ANNOUNCEMENEWSBLASTCAST: Instead of focusing on their respective Weeks in Geek or having an extended conversation, Andrew and D. decide to cover a lot of news that dropped this week including the trailer to season 2 of Marvel/Netflix’s Jessica Jones, 20th Century Fox’s Deadpool 2 trailer, the reveal of the video-game-based-on-a-tabletop-game-based-on-a-tabletop-card-game, Sentinels of Freedom, the upcoming Dungeons & Dragons lorebook, Mordenkainen’s Tome of Foes, and the passing of John Mahoney.
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.
Episode 110 – A Taylor [ , ] For All Intents and Purposes
WEEK IN GEEK: Andrew attends Geek Girl Con 2016 and relays some of his experience to the show while Dan gets freaked the eff out while playing INSIDE, the latest from Playdead, makers of LIMBO.
OLD SEGMENT UPDATE: Back in Shortcast 14, Andrew and Dan discussed a fairly quiet lawsuit that Dungeons & Dragons and Magic: The Gathering publisher, Wizards of the Coast, was confronting with regard to the employment and compensation status of its Magic: The Gathering judges. Andrew did some digging and gives the latest in this ongoing dispute, as well as what to expect next.
THE POINT OF THE FLASH: The team brings on a new voice in the form of Taylor Katcher, of Comic Chat with Gat and The Cardboard Box, to talk about DC Comics, specifically The Flash and the seminal crossover event, “Flashpoint.” This storyline served as the basis for The Flash season 3 premiere and seems to be having some long-term ramifications for the rest of the season, but in ways that significantly differ from their comic source.
Leave your thoughts about this week’s topics as comments at forallintents.net. To get the latest updates and participate in listener discussions, be sure to join the official Facebook page. Help the show out by leaving a review on the iTunes store.
For all intents and purposes, that was an episode recap.
-“Stayin’ in Black” by Wax Audio
-“Ode to Joy (from Beethoven’s Symphony No. 9 in D Minor, Op. 125)” by Beecham Choral Society, Rene Leibowitz, & Royal Philharmonic Orchestra
-“The Magic House” by Nobuo Uematsu (from Final Fantasy VI)
-“Flash” by Queen
-“The Ghost Inside” by Broken Bells
Things are out of sorts. People are lost to time. But Andrew and D. Bethel will do their damnedest to get another episode 100 to you on time (in time?). If you have not listened to Part 1 of Episode 100, be sure to do so before diving into part 2. Trust us. It’s important.
NICK SPRINGER AND THE FREMONT HORROR: Witness the first installment of a long-in-development (pre-podcast!) audio drama ripped from the minds of Andrew and Dan.
I AIN’T AFRAID: Andrew and Dan dig into the new Ghostbusters and love every ounce of it.
Nick Springer and the Fremont Horror Credits:
Story: Andrew Asplund
Script: D. Bethel
Directors: D. Bethel & Andrew Asplund
Editor: D. Bethel
Nick Springer: Andrew Asplund
Kasey O’Shea: Kyle Smith
Karen Waite: Elisa Parrett
Hector Vassos: Niall Feeney
-“Running on Gravel” by Benboncan
-“Man screaming” by Archeos
-“Zombie Bite 1” by Slave2theLight
-“Wing Flap (Flag Flapping)” by ani_music
-“FOLEY_Footsteps_Carpet_001” by conleec
-“11 Minutes of City Sounds” by Niedec (recorded in Seattle)
-“Getting in Car and Start” by jrssandoval
-“Starting Car from Inside” by evsecrets
-“VW Golf GTI Pull Away (Zoom H2n M&S)” by Everyday Sounds
-“Short drive, interior” by AugustSandberg
-“CarArriveAndStop” by jmdb
-“City highway busy cars pulling out” by natemarler
-“Walking-gravel” by xserra
-“01019 car door 3” by Robinhood76
-“1BramCamera” by kwahmah_02
Thanks for all those who helped this long-dreamed project get a leg-up into reality!
WEEK IN GEEK: Andrew plays the Neverwinter MMO on the Playstation 4, while Dan watches Terminator: Genisys and definitely does not hate it.
Please leave a review on iTunes to help spread the word to new potential listeners.
For all intents and purposes, that is officially 100 episodes.
-“A Journey Into Darkness” by Steve Henifin (from Eternal Darkness: Sanity’s Requiem)
-“Back in Time” by D. Bethel
-“The Worst That I Have Met (Nick Springer Theme)” by D. Bethel.
-“Back in Time” by Huey Lewis & The News
-“Stayin’ In Black” by Wax Audio
-“Fanfare” by Nobuo Uematsu (from Final Fantasy VI)
Week in Geek: Andrew goes back to playing Assassin’s Creed Chronicles: China, while Dan goes way back into the past by playing the Nintendo DS release of the Super Famicom classic, Front Mission.
Also, friends of the show, Jason Tudor and Keith Houin’s sci-fi webcomic, Vorpal, now has a print version available for purchase. Check it out at Headshrinker’s Press.
Archiving Legacies: Dan and Andrew discuss how video games are being preserved and/or reintroduced to modern players and how the process isn’t as straightforward as it seems like it should be.
A +1 Parting of the Ways: Wizards of the Coast announces that it will not be holding an official presence at this year’s Gen Con, which is strange since Dungeons & Dragons creator, Gary Gygax, actually founded the show. What does this mean for WotC and Gen Con?
Leave a comment at forall.libsyn.com. Be sure to join our official Facebook and Google+ pages to get updates and participate in listener conversations. Send us an e-mail at forallpod [at] gmail [dot] com. Also, the best way to help the show is to leave a review on the iTunes store.
For all intents and purposes, that was an episode recap.
Week in Geek: Andrew nearly swims between the polar ends of Final Fantasy by watching Final Fantasy X HD Remaster and playing for himself Final Fantasy for iOS. Dan, on the other hand, has been playing The Swindle on PS4.
Dungeon Master’s Guild: Dan and Andrew discuss a few of the facets involved with Wizards of the Coast’s and Dungeon & Dragon’s news about the newly opened “Dungeon Master’s Guild” whereby user-created DnD content can be sold without worry of legal repercussion.
Starman: Andrew and Dan spend some time to talk about the death of David Bowie, despite the fact that their exposure to his work was tangential and limited at best. However, it must be said that his work and impact was hard to ignore.
If you would like to share your thoughts on any of this week’s topics, please leave a comment at forall.libsyn.com. Be sure to join the official Facebook and Google+ pages for updates and conversations among listeners. E-mail the show at forallpod [at] gmail [dot] com. The best way to help the show would be to leave a review on iTunes to help spread the word to new potential listeners.
For all intents and purposes, that was an episode recap.