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Post by dicebro on Nov 7, 2021 21:03:21 GMT -6
I am interested in having a friendly discussion about some of the early TSR games and the possibility that any of them have fallen into the public domain due to failure to comply with the Applicable Copyright Laws effective after the initial time of publication and before the statutory termination.
Why am I interested? It’s because I enjoy reading copyright laws and I am a player of those classic TSR games. I also enjoy researching IP law, discussing IP law and educating myself. I would also like to know if any of those early TSR games could possibly be publicly owned.
Despite a somewhat bizarre and defamatory allegation by a member of this board in a previous post, I do not intend to engage in piracy. Put simply Copyright infringers and IP pirates do not engage in open discussions about the law. They aren’t interested in the law. Further there is nothing illegal, or unethical, about having a discussion about early TSR games and educating ourselves about what may have prematurely fallen into the public domain, or why they have not. I have no personal stake in this field of discussion other than seeking knowledge.
My background. I am a lawyer who has retired from government service with over 20 years experience in a separate field of the law. I do not practice in the field of IP law. I will not be using this forum to seek legal advice. Nor will I dispense any.
The intent of this forum thread is purely for discussion of those TSR games initially published during the purview of the United States Copyright Act of 1909. That Statute is an interesting read. I would like to discuss its provisions, the case law interpreting it, and conduct an analysis under various sets of hypotheticals. This is a purely educational endeavor and I am not here claiming to be an expert. I am here to discuss and learn.
If you are interested in this, then may we have a friendly discussion?
I would like to begin with one of my favorite games: Star Probe authored by Col. John Snider, US Army Retired. The TSR game known as Star Probe is a fascinating work that was initially published in 1974 by a partnership entity known then as Tactical Studies Rules. I would like to discuss the legal question of whether or not this game fell into the public domain.
The public domain analysis is a little different than the infringement analysis. But there are many parallels. Next post I will start with the question “What parts of the Star Probe game are copyrightable in the first place?”
I hope this post clears up any misunderstandings about my intent.
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Post by tdenmark on Nov 7, 2021 23:06:59 GMT -6
I don't think any of TSR's games are in public domain. However, the courts have come down pretty clearly and consistently that you can't copyright game mechanics. Not that I'd try to recreate Monopoly and sell it (for example), but just pointing out how the courts have ruled.
Wizard's patent on mechanics in Magic hasn't been challenged in court as far as I know, many question whether it would hold up.
This is all speculation and certainly not legal advice, I don't know and am not qualified to give any.
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Post by dicebro on Nov 8, 2021 10:45:01 GMT -6
PLEASE READ FIRST. MY POSTS IN THIS THREAD ARE NOT LEGAL ADVICE: These Posts contain general legal information about how to evaluate the copyright status of works created in the United States between January 1, 1923 and December 31, 1977. With regard to any individual work or specific situation these posts are only speculation, defined as the activity of guessing possible answers to a question without having enough information to be certain. My opinions are based on incomplete evidence and conjecture, intended for educational purposes only, and not intended for actual application in any court of law. These Posts are considered protected speech under the First and Fourteenth Amendments of the United States Constitution, along with freedom of speech rights protected by the Constitutions of the fifty States. These Posts are not legal advice, nor are they a substitute for legal advice. These Posts do not create an attorney-client relationship. These Posts are not a complete discussion of all legal issues that arise in relation to making works available to the public. I make no warranties regarding the general legal information provided in these Posts and recommend that you consult a lawyer if you are unsure of how the information in these Posts applies to your particular facts.
Part One: where to start? First Question. What is “the law” of Copyright?
United States Constitution: Article 1 clause 8 section 8. “The Congress shall have Power … To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries;”. Though limited by the powers of Congress, copyright is the first “right” mentioned in the text of the Federal Constitution.
Federal copyright protection is granted by Congress under Title 17 of the United States Code.
In the 20th century the federal copyright statute underwent two major revisions. The first revision was the 1909 Act. The second was the Copyright Act of 1976, which went into effect on January 1, 1978.
The Act of 1909 granted copyright protection only to “generally published” works that met the formal notice requirement and to certain categories of unpublished works that were registered with the United States Copyright Office.
The 1976 Act expanded copyright protection by loosening the notice requirement, extending protection to unregistered unpublished works, and for most works, making the term of protection longer.
Note that many individual states have provided some “common law” rights. These state laws will probably not be addressed by me unless they seem relevant.
