I've been musing upon the legalities of mod production. It's a fun issue and, as I'm working on a mod right now, the topic is both relevant and important. I'd appreciate your educated thoughts/feedback here. If you want to cut to my pressing, practical issue, skip to the last paragraph. According to the Uniform Partnership Act, any peoples who work together on a "business for profit" without any other legally binding agreement are operating as a de facto partnership. It's been made clear that the project I'm on is not going to be monetized. Thus, we are operating in the gray space, I assume, as individuals. While this does simplify things in the event that a member, who may otherwise be a partner, leaves the project with malicious intent, operating as individuals has it's concerns as well. The one which I'm currently considering is copyrights. The US Copyright Act provides that the copyright holder of an original work has the exclusive rights to authorize the production of derivative works. A derivative work is defined as work based upon, recasting, or reproducing an original. The author of a derivative work has rights only over the portion of the derivative work that is "distinguished from the preexisting material employed in the work." Indeed, the principles of originality have been well established. This has pretty significant implications. It begins with your concept artists. Lets say they create a modeling sheet for your characters. Then you have a 3d artist come in an create the character according to that modeling sheet. Plainly, the model is a derivative work of the modeling sheet. After all, that's the entire point of the modeling sheet, and concept art in general. Similarly, an artist who illustrates an area is an original author, and the level designer who creates that area in a 3d space has created a derivative work. While the concept artist does not actually own the copyright to the model or the level, the model or level would be infringing upon the copyright of the artist if the artist chose not to give his consent to its creation. This raises an interesting, basic question: How is consent to the creation of a derivative work determined? Given the context of the artist's work, I imagine it could be argued that consent is implied. In either event, assuming there has been no formal agreement, can the artist rescind his consent at a later date and render the derivative work a copyright infringement? However, a more interesting question comes to mind: What about the game mechanics itself? It's been established that a game system cannot be copyrighted because, so they say, the system is an idea. Only the expression of ideas may be copyrighted or viewed as original works. But what if your designers have developed important, core algorithms/equations for the game which the coders have simply implemented? Is the algorithm/equation considered an idea in and of itself, or is it an expression of the idea of their game mechanics? I suspect, since this hinges upon the creative, expressive (read: cultural) legitimacy of a video game, that this is pretty new legal territory. If the algorithms/equations are deemed to be expressions of an idea (copyrightable), is not the code a derivative work? Thinking more broadly, consider the "design document." Historically, the rules of a game cannot be copyrighted. Theoretically, if you managed to avoid the use of any trademark, any identical wording or any art, you could republish the Dungeons & Dragons game. That's pretty much what the D20 system did. The D20 books are considered original works because they're based only upon the same ideas as D&D, not the expression of D&D. However, in game production we typically find that designers create a "design document" from which, literally, the game is meant to be created. As a document, isn't it an "expression" of the ideas of the designer? Or is it only an "expression" if the document itself is made to convey, experientially, what the game should ultimately be? I assume a rough prototype would suffice in this regard, though a case could likely be made for a script, given that a "faithful" film adaptation of a book is a derivative work of the book. If a team is working from an expression of a game idea, be it a design doc or a rough prototype, doesn't the possibility exist for their work to be derivative? I imagine that the actual determination of whether an asset is a derivative work of the design document would have to be determined on a case by case basis by comparing what was expressed in the design document to what was produced. Nevertheless, assuming the game is being produced based upon an "expression" of the designer's ideas, the game as a whole should be considered a derivative work of the expression. ...There's a lot of gray space here. So, musing aside, what's to be done? From where I'm sitting (the producer and game designer), it seems like the safe thing to do is to draw a document for everyone to sign. The document should give me an irrevocable, non-transferable license to use the assets my teammates submit, provided the assets aren't being monetized. I'm iffy on exclusivity. In this case, should money come into the picture, new licenses would need to be obtained for the use of each asset. (What a mess, sheesh.) Has anyone else been down this road? Why don't more people ask these questions? Advice? [Edited by - bigThinker on March 25, 2009 6:46:40 AM]

When a "creative" person is hired by a company, the contract specifies that anything created by that person in the context of their work (during work hours or using resources provided by the company) is the exclusive property of the company. So the code a programmer writes while at a company belongs to the company, and the original author has no copyright over it.

