NERD LAW, 2019: Two unrelated but intriguingly similar trademark cases have made the rounds in the news this last week. Chooseco, the owner of the Choose Your Own Adventure franchise has brought a lawsuit to Netflix over Black Mirror: Bandersnatch and the tenuous if not honorific connections that movie has to the classic children’s book series. In the world of video games, the Pinkerton Consulting & Investigations has sued Take Two––owners of Rockstar Games––for the apparent vilification of the company in the developer’s highly successful late-2018 release, Red Dead Redemption 2. Andrew and D. Bethel sound the Nerd Law alarm and discuss these two cases in depth.
Dan will be tabling at Stocktoncon Winter this Sunday, January 20, with Kyrun Silva of Taurus Comics yet again (which hints at a return of the Con Artists limited podcast series)! If you’re in the area, please stop by. For more information, read this post at Long John or go straight to the source at Stocktoncon.com. Hope to see you there!
A MARVELOUS MONSTER: After a long gestation and some delays, Disney has officially acquired 20th Century Fox assets, comprising of Fox’s film and tv properties. This means everything from the Alien franchise to Bob’s Burgers and even The Simpsons are now owned by Disney. Of course, for comic book fans and fans of comic book movies, the biggest part of this deal means that the X-Men and the Fantastic Four film rights are now under Disney/Marvel control. But it’s a much bigger––and more complicated––deal than just the superhero franchises and make some people a little nervous.
WHAT NINTENDON’T: Emulation software has been on the internet for at least twenty years at this point, allowing people to download and play often near-perfect versions of games from the NES, SNES, and many other classic consoles. While playing emulated games have always been legally murky, Nintendo’s big legal smackdown of a few emulator and ROM sites in particular have really shaken the whole community in more ways than one.
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.
PHOENIX FALLING?: The Phoenix Comicon has come under scrutiny recently as it became public that, essentially, people would have to pay to be volunteers at the show by paying dues to become members of the Blue Ribbon Army Social Club. Dan and Andrew discuss the issues surrounding this controversy, such as “Why is this a controversy at all?”
MINDING THE NUMBERS: In a Bleeding Cool article covering December’s comic book sales numbers, Andrew and Dan dive deep into 2016 sales by Marvel and DC and compare their respective performances and draw some interesting (if very not scientific) conclusions from the data.
WEEK IN GEEK: Andrew takes a break from Civilization VI and Fallout 4 to play Bravely Second on his Nintendo 3DS while Dan plays through the well-made but wobbly-written Stories: The Path of Destinies.
ALL IN A NAME: Based on the article written by the McArthur Law firm, Dan and Andrew investigate the strange situation between Cards Against Humanity and a homage/derivative game, Humanity Hates Trump. Where can the IP line be drawn?
Leave your thoughts about this week’s topics as comments at forallintents.net. Be sure to join the official Facebook page and subscribe to and like the videos on the official YouTube channel. To help spread the word, please subscribe to, and leave a review of, the show on the iTunes store.
For all intents and purposes, that was an episode recap.
FEATURED MU SIC:
-“Stayin’ in Black” by Wax Audio
-“Phoenix Wright – Objection” by Masakazu Sugimori, Akemi Kimura, & Noriyuki Iwadare
On Friday, September 9, Fantasy Flight Games (FFG) made a somewhat surprising announcement on their website. The licensing agreement that allowed for games like Blood Bowl: Team Manager, Talisman (4th Edition, Revised), and Chaos in the Old World would end: “Beginning February 28th, 2017, Fantasy Flight Games will no longer offer for sale any games in conjunction with Games Workshop[.]” There were not a lot of details provided, although it was clear that FFG would not be supporting or selling any of those games after the drop-dead date of February 28th.
License agreements ending is nothing new in any entertainment industry. Just like Marvel and Capcom ended their license relationship a few years ago, this kind of thing happens with some regularity. In tabletop gaming, Star Wars has had role-playing games developed by West End Games, Wizards of the Coast, and Fantasy Flight Games all because the license moved between different companies. Of course, every time the creative license switches over, people who like the now extinct product have to accept that they will not get any more of that version of the content. Just like Ultimate Marvel vs. Capcom 3 was the final Marvel vs. Capcom game, the Fantasy Flight Games/Games Workshop titles just met their future’s end.
