Copyrighting a Cartridge


>>David Plylar: Good
afternoon, everybody. I think it’s literally
just now afternoon. My name is David Plylar,
I’m with the Music Division. And I am so pleased
that we have kind of a library-wide initiative
here with our series “Augmented Realities”, in
which we’re exploring the world of videogame music,
both old and new. So we’re excited to
have you here at the — where copyright is being
represented by Mark Gray and John Riley — John R.
Riley, who are my colleagues in the Copyright Office. And I will turn it
over to them and hope that you consider coming to
some of our other events. We have an event — pre-concert
event tonight about the history of videogame music
starting at 6:30. Then we have a concert that
features a new commission, including a new interactive
game that’s been designed just for this evening. That’s at 8:00 in the
Coolidge Auditorium. And then we have two further
talks tomorrow at 11:00 a.m. about the process of preserving and collecting videogames
at the library. And then another composer
talk 2:00 p.m. tomorrow by Winifred Phillips, who will
be speaking about her work as a composer and just the — what goes into putting
that together — putting a videogame
score together. She will also be selling her — some of her books will
be on sale at that event. And we will — the last
thing I should mention is that we will have an arcade
that will be around for people to come out and interact
with some different things, including some VR experiences. That’s going to be from
10:00 to 4:00 tomorrow; and that will be
upstairs in Mahogany Row, level one in this building. So without further adieu, thank
you so much to Mark and John, and I’ll leave it to them.>>John R. Riley: Thank
you all for coming and I’d like to thank the library and the Music Division
for having us today. I think this is going to be
a really fun set of events for augmented realities. This is the [inaudible] portion
of the show, but we’re going to keep it as fun as possible. If you have to be a
government lawyer, be a government videogame
lawyer; I strongly recommend it. My name is John Riley. This is my colleague, Mark Gray. Mark is ranked in the top ten
percent of legal legends players in the United States, is that –>>Mark Gray: In North America.>>John R. Riley:
In North America.>>Mark Gray: In North America. [Laughter]>>John R. Riley: And
he wanted me to mention that [laughs] for you all here. We’re going to talk
today about legal issues and copyright related
to videogames, and especially anything
that’s, you know, consistent with the
other themes. Anything that’s related
to music, we’re going to insert
while we can. We’re going to talk first
about copyright protection, then copyright registration. And then we’re going
to move on to things that we do a little
less of around here, which is infringement
actions and licensing. To kick it off, let me tell
you a little bit first about “Copyright Protection
for Videogames”. So generally, copyright protects
videogames in one of two or both ways, either
as an audiovisual work, or a computer program. And this is — the copyright
protection for videogames, that it protects videogames is
not really interesting anymore. Generally, protecting
things under copyright, it has to be an original work
of authorship that’s fixed in a tangible medium
of expression. And that includes — and
is not controversial, things that can be
viewed or perceived with a machine or a device. And this makes sense, because
if you have a movie reel, it’s using a device or
a machine to play it. You might not be able to see
the actual sounds and pictures in that, but you
can use a machine. Similarly like if you have an
eBook, it’s not controversial that an eBook would be protected as a literary work
even though you have to view it using a machine. So although videogames are
unique in that there are so many different
types of consoles, so many different types of,
you know, PC games or games on an Apple computer, you know, the fact that they
can be perceived by using a machine is
not problematic anymore. So the fact that copyright
can protect videogames is noncontroversial. That being said, there was a
very famous case involving the office for not registering
“Breakout”, Atari versus Omen, and that’s the former
register, Ralph Omen, the issue in this case was, “Is the game ‘Breakout’
copyrightable as an audiovisual work?” In the early days of the office,
we mostly registered works — videogame works as
audiovisual works, and not computer programs. But today, they can
easily be both. And the office viewed this
case, and here is a picture of the game as we most well know
it, you know, on the Atari, not, you know, on your phone but on
the Atari, the original version. And the office looked
at this and said, “Okay, well let’s evaluate this claim. We see there is a brick wall,
there is a rectangular paddle, and a little dot for a ball.” And we’re not going
to play the music, but there were four different
tones during game play. But it was basically
a single screen, and the bricks were
rainbow-colored. So the copyright office
says, “Well, of course, you can’t copyright a rainbow. This is enough to be protected.” And so we rejected the work. Atari sued. And so it went up to be
challenged — I think — what was the judge’s
name, was it — just a fairly unknown judge, I think her name was
Ginsberg, decided this case. [Laughter] And after declining
registration, we lost. And the issue was, you know, we
were looking at a single screen. And I have a still of
the actual deposit. And the deposit for
“Breakout” is this videocassette right here. This is history; it was saved
because of the litigation. And they sent us a video,
it’s about seven minutes long. And when the office
viewed this — and here is an image that
the office would have seen through a CRT screen,
for example, of a ball being bounced
around the screen. And I have to tell you, despite
this not being, you know, important to registerability,
I was watching very intently because this — they
gave us a clip where the ball does not die, and
I was waiting for it to drop. Like whoever was playing
the original version of this game was
very good at it. [Laughter] And I was staring in this lab we have looking
very intently; perfect game. In any case, the court
criticized the copyright office for not looking at the work as a whole including the
series of different screens. So when you evaluate
an audiovisual work, much like when you
evaluate a movie, you don’t evaluate a
still from the movie, you watch it as a whole. And so in all of the
office’s correspondence and in discussing the case,
it really seemed to the court like the office was forgetting
to considerate it as a whole, including the additional
screens. So this case was a little bit
interesting because, you know, it was in the early days of registering videogames
at the office. And looking at the
correspondence was kind of amusing, because the — Atari asked us to submit
identifying material. And so this is kind of common
now, but back then they sent in the videotape instead
of the game, and they sent in a couple things on the
next screen that are unique. But the reason they did so was
when I looked at this, I’m like, “Why did they say here,
‘It’s not practical to deposit the videogame
at the copyright office’.” And the reason is when they were
originally registering Atari, they were registering the
cabinet version, right, if you’re going to play it in
