Archive for the ‘Video Games’ Category

Back to writing after a busy and too short summer.

A question was posed on the submit page asking for details about the public domain. Speaking generally, the public domain is what contains creative works that are not protected by copyright. The public domain is neither good nor bad. On the one hand, it is a limitation on the power creators are able to wield over their work, and if a person has created something extraordinary that is sold for generations to come, that person’s descendants cannot continue to benefit. A future derivation may also tarnish or insult the original intent of the author. On the other hand, the public domain creates a repository of knowledge and expression that anyone can use and enjoy, a benefit to the rich and poor alike.

Copyright Expiration

The most common way a work enters the public domain is if it’s copyright term expires. The term length of most copyrighted works registered today is the life of the author plus 70 years, the thinking being that the author, her children, and her children’s children is long enough for a family to profit from a work of art before it belongs to the public. If a work of art is the result of a work-for-hire situation, the length is 95 years. Some older works from the 20th century are on slightly different timelines, but generally, if something was made prior to the 1920’s, it’s in the public domain.

The term length was once shorter (originally just 14 years), but has gradually gotten longer. One popular story among copyright attorneys is that the term is extended again and again because Disney wants to protect Mickey Mouse from the public domain. Walt Disney (the man) directed Steamboat Willy and the other original Mickey Mouse cartoons in 1928. Walt Died in 1966, meaning that his works of authorship, the Mickey Mouse cartoons, are currently set for the public domain in 2036 (or 2023 if they are considered work for hire).

Once they enter the public domain, two things will happen: first, the cartoons themselves will become free for anyone to view, edit, or transform without any regard for Disney’s (the company) creative or monetary interests. A pornographic movie based on Steamboat Willy could be made, rival animation companies like Dreamworks could include clips (or the entirety) of the movie in their own work. Probably of greater concern to Disney (which doesn’t make much money off the 1928 films anymore) is the fact that the character of Mickey Mouse would enter the public domain. Anyone who wanted could put copies or derivations of Mickey on clothing, use him in ads or films, or anything else they could think of.

The character design for Epic Mickey will be protected for another 95 years, but the same is not true for Mickey's Steamboat riding cousin.

Certain famous characters can be protected by copyright separate from the stories they inhabit. Mickey Mouse is a famous and distinct character that Disney continues to market in its theme parks and through new video games like Kingdom Hearts and the upcoming Epic Mickey. Every time Disney uses Mickey in a new way, they create a newly protected version of the character. The specific design of Mickey for the new game will not enter the public domain for another 95 years, but the core concept of of Mickey Mouse, once in the public domain, would allow anyone who wanted to the opportunity to create their own Mickey and claim they derived it from the 1928 version, rather than the 2010 version. The same will be true for Batman and Superman. Ironically, comic companies usually argue that famous characters are works-made-for-hire because it gives them more power when the artist in alive. After an artist dies, however, made-for-hire works usually have a shorter term, it will be interesting to see if publishers change their tune when Superman hits the public domain.

Disney isn’t totally against the idea of using stories with expired copyrights, however, as the majority of its animated film library from 1930-2000 is populated with adaptations of pre-existing stories and fairy tales that it put it’s own spin on. In this, Disney actually demonstrates the wonderful side of the public domain. The story of the Little Mermaid is a cautionary moral tale that has implications in our present time as well as when it written by Hans Christian Anderson in 1837. However, if the original telling was all that could ever be told, future generations would be deprived of the opportunity to experience the story in new or relevant ways. Disney will enjoy protection of its specific mermaid for another 100 years or so, but then it too will become a part of the public domain.

Never Meant for Copyright

Sticking with Disney but changing topics, a second class of resident within the public domain are works, expressions, and ideas that were never meant for copyright. Short phrases and facts don’t qualify for protection, the first because it’s just not enough of a labor to create a short phrase and the second because no one thought them up.

Ideas are also not protected by copyright. Ideas may include plot lines or devices, character archetypes, or underlying themes. While Disney may want to keep Mickey out of the public domain, it is quite happy that the following quartet is open for public use:

Pirates of the Caribbean profited by putting new faces on old character types...

1. Young hot-blooded hero from humble background with dreams of grandeur.

2. Young beautiful noblewoman with an attitude.

3. Morally ambiguous pirate with all the best lines.

4. Hairy pirate sidekick.

Disney rode the above characters to millions of dollars in movie attendance and merchandise with Pirates of the Caribbean, but if the archetypes were protected by copyright, most of that money would be going to George Lucas since he used an astonishingly similar team in Star Wars 30 years earlier.

because some character types are always popular.

Of course, Lucas himself was borrowing from other sources, but that’s the point, some things shouldn’t belong to individuals or companies, but to the public. Disney owns Jack Sparrow (Captain! Jack Sparrow) and Lucas owns Han Solo, but if you have an idea for your own morally ambiguous pirate with killer lines, go for it!


