WEEK IN GEEK: With Andrew sick this week, the Shortcast ends up being a bit more organic than normal with both Andrew and D. sharing stories about this year’s Free Comic Book Day festivities. Specifically, Andrew got his hardback copy of Ms. Marvel, volume 1 signed by the creator herself, G. Willow Wilson, while Dan discusses the Hulu Original documentary, Batman & Bill.
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WEEK IN GEEK: Andrew plays super sentai producer in Chroma Squad while D. Bethel gets introspective while drawing old high school characters for his “Sketch Fridays” series at LongJohnComic.com.
THE BEGINNING OF THE END: The final Doctor Who series to feature current Doctor, Peter Capaldi, and current showrunner, Steven Moffat, began last weekend with “The Pilot,” which also introduced the new companion, Bill Potts. Dan and Andrew discuss their reactions to the episode.
NERD LAW – YOUTUBE EDITION: Andrew dusts off his non-advisory expertise to talk about a recent situation that occurred during Dan’s livestream of God of War III. They talk copyright, YouTube’s priorities, and Chinese variety shows.
It is hard to talk about “the law” and the importance it has in all things geeky and nerdy because “the law” is a vast collection of rules with a lot of interpretations and intricacies that vary from state to state and country to country. However, when considering the different areas of law and how they apply to nerd and geek issues, one practice area stands out as most applicable to your average nerd or geek: intellectual property.
Intellectual property usually refers to non-physical things like inventions or identities or stories that the government has determined important enough to recognize as a specific type of property. Typically, intellectual property is divided into four separate categories that cover different types of things: copyright, patent, trademark, and trade secret. Because three of these things (copyright, patent, and trademark) come up with some regularity in nerdy and geeky endeavors, they’re worth discussing in a bit more detail.
It should go without saying that the contents of this article are meant as a general overview. This isn’t legal advice. Do not base any legal arguments on what you read in this or any further Nerd Law articles. Their purpose is to provide a basic understanding of how intellectual property law is relevant to nerdy and geeky stuff so you don’t end up saying something silly like “I’m going to patent my comic book” or “I own the copyright to this rule system.” One more time, just to make it clear: the contents of this article do not constitute legal advice.
From Plows to Portraits
When you look at the whole of intellectual property, it’s important to recognize that there are different kinds of things being protected. A new, unique farm tool is a very different thing from a painting of a farm, and both are different from the recognized trade name of a farming conglomerate. Because the sort of things being protected have different purposes, the rules associated with them are different and they have different names. Knowing the difference is important, because it’s common for people (even lawyers) to get the rules mixed up.
Copyright is probably the most famous (or infamous) type of intellectual property because it protects so many things that people interact with. Copyright protects creative works and expressions. This includes stories and paintings but also includes film, sculpture, dance, and songs. If it’s something you’d describe as “art,” it probably falls under copyright.
Patents, on the other hand, protect “inventions” like new machines, tools, chemical concoctions, and medicines. Specific processes also falls under patents: a software algorithm and a method for exercising your cat with a laser would also be a patentable invention. Usually, something falls under the protection of copyright or of patent, but rarely both.
Trademark, in contrast, is used to protect names, symbols, and other identifying marks associated with business. These are the marks and styling that let consumers know they’re buying items from a known business. Think of logos and brand names: “DC Comics” and the DC logo let you know that what you’re looking at is made by the company that makes all the Wonder Woman and Batman comics. This is a main reason why most superheroes have big logos on their chests.
Knowing the difference can be important, especially if you find yourself doing something that involves intellectual property. In the future, we will take time to focus on each individual type of intellectual property. For now, it’s good to start simple. Think of copyright as the law that protects creative things that artists do, patent as the law that protects inventive stuff that engineers and scientists do, and trademark as the law that protects identifying stuff that marketing people do. That’s a generalization, but it’s a good place to start thinking about it.
Knowing What They Don’t Do
Keeping in mind the basics of each type of intellectual property, it’s also important to recognize what they do not protect. Although there are interesting exceptions, most things fall into one of the three categories of intellectual property. Yet, I mentioned earlier that a lot of people tend to mix them up. Even lawyers, although one could argue that it’s less a mistake and more of a bold attempt at “shotgunning” a solution. Let’s take a somewhat recent example: the lawsuit that Wizards of the Coast brought against Cryptozoic over their online trading card game, HEX. This lawsuit claimed that Cryptozoic infringed on Wizards of the Coast’s copyright, patent, and trademark property. Consider this excerpt from the copyright section of the complaint:
37. Cyptozoic copied the cards, plot, elements, circumstances, play sequence, and flow of Magic. Players in both games are confined to the same parameters based on an initial dealing of seven cards and play progresses in a substantially identical manner. Players must efficiently use their skill and calculation to assemble their initial decks and then in suitable selection and play of the various cards.
