Tuesday, September 9, 2014

Illusions of Intellectual Property: Conjuring Copyright

What is Conjuring Copyright?

So, in addition to being a casual gaymer, one of my other hats is not-so-casual law student.  And, I'm lucky enough to attend an institution that's pretty big into intellectual property law.  Though I'm not planning on practicing it (admin law, baby!), I think that tabletop RPGs occupy a fascinating place in the intellectual property mix.  And, given the large number of freelancers and third-party publishers out there, I think that a lot of other people might be interested in the confluence of tabletop RPGs and copyright law as well.  And, on top of that, I need to write a fairly major law review-style paper sometime in the next 18 months.  There's not a lot out there on copyright law in RPGs, so I think it's a topic worth exploring.  So, I'm going to use this blog to write out some thoughts as I do some research.  In keeping with giving fantasy RPG-ish terms for my columns, I'm going to call this segment Conjuring Copyright.

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.

Because this is going to be used for a future paper, I'm going to drop some citations in to make things easier when I come back to it.  Ignore them if you're not interested.  In case you are, I will cite to free databases like Google Scholar rather than the traditional legal databases.

Copyright as it applies to games

Let's get one thing straight.  Games cannot be copyrighted.  This is a concept so old that even old U.S. Courts of Appeals' cases just cite to it as a truism.  But, they do cite to it and rely on it, so we know one thing: games cannot be copyrighted.  This is why no one owns basketball or baseball or bridge or tag.  Facts cannot be copyrighted.  You cannot copyright the capital of Arkansas.  It's just Little Rock.  Ideas cannot be copyrighted.  The Pythagorean Theorem is off limits, too.  So, what CAN be copyrighted?

The "I'm Big on Little Rock" trademarked logo.  In addition to copyrights, trademarks and patents are the other two types of intellectual property.  A copyright protects an expressive work.  A patent protects as useful design, machine, or process.  Trademarks protect product identity.  This particular bugger was trademarked in 1994 by Beth Blevins Carpenter.  I'm using it without her permission, but want her to know that a) I will take it down immediately if asked, and b) I think she's a genius for designing it.

Copyright protects artistic expression.  Most traditionally, artistic express covers things like novels, plays, and art.  Novels involve the creation of characters, places (sometimes), and fictitious events that are woven together into a coherent whole.  Plays are similar, except they require a public performance (which is also a copyrightable expression).  Music is copyrightable too.  (Let's not dwell on this, because music is one of those areas where things get complicated).  Art's pretty obvious.  If you drew, painted, sculpted, etc. something, you have the copyright to it--at least unless you assign it to someone else.

Games are tough though, because they occupy this strange place between expressions and something uncopyrightable (we'll discuss what that is in depth later, but for now let's just go with games are sitting on the edge of the cliff).  Things like the rules of a game are not subject to copyright.  But, many games have artistic expression along side their rules.  So, you can't copyright the rules to Monopoly.  40 squares with pieces moving around them based on rolls of two six-sided dice; some of the squares can become a player's property and others provide other game effects.  Those are rules and ANYONE can create and sell a game that has those characteristics.  But, if you want a board that has Ventnor Ave., Park Place, Boardwalk, and those four specific railroads, you've got another thing coming to you.  That board is a piece of art, my friend.  And art most definitely is subject to copyright.  Now you see why tabletop RPGs are so complicated on this front.

These babies are copyrighted.  That train design is distinctive.  It might also be trademarked, but it's definitely subject to copyright as a part of the Monopoly game board, which is technically a piece of art.

Video games go a long way to illustrate this point.  Because video games comprise a whole lot of art.  And that art is all subject to copyright.  The sound is also subject to copyright.  Even their code is an arrangement that's covered.  Video games sound pretty damn subject to copyright, huh?  Nope.  Underneath all those graphics, sound, and code, there's an underlying system of game mechanics.  Covered by copyright?  I don't think so.

Where does that leave tabletop RPGs?  Well, I won't have a definitive answer to that question for awhile.  We are going to do a lot of investigating.  But, I have a theory about where I'm going to end up.  Right now, at the very outset, I predict that the rules elements of a tabletop RPG aren't subject to copyright.  But, most of the expression elements within an RPG ARE subject to copyright.  This raises all sorts of fun and interesting questions about things like the Open Game License and the Pathfinder license and we are going to look into them!  But, at the end of the day, I'm betting that if you were to print your own book with your own art that covered the rules to ANY tabletop RPG that you'd be able to get off scott free (provided you could pay the court costs Wizards of the Coast, Paizo, or any other game publisher threw at you).

Paizo makes any third-party publisher using their rules system follow rules and stick this little number on their product.  That may be as much boon (it's compatible!) as bane (we have to follow a stinking license!).  But, is it required?
The license that started a new roleplaying game...

Why do we have Copyright?