On the other hand, you cannot re-publish the D&D rules even if you eliminated any references to the world: they are copyrighted. You could of course re-publish the sub-set of the rules present in the d20 SRD because that's what the Open Game License allows, but then you wouldn't have all the parts about gaining experience and levels (which are explicitly not included in the d20 SRD).

To put it bluntly, some parts of a game design are copyrighted (including, for instance, the entire text and all images), and some parts are not. While you may reuse the uncopyrighted parts, it would require a full-time IP lawyer to tell you whether some part can be legally reused or not, and even them sometimes make mistakes.

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Original post by ToohrVyk When a "creative" person is hired by a company...

Sure, sure but as I pointed out, we're not a company. We're individuals. Hence the concern.

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Original post by ToohrVyk you cannot re-publish the D&D rules even if you eliminated any references to the world: they are copyrighted. You could of course re-publish the sub-set of the rules present in the d20 SRD because that's what the Open Game License allows...

Hm. Can you find a reference for that? I think you are right in bringing up the OGL. The D&D example was not a good one, for that reason.

I suppose it boils down to the ability to establish originality. Plainly, an individual rule cannot be copyrightable. If I can copyright a rule in a game, that implies it's an original work, which implies any other game using that rule is a derivative work. Correct? Let's say my rule is that if your health falls to zero, you die. Suddenly, every FPS and RPG are now infringing upon my copyright. This doesn't seem to be the case. So I imagine the rules, when taken collectively, are legally considered to express something original, and it is this collective expression that may be copyrightable.

Thoughts on the contract? It may help if I point out, again, that I'm the one designing the game. I'm interested in the implications of our individuality with regard to the copyrights of assets produced by team members.

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Original post by bigThinker Sure, sure but as I pointed out, we're not a company. We're individuals. Hence the concern.

Attempting to do any kind of group operation that has any legal implications, without creating a legal representation of that group (as a corporation or anything else) is going to cause a lot of trouble down the line. That, or decide that a single person owns everything, and everyone else is just a constributor with no rights over what that person owns.

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I suppose it boils down to the ability to establish originality. Plainly, an individual rule cannot be copyrightable.

Correct: a single rule is usually too small to be covered by copyright—though if you're feeling nasty you might be tempted to use it as a trademark [smile]

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If I can copyright a rule in a game, that implies it's an original work, which implies any other game using that rule is a derivative work. Correct? Let's say my rule is that if your health falls to zero, you die.

Except that you couldn't copyright that rule even if individual rules were copyrightable, because it's not an original work—it's already being used by people everywhere, so you wouldn't bring anything original to the table just by writing it down.

Consider Liszt's Marche Funèbre: as a melody, it's certainly copyrightable, but nobody can copyright it because it already exists.

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Thoughts on the contract? It may help if I point out, again, that I'm the one designing the game. I'm interested in the implications of our individuality with regard to the copyrights of assets produced by team members.

If the original authors keep their copyrights, you will be in a world of pain as soon as you attempt to change the terms of the contract, because you will need everyone to agree on the terms. This is what happens in all collective-ownership schemes, such as open source projects. The only safe bet is to own the copyright yourself, but that may be difficult to negociate—hence the point of creating a company that owns all the assets and is in turn owned by the authors (with ownership proportions determined by contract).

Two notes to get them out of the way first:
a) I Am Not A Lawyer
b) I am only really familiar with European IP law, so my answers might be slanted that way.

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Original post by bigThinker Thoughts on the contract? It may help if I point out, again, that I'm the one designing the game. I'm interested in the implications of our individuality with regard to the copyrights of assets produced by team members.

Some thoughts: Whether it's a license or a transfer of copyright or whatever else, you will need a lawyer (and if you think you can't afford one, then you can't afford to be doing business, even non-profit like this.). Another thing is, you should also be raising this issue within your team and see what their thoughts on this matter are.

