How many years before games go to public domain?

[tz101]

Its probably been asked before, but I am curious. You know like how really old songs and hymns became public domain over the years. Or does this require some estate curator to sign off on a legal document of some sort?

 

I guess what I am alluding to is, will Pac Man and Zaxxon ever be public domain by sheer age, or would Namco and Sega have to sign off rights first?

[Reaperman]

here seems to be a link for it--at least for stuff published in the US(link)

 

seems to be 95 years after being published for the short answer, I'm sure most nations have something similar going on.

After that, I suppose you could go ahead and sell your own copy of an old video game. Probably have to remove any registered trademarks first.

Edited January 11, 2010 by Reaperman

[jaybird3rd]

AtariAge member CebusCapucinis recently put together an excellent write-up of video game copyrights in another thread.

[Classic Pac]

But the truth is that most companies don't care about the older game systems. I was talking to someone at Nintendo recently about getting a power supply for my GBA SP, and it seems Nintendo will not stop any one putting roms of games older than the N64. It seems they became aware of this one site which posted roms, and the site is still up many months later. Then there are those companies that have since folded like Coleco I would be my entire months pay that no one would even care if someone made a clone of anything they ever did.

[Reaperman]

Then there are those companies that have since folded like Coleco I would be my entire months pay that no one would even care if someone made a clone of anything they ever did.

coleco is an especially good example of a brand not to mess with. Since River West Brands (link) owns their brand and possibly even some of what coleco's done, they'd surely come to your house and break your kneecaps if you sold anything treading on them.

 

aside from just the branding, often times when a company with some publishing rights folds up, those are auctioned to the highest bidder. When acclaim went up, it was all I could do to keep myself away from the auction selling the some of the console mortal kombats.

Edited January 11, 2010 by Reaperman

[+RevEng]

AtariAge member CebusCapucinis recently put together an excellent write-up of video game copyrights in another thread.

I would have pointed this out in the original thread (it's now locked) but the analysis is flawed with regards to carts. There's no reason to send a legal request to use empty carts or circuit boards in a homebrew project.

 

Copyright only applies to the reproduction of artistic works. Reusing the original carts, circuits, or physical roms - even in a modified form - doesn't cause a spontaneous copy to be created. This would only be the case if you tried to create injection molds and new parts from an original cart. Similarly, trademarks on the cart labels follow the exhaustion doctrine, aka first-sale doctrine.

 

The other points in the document are definitely useful, and homebrewers should know that even when they are legally in the right, large companies often pursue cases without merit to push around smaller companies and individuals.

 

Back on topic... In the US (as Reaperman pointed out) the likeness of pac-man circa 1980 will be able to be reused in ~2075, assuming no more extensions are made to copyright law. In Canada the term is the lifetime of the author plus 50 years, and the U.K. is using the lifetime of the author plus 70 years as are many other parts of Europe.

Edited January 11, 2010 by RevEng

[Hatta]

Nothing produced after Mickey Mouse (1928) in the US will ever go into the public domain. Any time the deadline approaches, Disney will buy another extension.

[Video]

The short answer is something on the lines of 95 years, the much more complicated answer would be....When the writer of the game makes it PD, or 95 years after the last production run of said game. (Pac-man, made in 1980, still is being produced in various forms even today, so technically, if it was stoped from this pooint on, it would still be like 2105 before it could be used again)

 

The legal crap is overly complicated and long, and in the end, doesn't protect jack shit unless the author has the cash to throw at it to protect it (like someone said, Disney and Mickey)

[VectorGamer]

Then there are those companies that have since folded like Coleco I would be my entire months pay that no one would even care if someone made a clone of anything they ever did.

coleco is an especially good example of a brand not to mess with. Since River West Brands (link) owns their brand and possibly even some of what coleco's done, they'd surely come to your house and break your kneecaps if you sold anything treading on them.

 

 

That is a concern I have regarding the Super Expansion Module and CV2 projects.

[Cebus Capucinis]

AtariAge member CebusCapucinis recently put together an excellent write-up of video game copyrights in another thread.

I would have pointed this out in the original thread (it's now locked) but the analysis is flawed with regards to carts. There's no reason to send a legal request to use empty carts or circuit boards in a homebrew project.

 

Copyright only applies to the reproduction of artistic works. Reusing the original carts, circuits, or physical roms - even in a modified form - doesn't cause a spontaneous copy to be created. This would only be the case if you tried to create injection molds and new parts from an original cart. Similarly, trademarks on the cart labels follow the exhaustion doctrine, aka first-sale doctrine.

 

That's not necessarily true either. If you want to get technical about it, cart producers maintain a filed patent on their product -- if that patent has not expired you are actually infringing by using their product. That filed patent offers legal protections that are very, very similar to a copyright. If you look at the definition of copyright as defined in the United States it covers "all works in a tangible form" -- this includes things above and beyond artistic works.