an arcade, not the Atari 2600 that you plug into
your home console. So that’s why they have this
registration where they ask for, you know, materials other
than the original deposit. So what they actually sent us
on the left there is a picture of all the different components
of the game; which I don’t know if you know this, but the
government office can’t just look at circuits and tell you
that this is copyrightable. So I — we don’t know
why they sent this in. Apparently, the “Breakout”
game is not a software game, it’s a hardware game;
so that’s probably why. But in our research, we couldn’t
actually figure out why. We don’t typically get
pictures of circuits as part of the registration. But we do typically get
the other item that’s here, which is a synopsis
of game play. And that’s a little
interesting because isn’t “Breakout” just a ball
bouncing on a screen? When we get into
it a little bit — and then Mark’s going to talk a
little bit more about deposits, the stories are a little
bit more interesting. Mario goes on an adventure. This one is literally
a — the player — they did a great job making this
a very extended description. “The player commands a
paddle, which is movable.” And it’s a bouncy ball; it’s
“vertical pong”, as we call it. It’s not — it doesn’t need
that long of a description. In any case, I did want to
add just doing some research for this, “Breakout” is kind of
a historically interesting game; and here’s our first moment
of audience participation. Do you know who first was asked
to develop “Breakout” at Atari?>>Jobs.>>John R. Riley: That’s
right, Steve Jobs was asked to create “Breakout” for Atari. And here is — can’t confirm
this is official copyright office lure, but
here is the story that I’ve read in
bits and pieces. Apparently, he asked
Wozniak to build it for him because he didn’t have
the time or didn’t want to and he knew Oz could get it done
in a few days, which he did. And that’s just kind of —
apparently that was version one of “Breakout”, which is not
the version that we know now, but I just think that’s
kind of a hilarious lure for the “Breakout” game. In any case, that’s
my first part here. I’m going to hand it off
to Mark, and Mark is going to a little bit —
talk a little bit more about what we actually do get
for deposits at the office.>>Mark Gray: Thank
you very much, John. Yes; so I have the
exciting task of walking you through how you actually
register your copyright once you have your game and
you’re ready to go. And so if you’re
wondering, you know, “Videogames are a
little complicated; how do you register a copyright
in a videogame,” the answer is, “The same way you
register anything else.” We have this lovely
website where you can go and you can register
your copyright online. There is a standard form and
then there are special forms; this is just standard. We know how to handle
videogames these days. So if I was going to register
my hypothetic videogame, which definitely exists, I
would go into the website and I would be asked
a series of questions to describe what is my game,
what did I do, you know, who made it, who owns it,
all of that fun stuff. And one of the first questions
I’m going to be asked is, “What is the type of work?” So John mentioned videogames
can be audiovisual works. They can also be literary works, if you’re claiming
the source code. We recommend people pick
whatever is more predominant, what is the larger
portion of it, or the way you conceive of it. And so I will go down here and
I will pick — well in my case, I have decided that mine
is an audiovisual work. It’s got great graphics and
sounds that I cannot display for you today, but it
definitely does exist. And so after I fill that
out, I’ll fill out the title, and I’ll be asked who created
this; in this case, me. And so because I’ve registered
this as an audiovisual work, we have a series of
questions for people that create audiovisual works. Usually, they tend to be people
registering motion pictures and movies; and so you’ll
see there on the top right. Usually you will figure out,
you know, did you write the — did you make the whole
movie, did you just work on the production,
the cinematography. Because mine is a videogames,
those aren’t really relevant; so I filled in here that
this is audiovisual material, that is my contribution to
the work is that I have made, all of the audiovisual material. And so once you fill out the
name and the type of work, the person who made, and
then the person who owns it, in case I’ve, you know, given
it to someone or sold it or whatever, you
will also be asked, “Is there anything
else we should know? Is there anything, for
example, in this game that you did not
originally create?” So in some cases, if you
think about a game such as “Grand Theft Auto”, when
you’re driving a car, there’s a radio you can
play in the background. There will be songs on the radio that are just normal sounds
you would hear on the radio. Obviously, “Rockstar”
didn’t make those songs, they licensed them. And so you would go into
the material excluded and you would say, “Well, there’s preexisting
music in my game.” Same thing for something like
“Rock Band” or “Guitar Hero”, they didn’t make those songs, but they might have made the
game and some of the graphics that go along with them. So when you’re going through and you’re adding what
are the additional things that you should know about
my game, you will have to let us know what did
you not actually make, what is not actually
within the game copyright that you have created? And so that’s sort of filling out all the information
and the forms. And the very last piece is
the really exciting piece where you actually get
to send us a deposit of a copy of what you’ve made. So for some types
of works like books, you will just send us the book. For videogames, as
John mentioned, now we request identifying
material. We just needed to see
enough of the game, enough of the audiovisual work,
or enough of the literary work to know that it is
copyrightable. And so I’d like to
show you a few examples of things you may have heard of. So if any of you are familiar
with “The Legend of Zelda”, we have the registration deposit
for “The Legend of Zelda”. They gave us both a
copy of the packaging, the artwork on the packaging
just as a jpeg, as an image, and they also submitted
the first and last 25 pages of all of the source code. I’m not going to give you
that because that is theirs. But I have included
two snippets here. So you’ll see at
the very beginning, they include graphics,
very important for an audiovisual
works to have graphics. And they also set up some
of the initial variables and parameters for the game. So they’ve got lens flare,
the dungeons have cameras, the world has shadows; those
are all really good things to have in a game. But this is what
we’re going to see when somebody actually
registers a work is we’re going to get a deposit, usually of
the source code as well as some of the audiovisual materials. So moving on, we’ve got
the latest Mario game, “Super Mario Odyssey”
for Nintendo Switch. This registration came in as
an audiovisual work as well. So what did we get? Well, we got a very long video
that I cannot display for you because it is 20 minutes,
and we also got the synopsis and the summary there
in the bottom left. So they say the company
video recording is submitted for identification, so
it’s identifying material. And they provide a nice little
synopsis, “Mario travels across many different locations
