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*

Read The Rest

I’ll be at MAGFest in February!

I’ll be giving a panel talk on “Third-Party Trademarks in Video Games.” In other words, if you want to put a Coca-Cola® sign on the street in your game world, can you? Should you? How should you do it if you want to, can, and should? I’ll be at the conference all weekend and am always glad to talk law, technology, pop culture, or the random topic of your choice.

Chicago Video Game Law Summit Comments

I had a great time at the first (and hopefully annual) Chicago Video Game Law Summit last Friday. I attended all the panels, as well as appearing on the Video Game Law and Business panel. My co-panelists Greg Boyd and Sam Glassenberg were both knowledgeable and a ton of fun, and special thanks to moderator Patrick Sweeney for providing refreshments appropriate to the gravity of the topic. (As ever, IP leads the law.)

One topic which was discussed during the dev panel I just wanted to make a small comment on. Companies have various approaches to “moonlighting,” or doing outside work while employed by them. (This can also apply, depending on the nature of the contract, to contracted development work. That’s yet another reason you need an attorney to review your dev contracts.) One panelist said that they believed it was easier to seek forgiveness than to ask permission – that is, they’d do the work, and if anything ever came of it, they’d explain it to their employers later.

In a practical sense, this isn’t the worst advice ever, since the odds are nothing much will come of it (sorry) but I have to disagree, and for two reasons:

  1. If your outside work – say, a mobile app you develop in your free time – takes off, there’s a very real risk that your employer will end up owning it, or at least having a claim over it which will cause no end of problems. However, that’s not the most important issue.
  2. If your employer finds out you’re violating an established policy, whether written or unwritten, regarding moonlighting, they may consider that a sign that you are not a trustworthy employee.

That second one is the real-world reason why I disagree with this advice. In general, don’t lie to employers when there’s a good chance you’ll get caught at it. (I mean, you shouldn’t lie to anybody for the most part, but there are degrees to everything.) They’ll very likely respond the way that regulators respond when they find out you failed to disclose something. Whatever you didn’t disclose may be totally innocuous, but their first response is, “What else aren’t you telling me?” It provides incentive to investigate further, and it indicates that you may not be happy in your position and/or that you are not serious about upholding the employer/employee relationship under the accepted terms.

This goes nowhere beneficial to your career.

If you want to do outside work while employed by another party, the thing to do is find out if there’s a policy, and follow it. If the policy doesn’t allow what you want to do, seek a waiver. Yes, waivers can and will be granted by most reasonable employers, even if the policy doesn’t specifically allow them, as long as your outside work doesn’t directly compete with or endanger the interests of the employer. If the policy doesn’t have waiver provisions, that is an opportunity for you to discuss ways to make your employer a better working environment and a more competitive seeker of candidates in the marketplace. Drafting and implementing a reasonable waiver procedure is an opportunity for developers and human resources to work together to make the employer a better place for everyone. And if they’re not interested in being reasonable, that is valuable information for you in considering the future path of your career.

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