 

This link enlightens a bit more:

Copyright.gov

 

The categories of a copyright are defined in 8 main categories of tangible work. If you will read page two, this clearly states:

"These categories should be viewed broadly." Simply because something isn't 100% a "book" or a "CD" doesn't mean it's not copyright eligible. Arguably, the creation of a piece of plastic made to certain specifications could be considered an "artistic work" even under your rigid definition of what a copyright applies to, as it is a unique representation of a form factor. That form factor just happens to hold a PCB very well and happens to fit exactly with another piece of plastic that has another form factor that hooks up to a form factor of plastic that displays form factors of electronic images, but in each of these instances these "form factors" represent a unique and individual piece of work.

 

This is why it is a broad interpretation. You simply can't just use the argument of "well, it doesn't count as an artistic representation" as a methodology for defense. Artistic creation is a varied and wide spectrum and the categories are meant as guidelines rather than rigid doctrines. That's why Ron Popeil's informercial items have copyrights on them. Are they Van Gogh paintings? No. Are they Salomon Rushdie works? No. But they ARE individual artistic representations that warrant classification under copyright protection. Each of these is implied to have artistic merit in and of themselves and the original creators are granted rights under those respective merits.

 

First-sale doctrine is a grey area but generally only applies to re-selling of the product -as it exists-. If you split apart a cartridge and make a new game out of it, you've made a completely new product. Theoretically that product could be in direct competition with an original manufacturer. But that's the product as a whole and not the individual parts. Arguably you did not purchase just the cartridge, you purchased the entire game itself, and since you have not made a copy of the game itself, you would likely be safe under first-sale doctrine. But you could still get caught under patent law. This is where repurposing comes into play. If you are significantly repurposing the cartridge, it is likely fair use and not a problem.

 

The short version of this is: Is a 'cart' considered an artistic work in one form? Yes. Does copyright only apply to "artistic works" as you say? No, and even if it did, it would still count. Does first-sale doctrine and exhaustion apply in this case? That one's fishy, but I'd err on the side of 'no' rather than 'yes' simply for my pocketbook and lack of ability to pay attorney's fees sake.

[+RevEng]

... 95 years after the last production run of said game. (Pac-man, made in 1980, still is being produced in various forms even today, so technically, if it was stoped from this pooint on, it would still be like 2105 before it could be used again)

The clock on copyright term WRT characters is measured from their first publication, not the last. But if the character changes, you'll need to wait for the first appearance of the changed character to lapse into the PD before you can use that version.

 

When Disney so infamously bought new copyright laws, it was the "steamboat willie" version of Mickey Mouse that was in peril.

 

But I also agree with Hatta. Any time Disney has their I.P. sliding toward the public domain, we'll hear talk from the politicians that short copyright terms are harming the public and how much productive dear old Walt will be if we just give him more incentive. Then they'll enact laws to save us from a terrible fate.

 

So the practical answer to the originally posted question is "when politicians and laws can't be bought and real copyright reform happens".

 

So "never" is the real answer.

[+RevEng]

That's not necessarily true either. If you want to get technical about it, cart producers maintain a filed patent on their product -- if that patent has not expired you are actually infringing by using their product. That filed patent offers legal protections that are very, very similar to a copyright.

If you look at the definition of copyright as defined in the United States it covers "all works in a tangible form" -- this includes things above and beyond artistic works.

Absolutely. And patent law also has the concept of exhaustion too!

 

Not to mention that the patent terms on any retro cart tech ran out long ago.

 

The categories of a copyright are defined in 8 main categories of tangible work. If you will read page two, this clearly states:

"These categories should be viewed broadly." Simply because something isn't 100% a "book" or a "CD" doesn't mean it's not copyright eligible.

If you re-read my original post, you'll see I never argued that a cart wasn't a creative work. I actually believe it is.

 

What I did say was that no copy was being made, so copyright law doesn't apply. There is no grey area here.

 

First-sale doctrine is a grey area but generally only applies to re-selling of the product -as it exists-.

Citation please. What you are claiming makes illegal the sale of any good that is not factory pristine.

 

There is no grey area with patent exhaustion as you suggest, with the notable exception of EULAs. There is plenty of case law to back that up.

[Cebus Capucinis]

Citation please. What you are claiming makes illegal the sale of any good that is not factory pristine.

 

There is no grey area with patent exhaustion as you suggest, with the notable exception of EULAs. There is plenty of case law to back that up.