in different kingdoms.” And so this is what we get when
we get registrations nowadays. This will usually
be uploaded online, sometimes will be sent to DVD. So we got game play for
“The Legend of Zelda”, that was on a DVD;
that’s currently in the library’s collections, so I don’t have it
for you here today. But these are the kinds of
things that we’re seeing. And so this video clip actually
was just sort of a bunch of different excerpts. So it would have the opening —
kind of the opening cut scene of the game, and sort of
snippets of game play. And then on the bottom
right, you see the credits. So they’ve got kind of
different pieces of the game, so you know sort of the whole — like kind of a whole
sample of it. And that’s what we’re
going to be looking at. So then we have Pokémon,
the latest Pokémon game from the Nintendo Switch,
“Let’s Go Pikachu”. You’ve got an excerpt of after
you’ve beaten the first gym with Brock — because you’ve
gotten the boulder badge and that’s great for you. There’s an excerpt
of the game battle. You’ll see Pikachu’s wearing
a nice hat and jacket. Eevee only has the hat;
I’m sure Eevee’s very sad. And then on the bottom
left, that’s also a snippet of the opening cut scene. And then on the right, you may
have heard in the last year or so of a game called
“Red Dead Redemption 2”, it’s kind of a Western,
open-world type game. That was registered
as a literary work, and so they gave
us the source code. And so you’ll see here
in the top right some of the initial opening
source code. And then there are very clean
comments, so someone is focused on making sure that you
understand what the code does, so I’ve excerpted that here
because I thought it was kind of cool; it’s good
programming practice for those of you who are programmers. And then last but not least, because videogames are
a little bit interesting because of their hybrid
nature, we sometimes have issues that are specific to
registering videogames that you might not
see in other context. And so one of the
issues we’ll see is because you were picking
is this an audiovisual work or is this literary work,
sometimes people will choose one of those and not give
us that as a deposit. So they’ll say, “I’ve
registered an audiovisual work,” and then they will give us
50 pages of source code. And we can’t compile
50 isolated pages of source code, unfortunately. So we actually will ask them,
“Could you give us a deposit that shows the audiovisual
stuff, the sounds, and the music, and the
animations and all of that?” Sometimes we will
get two applications, one for the source code, one
for the actual audiovisual game. We tend to not accept
those because usually when a studio develops a game, everything is owned
by the developer. And so those aren’t actually
separate copyrighted works, it’s one integrated work, and
so we only need one application. Sometimes we have to
remind people of that because it’s a little
hard to remember that. Other times we will get
different registrations for maybe the PlayStation 4, and then we’ll get a
Nintendo Switch version. Again, I mean, the audiovisual
work if you think about a game like “Red Dead” or “God
of War” or something — well not “God of War”
because it’s exclusive. But if you think about
sort of the average game, the way it appears and sounds
and is displayed to you on the different platform is
going to be basically the same. Right, like whether
it’s on a PlayStation or an Xbox, it’s still the game. And so we treat those as,
again, one unitary work. There might be some
interoperability code that helps it run on
a particular platform, but it’s the same game, it’s
largely the same code base. And so again, like if
we get a registration for the PlayStation 4
version of something, we don’t actually need
a separate registration and a separate fee for the
game in a different platform; and so sometimes we have
to remind people of that. Last but not least,
it is not always easy to remember every bit of preexisting copyrighted
material in your game. Games get really big;
they’ve got a lot of music, they’ve got soundtracks,
they might have assets. And so sometimes
people will forget to disclaim preexisting
copyrighted material and we have a dialogue
back and forth with them. So those are some of the
common issues that we have. But I would much rather hear
John jam out to some music, and so I hope you can talk
to us about music licensing.>>John R. Riley: Great. Thanks, Mark. And just if you have
any questions about registering a work, our compendium is a
great guide for that. So it’s on our website. We are updating it periodically. And if you need to register your
game, please check that out. [Inaudible Comment]>>John R. Riley: Sure, Ben. [Laughter]>>So what kinds of online games
that are constantly updated, what version is the right
version to [inaudible]?>>John R. Riley: That
is a good question. I think we have the same
problem with different — for example, blogs and
other types of websites. We do have rules pending for
those types of literary works. I don’t know of anything
that’s pending for videogames that are constantly
updating, but that’s kind of a known problem in
the copyright world. But you can talk to
Rob [laughter] and see if he could help you out. Rob is the head of our
Registration Division. But yes, that is a good question from Ben Golan [assumed
spelling] from ESA, the Entertainment
Software Association. All right, let’s talk a
little bit more about music. I’m going to take my
videogame lawyer hat off, I’m going to put my
government music lawyer hat on, and we’re going to talk
about music licensing. Under the copyright law, there
are two different types of works when we talk about music. That’s the musical work
or the composition, or the sound recording, which
is the recorded audio file. So if you’re licensing
works to be in a videogame, especially important if it’s a
preexisting work, you’re going to have to license both works. When you’re licensing, you know, a composer’s work that’s
typically easy to do because they own both and it’s
licensed at the same time. But you do have to get both
of these works to be able to put music into your game;
and not just the works, but the right type of rights. And usually videogame companies
ask for all of the rights, but depending on as kind of
a theme with music licensing, the different licenses depend
on the different parties and their relative strength. Also occasionally,
sometimes arcade game owners or arcade owners, which is kind
of less of a common thing now, will get public performance
licenses for, you know, those games that do play music; think of like Dance Dance
Revolution or a game like that that might play audible music in
a public space, they would need to get a license for
the musical work. And that has — it is not as
prevalent to some other types of licensing, but that
has happened in the past. So we’re going to talk about
different kinds of music, including preexisting songs,
including that in a videogame, as well as compositions
for videogames to license these works. And this is all from
music law treatises, so I don’t know any
of this personally. Generally, the two ways
to do this are licensing for a flat fee, which
could range on average between $2,500 and $20,000. Typically, royalty-based
licenses, so you get — for example, a few cents
every time the game is sold, range much less nine cents to
18 cents per copy per song. So that may depend, though,
