Copyrighting Games

A primary reason to register a copyright is to secure your right to sue for statutory damages for copyright infringement.

Without a registered copyright, what you can sue for is much reduced. With a registered copyright, anyone who infringes for profit can be subjected to mountainous damages very quickly.

Check out Title 17 of the U.S. Code if you have questions.

So, what if you could you copyright the player experience?

Is this a hypothetical regarding a different universe?

You can only copyright specific forms of expression rendered into fixed forms.

That and certain types of public performances.

An intangible like the "player experience" is not a fixed form.

And unless you have a very specific process to arrive at to generate said experience, purely experiential phenomena are neither copyrightable nor patentable.

Copyrights are fixed elements. A random pattern of free flowing chaos, even with some ordered elements thrown in, is not copyrightable.

Copyright does not extend to every universal random pattern of events, procedures, etc. It has to do with protecting specific patterns of expression, and nothing more. It also protects against minor deviations of those patterns, to prevent someone from tweaking a few things and absconding with your works.

Patents offer similar protections to processes.

Precious little when you get down to brass tacks. Copyrights offer no protections for mechanics or processes. Period. Patents are used for those areas.

Copyrights offer protection only over creative verbatim expression. Where that expression tends to coincide on a 1 to 1 basis with the actual mechanic, the expression is called "merged" (i.e., the expression is indistinguishable from the process itself), and the "merged" content is also not protectable under copyright.

What is protectable is your unique expression. Now games, and particularly role-playing games, can get into some really murky areas. Is the term "Fortitude Saving Throw" creative expression, or pure mechanics?

In general, you should realize that many things aren't copyrightable. Consider a single recipe. Not copyrightable at all. Pure process. The author's commentary on his favorite time of day to eat the dish: 100% copyrightable. A "recipe a day" book: copyrightable. Strange but true. The difference is, for a single recipe it is a process, but for a book of them, the copyrightable element is the creative choice you made to include or exclude each specific recipe. That is pure non-process-related creativity and is thus copyrightable. The creativity inherent in a recipe, however, is process related, and thus only patentable.

A copyright probably protects a specific expression of your board design, for instance, but wouldn't protect at all the notion that it has squares on it that trigger mechanical phenomena in your game.

Sometimes people calling this effect "filing off the serial numbers".

To gain maximum protection you need to patent and copyright a game.

In general, some of my interpretations above are the result of decisions in two federal circuits (1st and 9th) combined with cases in the lineage of Baker v. Selden (Supreme Court) and the interpretations of the U.S. Copyright Office.

The Supreme Court hasn't really decided very much that's definitive for the entire RPG, card, and board game industries. Since I'm a public policy jock and not a lawyer, your mileage may vary on these issues.

These days the patent office has a lot of non-gamers who don't know what constitutes "enhancement over the prior art" in the gaming industry. So patents are getting handed out too liberally on games sometimes, or alternately those with patents claim too many rights over them.

One person commented that the rights WotC claimed over their Magic: The Gathering patent were tantamount to developing a new type of hot air balloon and claiming rights to all flying vehicles that ever were or ever will be.

In general, I think patents on most games, except for patents on really unusual components with moving parts, ought to be pretty weak. They _should_ only protect the exact game mechanic combinatin involved, and substantial deviations should be free of restraint. Otherwise some bozo is gonna claim he has the patent on rolling dice and moving pawns while drawing cards from a deck.

Re: performances, while playing a game could constitute some odd "public performance" of some elements, even if it did, the playing of a game would be considered "fair use" and would shield anyone playing a game from copyright violation. Now, handing out 10,000 copies of a rulebook on the internet so that other people could play -- that might be a copyright violation. But in general, "public performance" of games will probably be implicated, if ever, with arcade games, which have software designed to display fixed and distinctive sound and image patterns, and my memory is failing me regarding some of the video game cases, but I'm almost certain somebody probably claimed "public performance" in those cases. Whether such a "public performance" rule is appropriate would vary from case to case, and I think seeking a universalizable rule may be more problematic than not.

IANAL
YMMV

No offense taken, this is a forum after all. I was just playing with ideas, and thought other folks might like to play with me :-) It seems that most folks here are not averse to this.

Lee, thanks for entertaining the thought longer than it really deserved. I appreciate hearing your take on the "performance art" aspect. That is kind of how I imagined it while I had my head in the clouds. Though I hadn't thought of the video game take on it.

Before I completely come down from the clouds, another angle you could take is the software copyright (which could spark an argument itself). edit: and yes, I do realize this once again just covers expression

Alright, Alright, I'll stop now.

And after all that, I'll just state that I agree with Lee (assuming I'm interpreting him correctly), a universalizable rule would likely stifle the creative freedom which we currently enjoy.

back to work ...

peace,
Tom

For example, from the Nintendo 64 license agreement:

Public performance rights are important in some video game licenses. Imagine if you had a machine which played a portion of a new DVD movie if you inserted a quarter, and if the machine were in a public space. Clearly you'd be engaged in a public performance of that movie.

Public performance and fair use battle each other. If you couldn't listen to music at all that you owned while in public places you couldn't engage in fair use. Where you are doing it primarily for your own enjoyment that's one thing. Where you are drawing crowds and particularly where you are charging a fee then you are engaged in unlawful public performance.

You are misinterpreting "public performance" and forgetting about the doctrine of fair use. Public performance has to do primarily with acting, musical performances, and video and audio recordings.

The notion of public performance is to prevent text, images, and sounds listed in a fixed form from being converted to some form of ad hoc public performance to cheat the owner of the copyrights out of cash.

