Saturday, September 13, 2014

Illusory IP & Conjuring Copyright: Live Performance RPGs?

My Favorite Podcasts: Drunks & Dragons

I want to post a shout out to the folks at Geekly, Inc.  Geekly grew out of a few podcasts performed by Michael DiMauro, Jennifer Cheek, Tim Lanning, and Mike Bachmann.  I highly encourage you to check out their flagship podcast Drunks & Dragons.  They play 4th Edition Dungeons and Dragons and their sessions are anything but PG for an RPG.

Their Random Encounter podcast feed is also great if you are interested in learning a new game.  They have several friends that join them on these episodes, too!  They go through the rules, create characters, and play a short scenario.  Thus far they've covered Gamma World, Fiasco (twice and this one is better), Durance, Shadowrun, and used the Fate system to play a Firefly-based game.  The Firefly game was the last one that they'd promised as part of their Kickstarter to get better equipment for the main feed.  But I was thrilled to hear that they plan on continuing doing Random Encounters episodes as time goes by.

Dueling Banjos Copyrights

The Random Encounters feed had a problem with their Firefly game.  In their Kickstarter, they’d promised to stream recordings of them playing various games in exchange for hitting stretch goals.  But, before they got around to running their promised Firefly game, competing versions of Firefly RPGs landed in court over copyright and licensing claims.  So, without a commercially-available version, the Geekly crew had to adapt the Fate rules to play in the Firefly universe.

What’s a Performance?

The good folks at Geekly, Inc. use two main channels to get their content out.  First of all, they use a program called Twitch TV to record both the audio and their computer screenswhile they play the game.  They also distribute audio-only feeds as podcasts.  I am a big fan of these—I listen them when I’m coming home from school at night.

But let’s bring this back to copyright law.  The Copyright Act protects authors from having their theatrical productions broadcast without their permission.[1]  So, works of authorship have to have to be fixed in a tangible medium of expression.  In English, that means that the work needs to be written down or recorded somewhere.  The live performance of the fixed expression is a violation of the copyright (without permission).  That’s why companies like are in existence.  They promise the author a cut of the sales record the dramatic work, obtain the author’s permission, record the work, and sell, sell, sell!

The rulebooks underlying roleplaying games are copyrighted.[2]  So what happens when you perform a live production of something copyrighted or distribute a sound recording of a copyrighted work?  You get sued.  Then, you have to pay a lot of money[3], pay for the other side’s legal fees[4], and go to jail for up to ten years.[5]  Curious about seeing this in action?  Put on a public performance of Cats and buy a lot of advertising for it.

But, Twitch TV is a thing!  There are lots of live streams of RPG-playing happening on Twitch TV every minute of every day.  Why aren’t these people all being sued for copyright infringement?  The obvious—but not legal—answer is that even if they were infringing on the RPG-publisher’s copyright, it probably wouldn’t make good business sense to crack down on people that are promoting your product to the public.  Most of these “offenders” don’t have enough money to make pursuing these claims worth while either.

The legal answer is much easier: performances of games are not subject to copyright.[6]  That’s because performances of games are not, legally, performances.[7]  The Ninth Circuit ruled on this matter in Allen v. Academic Games League of America, Inc.[8] 

The Case At Hand

In Allen, two parties were fighting over live quiz games that high school students played as part ofacademic tournaments.  Allen was the creator of the games played and the founder of the original league for playing them.  The Academic Games League of America (AGLOA) was made up of people that used to work on the original league with Allen, but who he alienated.  So, they went out and formed a league of their own.[9]  Allen owned the copyrights to the printed game materials.  So, AGLOA just bought Allen’s printed games and used them in AGLOA tournaments.  AGLOA conveniently scheduled their tournaments for the same time as Allen’s and they stole the majority of the market from him.

So, Allen took AGLOA to court.  Copyright law gives the copyright holder the ability to control all public performances of owned “literary, musical, dramatic, and choreographic works, pantomimes, and motion pictures and other audiovisual works.”[10]

The question was: Is playing a game in public a protected performance under the Copyright Act?