 

http://www.law.cornell.edu/uscode/15/1114.html

 

 

My linkhttp://www.tabberone.com/Trademarks/CourtCases/7thCircuitCOA/LEEvART.shtml

http://www.tabberone.com/Trademarks/CourtCases/2ndCircuitCOA/BatlinVsSnyder.shtml

http://www.tabberone.com/Trademarks/CourtCases/9thCircuitCOA/HerbertRosenthalJewelry_v_Kalpakian.shtml

 

No, it doesn't. In my post I did not state the condition of the item, I stated the item as it existed.

 

In recreating a cartridge under a different name a material difference exists between the original product and the reproduced product. If proven that a material difference does exist, the item is no longer eligible for first-sale criteria. Under 15 U.S.C. Section 1114, if there exists a material difference, it is no longer first-sale doctrine eligible. The question would be whether inserting a different PCB and making it a different game exhibits a material difference, which I honestly would like to see in a courtroom, it's an interesting theory and I'm not really sure how it would pan out.

 

If I buy Pac-Man and turn it into Missile Command, I'm no longer eligible for first-sale of Pac-Man, now am I?

 

And no, there isn't grey area -- You I was wrong in my first post, and you're I'm wrong in my second, too.

[+RevEng]

http://www.law.cornell.edu/uscode/15/1114.html

This is trademark infringement law based on reproduction, counterfeit, copy, or colorable imitation works. A physical cart or circuit board is not a trademark itself, registered or otherwise; the homebrew author isn't using the original title's trademarks. Nor are we taking about reproducing the original cart. Re-use!=Reproduction, by any legal or english definition.

 

My linkhttp://www.tabberone.com/Trademarks/CourtCases/7thCircuitCOA/LEEvART.shtml

The cornerstone of this (rather controversial) decision is that Lee ran contrary to The Visual Artists Rights Act of 1990, not copyright law, patent law, nor trademark law.

 

The Visual Artists Rights Act only applies to artistic works produced in quantities up to 200 copies, and it only applies to paintings, drawings, sculptures, and limited edition photographs. Not video games, and if you consider a video game a "other audiovisual work" than they're explicitly excluded.

 

http://www.tabberone.com/Trademarks/CourtCases/2ndCircuitCOA/BatlinVsSnyder.shtml

http://www.tabberone.com/Trademarks/CourtCases/9thCircuitCOA/HerbertRosenthalJewelry_v_Kalpakian.shtml

These last 2 have to do with reproduction, counterfeit, clones, etc. The rulings have nothing to do with re-using pre-existing works.

 

If I buy Pac-Man and turn it into Missile Command, I'm no longer eligible for first-sale of Pac-Man, now am I?

As "pac-man", no. But since the cart itself isn't part of the pac-man trademark, and you're not using the pac-man trademark, you don't need it. So long as you own the trademark to Missile Command, feel free to sell it!

[Cebus Capucinis]

Hmm....I agree that you have a point on repurposing vs. reproduction. Honestly there isn't a legal precedent in this instance to actually come to a definitive conclusion since there hasn't been any lawsuit relating specific to these circumstances, and in way of there being no precedent, simple copyright doctrine would be the only precedent and it is not eligible. My only question would be if there is a separate trademark on the cartridges themselves rather than the games as a whole, but even then it probably wouldn't matter!

 

Basically what you and I are doing is a very big Ouroboros thing! Your #1 argument for defense in one case is my #1 argument for prosecution in another case.

 

First-sale doctrine doesn't apply due to material difference, but if you prove material difference, then the general copyright infringement is null and void anyhow, because you've already proved it's materially different enough. If it's not materially different enough, then it's fair-use because of first-sale doctrine. No matter how you slice that up, on at least one front the defense would be capable of proving the logical fallacy in the prosecution's case and therefore there would be no grounds for infringement.

 

Basically you could only prove first-sale invalid if you claim that the game as a whole is the product considered....and if you do that you can't sue on grounds for infringement on the cartridge copyright.....

 

and then you couldn't sue on the flip-side by claiming copyright infringement on the product as a whole simply due to the cartridge being an originally produced product.

 

A snake eating its own tail! That's really interesting that it's how it would pan out. I think you are correct in stating that a cartridge in itself is not eligible for copyright or trademark protections in the sense I am using.

 

I doff my hat to you for seeing the over-reaching strategy here! I think I was too busy doing it piecemeal instead of seeing the bigger picture in this case. This is why copyright law is so complicated! Haha! I struck out my other post. I believe I am incorrect in this assumption! Well done legal clinic! Promotions all around!

[+RevEng]

Sweet! With a promotion I can finally be Senior coffee boy!

 

It was just the one sticking point I had in an otherwise very helpful doc.

 

This thread may now resume it's regularly scheduled program.

[TwinChargers]

I think in the first time in history, Matlock has lost a case. A rare day indeed!

[Cebus Capucinis]

Yes, but it's a very good thing that Matlock has lost a case! A very good thing for the homebrew community because it means we can have no worries about legal problems with all these great games people are making!