Are Video Game Companies Next In Line For Copyright Termination Battles?

from the Betteridgian-answers-may-be-deposited-in-the-comment-thread-below dept

We’ve seen the beginnings of a battle at major labels as artists are filing to reclaim the copyright to their recorded works. The magical 35-year mark triggered by Section 203 of the US Copyright Act arrived in 2013 for works created in 1978. Each passing year will bring with it another batch of recordings that artists can reclaim from their current and former labels.

The labels aren’t too happy with this arrangement (although they seem to be generally chill with the rest of copyright law as it stands) and have made a lot of noise about artists’ works being nothing more than works-for-hire, something not eligible for copyright termination.

Dan Rogers at Gamasutra points out that the next few years might see the same sort of defensive activity from video game companies as the termination date rolls up on some old classics. Here’s an illustrated list Rogers created showing some of titles due for termination within the next five years.

Rogers also points out that this battle may be short-lived and involve very few combatants, at least much fewer than the recording industry is facing.

This isn’t to suggest that the rights to these specific games can be terminated, and my guess is that many were created by in-house teams—thus work created by employees within the scope of their employment. But other games created during these years were no doubt created by outside, independent developers, and these rights could very well be subject to Section 203.

It’s probably a safe bet that most games created for large companies like Nintendo and Atari were work-for-hire, if for no other reason than these games were created by teams of developers, rather than resulting from the effort of two or three individuals. Not only that, but developers working for game companies are usually referred to as “employees.” Artists recording for labels aren’t usually considered to be part of the staff. Even thirty-plus years down the road, it’s next to impossible for a set of developers to jump ship and retain their IP.

And if developers aren’t locked out by contracts specifying their efforts are “works-for-hire,” the expansive definition of non-specific exclusions will likely exclude several more game creators.

A “work made for hire” is–

(1) a work prepared by an employee within the scope of his or her employment; or

(2) a work specially ordered or commissioned for use as a contribution to a collective work, as a part of a motion picture or other audiovisual work, as a translation, as a supplementary work, as a compilation, as an instructional text, as a test, as answer material for a test, or as an atlas, if the parties expressly agree in a written instrument signed by them that the work shall be considered a work made for hire. For the purpose of the foregoing sentence, a “supplementary work” is a work prepared for publication as a secondary adjunct to a work by another author for the purpose of introducing, concluding, illustrating, explaining, revising, commenting upon, or assisting in the use of the other work, such as forewords, afterwords, pictorial illustrations, maps, charts, tables, editorial notes, musical arrangements, answer material for tests, bibliographies, appendixes, and indexes, and an “instructional text” is a literary, pictorial, or graphic work prepared for publication and with the purpose of use in systematic instructional activities.

Still, there could be few outliers with valid claims for copyright termination, and if there’s enough of those, things could get interesting. Chances are that most of these creations are locked up eternally, which works out well for game companies if not so much for the original developers. Unlike other media forms, video game IP can be almost endlessly exploitable, what with new platforms being developed constantly and the easily-triggered nostalgia of lifelong gamers. Companies aren’t done milking various 20+ year-old titles to death so they’d likely be unwilling to cough up what’s left of the cash cow without a fight.

[Speaking of all of the above (large game companies, development teams, nostalgia), if you’ve got some time to kill, this collection of 10 years of Atari’s internal VAXmail is extremely fascinating, detailing internal bickering and development twists and turns, along with some postmortems of new IP ‘field trials’ at local California arcades.]

Filed Under: copyright, copyright termination, termination, video games