Although this paragraph comes from the copyright infringement of their complaint, most of what they’re describing is the process or procedure of the game. But, it’s worth pointing out that they never say process, procedure, or method of operation, because “[i]n no case does copyright protection for an original work of authorship extend to any idea, procedure, process, system, method of operation, concept, principle, or discovery, regardless of the form in which it is described, explained, illustrated, or embodied in such work.” 17 USC 102(b) (emphasis added). The attorneys here are carefully trying to sneak patent concepts into the copyright section of the complaint.
Of course, it doesn’t stop there. If you go down to the patent section of the complaint, they make the following claim:
55. Cryptozoic deliberately and intentionally copied the game play, rules, player interaction with the game, layout and arrangement, visual presentation, sequence and flow, scoring system, and Magic’s overall look. By duplicating the rules, scoring, and cards, Cryptozoic has copied Magic’s then-inventive game.
Most of that sounds like a patent issue (rules, processes, and procedures). But, then something else sneaks in: “layout and arrangement, visual presentation, […] and Magic‘s overall look.” That’s strange, when you consider that patents are obtained by “[w]hoever intents or discovers any new and useful process, machine, manufacture, or composition of matter, or any new, and useful improvement thereof[.]” 35 USC 101. Nothing in that says anything about “visual presentation” or “overall look.” As before, the attorneys for Wizards of the Coast were packing extra claims, in this case, likely a variety of trademark claim, into the incorrect section of the complaint.
When Even the Lawyers Are Not Sure
This just goes to show that intellectual property law can be a difficult subject. And I haven’t even gotten to things like fair use, derivative works, trade dress, non-obviousness, functional aspects of aesthetic components, or any of the other wild and crazy elements of intellectual property. From Rocky IV to Monopoly to Games Workshop, there are plenty of interesting issues to explore in the world of intellectual property.
This is just intended to be a quick introduction to the three major types of intellectual property that affect the nerdy/geeky community. Consider this the first step of a much larger exploration of how intellectual property manifests in the world of all things nerdy and geeky.
WEEK IN GEEK: Andrew started playing World of Warcraft…again while Dan sees a trailer for Steven Okazaki’s documentary, Mifune: The Last Samurai, and they talk about killing your idols.
TOO OLD FOR THIS SHIT?: Dan and Andrew examine the sudden and growing trend of bringing back notable 1980s’ franchises back for modern audiences…but on television. Lethal Weapon, The Exorcist, MacGuyver, and even Magnum P.I. are heading to television. What does it mean? What can we expect? Can they be any good (were they any good in the first place)?
ROBOTS IN DISGUISE: Since he started uploading Let’s Play videos, Andrew has run into the static generated by YouTube’s content monitoring algorithms, which take down videos that may have copyrighted audio embedded in the video. They talk about this trend and how its damages may extend much further than lost revenue for both YouTube streamers and copyright holders.
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For all intents and purposes, that was an episode recap.
-“Stayin’ in Black” by Wax Audio
-“Magnum, P.I. Theme” by Mike Post & Pete Carpenter
-“Somebody’s Watching Me” by Rockwell
-“Scene Change” by Johnny Douglas & Robert J. Walsh (from The Transformers)
WEEK IN GEEK: Andrew builds a new gaming PC while Dan plays Batman: The Telltale Series – “Episode 1: Realm of Shadows.”
SPOILERS REDUX AND DMCA C&D: Dan and Andrew’s discussion was initiated by a post over at the AV Club that covered an instance where major television network, AMC, issued a cease and desist order to a Walking Dead fan site, The Spoiling Dead Fans, when they started listing potential spoilers to the next season’s premier. It’s a broad topic that is hard to talk about (and, at times, infuriating), but they do their best to really take this topic apart as it relates to television shows and the networks’ loyalty to their paying advertisers.
HAPPY BIRTHDAY, ANDREW!
Leave your thoughts as comments at ForAllIntents.net or at the official Facebook and/or Google+ pages. To help the show out, please leave a review on the iTunes store.
For all intents and purposes, that was an episode recap.
-“Stayin’ in Black” by Wax Audio
-“The Lighting of Prism Tower” by GAME FREAK & Shota Kageyama (from Pokemon X/Y)
-“The Lonely Man Theme” by Dennis McCarthy (from The Incredible Hulk)
-“I Can’t Watch This” by “Weird Al” Yankovic
-“Birthday Cakes” by Joshua R. Mosley (from ‘Splosion Man)