(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*Read The Rest
(This post was originally written for Ron Coleman’s Likelihood of Confusion blog. Please note that while the author is a licensed and experienced attorney, nothing in this post constitutes specific legal advice. It is provided for general educational purposes only. The author has made an offer of pro bono consultation related to the subject matter of this post. This may be considered ATTORNEY ADVERTISING in some jurisdictions.)
If you are into vintage video games, you probably know about “ROM Sites.” ROM sites are websites where you can download the ROM (Read Only Memory) code for classic cartridge or board-level games, such as Nintendo Entertainment System cartridges or arcade cabinet games like “Spy Hunter.” They’re not really different in kind from websites or torrents where you can download more modern software which was available on disk or CD-ROM. They’re just a little more arcane because you have to not only download the ROM code (which has been “ripped,” or copied from the ROM chips to a computer hard drive) but download and run “emulator” software, which allows your modern PC to run code written for much, much older hardware. It’s entirely doable, but requires a little effort and tech know-how.
Recently, Nintendo sued one of the better known ROM sites, loveroms.com, and won a 12 million dollar judgment against them for copyright infringement. Here’s a copy of what was the front page of loveroms.com from the complaint:
Here’s what’s on the loveroms.com front page now:
Apology to Nintendo
Our website, LoveROMS.com/LoveRetro.co, previously offered and performed unauthorized copies of Nintendo games, in violation of Nintendo’s copyrights and trademarks. LoveROMS.com/LoveRetro.co acknowledges that it caused harm to Nintendo, its partners, and customers by offering infringing copies of Nintendo games and has agreed to cease all such activities. To access legitimate Nintendo games online, please visit www.nintendo.com for information about the Nintendo Game Store.
I had the honor of being a speaker on two of the panels at CVGLS 2016, and as always (well, they’re two for two) it was a great time and I met a lot of cool people. First, congrats to Ross (@loadinglaw) and Suzanne (@zedthegamer) for organizing another great summit. Thanks for inviting me and I hope we do it again soon!
To briefly review the panels:
The Changing Scene of eSports
I was on this panel, so it was great. You can find the written materials I referred to several times at this link: MarcWhippleCVGlS2016
Thanks to my fellow speakers Jason Greenglass, Ryan Morrison, and Lydia Picknell. I covered the basics of gambling law in the US and talked about just a few ways you could run afoul of them when developing video games, and why the Daily Fantasy Sports operations like FanDuel and DraftKings were kicking up a lot of dirt that might land on us. Jason and Ryan talked about the legal aspects of eSports, player contracts, et cetera, and Lydia talked about them from the perspective of a player/coach/owner. (Yes, she’s a female eSports team coach and owner. Fear her!) We had a lot of fun and everybody seemed to enjoy it very much.
Recent Developments in Video Game Law
I was on this panel, so it was great. 🙂
I was on this panel with Greg Boyd (who also moderated, to the extent we let him,) Patrick Sweeney, and Ryan Morrison, again. (Ryan and I were on stage literally all morning and people still stayed!) We covered the basics of intellectual property law, always a hot topic in video game development, as well as advertising and other matters of current interest. We also got into crowdfunding a little bit – just enough to reveal that it is fraught with peril, especially if you want to give backers equity or a right to some of the revenue stream, so you really, really need a lawyer!
Privacy, Harassment, and Free Speech in Video Games
I was not on this panel, but it was still pretty good. 🙂
While this panel covered a lot of important issues, it focused on the problem of harassment in the video gaming world. Lydia told some powerful stories about the things she’d encountered as an eSports professional. Sadly, a lot of the really excellent questions more or less boiled down to, “How can we use the law to make people nicer?” To which the legal answer is ultimately, “We can’t.”
Video Games and the Right of Publicity
I was not on this panel, but it was still pretty good. 🙂
This was probably the legal-iest of the panels, with lots of actual case law and real-world examples of using other people’s likenesses (not just their faces – their names, their voices, you name it) and the trouble it can cause. “Don’t, unless you’ve talked to a lawyer,” was probably the takeaway from this panel.
The History of the Video Game Industry in Chicago
I was not on this panel, but it was still interesting. 🙂
While I won’t try to recount the stories, I will point out something that was said multiple times. One of the developers worked for Bally when they were making arcade games – the typical dev time was a few months! It was very much a pipeline process: electrical engineers and the first game artists would come up with a game, program it, make master copies, and then it went to the assembly line for mass production. What he said was, “If you didn’t finish your game on time, people got laid off.”
That’s still an important concept for developers to keep in mind: the publishers have marketing slots. If you don’t finish your game on time, they lose the slot. Somebody else gets the spot on the shelf or the promoted marketing page on Amazon/Steam/etc. It’s not a question of whether your game is good or it sells: those are equally important but different questions. You have to finish on time or somebody who was going to try to sell your game has no product. That’s never good. If you finish on time and give them the product, you make their lives a lot more pleasant. Even if the game isn’t great (so long as it doesn’t suck) that’s worth a lot for next time. Relationships and reputation are still important, even as assembly lines lose their importance in the world of gaming.
