Law of the Game

A recent UK court decision brought to mind a recurring problem out in the world:A broad misunderstanding of Intellectual Property. As such, I will be posting four articles in the coming weeks, covering Copyright, Trademark, Trade Secret, and Patent. Hopefully, it will help everyone understand what these four very different concepts embody.

The Basics of Copyright

At the most basic level, a copyright is the protection of an expression, not an idea. The famous case of Baker v. Selden solidified that point. In Selden, a series of accounting books had been copyrighted, and the author contended that the copyright protected the accounting system because the books containing the system were copyrighted. The court explained the distinction between copyright and patent, which is simply that copyright protects expression, and patent protects ideas.

The Right of Copyright

Copyright originated in England with the printed word. Today, copyright protects expressions from the written word to the audio recording to the motion picture to software. Copyright itself boils down to a bundle of rights, often compared to a bundle of sticks. These rights include: the right to create copies of the work, the right to distribute copies of the work, the right to create derivative works, and the right to public display/performance. For example, if I wrote a book, I would have the right to grant permission for the publication of that book, or if someone wished to write a continuation using some of the characters, I would be able to allow or stop that work as a derivative.

To get protection, there are typically two requirements: authorship and a work fixed in a tangible medium. In plain English, you have to create something, and that thing has to be a finished product in the real world. A book, a painting, a sculpture, and a movie are all fixed in a tangible medium before release.

Copyright and Video Games

So what does this mean for gaming? Copyright’s application to software is still a relatively young field (compared to the printed word), but on the basic level the rule is the same: Copyright protects the expression, not the idea. This is probably more easily explained through a series of short examples, which will all be video game specific, rather than explain the law word for word. This list is not exhaustive, but it covers many of the bigger issues. Of course, these are all hypothetical examples, and specific facts may have a different result.

1. Making an unauthorized copy of a game and selling it is, quite clearly, infringement. For example, if I burned a copy of Doom II on CD and sold it to you, I would be infringing on id’s copyright.

2. Making a backup copy of a game you own a license to is not infringement. For example, if I made a copy of my Half-Life 2 DVD and put it in my safe, that would be acceptable.

3. Making a backup copy of a game you own a license to and distributing it is infringement, no matter what. For example, if I made a backup copy of Magic of Scheherazade and put that ROM online for others to download, it is infringement even though the game is no longer in production (and a bit hard to find).

4. Copying significant elements of the source code of the game would be infringement, even if the game looked completely different. For example, if Gears of War wasn’t authorized to use the Unreal 3 engine, that would be infringement.

5. Taking a major character from a series and making your own series is infringement, and this includes machinima. For example, if I made “Halo 0: The Cortana Story” to tell the backstory ofCortana, I would be infringing whether that was a video game, movie, book, machinima series, etc. because it is a derivative.

5. A Game Genie (or Action Replay or Game Shark) is not infringement, but a card that plugs into an arcade machine to speed up play is. (It’s a bit confusing, but those are the actual cases.)

6. Copying major element of the GUI (the “look and feel“) may be infringement, but so far, it hasn’t been (although it arguably could have been, were it not for the Windows 1.0 license). This is, unfortunately, a very complicated area that hasn’t been as well defined as other areas. For example, Microsoft Word and Corel WordPerfect both have menus that have File, Edit, etc. This is not infringement. But if I were to make a game that had an identical in game menu and GUI system as World of Warcraft, down to the smallest detail, it would likely be infringement.

7. Example: Reverse engineering Diablo to play on an open source alternative to Battle.net is infringement.

8. Making a game that re-uses a general game idea that is already copyrighted is not infringement. For example, if I were to go make a new golf video game, EA couldn’t claim infringement simply because they already make a golf video game.

Conclusion

As you can see, the concept of copyright is far more narrow than many people think. In the software realm, it is also not as well defined as with other media. It is still important to protect your game, however, with copyright. In fact, it is now even possible to preregister for copyright protection before the work is done. On the other end, as a gamer, it is important to not actively infringe on the copyright of the developer. After all, they put a lot of time and money into creating the game you’re enjoying.

Keep watching Law of the Game for the upcoming basics of Trademark, Trade Secret, and Patent articles.