on the type of game, right? So if you have a game like
Tony Hawk’s “Pro Skater”, it was very notable for
having great music on it. And the original version
of it had, for example, a band that a lot of people
hadn’t heard yet, Goldfinger, but they rose in popularity
greatly after the game came out so it might be worth a lot
more to the band to be featured in a videogame if
they’re just starting out, and the price would
be much less. Other works, for example,
the game I grew up on, “John Madden Football”, they
use other works as a soundtrack, as the same as Tony
Hawk’s “Pro Skater”, but those songs were kind of
altered, you know, maybe taking out swear words and
replacing a lot of the lyrics with football-based lyrics,
which is interesting. So that might require
a different — maybe even a larger fee if
you have to rerecord things. For something like
“[Inaudible] Hero” where you’re not just playing
the song in the background but it’s featured in the
game as a part of the game and also you’re remixing
it, that might require you to pay a greater fee because
the music is the feature of the game. And finally — that’s
a Spice Girls game. Occasionally, videogame get
made featuring musicians. I think there is
one for 50 Cent. The Def Jam artists
have one as well. If your music is featured in the
game and it’s a game about you, obviously you’re likely
to demand a higher price. But of course, other
types of uses, term — you know, the platform,
the territory, those kinds of things can
affect licensing for music. Similarly, you can have — as
we are going to hear from some of our composers
later in this series, you can compose for videogames. These are typically
very similar to — the licenses are similar to audiovisual licenses
for like movies. You would generally have a
license as a work made for hire, which means the owner of the
videogame would be the owner of the composition,
in most cases. And the fee could be
substantial for star composers. I’ve seen a lot of kind of established composers
might get $100,000 or upward. But I’ve actually heard
one case where a composer for videogame music
got $1.5 million. But that’s to say if
you’re just starting out, you may get paid not by the
completion of the whole score but for, you know,
a track in it. And that might be as low as
$1,000 per minute, for example. So the fees, like
everything else in the world, can be adjustable. You might be able to
get some additional fees for new uses, new devices.>>I’m sorry, I’m
just really curious, what videogame had the
composer get paid [overlapping]?>>John R. Riley: The
music treatise did not say. [Laughs]>>Okay.>>John R. Riley: But
it’s [laughter] — [inaudible] music
treatise is where it says. I think it was either
that or the Cohan one. And we did some research. But I will admit, this is not — you know, the copyright
office does not license works like this. But we thought it
would be important to include a little
bit of the music world in our videogame topic. And the people you might want to
talk to are the other composers who are going to be, you know,
speaking later in this event. And we are — actually it’s — very excited to have
Austin Wintory and Winifred Phillips talking. And I do have to point out
that these games here offer — the compositions offered by the
both have been award-winning, and in fact Journey was
nominated for a Grammy, which is pretty exciting. So if you do have time to
go see those, please do. Was that a question?>>Yes. Actually,
I have a question. What about like games
produced and music related to games produced in other
countries, do those — like if it’s like a Swedish
song, say, hence being equated to an American type — a
game [inaudible] in the US, like how does that work; like
does that still need to go through the same copyright
issues and regulations, even though it’s from a
different country or –>>John R. Riley: So
that’s a good question. Copyright is territorial,
as is licensing, so the — most countries we have
copyright treaties with where we have protection
for our songs and their songs. So if they have copyright
protection of their song, we couldn’t just use it in,
you know, a videogame here without licensing it,
because copyright attaches at creation, not registration. There’s only a handful
of countries that we don’t have copyright
relations with; but then, you know, your other question
is, you know, “If I have a song that is restricted
by territory,” maybe the videogame doesn’t
actually account for that. So frequently videogames
will be rereleased in other countries using
different soundtracks. So for a game like “Journey”,
that might not make sense because “Journey” does
not have specific lyrics that are geared towards
one country or another. But for a game like “Madden
Football” or, you know, the skateboarding game,
they might use local music in their soundtracks in different countries,
and frequently do. And so that’s why, you know,
if you negotiate a license — let’s say you put it
on a game, you might — you always need to ask
what territory I’m going to have this in, because if you
use it for a worldwide license, then it’s going to be different
than for the United States or North America
only, for example. But that’s a good question. All right; so the kind of interesting thing
that’s been happening with videogame music is its
value has really increased, and the uses have kind of
diversified a lot since, you know, “Breakout” came
out and there’s four tones. It’s — you’re never going to have those four
beeps be memorable. But as time has progressed,
everybody — many people, if I said,
“I am underground now,” people know I’m talking
about Super Mario Brothers, even though that’s not
the name of the song; it’s just everybody
can recognize that. And as time has gone on, there’s
been more of a market for, you know, the musical
works in videogame. And so some examples here,
they’ve released soundtracks for “Journey” and “Flower”. They’ve actually
— the Tony Hawk’s “Pro Skater Game”
is a good example because they’ve released
the songs that, you know, pop punk music as a CD. They’ve also kind of released
the traditional games like “Donkey Kong” and “Mario
World” as a soundtrack for different levels, if
you’re interested in that. And I think more — the
most interesting one is “Street Fighter” because
they released a CD of just the game play, you know,
sounds, not just the songs, just the sounds that
are played, for example, when someone gets punched, or
thrown, or the level’s over. So I find that very interesting. Especially interesting is, you
know, I have friends who like to do middle covers
of [inaudible] songs, but there’s also symphonic
covers of, you know, some of these —
“Journey” especially. And I think that’s really great. And people are coming out, you
know, usually to see these. That being said,
if we’re talking about music getting
licensed in videogames, I thought it would be
interesting to show you the fact that the reverse also happens. We have videogame
sounds in popular music. And so I’m going to
give you a few examples; and this is part two of the
audience participation version. So I’m going to play the
track of the popular song, and then the track of
the original sound. And if anybody could tell
me where it comes from — they will get easier
over the three, we’ll see if anybody can guess. All right; so I hope
this isn’t too loud. But I’ve got my man on
the sliders to tell. All right, here’s the first one. This is Drake “6 God”. [ Music and Rapping ] All right. So here is the original