A lot of people mistakenly believe that the purpose of copyright law is to allow people to control access to their own creations.  This is halfway correct.  But, remember that a copyright exists for a limited time only (though we will explore a dissent by Justice Stevens that questions whether today's copyrights are functionally unlimited).  Here's a dirty little secret: the real purpose for copyright law is to get these ideas into the public domain.  The U.S. Constitution grants the Congress the power, "To promote the progress of science and useful arts, by securing for limited times to authors and inventors the exclusive right to their respective writings and discoveries." (U.S. Constitution, Art. I, § 8).  Public domain works are those whose copyright has expired.  Guess who owns them?  No one does.

Find a work with an expired copyright and you can print and sell all the copies you want for whatever the market will bear.  Of course, so can anyone else, so there's not a huge value in doing so.  That's the whole point.  We want these ideas to get out into general, unprotected circulation.  But, if we don't give authors some control and protection over their creations, they wouldn't make much art for us, would they?  If anyone could take the idea as soon as it was committed to paper, we wouldn't have many people putting ideas to paper.

In economics, this is called a positive externality, meaning that the practice creates benefits but that the creator is unable to internalize those benefits, a.k.a. make money off of them.  (Since I go to a school steeped in the law and economics movement the way that the British East India Company was steeped in tea, you are going to have to read a bit of that too).  Compare that to a negative externality, which is when an activity creates negative effects that don't rebound wholly on the actor.  Pollution is the classic negative externality.  And externalities are BAD.  We want them to go away.  We want people to produce beautiful and useful things like art, literature, and scientific inventions to advance society.  How do we get them to do so?  We bribe them.  We bribe them with the most destructive economic force of all: a monopoly.  Copyright or patent something and you've got a monopoly off of it for decades.

Copyright as Light

Fun fact: Light is both a particle and a wave.  It's analog and digital.  I find it helpful to view legal concepts this way.  It's easiest to view them in a continuum.  There are some things that we're pretty sure are subject to copyright and nobody is going to mess with them.  There are others that pretty obviously aren't subject to copyright, like the phonebook (though, again, phonebooks have been the subject of copyright cases before--and will be important as we discuss what it means to be able to copyright a tabletop RPG or not).  There's a continuum between these two points of things that are less and less obviously subject to copyright and moving towards things that obviously aren't subject to copyright.  Of course, ultimately a court case can decide whether or not something is subject to copyright protection.  But, ex ante, we want to have a good idea about whether or not we think something is.  (Ex ante is fancy lawyer-speak for "before the fact."  I could have just said "before the fact," but what's the fun in that?)

My goal in this explanation is to create a framework that covers what portions of tabletop RPGs are covered by copyright laws ex ante.  To do so, I'll consider various products marketed by tabletop RPG companies.  First and most obviously, the rules systems that underlie the games themselves will be considered.  I believe these occupy the least protected portion of the continuum and are, arguably, already within the common domain.  There are other products like campaign settings marketed by RPG companies.  These products contain fictional places, events, and storylines.  That's starting to sound a lot closer to the kind of expression we want to protect.  Things like tie-in novels are pretty obviously covered.

Finally, there's the product that I find most interesting.  Paizo is the publisher that markets this product in its purest form: the Player's Companion.  A Player's Companion is essentially a 32-page set of rules options and gaming kit that has been adapted to fit into Paizo's Golarion setting.  This is the sweet spot for this investigation.  And, you know what?  It's also the one type of product I'm considering that I'm least sure about its protected status.  Maybe it is and maybe it isn't.

"Each monthly 32-page Pathfinder Player Companion contains several player-focused articles exploring the volume’s theme as well as short articles with innovative new rules for all types of characters, as well as traits to better anchor the player to the campaign. Pathfinder Player Companions are specifically written for players of the Pathfinder RPG."  What do we think?   Uncopyrightable rules or protected expression?

What's Next?

This segment is going to have to explore a lot of ground.  There's going to be an exploration of intellectual property law.  There's going to be an exploration of the theory behind games (not to be confused with game theory, which is much less fun).  There's going to be an exploration of the federal court system, because today it's entirely possible that whether or not an RPG can be copyrighted depends on where you live in America.  (For those of you that live outside of America, shoot me some comments.  I know just enough copyright law to be dangerous and next to nothing about how it gets applied outside of the States).

My next post on this topic is going to review and provide my thoughts on a law review article called Games and Other Uncopyrightable Systems (I'll bet you can guess where I land on this debate).  I picked this article for several reasons.  The author, Bruce Boyden, did his undergrad at the University of Arkansas, which is the flagship university of my home state's public education system.  He also published his piece in the George Mason University Law Review, which is where I go to school.  GMU has a well-recognized intellectual property law program.  Finally (and most importantly for you, dear reader), the GMU Law Review posts its back issues online for free, so it's publicly accessible.  Boyden's piece is focused more on tabletop games, but not on the RPG genre.  It provides a good jumping off point for us on the basics of copyright law and how games fit into it.

What do you think about Invoking IP?  Interesting topic?  Snoozefest?  Glorious or poverty?  This inquiring mind wants to know, so write a comment below!