Re: Bug
m.k.edwards@gmail.com wrote:
> A video game with even the skimpiest of original story lines (see Duke
> Nukem 3-D, as described in Micro Star v. FormGen) is a "literary or
> artistic work" at run-time, over and above the expressive content of
> its source code. Hence an additional form of "copyright infringement"
> is possible -- the creation of an unauthorized "sequel" using the
> original's characters and "mise en scene" (a term borrowed by lawyers
> from the theater; imagine the accent grave)
US law discussion follows, though it ought to apply anywhere which recognizes
a strong right to free speech.
There's a gobsmacking load of free-speech defenses against that type of "mise
en scene" and "unauthorized sequel" copyright case. First, you have to
eliminate all the standard tropes. At this point, the "God game" conventions
pretty much uncopyrightable, and the "transport build & management game"
conventions are too. The fact that many different companies have made
transport games with strong similarities to OpenTTD for years, without
getting licenses from earlier ones or getting sued, pretty much clears that
up.
Anyway, those arguments are usually construed quite narrowly. If your
characters have different names and backgrounds, the courts rarely accept
claims that you've made an unauthorized sequel, even if they have the same
"personalities". Even quite small differences to a scene suffice to destroy
a "mise en scene" claim about a book.
Finally, you have to pass the usual tests that it isn't a legitimate parody;
if it is, it's simply allowed, period. Although that may be unlikely for
most games.
The lack of a storyline -- the game simply opens up an arena and lets you play
in it; or characters -- I don't think generic trucks and train stations
qualify; would also make it rather harder to use those doctrines against this
sort of game. The fact that it's a model of something in the real world (and
something fairly generic) renders it even less likely to have strong
copyright protection on the "scenes", as long as the specific representations
of them are different. (The use of the TTD artwork is the one bad point
here.)
Game rules can't be copyrighted, so the detailed rules implemented (which are,
in this case, very close to TTD) are OK. Neither can the user interface.
The history of the game using material from a copyrighted game is unfortunate,
however, (much like the history of FreeCiv), and would probably look bad in a
court. FreeCiv no longer does that; the history would still look bad,
though. OpenTTD still does, and I would be quite uncomfortable with it until
they fix that. The use of the TTD artwork in another program is probably
legal for an individual (who already possesses the artwork), but writing a
program which depends heavily on that artwork could perhaps amount to writing
a derivative work or unauthorized sequel.
The planned "Transport Empire" program will be designed from the ground up,
with no dependency on proprietary programs, and already has major design
differences from TTD (generally to better represent the way the world works
or what people want to do, much like the major OpenTTD changes). I do not
think there would be any real chance of an infringment case succeeding
against it. The "mise en scene" doctrine just doesn't work that way as far
as I can tell. If it were, it would be an unconstitutional restriction on
free speech anyway, and if the courts disagreed, it would be time for civil
disobedience.
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