place where it came from. [ Music ] It’s not [inaudible]. [Inaudible Comment] It is “Donkey Kong Country 2”. This is “Haunted
Chase” from “Donkey — ” [laughter] and so I play this
for my colleague and he’s like, “That’s not the same song.” And here is the producer
of that track saying, “Yes, we took the sample from
‘Donkey Kong Country 2’.” So I think that’s really cool. All right. Song number two. You didn’t know there
was going to be kind of a participation
here, but here we go. This is D.R.A.M’s “Cha Cha”. [ Music and Singing ] And here is where
the sample is from. This one’s a lot easier to hear. [ Music ] [Inaudible Comment] All right. It is Super Mario — yes, that
is correct, “Super Mario World”. This is “Starworld” theme. So this one was actually
a little bit interesting, and I don’t know any
personal history about this. But this is — the
D.R.A.M. version was the original version. They have rereleased this song with a slightly edited
beat to it. And maybe ask yourself,
“Why did they do that?” Maybe there was a
licensing issue; I have no personal
knowledge of this. All right, last one, Kanye West. This is Kanye West song “Facts”, the Charlie Heat
version of “Facts”. [ Music and Rapping ] All right; did anybody pick up the actual takeaways
from the videogames? I’ve got a man in the back. We’re going to play
them individually because that’s one it’s
not the beep that’s used, but it’s these two sounds.>>Perfect. [Laughter]>>John R. Riley: And
here’s the second one.>>You. [Laughter]>>John R. Riley: My man
in the back, you’ve got it?>>”Street Fighter II”.>>John R. Riley: “Street
Fighter II”, [laughter] right. So this actually brings up a pretty interesting
trademark question, because Kanye is using
that perfect sound as kind of his producer tag; not my
copyright world, but that’s — it poses interesting questions,
are there any issues with that? All right; so turning back to
putting on our videogame hats and less of the music hats, I’m
going to turn it back to Mark. He’s going to talk
about a couple of interesting infringement
cases for you.>>Mark Gray: Yes.>>John R. Riley: Thanks.>>Mark Gray: Thank you, John. We’re actually going to go
a little bit back in time for this next one, and not as
much current hip-hop music. But I have three cases I
want to talk through with you because a lot of times
figuring out sort of what is a videogame
copyright, what does it cover, and what does it not cover, the
way you can figure that out is by actually looking at
cases where someone says, “You infringe my copyright
you’ve taken my game.” So I have two very
old-school games I would like to talk about, and then
one a little bit more modern. So this first case is — you probably recognize on
the left, that’s “Pac-Man”. Does anyone recognize
the game on the right? [Inaudible Comment] Yes, there’s a historical
reason for that. [Laughs] So the game on the right is a game
called “K.C. Munchkin!”. When “Pac-Man” was popular back
in the day, this actually — this was a case that was a
few years before we got sued for not registering “Breakout”. Atari built “Pac-Man” for the
arcades, and so there was a guy who was a programmer
who actually made games as an independent contractor. And he was going
through an airport and he found an airport arcade. I have never been alive when airport arcades were
a thing to my knowledge. Apparently, that is
something you could do in the airport while
passing time. And so he found this arcade
“Pac-Man” in an airport and thought, “This
is really cool. Wouldn’t it be really cool if there was a home videogame
console version of this?” So he goes back home and he
starts working on this game. And originally, the idea between
him and a guy from the company, North American Phillips Consumer
Electronics Corporation, their idea was they were
going to build this game and they were going to go to
the people at Atari and ask for a license, and then
this would be a home version of “Pac-Man”; and they were
going to make a ton of money. Atari was not interested
in letting them put the “Pac-Man” name on their
game, so they decided that they were actually going to re-jigger the game a
little bit more and release it on their own for home consoles. And so if you look
at the difference between these two games, you’ll
notice the “K.C. Munchkin” game on the right it’s a little bit
more horizontal, and it’s kind of a landscape orientation,
because instead of being on a square arcade
cabinet screen, it’s meant to be on a home CRT. You’ll see the, you know, main character is not a
yellow little pizza slice, it’s a blue less pizza slice. And then the little enemies look
a little bit more like squids with tentacles than
they do ghosts. So there are a number
of differences between the two games. And particularly, the — in “Pac-Man” there are actually
dots all over the screen, and there are only
12 dots in the “Munchkin” version of this game. And so they release this
game for home consoles; Atari promptly sues them. And the court had to
figure out, you know, “What does the copyright
in this game cover, and are these games similar
enough to be infringing?” And this case actually —
it got — there’s a lawsuit, and then they actually appealed; and so this was an
appellate decision, which was the final
decision in this case. And so it’s interesting
because the court looks at these two games and
they look at “Pac-Man”, and both sides agreed,
unlike with “Breakout”, that there was a
valid copyright here. They weren’t really sure about
what it covered, but something in “Pac-Man” is copyrightable,
we don’t really know what. And so the judges were
looking at this game. And they actually
say at the outset, “‘Pac-Man’ is primarily
an unprotectable game. A lot of what you’re seeing in ‘Pac-Man’ is not actually
copyrighted expression, it is part of the game.” And so what did they describe
“Pac-Man” as, they said, “Well, it’s a maze chase game. So you go around
and you score points because you have your
little player character and you’re going
through the maze, and you’re trying
to avoid the ghosts. But at some points in the game, you’re able to eat
the ghosts instead of them eating you
and killing you.” And so a lot of the elements of
the map, and the scoring table. And the fact that there
are tunnels and you’ll — if you’ve played “Pac-Man”,
which I hope many of you have, like, you know, you
loop around from that little middle passageway,
if you go out on the left, you pop out on the right, all of those things
are game play elements. And all of these things are not
part of the copyright claim. But taking all of those away
and looking at what’s left, what the court did see is that
there was a valid copyright in what they call the
“Pac-Man” characters. So and the court actually
keeps describing the “Pac-Man” as a gobbler, “He’s a gobbler
character,” which is great. And so looking at it, the
court says, “Well, there — you know, you may have — in
order to make a maze chase game like this, you have to have
a maze with passageways and enemies to avoid,
and some sort of pathing and scoring system,
but you don’t have to have these very
similar-looking ghosts as the enemies, and you don’t
have to have a strange circle with a V-shaped mouth who
kind of animates a munching and chomping motion
as he walks around.” And so looking at those
elements, they said, “Well, because you decided
to use these same kind of main similar ‘Pac-Man’