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Original post by bigThinker How is consent to the creation of a derivative work determined? Given the context of the artist's work, I imagine it could be argued that consent is implied. In either event, assuming there has been no formal agreement, can the artist rescind his consent at a later date and render the derivative work a copyright infringement?

I believe it will go something like this: You can only obtain such consent with a contract (or license, which is also a contract). AFAIK, there is no such thing as "implied consent" in copyright law (although the US has something called "implied contract"). Now, a contract need not be written, because in most jurisdictions around the world, spoken contracts are also legally binding. But in that case, good luck proving that contract's existence in court.

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Original post by bigThinker However, a more interesting question comes to mind: What about the game mechanics itself? ...If the algorithms/equations are deemed to be expressions of an idea (copyrightable), is not the code a derivative work?

Game mechanics are not copyright-able, and neither are algorithms. Only their concrete expressions are. Therefore, I don't think code that implements an algorithm or game mechanic can ever be a derivative work.

About the D&D rules, contrary to what ToohrVyk said (or rather what I think he really meant was), the rules themselves cannot be copyrighted - only their concrete expression as written down in D&D Rulebooks. So as long as you avoid all trademarks and also do not use any copyrighted material (ie: any text or images) from their books, you should be able to publish those rules. WotC will probably still come after you though - life isn't always fair, and they have the bigger stick.

A design document is indeed an expression and the text of the document is covered by copyright. The underlying ideas and game mechanics are not, however. What that means is that if your mod incorporates major portions of the design document (for instance, if the design document contains a script for character dialogue and you use that dialogue in the mod), the mod becomes a derivative work. If you are just applying the game rules from the design document, I believe it is still an original work. However, this is far from clear cut, so it will depend on who has the better lawyer.

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Original post by lightbringer About the D&D rules, contrary to what ToohrVyk said (or rather what I think he really meant was), the rules themselves cannot be copyrighted - only their concrete expression as written down in D&D Rulebooks.

The nice thing about being well-known is that even when you are wrong, people assume that you are right, and blame a communication failure [smile]

Ideas can be copyrighted independently of their expression. I could, for instance, write a book about Gordon Freeman without borrowing any piece of the concrete expression that is the Half-Life series. And it would take me only a slight effort to also avoid naming anything (to work around trademarks). Yet such a work would still violate the Valve copyright.

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Original post by ToohrVyk The nice thing about being well-known is that even when you are wrong, people assume that you are right, and blame a communication failure [smile]

Rather, it was because what you wrote later on contradicted the previous statement. :) Although I won't disagree that I am also giving you the benefit of the doubt since I have read many of your posts before.

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Original post by ToohrVyk Ideas can be copyrighted independently of their expression. I could, for instance, write a book about Gordon Freeman without borrowing any piece of the concrete expression that is the Half-Life series. And it would take me only a slight effort to also avoid naming anything (to work around trademarks). Yet such a work would still violate the Valve copyright.

Ideas cannot be copyrighted under any circumstances, only concrete works can. That's kind of the whole point of copyright - to provide protection for concrete works. Protection for ideas is offered by patents. You would violate Valve's copyright only if you used parts of some of their copyrighted work (thereby making a derivative work). A book about a physicist wielding a crowbar to fight off invaders from a parallel dimension while wearing a combat suit is just fine, provided one avoids the trademark issues. Whether Valve will be pissed and sue anyway is a different story, though.

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Original post by bigThinker [1] what's to be done? From where I'm sitting (the producer and game designer), it seems like the safe thing to do is to draw a document for everyone to sign. The document should give me an irrevocable, non-transferable license to use the assets my teammates submit, provided the assets aren't being monetized. ... [2] Has anyone else been down this road? [3] Why don't more people ask these questions? [4] Advice?

Hi ThigBinker,
1. Yes. You definitely need a collaboration agreement that specifies who owns what.
2. Yes, others have been down this road.
3. Many others before you have asked these questions. You'll find other threads if you dig deeper.
4. Get a lawyer to help you draw up a collaboration agreement.