Thanks for reading, and see you next year!
I attended MAGFEST 2016 in National Harbor, MD (just outside Washington, DC) this weekend. MAGFEST is a major computer game conference with an emphasis on music and creativity. And wow was there a lot of creativity on display!
I was there as an invited panelist. My presentation, entitled “Third Party Trademarks vs. Your Game, Your Dreams, and Your Money,” was part of the MAGES Legal sequence, and given in collaboration with three great attorneys from well-known law firm Banner & Witcoff. It was an honor to be up there with them. If you’d like to see the materials from my presentation, I’ll have a link here in a day or so, or follow me on Twitter and wait for me to post the link. 🙂
First, heartfelt and grateful thanks to:
Sam Castree of Crawford Intellectual Property Law, for the invite, the Legal panels, logistics, and candy from Russia. Sam, you are aces.
Tasker, Jax and their merry band of LARPers, whose games were fantastic and a great way to enjoy the festival if your ears aren’t quite up to some of the… louder stuff. Brilliant, creative, and engaging people. This is the kind of thing I hope to encourage by assisting creators in dealing with business and legal matters.
The doctor of psychology at the Gaming and Immersion panel whose name, shamefully, I forgot to note, for being open minded to my alternate theories on the psychology of game immersion and loss of self.
My fellow presenters Steve Chang, Ross Dannenberg, and Scott Kelly. I really enjoyed collaborating with lawyers of their caliber, and dinner was great fun.
And the MAGFEST staff for their hard work, friendliness, and overall ability to make 20K gamers behave themselves!
Here are my thoughts on the panels I attended:
The other MAGES Legal Panels – They were all great. You should be very confident in hiring any attorney who presented. Special shout-out to Suzanne Jackiw (@zedthegamer) and Ross Hersemann (@loadinglaw) for being young lawyers with mature advice!
What Games Get Right and Wrong About Reality: Expert’s Perspectives – This was really interesting. The experts knew their stuff and were very personable. Lot of good observations and thoughts on how to do better.
Bootlegs, Counterfeits, and Lies: Fakes In the Video Game Market – Went to this on a whim. Though it was a bit chaotic, the panelists knew their stuff and I learned interesting things. They also responded with good humor when they learned that they had two IP lawyers in the audience. 🙂
The Worst Panel You Will Ever See at MAGFEST – Exactly what it said on the tin. At least for me: it was apparently aimed at long-time MAGFEST insiders/volunteers. Even for them it seemed rather random, chaotic, and obnoxious. I left early.
Video Game Industry Real Talk – I was blown away by how good this panel was. Though young, the panelists were the real deal, knowledgeable and honest about both their successes and their failures. They were having fun, but they were laying it down. If the hopeful indies in the audience were paying attention, they got their money’s worth.
Therapy and Tabletop Role Playing Games – This had a lot of potential, but to be brutally honest the panelists lost control. At one point, an audience member went up on stage and started plugging her book. Now, I’m pretty sure she (and many of the other people who co-opted the talk) had legitimate issues of their own, but it was hard to stay engaged when half the panel was audience members meandering through their ill-defined rambles. The panelists did have some interesting points when they managed to get in a few words.
Therapy and Gaming -Same people put this on as did the prior one. Same objections, plus it seemed a bit redundant. Left a few minutes in.
Brains & Games: Designing Videogames that Incorporate Mental Health and Human Experience – Enjoyed this. This panel had a similar demographic to the prior two, but the panelists maintained control. Good information on using games to implement self-improvement and mental health assistance programs, including a CBT reinforcement game and games to help with grief management.
LARPs by (among others?) Damocles Thread Development – The ones I did were the Fallout “Vault 71” game, the “Not Shady, Just Fierce” werewolf social game, the Witcher “From Novigrad with Love” game, and the “Gaudete Sunday” Victorian Tea Party game. (Best quote: “I did not anticipate that this game would need combat mechanics.”) They. Were. Amazing. I had so much fun. And extra kudos to the storytellers for dealing with huge turnouts as well as anyone could be asked. Even with the crowds things happened, people participated, and a good time was had by all. If you see DTD putting on LARPs at an event, GO.
The Mind’s Eye: Gaming and the Role of Immersion – The moderator lost control of this one, and didn’t seem willing to stop the endless tide of look-how-smart-I-am questions or just outright I’m-just-going-to-pontificate-for-a-whiles. That being said, it was a fascinating subject and the panelists were extremely knowledgable and insightful. Very glad I attended despite the runaway parts.
That’s it! Thanks for reading, and see you next year!