author of this post is a licensed and experienced intellectual property attorney, but nothing in this post should be construed as specific legal advice. Consult an attorney licensed in your jurisdiction and familiar with the relevant law before making legal decisions.)

“Public domain” is a very slippery term, legally speaking. What it usually refers to is an artistic creation that either predates modern copyright law, or for which the copyright has expired – in other words, there is no applicable legal copyright in the work. Once something is in the public domain, anyone may use it in their own artistic creations. (Though this may create a new, copyrighted work, to the extent that the new creation comprises an original artistic creation beyond the artistic elements of the integrated public domain work.)

There’s no way, under US copyright law, to “release” a copyright before it expires. (This is a conversation I’ve had with other copyright lawyers.) Since neither registration nor notice are now required to create a valid copyright, it’s literally impossible to create a new work and have it NOT be copyrighted. However, one can release an artwork and offer the public an unlimited license to use it. Technically, such an artwork is still under copyright and is not “in the public domain,” in the way lawyers use the phrase, but for practical purposes, it may be thought of as being in the public domain.

That is just a little background for the actual topic of discussion for today, which is a game developed by indie developer Jason Rohrer called “One Hour One Life.” Mr. Rorher has an unusual business model: He “releases” all of his games into the public domain, and makes money from his creations in various ways that don’t involve strict control of the copyright. You can read about his philosophy here: Free Distribution.

Mr. Rohrer makes very good games, and between selling copies of “his” version of the games, donations, and other methods, he makes his living. But of course, you wouldn’t be reading about him on a legal blog if there wasn’t a legal issue.

*ominous music*

His game “One Hour One Life” (“OHOL”) is a multiplayer online game for PC’s. The economic model is that you give him $20 and that buys you an account on the multiplayer server so you can play. (The game has no offline mode.) Mr. Rohrer did not make a mobile port of the game: among other reasons, his economic model requires that a player pay $20 for a server account and I get the impression he does not believe this is a realistic price for a mobile app. (Which I don’t believe either.)

Enter Swedish developer DualDecade, who have developed a mobile port of OHOL. Mr. Rohrer apparently had some discussions with them about using his servers (which would allow mobile players and PC players to play together and give the mobile port a much larger playerbase.) But for whatever reason – part of it undoubtedly being that requirement for a $20 payment to get a server account – DualDecade launched the game with their own servers.

Normally, the port itself would be a serious legal issue: they reused his copyrighted assets extensively. But he does not oppose people who do that, so there was no problem.

Until.

The mobile app was extremely successful, and there ended up being a lot of confusion as to the relationship of the mobile app and its developer to the PC app and Mr. Rohrer. The mobile app has diverged – as is only natural – from the vision and playstyle of the original. People think Mr. Rohrer is involved in it: he gets complaints about bugs and play issues, and people actually report Mobile bugs on his Github for the PC version. It’s a mess.

Mr. Rohrer does not believe in copyrights and trademarks, and that’s his right. His enormous talent and very hard work have created a model where he has been successful without using their protection, and that is impressive. I do not mean anything in this post to be disrespectful to him.

But he has just independently rediscovered the purpose of trademark law.

Everybody hates cops until it’s their house being burgled, sort of thing. His post above details his issues and complaints, and contemplates various things he might to do deal with them. The thing is, we have systems for this. He just doesn’t want to participate in them. Again, his right. But he can’t have it both ways. “I don’t believe in trademarks, but you’re confusing people as to the source of these goods.” “I don’t believe in copyrights, but you’re changing my game to the point where it’s bringing my creation into artistic disrepute.”

He uses the word “fraud” a lot to distinguish his complaint from traditional trademark usage. But fraud, legally, requires intent. He doesn’t seem to believe that anybody intends to deceive anyone, other than leaving some verbiage out of some of the mobile game release descriptions which is iffy at most. So there’s nothing fraudulent, as lawyers use the word, going on.

Another term he uses is “plagiarism.” Plagiarism is a scholarly term: it’s not a legal term. Sometimes plagiarism involves copyright infringement, but something can be plagiarism without being copyright infringement, and vice versa. Since he’s not making a complaint to an academic or professional body, while he is entitled to be upset about it, saying something is “plagiarism” doesn’t give him any enforceable rights or legal claim.

If he doesn’t want to participate in the copyright and trademark system, another option he may have is to exercise his right of publicity. This is the right to control one’s name and likeness, especially in relation to commercial activity like selling video games. However, at most, what that will get him is… making them take his name off the descriptions. That might help a little, but by and large the problem seems to be confusion with the game itself, and all the issues with the mobile port will still lead people back to him as the originator and, rightly or wrongly, assuming that he is involved and can help address their concerns.

