A new application of copyright is to claim a copyright in the worlds and characters that are part of the story. Under some circumstances, such non-fixed expressions as a character or other aspect of a story may be copyrightable. This “character copyright” is still not firm today: there is no specific copyright in a character or world as such. For a world or character to be able to be restricted by copyright, that world or character must “constitute the story being told”. Some courts have also held that representations that have been “drawn in considerable detail” may gain copyright restrictions apart from the story they appear in.

Character copyright as it exists today didn’t exist as late as the fifties, when Warner v. Columbia established, in 1954, that characters could be re-used outside of the copyright monopoly on the original work. The ninth circuit ruled that the character of Sam Spade was not restricted by the copyright on the book in which he appeared, The Maltese Falcon. Even though Sam Spade was the main character in the book, he did not “constitute the story being told”, and thus the sequels that Dashiell Hammett wrote after selling the rights to The Maltese Falcon were not derivative works of that book.

Over time, however, that standard has been diluted in some courts. In Walt Disney Productions v. Air Pirates in 1978, the ninth circuit ruled that Mickey Mouse did constitute the story being told, because “the principal appeal to the primary audience of children for which they were intended lies with the characters and nothing else.”

Further, a “drawn in considerable detail” standard has been created, mostly under the second circuit. This standard arises from a few lines in Nichols v. Universal Pictures:

Nor need we hold that the same may not be true as to the characters, quite independently of the “plot” proper, though, as far as we know, such a case has never arisen. If Twelfth Night were copyrighted, it is quite possible that a second comer might so closely imitate Sir Toby Belch or Malvolio as to infringe, but it would not be enough that for one of his characters he cast a riotous knight who kept wassail to the discomfort of the household, or a vain and foppish steward who became amorous of his mistress.

These would be no more than Shakespeare’s “ideas” in the play, as little capable of monopoly as Einstein’s Doctrine of Relativity, or Darwin’s theory of the Origin of Species. It follows that the less developed the characters, the less they can be copyrighted; that is the penalty an author must bear for marking them too indistinctly.

The “drawn in detail” standard especially applies to visual representations, which afford more specific and recognizable detail than literary representations.

Where “character copyright” is vague, “world copyright” is practically non-existent. Many writers seem to assume from character copyright that some sort of setting copyright follows, but there seems to be little case law either way.

How character copyright affects compatible products—which must be allowed—is, as far as I know, currently unlitigated. That is, if a game is also a world, some game supplements will need to be about that world in order to be compatible with the game. A current reading of the court cases indicates that copyright cannot restrict compatible products, but I am unaware of any specific cases answering this question.

Regardless, current interpretation requires a subject to either constitute the work in question or to be a specific subject drawn in detail in order to be restricted by a copyright monopoly. It can’t apply to ideas, such as riotous knights or multi-eyed spherical creatures. In role-playing games, the only subjects that might “constitute the story being told” are the player characters.

When copyright law changes, it is retroactive

Character copyrights are one example of the encroachment of copyright restrictions to areas where copyright once did not restrict. There was even a time when translations of a book were not a derivative work: translations promoted “the Progress of Science and useful Arts” and were not restricted.

Another example is the length of the copyright term. Until recently, the copyright monopoly expired within a human lifetime and required explicitly requesting the monopoly. Today, copyright monopolies are granted automatically, and won’t expire until everyone alive when the monopoly was granted is dead.

Some works have been forced to cut significant chunks decades after production because of changes in copyright law, in order to take advantage of new technologies or simply continue to be viewable. If you have a copy of the Muppet Show DVD, for example, at least five musical scenes have been completely removed, apparently due to licensing issues.

There’s no telling when, if ever, WKRP in Cincinnati will be released with its original music intact. Even its reruns have been forced to remove the original musical selections.

Under the law at the time these shows negotiated the license to use the excised music, there would have been little if any problem creating an unaltered DVD last year. But the law changed. Muppet Show and WKRP fans are unable to take advantage of new technologies because of it.

For gamers, this means that some of the things they can legally do with games today might not be legal tomorrow. Traditionally, when copyright restrictions expand they expand even on works that have already been written.

I wrote earlier that we should be careful of licenses that offer us something that we already have; but it is useful for a license to protect what we already have.

Copyright restrictions are expanding to new areas that were once thought to be open for public use and improvement, and at the same time copyright terms are of increasing duration and complexity. Who knows what restrictions copyright law will impose on gamers ten, twenty, or thirty years from now?

Copyright law changes. Technology advances. New ideas nurture new ways of using old materials. A good open content license protects gamer rights in the future as well as today, and it protects uses and applications yet undreamed.