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Cliff Bleszinski of Epic Games

This past week, game designer Cliff Bleszinski (of Unreal Tournament and Gears of War fame) tweeted a link about the upcoming case and encouraged people to sign an online petition protecting the First Amendment rights of video games.

This fall, the US Supreme Court will hear the case of Schwarzenegger v. EMA concerning a California law aimed at stopping minors from purchasing video games with violent content. The law was passed in 2005 and signed into law by Governor Schwarzenegger. The Entertainment Merchants Association (EMA) challenged the law on First Amendment grounds. So far, the lower court and appeals court have agreed with the gaming industry: the law has never gone into effect. The law would brand certain games as “violent” and restrict the sale of such games to minors. Merchants would be required to affix a white sticker labeled “18” to the games and would be subject to a fine if they sold the games to persons under 18.

The First Amendment is the closest most Americans come to considering something sacred. However, free speech has never been unlimited, as concerns for privacy and public safety (among others) have always been balanced against free speech. Free expression towards minors is an especially touchy subject, as minors are viewed as more impressionable and are often less able to choose where they can and cannot be and, hence, who they can and cannot listen to. Two of the better known exceptions to free speech involves minors. First, child pornography is outright censored in the United States; it is illegal to make, sell, or own, no freedom whatsoever. The sale of pornography to minors is also restricted, on the theory that while adults can choose for themselves if they can “handle” pornography, children won’t know until it’s too late that something is too much for them or harmful to their well-being.

Call of Duty puts players behind the trigger in Afghanistan, which is disturbing to some. Free expression protects people's right to be disturbing, however, and is limited only under extreme circumstances.

Proponents of the CA law have argued that violent video games should receive an exception similar to pornography and children. In order for a law limiting speech to pass a Constitutional test, it must be targeted at a legitimate problem and the solution cannot be too broad, but must regulate only that problem.

Violence among adolescents is a real problem and the psychological trauma children experience from being exposed to violence is no myth. What is not as clear is if violent video games have any real connection to either of those. Most studies I have seen on the subject call the relationship between violent games and violent behavior correlative, rather than causal. Which is to say, it may be that people develop a taste for violence and then seek out violent games, rather than violent games giving them the desire, the data is not clear. The CA lawmakers have thus far failed to convince the courts that violent video games are a legitimate threat to children’s safety and well-being.

GTA: San Andreas box art

Grand Theft Auto: San Andreas created controversy when a secret mini-game was discovered that allowed players to have in-game sex with their virtual girlfriend. One woman complained that she had purchased the game for her 14-year-old grandson, only to discover the "filth" after the purchase. The game, however, was clearly labeled M for Mature (17+). It is unclear whether the CA law would do any more than the current system.

Even if, for the sake of argument, violent video games cause the evils people accuse them of, any law dealing with the subject must be narrow (precedent calls for the “least restrictive manner” available to be employed). The CA law fails to give a good definition of what makes for a “violent” game, so the terms they use are broad, and courts don’t like broad terms in narrow laws. Another issues the CA law has failed on is showing how the law will do better than the current system. Video games, like the film industry, employ a self-imposed rating system, assigning games a rating from All Ages to Adults Only. Many stores adhere to those guidelines and refuse to sell games intended for mature audiences to children. Because the rating system and store compliance are voluntary, the system is not restricted by the government at all. This is constitutionally ideal because it lets people say what they want, and lets people listen if they want. Violent games still end up in the hands of minors, but that doesn’t mean the system isn’t working, or that government regulation would work any better.

For these reasons, the law will probably be struck down by the Supreme Court. The sale of pornography to minors does create precedent that the Court could latch on to and go the other way. If the Court does uphold the law, I don’t think it would be as harmful to the industry as some seem to fear. Most of the games that would be effected already carry the Mature rating and most game stores don’t sell Mature games to minors. The harm would be far more philosophical than actual. The pornography industry has not been driven out of business by the lack of ability to sell to 15 year olds, neither would the game industry be crippled by the lost sales certain games might suffer.

I am an arts/entertainment attorney and a fan of the First Amendment. I think people should have the right to offend.  Some of the most important ideas in human history were offensive to someone (the best ones were offensive to a lot of people). Some ideas lead to violence, others to peace. It’s dangerous for governments to cut people off before they’ve had a chance to be heard, and though I doubt the industry would suffer much from a loss, I like the message the Court would send with a win.

Plus, video games before the Supreme Court… how cool is that?

The Conduit took place in DC and included famous landmarks like the White House. The Supreme Court didn't make the game, but after this case, gamers may come to think of the Court as a place to protect... or frag.

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