So, from my general understanding of what’s happening, here’s my non-legal opinion as to what he can do about this:

Nothing.

From a legal perspective, of course. From a moral/ethical/public opinion perspective, he can do exactly what he is doing – try to make people aware of the situation and try to pressure the mobile developer into helping to reduce the harm. Perfectly viable approach in many respects. But we have a system for dealing with just this problem: namely, consumer confusion as to the origin of a good or service. It’s called trademark law. He doesn’t want to use it. Mr. Rohrer is a gifted artist and a very smart man, but he’s not smarter than the cumulative efforts of hundreds of years of brilliant legal and commercial minds which created our current system. If he tries to create some sort of new approach, what he will do is recreate trademark law, because this is how we got trademark law in the first place.

When I do consultations with potential new clients, one of the things I am fond of saying is that you cannot protect ideas. No legal system of which I am aware allows you to do that and philosophically, I’m not sure it can be done. What you can do is protect specific embodiments of ideas. You can patent inventions. You can copyright artistic creations. You can use specific distinctive names and other identifications as marks to identify your particular embodiments in trade (i.e., trademarks.) But once an idea is out, it’s out. It’s like the wind. No one can catch the wind for themselves: the wind blows, or doesn’t blow, for everyone. Once something is in the wind, it will flow to everyone in time.

By releasing his work into the public domain, Mr. Rohrer has put it into the wind. He has every right to complain, morally speaking, if people are acting in ways he finds objectionable and/or cause him to have to deal with problems he did not create. But he doesn’t believe in the systems we’ve evolved to help address exactly these questions.

I reviewed the discussion on his forum about the situation (well, one of them) and the more I read, the more that I got exactly that impression: he has a problem, the problem is a solved problem, but he doesn’t like the known solution. He’s even discovered the law of moral rights, but in the US at least, moral rights are inextricably associated with the concept of unfair competition (the case he cites, Gilliam v. American Broadcasting Companies, basically imported European-style moral rights into American law by saying you can’t alter a product, including an artistic work, and then pass it off as the original to the public.) In other words, it’s back to the ultimate underlying principle of trademark law: no confusing the public as to the source of goods or services, including making people think that a good or service was created by someone else when it’s no longer the good or service they created.

Another interesting assertion in the discussion is that this would be a case of first impression in the US. Apparently Mr. Rohrer had success – and more power to him – arguing a case against a licensed attorney, and acquired some knowledge regarding reading case law, etc. He goes so far as to claim that “a ‘real lawyer’s’ opinion here is likely to be no more informed than anyone else’s, in this particular, highly unusual case.” While he is probably right that this is a unique fact pattern, I am sorry that he thinks that there “there is no lawyer in the country who is an ‘expert,'” because I know several attorneys who could give him a very solid opinion as to what would happen if he asserted, or failed to assert, various rights when asking the legal system to take action on this matter.

Regarding such action, Mr. Rohrer doesn’t want money and in fact has declined to accept any: he just wants the developers of the mobile port to address his concerns in a way that’s satisfactory to him. (They are, by the way, participating in the public conversation on his forum and have been quite respectful.) He can ask all he wants, and I agree that morally, there’s a strong case to be made that by profiting from his creation, DualDecade has a responsibility to deal with this. But ultimately, he refuses to assert any of the rights he already has, or at least had, which would enable him to compel them to do this.

He could have retained his copyright and offered a license with just these provisions.

He could have entered into some sort of endorsement agreement with the mobile port developer which gave him some level of control over how the game was labeled and distributed.

He could have asserted trademark rights in the name of his game so they’d have to use a different one.

He could have done lots of things. But his principles prevented him from doing them. Which, again, fine. Admirable in many ways. But trademark law wasn’t invented by greedy lawyers and rent-seeking capitalists. (Well, not just them.) It was invented to protect the public, and honest merchants, from exactly the kind of situation Mr. Rohrer now finds himself in. If he does not want to avail himself of it, I honestly don’t know what I’d advise him if he were my client other than, “I guess you can keep trying to exert public pressure, but at some point, that’s going to backfire on you, and it’s entirely possible they will get fed up and start trying to use the system against you*.”