Case Law: Federal judges and Supreme Court Justices interpret the federal constitution and statutes. The holdings of their published opinions also have the force of law when applied to copyright disputes.
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Post by tdenmark on Nov 8, 2021 11:01:41 GMT -6
This issue comes up a lot in art circles, particularly regarding fan art. It is such an important topic that a copyright lawyer gave a memorable talk at Comic Con back in 2012, that I have bookmarked. It answers many questions, opens new ones, leaves some things up in the air because that is the way it is. Note his constant refrain of taking caution.
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Post by dicebro on Nov 8, 2021 18:26:22 GMT -6
This issue comes up a lot in art circles, particularly regarding fan art. It is such an important topic that a copyright lawyer gave a memorable talk at Comic Con back in 2012, that I have bookmarked. It answers many questions, opens new ones, leaves some things up in the air because that is the way it is. Note his constant refrain of taking caution. Yes, he makes a good presentation. He also crams as much IP information that he can into less than an hour while entertaining those young artists. He is right to encourage the fans to be very cautious, and does so without being a condescending jerk. I like his video! |
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Post by Deleted on Nov 9, 2021 9:39:21 GMT -6
Part One: where to start? First Question. What is “the law” of Copyright? United States Constitution: Article 1 clause 8 section 8. “The Congress shall have Power … To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries;”. Though limited by the powers of Congress, copyright is the first “right” mentioned in the text of the Federal Constitution. Federal copyright protection is granted by Congress under Title 17 of the United States Code. In the 20th century the federal copyright statute underwent two major revisions. The first revision was the 1909 Act. The second was the Copyright Act of 1976, which went into effect on January 1, 1978. The Act of 1909 granted copyright protection only to “generally published” works that met the formal notice requirement and to certain categories of unpublished works that were registered with the United States Copyright Office. The 1976 Act expanded copyright protection by loosening the notice requirement, extending protection to unregistered unpublished works, and for most works, making the term of protection longer. Great thread! There is also The Copyright Term Extension Act of 1998 (CTEA) which tacked an additional 20 years onto the length of copyright. I think an excellent case could be made that the 1976 Act is clearly unconstitutional and that the 1998 Act, just deepens the magnitude of the unconstitutionality of the law. The Constitution as you point out says "To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries..." I don't know how anyone can argue with a straight face that the 1976 and 1998 laws are by any stretch of the imagination constitutional, not to mention the dubious 1909 law. While I do not run around engaging in piracy or encouraging it, I have no respect for corrupt laws or for corrupt judges either. I would be happy with the lifetime of the author or 30 years whichever is longer, but a maximum of 14 years for work for hire. |
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Post by Deleted on Nov 9, 2021 9:48:59 GMT -6
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Post by dicebro on Nov 9, 2021 10:45:42 GMT -6
Thanks for your friendly contribution! Part Two of my Heretical Analysis will be posted later today. Lol. |
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Post by dicebro on Nov 9, 2021 18:21:37 GMT -6
PLEASE READ FIRST. MY POSTS IN THIS THREAD ARE NOT LEGAL ADVICE: These Posts contain general legal information about how to evaluate the copyright status of works created in the United States between January 1, 1923 and December 31, 1977. With regard to any individual work or specific situation these posts are only speculation, defined as the activity of guessing possible answers to a question without having enough information to be certain. My opinions are based on incomplete evidence and conjecture, intended for educational purposes only, and not intended for actual application in any court of law. These Posts are considered protected speech under the First and Fourteenth Amendments of the United States Constitution, along with freedom of speech rights protected by the Constitutions of the fifty States. These Posts are not legal advice, nor are they a substitute for legal advice. These Posts do not create an attorney-client relationship. These Posts are not a complete discussion of all legal issues that arise in relation to making works available to the public. I make no warranties regarding the general legal information provided in these Posts and recommend that you consult a lawyer if you are unsure of how the information in these Posts applies to your particular facts.
Post 2. Copyright’s Purposes, The Public Domain, and Threshold Requirements
In this Post I will examine the copyright status of works published before the 1976 revision. The 1909 Act and the cases that interpret it, are the governing law when it comes to works initially published in 1974, such as Star Probe. I will try to limit my citations to those cases applying the 1909 act. To help the readers, I will cite from more recent cases that explain long held principles relating to the “public domain”. I will also refer to a treatise or two by judicially acknowledged copyright scholars.
