Copyright, trademark & money in a creative industry

This is in response to John Walker's thoughts on the subject of copyright, trademark, and money in creative industries on Rock, Paper, Shotgun http://www.rockpapershotgun.com/2014/02/03/editorial-why-games-should-enter-the-public-domain/ It was originally published to Pastebin at http://pastebin.com/eiKaV8Rq

There is some argument going on about for how long a copyright holder should be able to charge exclusively for their own work, before it enters the public domain. John Walker argues that perhaps a good cutoff would be 20 years before an "idea" enters the public domain.

As someone who recently paid a record label money to license music that was recorded more than 20 years ago, and someone who last year released a video game I'm charging money for, I have opinions on that.

The thing about buying copyrighted media is, you're not necessarily paying only the artists-- and this can be a good and important thing. Money made from a copyright holder's older work-- their "back catalogue"-- continues to be relevant to the creation of new work. Creating media for profit requires investment, and is always a gamble. Will this work make its money back? Will it make MORE than its money back? Will it be a huge loss for its funders? It's impossible to say for sure-- and it takes money to even get to the point that you can test it.

So when something does make a lot of money-- when a lot of people do pay money for it it and, miraculously, want to keep paying money for it more than 20 years in the future-- that is a rare and important thing, and one you can't count on happening frequently, if ever.

When we licensed songs by Heavens to Betsy and Bratmobile that were recorded in 1991-1993 from the record label Kill Rock Stars to use in Gone Home, the artists got some of that money, but so did the label. The label, currently, is not using its money to record & promote bands from 20+ years ago-- it's using it to record and promote new material by new, unproven bands. Payment for work done decades ago subsidizes the creation and promotion of new work now.

Similarly at a large game company, when users buy games that are 20 or 30 years old, that money is part of a revenue stream that allows that company to fund and promote new, unproven work. Because developers need to be paid salaries and health insurance, promotion and distribution all have to be paid for BEFORE this new game makes money, if it ever does. That money has to come from somewhere-- a lot of places, actually-- including sales of games from the earliest days of the company's history, if people do want to keep buying them.

This is true across creative industries. I believe it's important that Cormac McCarthy kept getting paid for Blood Meridian which was published in 1985 so that he could be able to create The Road which was published in 2006-- and so that a number of authors who weren't as successful, who you might not have heard of, who received advances from the same publisher that made money from Blood Meridian and the rest of McCarthy's books, could eat and pay rent while they finished writing their own novels that may or may not be successful-- because who knows?

This is why the comparison to labor such as plumbing is asinine: plumbing is an individual trade for an individual client, and the work is (ideally) frequent and low risk with low ongoing investment (you personally buy your tools and truck and do your training and get licensed, then advertise yourself and look for work, and then you get paid on a per-job basis every day you do that reliable, verifiable job for a single client who has contracted you. Maintenance of tools and truck and re-up of advertising and license over time are ongoing-- but you don't invest millions of dollars into a new plumbing project then hope that enough people will decide to pay for it after the fact of its completion as possible, then have to invest an enormous amount of money and time into your next plumbing project and hope enough people show up and pay for THAT one to make your money back so that you can afford to ever plumb again... etc. The economics of different kinds of work are deeply, functionally different, and patronizingly oversimplifying those differences to rhetorical ends does a service to no one. re: the police analogy... unlike the plumber or the game developer, the police detective is being paid a salary and benefits by the government, which is paid for by taxpayers... there is simply no overlap between any of these economic models.)

So, anyway, I'm happy to have paid for the rights to incorporate music that was recorded more than 20 years ago into the game I made last year, both because I'm personally happy to have given the artists some money in exchange for the exploitation of their work, and because I know that new records are coming into being in part based on those licensing fees (and because it made our game better, which theoretically means we made more money, so I believe it's only fair to pass some of that on to the originators of the incorporated work.) Similarly, if I'm still making games more than 20 years from now, I sure hope I'll still be able to make money off of Gone Home, either by selling it myself or having someone else sell it for me, (assuming anyone still wants to buy it), as part of a means of funding new work in development. At that time in the future, people who didn't work on Gone Home will need salaries and benefits and office space to work in etc. while they make a new, unproven game that hasn't made money yet. And while income from work more recent than Gone Home will be more relevant to funding that theoretical future project, the deep back catalogue is still one important aspect of being able to make new creative work.

And that's the point: John's article doesn't differentiate between "ideas" and the work itself. Copyright protects the work itself: the actual film or record or game based on the intellectual property (ie the specific game called "Gone Home," vs. the title, characters, setting, etc. of Gone Home.) This is why anyone can (and seemingly does) make a movie/game/TV show/etc. based on and called Alice in Wonderland and starring Alice and the White Rabbit and the Queen of Hearts etc. etc., but Disney can still claim exclusive copyright to the Tim Burton film created in recent years-- to the work, the film itself inspired by the ideas-- not to the ideas themselves. I think there is a misfire here, between "why should Microsoft be able to profit exclusively off of the video game production Gears of War 1 for Xbox 360 and PC over an extended period of time" and "why should Microsoft be able to be the only entity that can create derivative works based on the IDEAS of Gears of War (sequels, merchandise, TV shows, books etc. using the names/characters/etc.) over an extended period of time?" Currently these two things are generally conflated in law as well, but perhaps that's what John is really striving for (or perhaps it's not, I don't know, I'm not John.) But there does seem to be a conceptual difference between "I created this work of entertainment, Gone Home, a video game production by The Fullbright Company that we charge money for a copy of," and "I created the IDEAS of Gone Home and the Greenbriar Family and Arbor Hill that were the basis of said specific work" etc. etc. and no one may have access to them to create their own derivative works until they enter the public domain.

One might remember the saying about 1% inspiration and 99% perspiration. When it comes to copyright, you're paying for the perspiration, and that money you spend allows more people to work in the future-- people who may not have worked on, or even heard of, the thing you're paying for-- and that's important. That 1%-- the idea that inspired the work, that might be an inspiration for other new works (that themselves would need to be funded)-- perhaps that's what feels more appropriate to enter the public domain on a shorter timescale. Because frankly I would love to make a System Shock sequel, but no way am I negotiating the rights for that.