In any event, this is the kind of thing that I think might have gone more smoothly if Mr. Rohrer had consulted an experienced intellectual property attorney before he implemented his unusual business model. He might or might not have decided to change anything, but at the very least he would have had a clearer understanding of the implications, risks, and limitations on his ability to control how his work was used. And hopefully, he would have had a solid plan, constructed with the help of that attorney, for dealing with issues such as this before they arose. I honestly believe that would have helped avoid a lot of the misunderstandings which have arisen between the parties.

I will watch further developments with interest: as Mr. Rohrer points out, this is a very unusual fact pattern, as well as an unusual approach to this kind of dispute. As always, questions or comments are welcome, either by commenting below, by sending me a tweet, or by email. (If you email me please specify whether or not I can share the contents of your email: I default to not sharing, but it’s helpful if you specify.)

Thanks for reading!


*If you are invited to a knife fight and decline to participate, that’s one thing. But once you step into the ring, if the other guy has a knife and you won’t pick yours up, you had better hope your UC skills are on point, because you have just disadvantaged yourself enormously. (If you ever meet me in person, feel free to ask me about a very funny story I have regarding some Rennies and a fake knife fight.)

8 comments

  • Sort of a hypothetical: if the mobile game got much more successful than the original, could the mobile developers seek a trademark in “One Hour One Life”?

    I’d guess that so long as Rohrer continued to market his version, he could fend off trademark registration by arguing that since there’s always been two versions in circulation that the required association hasn’t formed, but would this argument still hold up in a hypothetical situation where his market share shrunk to, say, 5%?

    I imagine even if this happened in real life, it would still behoove the mobile developers to avoid this because of the PR optics, but I’m curious as to what their options would be from purely a legal perspective.

    • It’s not very hypothetical at all, in that if you read the forum discussions this may have already happened in terms of sales/player numbers.

      The answer to your question is, “It depends. But absolutely maybe.” Rohrer has priority of use: it would be very difficult for any other developer to kick him off the mark. But it wouldn’t be impossible. It’s a real risk. Also, it wouldn’t be impossible for them to kick others off it, though that gets weird fast.

  • It’s interesting that it wouldn’t be impossible, and this might very well be coming to a head. According to that page you linked, he wasn’t happy with whatever they did because the latest post on that forum thread is that he’s issuing takedown requests with mobile app stores. Sooo…I’m not sure what this guy’s thing is; he’s apparently not happy with either copyright or trademarks, but he wants what copyright and trademarks will give him, and he just doesn’t want to call them that?

    You said in your post that there’s really not any such thing as “releasing” something into the public domain, but once he’s posted that this is out there with a “license” to do whatever, can he revoke the license and pull it back in the way he appears to be trying to do? Would that apply only to people in the future who want to use his work? Or has the horse left the barn completely at this point?

    • Your last question is a really, really hard one. The question of revoking licenses gets complicated fast. The short answer is that it might be very difficult for him to do that.

      As far as your first question, he seems to be confusing what he considers plagiarism (or “fraud”) with legal protection for intellectual property. That is not how that works.

  • March 6, 2019 at 8:53 pm // Reply

    I know the “Fourth Estate vs Wallstreet.com” decision just made does not really apply here (since he obviously won’t register)…
    but what is your take on it. A lot of small business owners (Artist Alley types and other artists) are worried that they will go bankrupt trademarking everything they produce since they can’t sue until a registration is granted.

    • It was always the rule that you couldn’t sue until you had registered your copyright, at least for US works. Nothing has changed in that regard. Blog post shortly.

  • I’m not sure you understand what Rohrer’s complaint with DualDecade is exactly. The article certainly doesn’t mention it.

    He doesn’t mind that they have a commercial mobile port of his work. He doesn’t (or at least didn’t) mind that they don’t credit him. He doesn’t mind that they’ve made some changes to his work. He explicitly told them they could do all of these things.

    His problem is that they have posed as the creator of his work.

    • It’s quite clear from the forum thread that that is what he is complaining about. I respectfully assert that nothing he has said happened is likely to legally comprise them “posing as the creators of the work.” At worst, they’ve inadvertently not made clear that they weren’t. This is obviously very subjective. He may think, morally, that they have tried to fool people. But even if you take everything he says about their observable actions as 100% accurate, it still doesn’t necessarily add up to that.

      The thing is, though, that he apparently thinks that them actively trying to “pose as the creators of the work” would be unlawful, based on his layperson’s reading of some of the relevant law. This is important because he thinks that even though he doesn’t want to try to enforce, or even claim, copyright and trademark rights, that somehow the law will still stop people doing what he thinks they shouldn’t do. This is far more complex than that.

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