A. The Purpose of Copyright
“A copyright is a limited monopoly created by federal statute passed in the exercise of the power vested in Congress by Article 1, Section 8, Clause 8, which provides that "The Congress shall have power: To promote the Progress of Science and useful Arts by securing for limited Times to Authors…the exclusive Right to their respective Writings …." Surgical Supply Service, Inc. v. Adler, 206 F. Supp. 564, 567 (E.D. Pa. 1962) (overruled on other grounds)
"The primary object of conferring the monopoly upon a special class of individuals in direct contravention of the general anti-monopoly policy is to bestow upon the public the cultural benefits derived from the labor, skill, talents and genius of authors. The copyright is the equivalent which the public gives to the author in return for these benefits. The secondary purpose is to encourage authors by securing to them for a limited time the exclusive right to publish, vend and otherwise exploit the productions which are the results of their skill, thought and genius; that is, the exclusive right to multiply copies for profit; for in no other way could they receive the full financial benefits of their work. The third purpose is to give notice to the public that the author or other owner has not abandoned the property in his literary or artistic work or dedicated it to the public. The act contemplates that the public shall have notice, by a correct official registration, of the identity of the author or proprietor entitled to enjoy such monopoly as against the public. These purposes are necessarily implied in the policy of promoting the `progress of science and useful arts,' as stated in the copyright clause of the Constitution, and contemplate the extension and increasing adaptation of the copyright laws to the uses of society in accordance with changing conditions." Id. At 567-68. (citing Ball, Horace. Law of Copyright and Literary Property, p. 44.)
B. The “Public Domain”
The Public Domain is not defined by the 1909 Act. Therefore, we must look at some caselaw for guidance. Here are a couple of relevant case holdings:
"Material found in the public domain … is free for the taking and cannot be appropriated by a single author even though it is included in a copyrighted work. Computer Associates v Altai, 982 F.2d 693 (2d Cir. 1992)
“To the extent that an author's work is derived from preexisting materials in the public domain, copyright protection is afforded only to the non-trivial, original features contributed by the author to the derivative work.” E.F. Johnson Co. v. Uniden Corp. of America, 623 F.Supp. 1485, 1499 (D.Minn.1985) (citing Durham Industries, Inc. v. Tomy Corp.,630 F.2d 905, 909 (2d Cir.1980).
C. Threshold Requirements for Copyright Protection of a Work.
Not everything published by an author is eligible for copyright protection. Also, it is important to note that a single item, such as a book, may contain multiple “works”, each of which may or may not be separately protected by copyright.
There are four threshold requirements that each “work” must have to be considered copyrightable: the work must be valid subject matter; it must be fixed in a tangible medium of expression; it must be original; and it must contain sufficient creative expression, not merely facts or ideas. Also, a single object may contain multiple “works,” each of which may be separately protected by copyright. The initial three of the four threshold requirements are separately addressed below.
If any one of the threshold requirements are not met, then the work is not protected by federal copyright law.
1. Does the Work fall into the proper “Subject Matter” category?
The 1909 Act provides a categorial list of “subject matter” eligible for copyright protection. The categories include “books, periodicals, lectures and sermons, dramatic compositions, musical compositions, maps, works of art, reproductions of works of art, drawings or plastic works of a scientific or technical character, photographs, and prints and pictorial illustrations.” 17 U.S.C. § 4 and 5 (1909). These categories are included within the Constitutional scope of an author’s writings.
A work of authorship like the “Star Probe” rules booklet contains a variety of individual “works” falling under the subject matter list above. I will try to break each of them down for you. Each of the illustrations would count as individual “works”. The Forward written by Gary Gygax would be an individual “work”. Most importantly, the outlined rules would be their own individual “work”. Also included as individual “works” would be the charts, forms and matrices included in the booklet. Separate from the booklet, but no less part of the game, is the three-dimensional star map. The map would be its own “work” for purposes of subject matter qualification.
We can readily observe that “Star Probe” contains at least five separate types of “work” that would meet the threshold requirement of proper “subject matter”.
2. Is the work properly “affixed”?
“In order to be protected by copyright, a work must also be “fixed in a tangible medium” of expression.” Melville Nimmer and David Nimmer, Nimmer on Copyright: A Treatise on the Law of Literary, Musical and Artistic Property, and the Protection of Ideas. Section 2.10[1]. The separate “works” included within the Star Probe rulebook have been recorded on paper and easily meet this threshold requirement.