Like I said, I can't remember any cases offhand which have dealt with public performance of video games, but they undoubtedly have sufficient "fixed form" content (previews, movies between levels, etc.) that unless the author intended you to display them in public and charge money for the privilege, then _some_ judge somewhere is going to implicate public performance rights even if there is no case law supporting him.

Again, public performance would not implicate running any code in public. Watching MS Word run would be as exciting as watching paint dry, and you are not transferring the code to the end viewer in the same way that you are transferring a movie to the end viewer by operating MS Word in public.

The notion of public performance is that the copyright holder is being deprived of potential profits by people experiencing the copyrightable elements of his work without having to pay for it. Watching MS Word function does not give you access to the code nor does it particularly deprive Microsoft of any substantive resources.

Taking a copy of "Titanic" and showing it for free on a massive movie screen to half of Boston definitely deprives the copyright holder of his due royalties.

A coin-op video game may be a special case. There the copyright holder is clearly intending to sell the game for the purposes of public exhibition for a profit to be made by the owner of the coin-op game. Undoubtedly, if things are handled appropriately, some of this information is being dedicated to writing at least between the video game code owner and the manufacturer of the coin-op games.

While the 9th Circuit issues some crazy rulings sometimes, its ruling in Allen v. Academic Games is, in some ways, a real model for future game law, in my opinion:

[1] The Copyright Act of 1976 confers upon copyright holders the exclusive right to perform and authorize others to perform their copyrighted works publicly. See 17 U.S.C. S 106(4). "Perform" and "publicly" are defined in the Copyright Act as, respectively, "to recite, render, play, dance, or act it, either directly or by means of any device or progress . . ." and "to perform or display it at a place open to the public or at any place where a substantial number of persons outside of a normal circle of a family and its social acquaintances is gathered . . . ." 17 U.S.C. S 101. In applying these statutory definitions to the playing of Allen's games in a tournament setting, we conclude that the playing of a game is not a "performance" within the meaning of the Copyright Act.

[2] Allen maintains that the language of Section 106(4) precludes AGLOA from conducting their national tournament because it constitutes a public performance of his protected literary works, the subject copyrighted games. Allen contends that a purchaser of a board game only obtains the right to play the board game in settings that are not "public" because playing or performing the games publicly is a right held exclusively by the copyright holder under S 106(4). However, the interpretation of "play," as used to define "perform" in S 101 of the Copyright Act, has generally been limited to instances of playing music or records. See Polygram Intern. Pub., Inc. v. Nevada/TIG, Inc., 855 F.Supp. 1314, 1321 (D. Mass. 1994); Hickory Grove Music v. Andrew Andrews, 749 F.Supp. 1031, 1036 (D. Mont. 1990), but cf. Red Baron-Franklin Park, Inc. v. Taito Corp., 883 F.2d 275, 278-79 (4th Cir. 1989), cert. denied, 493 U.S. 1058 (1990), (holding that a video arcade owner's use of copyrighted circuit boards in coin-operated video machines available to the public for a fee constituted public performance of the copyrighted work under S 106(4)). The term "play" has not been extended to the playing of games. To do so would mean interpreting the Copyright Act in a manner that would allow the owner of a copyright in a game to control when and where purchasers of games may play the games and this court will not place such an undue restraint on consumers.

Whether privately in one's home or publicly in a park, it is understood that games are meant to be "played." In this situation, the games are being played by students who come together for the purpose of friendly, academic competition. There is no indication that this nonprofit corporation, AGLOA, and the individual respondents are making the subject games available to the public for a fee. The students, schools, and school districts use their own games, purchased from Allen, in the tournaments, and respondents are merely organizers of this event. Moreover, AGLOA's tournaments are limited to students who participated in regional competitions which also involved the playing of Allen's games.

[3] Even if the playing of games could constitute a performance, we would have to recognize the applicability of the fair use doctrine under Section 107 of the Copyright Act. This section allows the fair use of a copyrighted work in such instances as for nonprofit educational purposes and where the effect of the use upon the potential market for or value of the protected work is limited. As indicated above, AGLOA tournaments are held not for profit, but for encouraging education among young students. The potential market for the subject games has in all likelihood increased because participants of the AGLOA tournament have had to purchase Allen's games. Analysis of other factors involved in S 107 leads this court to conclude that the application of the fair use doctrine in this case is clearly appropriate.

I'd say that unless you have more serious questions in this thread, I'm not gonna waste my time replying any more. I have no particular interest in helping anyone find a way to sell card and board games to consumers and then to opening players up to potential lawsuits and prison time for playing the games they own in some place other than their kitchen.

On the subject of copyright and so on, I play tested my "Chariots of War" game last night at my local game shop. One of the play testers commented that my movement mechanic, where you have five speed levels and each speed level results in a different dice roll for movement, is very similar to "Formula De". I totally agree.

For those interested in my exact mechanic, I quote a brief explaination:

My mechanic is not exactly the same. The clear differences is that "Formula De" rolls different size dies (I just roll d6s) and the amount moved on each die is spread out far differently (for example, the gear five die has a range of 11 to 20 squares for the fifth gear).

Besides this, clearly my game has a lot of different things about it. Could someone from Descartes Editeur say, "Your game is like 'Formula De' with ramming. We are going to sue you."

While I agree my chief movement mechanic is similar, I don't think it is exactly the same. I think it could be considered a variation. But with my mechanic, it could make the game sort of feel like "Formula De" for the movement which is a big part of the game. As such, do you think I am in trouble?

For those of you interested in getting a better idea of my game. Please see the Game Design Workshop section for the game "Chariots of War."

Thanks for you input.

--DarkDream