globular character and because the enemies in the ‘Munchkin’ game have a
similar eye and leg movement that was very peculiar, what
was left was not dictated by the game play, was protected,
and it was infringed.” So in this case, the
game is found infringing, they were no longer
allowed to sell it. And as we’ve seen here today, nobody actually remembers the
name of poor Casey Munchkin. So that was a case where they
found infringement based on sort of non-game play elements. In the next example — this
was actually a year earlier, there was a lawsuit over
the “Asteroid” game, another Atari classic. And so here, you know, there
are a lot of similarities. You know, you’ve got a little
— kind of a mouse cursor ship, there are little asteroid rocks
scattered around the screen, dark background, scoring — the score number is sort of in
the same place on the screen. And in this case, there is
a similar level of analysis, sort of like, “What
here is dictated by game play what here is
dictated by non-game play?” And so the court made a
very, very, very long list of every way these
games were similar. And so it’s, you know,
the ship size, the rocks, the fact that there are
different sizes of rocks, they break up when
you shoot them, there’s kind of a velocity. There’s a sort of a velocity
element to the game play where when you’re engaging the
thrusters, you will accelerate, and then you will
slowly decelerate when you stop pressing it. But looking at that,
the court said, “Well, all of these similarities
are inevitable, because if you’re going to make
a game about a spaceship going through all of these
space rocks, given what videogames are
capable of now, you would have to do most of these things. You would have to — you know, you’d want to have a scoring
system, you’d want to have rocks that move in different
directions at different speeds, all of these kinds of things.” And so if you take all of
that away and you only look at what’s left, most of
what’s left is different. So the game — well the
game on the right are called “Meteors” is in color. It actually — if
you played it — so sort of going back to the
“Breakout” thing, like looking at screenshots, they
may look pretty similar, but when you’re playing, the
pace of like acceleration, rock movement, shooting of the
rocks, and the missile speed, all of those things actually
played out very differently. And so the court
said, “Here, you know, someone playing these games
would actually find them to be very aesthetically
different, and sort of what is
overlapping here is all based on the elements of
the game play.” And so here, there
was no infringement. And “Meteors”, while perhaps not
as recognizable as “Asteroid”, was allowed to continue going
on being in the marketplace. So those are two very kind of old games back
from the early ’80s. Breaking it a little bit
more modern 40 years later, perhaps you’ve heard of
a game called “Fortnite”. I imagine given this panel, most
people have heard of this game, maybe in the news,
maybe they’ve played it. So for those of you
who don’t know, “Fortnite” is what is called
a “battle royale” style game. So if you’ve ever
watched the Japanese movie “Battle Royale”, great movie. It’s that as a game. If you haven’t watched
that movie, and you think of “Hunger Games”,
very similar to that. So essentially, a large
group of players is dropped onto this map here on the right. And you’ll be dropped off
in a subset of the map, and as time expires, the map
will get smaller and smaller, and if you’re outside of
it, not good to be there. And the idea is that you’re sort of having a last
man standing battle where the map keeps getting
smaller and more constrained so that you’re forced
to fight each other and be the last person or
the last team standing. “Fortnite”, like many modern
games, is not a game you play to download, it is a game
that is free to download, and then you pay for
various cosmetics items. So if you look at the image
on the right with the plane, you’ve got a woman in
a onesie; there’s a guy on the bottom right, he looks
like he’s kind of like — maybe like a Bigfoot or an
Arctic monster, snowman; you’ve got the guy in the
ski gear; there’s a samurai on the top of the plane tail. And so all of these
are cosmetics that you can purchase
either using real money or [inaudible] currency that
has purchased the real money. And in case you think
that selling your game for free is not a lucrative
business model, it is reported that in 2018, the developers of “Fortnite” made
$3 billion in profit. That is billion with
a B and that is profit with a P; it is a lot of money. One of the cosmetic
things that you can get in this game separate from
your, you know, animal onesie or your ninja outfit is that you
can download what are called — or you can get what are
called “emotes”, which is sort of like short moves
animation dances. This has sparked a number of
lawsuits in the last few months. And so — and what is
now my favorite slide of this presentation — just,
you know, get in your seats, get ready, is what I
call a “[inaudible]”. [Laughter] All of these
dance moves here are or have been subject
to active litigation in the last six months,
I would say. So on the top right —
or in the top left — I’m going to start with the
top left and move around, the left top that is Alfonso
Ribeiro, he is the actor for Carlton in the
“Fresh Prince of Bel Air”. That is the Carlton Dance. That is a game that you can
purchase in the “Fortnite” game. That is also a dance that he
is very well-known for doing. In the top right, the kid’s
name is “Backpack Kid”; you’ll see he’s wearing
a backpack. He actually rose to prominent
when he performed on SNL, but he was big on
Instagram before that. That is a dance move
called “The Floss”. He also has filed a
lawsuit against other games. On the bottom left, he’s a
minor so his name isn’t public, but his nickname is
“Orange Shirt Kid” because he’s a kid
wearing an orange shirt. [Laughter] So, you know,
“Fortnite’s” been going on for a few years now, or
it’s been big for a few years. And so one of the things they
did last year is they had a competition where you
could upload clips of yourself doing a dance move and whoever won the
competition — and I think they called it
the “Boogie Down Contest”; if you won the competition, your
dance would be featured as one of the emotes in the game. So he submitted this
video of him. That is now a dance move,
as you can see on the left. And so he also filed a
copyright claim based on the dance move on that. And then on the right, these are
two young men, Jalon Brentley and Jared Nickens
[assumed spelling], former football players at
the University of Maryland, I believe, doing
the running man. They sparked the running man
challenge; they were on “Ellen”. And that is the dance version
of that in the game on the left. So all of these dance moves
have been subject to litigation in the last few months. And the question is whether
these being in the game — not as part of the game
play, but as purely as sort of a cosmetic aesthetic
piece of the game, “Does this infringe copyright?” I’m not going to answer
that question for you because this is all
active litigation, and that is not something I’d
be able to comment on right now. But I will note, at
least in the top left, we did reject the application
for the Carlton Dance. We — so just as a side
note, as I mentioned, so when we get deposits,
we’re usually getting sort of like a full copy of like a