3. Is the Work sufficiently “Original”
Originality for the purposes of copyright is a very low threshold and often means only that the work was independently created and not copied from other works.” See Nimmer, at Section 2.01
The originality requirement excludes anything objectively factual, unless arranged in a creative way. For example, a compilation of facts organized in a routine or predictable manner, like a phone book listing names and phone numbers in alphabetical order, does not satisfy the originality requirement. Feist Publ’ns, Inc., v. Rural Tel. Serv. Co., 499 U.S. 340, 362 (1991). Also, if the arrangement of the facts was decided because of standardization, convention, necessity, or only to improve the functionality of the work, then it is not original. Krishna Hariani & Anirudh Hariani, Analyzing “Originality” in Copyright Law: Transcending Jurisdictional Disparity, 51 Intellectual Property Law Review 491, 510 (2011).
The illustrations of Star Probe, along with the Gygax Forward would presumably meet the originality requirement so long as they were independently created. I have no facts that would indicate otherwise.
I also have no reason to dispute the originality of the outlined rules along with the tables, charts, matrices and the Star Probe map.
In Post 3 I will attempt to analyze the Fourth Threshold requirement with respect to the various works contained within the Star Probe rulebook.
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Post by dicebro on Nov 12, 2021 13:45:34 GMT -6
PLEASE READ FIRST. MY POSTS IN THIS THREAD ARE NOT LEGAL ADVICE: These Posts contain general legal information about how to evaluate the copyright status of works created in the United States between January 1, 1923 and December 31, 1977. With regard to any individual work or specific situation these posts are only speculation, defined as the activity of guessing possible answers to a question without having enough information to be certain. My opinions are based on incomplete evidence and conjecture, intended for educational purposes only, and not intended for actual application in any court of law. These Posts are considered protected speech under the First and Fourteenth Amendments of the United States Constitution, along with freedom of speech rights protected by the Constitutions of the fifty States. These Posts are not legal advice, nor are they a substitute for legal advice. These Posts do not create an attorney-client relationship. These Posts are not a complete discussion of all legal issues that arise in relation to making works available to the public. I make no warranties regarding the general legal information provided in these Posts and recommend that you consult a lawyer if you are unsure of how the information in these Posts applies to your particular facts.
POST 3
C. 4. Does the work contain sufficient “Creative Expression”?
“Only the expression” in a work is protected by copyright. The Second Circuit, among other federal courts, has held that copyright protection "extends only to the artistic aspects, but not the mechanical or utilitarian features, of a protected work.” Durham Industries, Inc. v. Tomy Corp.,630 F.2d 905, 909 (2d Cir.1980) (citing Mazer v. Stein, 347 U.S. 201, at 218 (1954). Ideas, facts, systems, processes, and procedures are therefore not protected by copyright. "A system, as such, can never be copyrighted. If it finds any protection, it must come from the patent laws." Baker v. Selden,101 U.S. 99 (1879).
What about game rules? The case law is clear, “Even if books are held to describe a game … the rules thereof, as ideas, are not copyrightable.” Seltzer v. Sunbrock, 22 F. Supp. 621 (S.D. Cal. 1938). “In the conventional laws or rules of a game, as distinguished from the forms or modes of expression in which they may be stated, there can be no literary property susceptible of copyright.” Whist Club v. Foster, 42 F.2d 782 (S.D.N.Y. 1929). The proprietor of game rules can acquire no exclusive rights in the rules of play. Russell v Northeastern Publishing Company, 7 F. Supp. 571 (D. Mass. 1934). The most that can be claimed is protection against the copying of the language used in presenting the rules. Id. Therefore, a work of game rules may have certain protectable elements, such as the creative expression in the description of the rules, but the underlying principles and methods are not protected.
What does this all mean for a work such as Star Probe published in 1974 by the Tactical Studies Rules partnership? It means that the illustrations, and the Forward by Gary Gygax, will pass the Four Threshold Requirements for copyright protection. But what about the Rules themselves? It is valid to assume that the exact language of the Star Probe rules meet the threshold so long as they were sufficiently expressed. I would venture to propose that the underlying rules could be extracted and rewritten, without copying and in such a fashion as to exclude any of Star Probe's protected creative embellishments.
What about the Charts, the Matrices and the Map? Once again, I would assert that the methods for generating game results via the charts and the matrices could be rewritten in a way that would not offend the fourth threshold's protected elements. A procedure could easily be created that could produce a different star map. Creation of a new map, so long as it was not a direct copy of the Star Probe map, would also not infringe.
I invite your thoughts, so long as they are friendly.
In Post 4 I will examine more of the 1909 Copyright Act's requirements for keeping a work like Star Probe out of the public domain.
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