The court first fell back on one of the oldest statements in copyright law, “A copyright only protects a particular expression of an idea and not the idea itself.”[11]  So, “ideas contained in a copyrighted work may be freely used so long as the copyrighted expression [of the idea] is not wholly appropriated.”[12] 

The court noted that this whole appropriation requirement is even more important when there are only limited ways to convey the idea, such as in a rulebook.[13]  Rules lay out the method of playing a game.  Essentially, they are the game’s physics that describe what can happen and what responses happen to players’ actions.  Since games’ rules consist of “stock concepts” and “abstract rules and play ideas,” they—by definition—have limited methods by which they can be conveyed.[14]  For the lawyers in the room, the rules and their expression are too similar.  So, rules’ expression merges into the idea of the rules themselves and the expression’s copyright protection is lost.[15]

The court concludes that although a copyright holder “may be entitled to copyright protection for the physical form of his games, he is not afforded protection for the premises or ideas underlying those games.”[16]

Podcast On, My Friends.  Podcast On!

So, my friends over at Geekly, Inc. are making a live performance of a copyrighted work.  That’s normally not okay.  But, the copyrighted work that they are utilizing is the book explaining the mechanics of the game itself.  We’ll return later to the rulebook’s copyright status.[17]  For now, we’ll just pretend that it has a fully valid copyright.  But, my friends are adding to the game by playing it.  And, to quote the Allen opinion, “games are meant to be played.”[18]  A performance is when you speak, sing, or otherwise “auditoriate” the meaning on the page. 

The rules merely control how they game is played.  They aren’t the game itself.  That might seem like splitting hairs, but that’s how the legal game is played.  Folks at Geekly, Inc. and all the other RPG post casters and live streamers out there are good to go on making me laugh!

Some Parting Thoughts…

This does raise questions about whether or not someone could copyright a game show, like Wheel of Fortune.  On one hand, Wheel of Fortune is a game and therefore playing it isn’t an infringement on the show’s copyright.  On the other hand, live performances on television are pretty clearly protected under copyright law.  I’m not investigating this particular question, but you could always try making a game show called Icosagon of Riches that involved three people taking turns spinning a 20-sided wheel to determine opportunities to name letters that would then be revealed on a word puzzle.  I’m not saying that you could get away with it.  But I’m not saying that you couldn’t, either.

A game publisher doesn’t own the copyright to control performances of playing the game.  So, an RPG publisher likely doesn’t own the copyright to the performance of the RPG session.  But, it is a recording of a unique expression of something.  Are recordings of the RPG sessions in the public domain or have they become performances that are owned by their creators: the very people who were free-riding off of the RPG’s inability to exercise copyright over the live performance of the game?

Disclaimer: I am a law STUDENT.  I am not a LAWYER.  I am licensed to practice law in exactly zero states.  Therefore, I cannot offer anyone legal advice.  Repeat: these postings will NOT constitute LEGAL ADVICE.  While I certainly think that my insights into the law are valid, if you have an actual copyright law question, seek out a competent and barred attorney.  Feel free to show them these posts, but don't rely on this blog as a source of binding authority.  Every case is different and I'm not working on yours.  Partially that's because you aren't paying me to do so.  More importantly, it's because it would be a felony if I did take your money to do so without the supervision of a practicing attorney.  So, let's get this straight.  This is an explorational information source.  I am not your lawyer.  You might be a beautiful and unique snowflake.  But you are not my client.

[1] 17 U.S.C. § 102 (2012) (“(a) Copyright protection subsists…in original works of authorship fixed in any tangible mode of expression…from which they can be perceived…or otherwise communicated…Works of authorship include the following categories:
(1)    literary works;
(2)    musical works, including any accompanying words;
(3)    dramatic works, including any accompanying music;
(7)   sound recordings”).
[2] We’ll explore this statement in greater depth later.  For now, let’s just say that the books at least have a copyright symbol on them that exists as a warning to those who’d like to use the work without permission.
[3] 17 U.S.C. § 504 (2012) (Providing that those bringing copyright claims can choose between recovering between $750 and $30,000 if they show infringement happened at all, up to $150,000 if they show the infringement was intentional, and even more if the person bringing the case can show that the damages were higher.)
[4] 17 U.S.C. § 505 (2012).
[5] 17 U.S.C. § 506 (2012); 18 U.S.C. § 2319 (2012).
[6] Allen v. Academic Games League of America, Inc., 89 F.3d 614, 616 (9th Cir. 1996).
[7] Id.
[8] Id.
[9] Sound familiar, Pathfinder players?
[10] 17 U.S.C. § 106(4) (2012).
[12] Id. (emphasis added).
[13] Id.
[15] Id.
[16] Id. at 618 (emphasis added to indicate the tenuous nature of copyright in a rulebook).
[17] I know that’s what you are all waiting for.  I’m not blowing my load early on this one.
[18] 89 F.3d at 616 (quotations removed).