book, or a movie, or something, or we’re getting
identifying material. We are not getting these gifs,
we are not getting gifs side by sides, we’re not getting
like a two-second video. So we are getting different
material in the deposit that we’re then evaluating
and deciding if there’s a claim there or not. In this case, we got I
think a short video clip. The rejection letter is
public and it’s online, and it’s been reported and
you’re welcome to read it. It’s very long; I’m not
going to read it here. But this is kind of
a non-game play issue that you’re seeing now where
the question is, you know, choreography under the
Copyright Act is protectable. Short dance moves,
simple routines are not. And the question is where
do these fall in that line, and is putting them in this
videogame infringing or not? That is not a question
I will answer, but it’s something very
interesting to ponder. And so on that note, I think
that brings us to a close.>>David Plylar: Yes; so does
anybody have any questions you haven’t already asked,
including none about “Fortnite”? [Laughter]>>Mark Gray: Only
“Fortnite” questions.>>So let’s say one person
creates a work and [inaudible] and 20 years later the
[inaudible] they just update the graphic and everything
is kind of the same. Do they receive a new
copyright, or is this — is it updated this
copyright, or –>>Mark Gray: Want to take it?>>Would that prior
copyright expire?>>David Plylar: Go [inaudible].>>And according to [inaudible]?>>Mark Gray: So there — so if
you remember when I was talking about registration, one of
the sections you have is where you disclaim something that isn’t new to
the registration. If you’re updating the graphics,
for example, it kind of depends on really what you’re updating
and what you deposited. But, you know, say you’re
taking, for example, Nintendo is remaking “The
Legend of Zelda” on the switch, and it’s going to be a 3D
game instead of a 2D game. They are changing sort of the
visual and probably the audio and the sound effects
in that game as well. But a lot of the
mechanics, and story, and text is probably
going to be the same. So you would probably treat
that as a separate registration and you would say, “Well, we
already have this old, you know, ‘Legend of Zelda: Link’s Awakening’
registration; here it is. What we are claiming
is this new piece. We’re claiming that the
new audiovisual elements, the sound effects,
the new graphics, any new computer code.” And so that would be sort of
a new layer on top of that, but you would disclaim
kind of the original thing, because the original game
is out and it’s been out, and it’s subject to
its own conditions and expirations in
term and all that.>>John R. Riley: And that’s — in the copyright world something
we call a “derivative work”.>>Mark Gray: Yes.>>John R. Riley: So
you only get copyright in what we recall the
“delta difference” between the original
and the new. And that difference has to
be connected by copyright. You can’t just have a new
hat and get a new copyright, it has to be substantial enough
to be protected [inaudible].>>A lot of people are streaming
videogames, and would you have to license the videogame
in order to do a stream and have millions of people
watch you play the game?>>John R. Riley: So
that’s a good question. [Laughter] If you’re
licensing a — if you’re streaming a protected
work, something that’s protected by copyright, yes generally
if you’re publicly performing, if you’re publicly displaying
a work, those are rights of the copyright owner. You know, I can conceive
certain situations where the stream is not public. If you’re streaming to a friend, for example, maybe
that’s private. But generally, yes, you
should get licenses. And we’re the copyright offices,
we’re going to tell you — you know, maybe some
circumstances might be different, but generally you
would need a license for that; or some sort of legal
arrangement, but they let you do that –>>Mark Gray: Yes.>>John R. Riley:
It’s not a problem.>>So when they ask — so if a
game or even music is created by deep learning
neural networks, would that be something
that the owner of the AI program would
be copyrighted for, or is there some other
copyright office –>>John R. Riley: You’ve been on
copyright Twitter lately, yes? [Laughs]>>Mark Gray: Yes; that is a
question subject to much debate in the academic community, but I don’t believe we have
a position on that, do we?>>John R. Riley:
So generally –>>So what is the
latest from the office?>>John R. Riley: I don’t
think there is any latest –>>Mark Gray: [Laughs] Yes.>>John R. Riley: From the
office, but for the public here, just so you know, copyright has
to be created by a human author. If you saw in the news
maybe a couple years ago, the monkey selfie, the monkey
did not get a copyright, we did not register the work because the monkey is
not a human author. So the question is, “At
what point does artificial intelligence, something
that’s programmed by humans, turn into something that’s
actually created by machine?” Because of course, you know, if
I draw something on my computer, I use the computer to make
the digital drawing, that — we would never say that that
was created by a machine. But when the machines start
introducing logic and, you know, arguably, the further afield you
get from it being an extension of the author, the
human, it does come into some hypothetical
interesting questions that I don’t think
the copyright world or the copyright
office has resolved that dividing point yet.>>Mark Gray: Yes?>>I have two questions. My first one [inaudible] I know
recently there’s been a lot of lawsuits against
[inaudible] for music; not as part of the game but it
was just like separate music. But I haven’t really seen any
[inaudible] lawsuits or heard of any the person — like
the actual [inaudible] company itself. I was wondering if
like you guys — like if you might have
[inaudible] why that is.>>John R. Riley:
Yes; we don’t — as a part of the
copyright office, we actually don’t even
go to court ourselves, we get the Department
of Justice to do that. I think you might need to
ask a practicing attorney, like a private attorney. You know, generally,
the strategies for enforcing rights
is basically up to the copyright owner. In some cases, it makes
sense to go after services, in some cases it might
be important to go after a particular individual. It really kind of depends. And I’m sorry, I just don’t
know the answer to that. But you had two questions.>>Mark Gray: I had some guesses
on that one, actually, John.>>Yes; so my second point is as
a young person who is interested and wants to get involved,
what is your suggestion or your advice that you
can pass on to anybody here that would think of getting
involved in copyright?>>John R. Riley: Getting
involved in copyright?>>Yes; [inaudible].>>Mark Gray: Ooh.>>John R. Riley:
That’s a good question.>>Mark Gray: That’s
a good question, John.>>John R. Riley: I
would say, you know, coming to this is a
great start, frankly. [Laughter] Reading books —
and I know one of the composers who speaks later is going
to be — is putting out a — has a fantastic book on
composing music for videogames. I might also introduce
you to the fellow, too, in front of you,
Ben [inaudible], he might have some ideas. I –>>I was going to
say, [inaudible]. [Laughter]>>Mark Gray: Okay.>>John R. Riley: Yes.>>Could you just walk through
the distinction between the “K.C. Munchkins” game and the “Asteroids” knock-off
