DEVIANT ART: There’s a lot of talk around AI-generated art lately, and with questions about copyright, ownership, sourcing, credit, and applicability, our hosts do their best to parse this very new and nebulous topic.
(00:00) Intro – It’s September!
(02:25) The problem (and possibility?) of A.I. Art
(35:56) Outro – Short She-Hulk: Attorney At Law impressions
BETTER DREAD THAN DEAD: D. Bethel shares some initial thoughts on the newest 2D Metroid game, Metroid 5 aka Metroid Dread.
EMULATE YOU WANT IT, THAT’S THE WAY YOU NEED IT:Kotaku got in a bit of heat when they reported a story about how people were able to get Metroid Dread up and running on emulators in a smooth 60 frames per second at 4K resolution. The problem is that, in the original story, readers felt that Kotaku was, in fact, recommending people pirate Dread instead of buying it because of the emulator’s stronger performance. This lead to another round of discussion about emulation, piracy, and game preservation. Andrew and D. Bethel do their best to weigh in on these issues.
ROUGH TEXTURES: Capcom gets sued for allegedly using textures from a reference book––Judy A. Juracek’s Surfaces––for many of its games in the early 2000s and the evidence is pretty compelling. Without dispensing professional legal advice, Andrew guides D. Bethel through the nuances and complexities of this interesting case.
“Don’t Stop Recording” (03 July 2015): Where D. Bethel and Andrew talk about how the 1986 classic,The Transformers: The Movie, may have started as a toy commercial but ended up as a defining emotional moment for young fans at the time.
“Listeners in the Woodwork” (18 October 2019): Where Andrew and D. Bethel discuss the lawsuit surrounding the origins of the theme song from X-Men: The Animated Series.
“Dating the Void” (23 April 2021): Where Andrew discussed the copyright confusion surrounding Sherlock Holmes.
TO ME, MY LITIGATORS: Eyebrows raised recently when a Florida man sued Marvel, Fox, Saban Entertainment, and many other production companies saying that the generation-defining theme song of the ’90s X-Men animated show actually plagiarized a strikingly similar theme of a popular Hungarian tv show from the 1980s. Nerd Law man, Andrew, and X-Men fanatic, D. Bethel, put their heads together to see if this case has any legs to stand on. (A big thanks to friend-of-the-show, André La Roche for his consultation on this topic.)
DISNEY PEMDAS: Last week, Disney made waves as it began an irresponsibly long Twitter thread announcing every title that would be available on its upcoming Disney+ service. D. Bethel and Andrew sort through the announcement, talking about how much this will shift the paradigm of entertainment consumption.
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.
NERD LAW: When legal stuff happens in the nerd world, Andrew is on the case (though not dispensing any legal advice). This time around, he talks about Epic Games suing players who use cheats in Fortnite and Comic Con International winning its copyright battle against Salt Lake Comic Con over the term “Comic Con” (19:40)
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.
Visit our website at forallintents.net and leave your thoughts as comments on the page for this episode.
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.