What is interesting about this is how Games Workshop has been pushing the licensing business quite heavily in the past year. They were recently spotted at 2016’s Licensing Expo in Las Vegas trying to push all of their brands into video games, entertainment, and more. (And, yes. Licensing Expo is a real thing, apparently.) Earlier this year, they announced that they had made more income than expected from licensing agreements. If anything, it would seem that the FFG/GW license relationship had been good for everybody.
Of course, that assumes that the end of the relationship is on the part of Games Workshop. Since the original license agreement was created, the industry has changed. Back in August 2011, Fantasy Flight Games announced that it had acquired the license to the Star Wars universe from LucasFilm Ltd. That license was renewed in 2015 and expanded to include new content. In November 2014, Fantasy Flight Games merged with the Asmodee Group, creating one of the largest tabletop gaming companies in the United States (excepting Hasbro and its subsidiaries, of course). It may very well be that Fantasy Flight Games no longer sought to pay the licensing fees Games Workshop expected. When you consider that this is the company that has licenses to Lord of the Rings and Star Wars, the Games Workshop line of games seems relatively unimpressive in comparison.
Whatever the reason for the separation, one thing is certain: fans of the Fantasy Flight line of Games Workshop licensed games have until February 2017 to get ahold of them before they will start to become difficult to find.
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)
1. The fan production must be less than 15 minutes for a single self-contained story, or no more than 2 segments, episodes or parts, not to exceed 30 minutes total, with no additional seasons, episodes, parts, sequels or remakes.
4. If the fan production uses commercially-available Star Trek uniforms, accessories, toys and props, these items must be official merchandise and not bootleg items or imitations of such commercially available products.
5. The fan production must be a real “fan” production, i.e., creators, actors and all other participants must be amateurs, cannot be compensated for their services, and cannot be currently or previously employed on any Star Trek series, films, production of DVDs or with any of CBS or Paramount Pictures’ licensees.
A lot of people have observed that these exceptions exclude nearly every fan-made Star Trek film or video ever produced, including Axanar, the popular Star Trek New Voyages, Star Trek: Hidden Frontier,and even Voyager alumnus Tim Russ’s Star Trek: Of Gods and Men, since all of these fan works infringe on the guidelines in multiple ways.
Consider Star Trek: New Voyages, the fan series created by James Cawley and Jack Marshall. From their very first episode, they utilized an actor who had previously appeared in Star Trek (specifically, William Windom as Commodore Matthew Decker). Later episodes would include notable Star Trek actors such as George Takei, Grace Lee Whitney, Walter Koenig, and others. Stories written by Star Trek writers like D. C. Fontana and David Gerrold were utilized or adapted for the series. Within the “amateur” consideration alone, New Voyages would fall outside of the guidelines provided by CBS/Paramount. Let’s not mention the length, as the group was filming 45 minute episodes as part of a “season 4” of the Original Series. Or the costumes and the set.
Of course, as the copyright holder, CBS/Paramount is under no obligation to allow any derivative work, so perhaps this is just a sample of their noblesse oblige. Given the recent popularity of the J. J. Abrams Star Trek films and the announcement of a new Star Trek series to be released digitally, there are plenty of reasons for CBS/Paramount to express concern over semi-legitimate fan work. Historically, a lot of the fan features were pretty bad, so there wasn’t really a reason to get involved because they didn’t really reflect on any of the work being done for “official” Star Trek.
But, Axanar? Just take a look:
Not only did it have a host of popular Star Trek guest stars like Tony Todd and J. G. Hertzler, but it looked like real Star Trek. And, given the concern many classic Star Trek fans have with the J. J. Abrams movies, something like Axanar stands defiantly in the face of CBS/Paramount and their precious franchise.
It’s also worth mentioning that the production team raised over $500,000 through a crowdfunding campaign. Twice. Two separate crowdfunding campaigns. Over $1,000,000 raised towards this project. That may help explain why CBS/Paramount brought a lawsuit to begin with and why their guidelines seem so restrictive. Money is being made and the copyright holder isn’t part of it.
Another Shortcast for our summer break as everyone enjoys the warm weather. This week, Andrew and Dan talk about a recent lawsuit brought against Magic: The Gathering publisher, Wizards of the Coasts, by their official competition judges. Andrew guides you through his thoughts on this with his impressive legal lens.
For all intents and purposes, that was a Shortcast recap.