game [inaudible]? It seems like the “Asteroids”
game [inaudible] inessential elements [overlapping].>>Mark Gray: Right.>>So I was having a little —
I mean, if you can [inaudible].>>Mark Gray: Ooh. That’s a dangerous hat to put
on as a government official.>>John R. Riley: So one
thing that’s important, and [overlapping] –>>Mark Gray: Yes.>>John R. Riley: Just
— you know this, but –>>Mark Gray: Yes.>>John R. Riley: As
before you get started, is there is a distinction in the
copyright world between the idea and the expression of an idea. So an idea of the copyright
cannot be protected. So you can’t say,
“I made a maze game. You can’t make a maze game.” But the expression
of that idea — and here, yes, it does
seem a little odd to me — because these themes I
could see are different. There’s enough differences
and [inaudible] — and Mark walked them through it.>>Mark Gray: Yes.>>John R. Riley: I had a
similar questions on this one, because this just seems
like it’s [inaudible]. But maybe Mark has
some other thoughts.>>Mark Gray: [Laughs] Well, I
— yes so I have a few thoughts. These cases are interesting
different sides of a coin. So one of the common debates you
see in the copyright space is, “Where is the line between
an idea and an expression, and sort of what is an idea?” Because depending on
how you define an idea, if the idea is just a videogame,
then maybe a videogame about spaceships
shooting asteroids where the asteroids
have three colors and the spaceship shoots a
tiny little pixel dot is enough of an expression to
be easily infringed. If you define the idea
as a spaceship game where you are scoring points
and shooting space rocks, it sort of changes the analysis. And so the court here that was
the way they defined the idea is the idea of a game where
you are a spaceship shooting space rocks. I think maybe a different way to
look at this is to sort of say, “What is — ” a variation of
that is, “What is dictated by the game play,
and what is not?” And so in the “Pac-Man”,
I mean remember, the court said this is
mostly an unprotectable game. Most of what you
were seeing here in “Pac-Man” is not
protectable at all. What the difference
is is the things that are not dictated
by the game. And so like, you
know, you don’t have to have a little pizza
circle numbing all of these dots; you can. You could also have, you know,
a dragon, or who knows what. And if you’re doing a
spaceship game, like you want to have something
that’s spaceship-shaped and like the little URL — the
UFO on the bottom right of the “Meteors” game, you
know, it’s a UFO. There’s — and it looks a
little bit different than the “Asteroids” one as well. So it’s kind of just, you know, what is dictated
by the game play. And here if you’re defining
it as a spaceship game and you have something
that looks like a spaceship shooting
something that looks like space rocks,
there’s not a lot left. And then in the “Pac-Man” case, I think the really
big difference is that there didn’t have to be
ghosts, and there didn’t have to be specifically the
“Pac-Man” character.>>John R. Riley: And my
theory is that when you’re in the eight-bit world, you — the differences are
going to be very fewer because you’re kind
of restricted –>>Mark Gray: Yes.>>John R. Riley: By the world
that you’re in and, you know, the case law that came out in that era is interesting
for that reason. But maybe if was that same
case today I don’t know that it would be — it
would come up the same, but that’s just my own opinion.>>Mark Gray: Yes; yes. So another way of looking
at this is essentially if you can only do
so many things because you have
very limited memory and your computer can
only make five sounds, the scope of what you can do in a creative fashion
is very limited. And then nowadays like if you
build a giant massive videogame with like really cool
textures and music and stuff, there’s a lot of
expressive room there.>>John R. Riley: All right;
time for a couple more.>>You were talking about
streaming and it made me think about fair use and the
[inaudible] red versus blue.>>John R. Riley: Yes.>>Are there any cases that
you can think of that you have like tested fair use in
the videogames [inaudible]?>>John R. Riley: I think
we’ve been neglecting to repeat the question,
but the question is –>>Mark Gray: Yes.>>John R. Riley: Go ahead.>>Mark Gray: Oh,
the question was –>>John R. Riley: Fair
use of videogame reuse; and I’m not familiar
with the blue versus red because I’m old, but — [Inaudible Comment]>>Mark Gray: It’s actually a
little bit older, John, come on. [Laughter]>>They made –>>John R. Riley: There
are Halo characters.>>Yes; [inaudible] like
put a story behind Halo. [Overlapping] –>>Mark Gray: And
they were using like the Halo models and stuff. It’s sort of like actors and
characters and like a CGI game.>>John R. Riley: All right. So Mark knows more.>>Mark Gray: So I
know more about this. But as someone who has read
many, many fair use cases, I cannot think of anything
focused on the idea of sort of using game assets as a media to tell a different story
off the top of my head; so not that I’m aware of.>>John R. Riley: Okay,
maybe one last question.>>Mark Gray: Last question.>>Yes; I was wondering
something, because all of the items
submitted for copyright had to have some sort
of [inaudible].>>Mark Gray: Yes.>>Is it true that the
copyright office may or may not have the
largest physical videogame collection [inaudible].>>John R. Riley: I think
it’s definitely true that we don’t have the
largest physical videogame, because we get identifying
materials, as Mark was saying.>>Mark Gray: Yes.>>But not necessarily
financial [overlapping] –>>Mark Gray: Right.>>John R. Riley: Right;
and think of why, right? We’re the copyright office. If we had to get the Atari
2600, the Commodore 64, the Nintendo 64, and all these
different consoles for all of the examiners, we would just
be playing videogames all day. [Laughter]>>Mark Gray: Which
would be a shame; which would be an
absolute shame, and we would both be very
sad about that situation.>>John R. Riley: But you know,
it is a challenge getting, you know, these updated
versions. But what is true — and
the things that, you know, we can see is videos, and maybe
the change from VHS to DVD or just uploaded, you
know, visual file that’s on our computers, that might
not be too problematic, but staying up to date with not
only — initially the consoles, for example, but the
updates to Windows and having the right version. And it is a challenge. And it’s a challenge for
preservation a lot, too. And if you’re interested
in preservation, there is a great panel
tomorrow on that.>>Well, that [inaudible]
last year. So now they have 6,000. but I think the Museum
of Play –>>Mark Gray: Yes. Yes.>>I’m guessing New York
probably has the largest collection for the
United States.>>John R. Riley: For those
of us who might not — we’ve been remiss in repeating
comments and questions, but it sounds like
the Museum of — we do have a lot through
a donation from ESA and their member companies,
but also the Museum of Play in San Francisco and a couple
others do have significant collections that are
not part of the library. All right.>>Mark Gray: All right.>>John R. Riley: Well,
I think with that — [Inaudible Comment] We are — [videogame
sounds] nice.>>Mark Gray: There we go. That’s good. That’s good. They’re going to be
really happy with that. [Applause]

Author Since: Mar 11, 2019

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