4/22/12

Roleplaying games and copyright infringement II

This part is mostly about derivative works. For Part I (game mechanics and IP law) go here.

So - game mechanics are not protected by copyright, and are unlikely to be patented.

Suppose you have written a supplement for a particular game system - say, a spin-off game called 'Hipster: The Irony.' Are there restrictions on how closely this can be based on existing, copyright protected material, beyond a prohibition against copying and pasting copyrighted text or images? 

You bet there are. But there is a good chance you could make the game anyway.

As with the previous post, I want to emphasize that (1) I am not a lawyer and (2) everything here represents my personal opinions and should absolutely not be taken as legal advice.

Copyright doesn't cover mechanics, but it does cover 'derivative works.' The copyright holder has the exclusive right to produce derivative works, unless they sign it away to other people.

To paraphrase the US Copyright Office, a derivative work is one which includes both material from the original and new, copyrightable material of its own. For example, the Hunger Games movie is a derivative work of the Hunger Games book, and if the movie had been made without obtaining the rights from Suzanne Collins (or her publisher) it would have been copyright infringement.

But, my understanding is that derivative works are generally interpreted pretty narrowly. Copyright protects the details of your story - the particular characters or setting, the exact phrasing of the dialogue, that sort of thing - but it doesn't protect the general idea. Hunger Games isn't a derivative work of Battle Royale. Unfortunately,  there are not exact criteria for determining whether or not a particular work is a derivative of a prior, copyright protected, work. Since the US uses common law, this finding would presumable be based on the existing case law. In the case of roleplaying games, this seems to be pretty thin.

Some general principles:

1) Use of the names of characters or other original parts of the setting ('Fragmented literal similarity' to quote Melville Nimmer) is going to make the work derivative. If Hipster: The Irony includes werewolf totems or vampire clans from copyrighted material (perhaps you want to spell out a system for the creation of hipster werewolves), that would probably make the game a derivative of protected intellectual property. I believe this notion is also the basis for some of the extensive claims that certain game publishers have made regarding their work. 

2) The new work can also be a derivative if it is a close enough non-literal copy of the original. Suppose that in Hipster: The Irony players play characters who are turned into hipsters by contact with existing hipsters from a particular 'clique' (Judgmental Vegans, Trendy Snobs, etc) and must then consume 'admiration' from non-hipsters in order to power their special abilities, like hypnotically stroking their pornstar mustache or devastating an opponent with snark. My understanding is that this is going to exist on a sort of continuum. At one end would be a game that uses mechanical pieces from a copyright protected game, but does so in a totally different context (a class-based hipster game set in space), which would not be a derivative work. At the other end would be a pretty directly paraphrased version of the manual for a copyright-protected game with all of the identifying terms (vampire, the clan names, etc) replaced. At a certain point, this would be a derivative work. Unfortunately, there is a pretty big gray area in the middle.

3) To the extent that the idea can be separated from the particular expression of the idea, only the expression is protected by copyright. This is where my understanding of how the law applies to roleplaying games really starts to break down. In principle, given that the actual manuals for the game are the 'expression' this might mean that the resemblance between the rules of Hipster: The Irony and a copyright is not an issue, as long as the actual written manuals do not closely resemble each other.

4) Certain uses of copyright material are protected under the concept of 'fair use.' To quote the US copyright office again, the factors that are considered in determining whether or not something is fair use include:

"1) The purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes;

2) The nature of the copyrighted work;

3) The amount and substantiality of the portion used in relation to the copyrighted work as a whole; and

4) The effect of the use upon the potential market for or value of the copyrighted work."

Fair use protects things like parody. So, if you can demonstrate that Hipster: The Irony is a parody of certain copyright protected games, it will probably be protected by fair use.

But, if the work is found to be derivative, and it isn't parody, fair use probably isn't going to get your home-brewed content off the hook for copyright infringement. Even if you aren't charging money for it, you are affecting the market. If 'Hipster: The Irony' is found to be a derivative work of an existing copyright, your release of it would compete directly with any similar games that the copyright holder planned to release in the future.  

Summary:

This is the part where I wish I had an ironclad set of criteria that I could lay out. I don't. My understanding is that system mechanics are fair game, but that if you start using content from existing intellectual property, like recognizeable elements of the setting or entities from their stories, copyright infringement is likely.

Resources: (If I can find good case law, I'll add links here).

US Copyright office, US Patent Search, US Trademark Search - These have the official rules, and you can look up patents and trademarks by company to see what is protected.

Law of the Game - These folks mostly talk about videogames and IP law, but if you're comfortable extrapolating, it can be a useful resource.

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