Goat stories and globalised IP

Because I've been writing and thinking a lot about historical fiction in medieval Bohemia, YouTube recommended to me the “Old Goat Stories”, animated movies based on central-European fairy tales. At a point in the second one, I imagined myself as a writer inserting the line: “I would have gotten away with it too, if it weren't for you meddling kids, and your talking goat!”

That got me thinking: can you copyright a catch phrase? At what point should intellectual property which becomes successfully pervasive enough to become memes or tropes, stop being protected?

The hair to split in this is that short phrases and brand identifiers are protected by trademarks, not simply copyright. That's a surprisingly important difference, because copyright is automatic with publication, but trademarks have to effectively be bought from regulators. It's similar to buying a radio frequency, or a licence to sell alcohol.

Furthermore, they are only valid for specific purposes. Returning to the original research question, I looked up the U.S. Trademarks & Patents Office and wrote some in. That's how I learned anyone can say “yabba dabba doo” on the radio or internet – because the original source material is no longer in production, so its trademark has lapsed – but not print it on a T-shirt, because the trademark on the apparel is ongoing. Similarly, ripping off “what's up doc” or “wassally wabbit” without attribution will still cause trouble for you.

Secondly, copyright and trademarks operate for different purposes. Copyright is meant to spread original ideas around, as long as others recognise whose original idea it was. [Academia has this at its foundation.] The only time you're allowed to get aggressive is when your work is copied instead of being reproduced. Technically speaking then, Warner Music can demand payment from any children's party who sings “happy birthday” without acknowledging that they legally own the song. Similarly, anyone who writes a series of books about Harry the Halfling travelling with a wizard across a war-torn hellscape populated by orcs to destroy an ancient artefact will probably find themselves in trouble with the Tolkien estate [at least until 2043, when the rights will expire, and the content will enter the “public domain”].

However, we're still free to write about “halflings” and “orcs”, and spell “dwarves” instead of “dwarfs”, even though these are all things which Tolkien invented. This is because he didn't apply them as trademarks, which would give a legal monopoly not only on copying but any reproductions. Any easily recognisable symbol or slogan you're aware of from the 20^th century is likely a trademark.

Demonstrating the relationship of intellectual property and legal protections leads to an investigation of some of the biggest brands commonly around. Robin Hood has been around for so long that, even if we could determine the original author, it is definitely public domain. Exactly because it is a story and character so widely recognisable, D.C.'s Green Arrow and Marvel's Hawkeye used it as the base for their own, newer products, which are now protected by commercial law. The same goes for the various animated and cinematic portrayals of Robin Hood and the merry men, have paradoxically become products protected by commercial law. Especially, anyone who tries to reimagine the story, viewing it from a different angle, could argue that it is an innovation of the author, and therefore protected.

Another successful example demonstrates how it can't be assumed that that original author wants people to add to work they've already done, to preserve their money-making rights. Tolkien's “swords and sorcery” genre of “fantasy adventure” led to Dungeons and Dragons (D&D). (Which seriously, even if you've never played before, I bet you've heard of it, right?) Since their content isn't original, all they have left are the rules systems and game mechanics, and they've been open sourced for 20 years. In the year 2000, the owners of the brand released an open game licence (OGL), allowing others – A. K. A. Third-party providers; 3PPs – to write and distribute material to be used for their game. Without this licence, the owners had monopoly distribution rights, which they could enforce under penalty of law. Instead, recognising the wide variety of “home-brewed” material that was already being used by their customers – including tweaks to their core rule systems – the publishers allowed that content to be distributed widely, provided that the new authors “clearly indicate which portions of the work that you are distributing are open game content”, according to OGL s8. Some of this experimentation they later adopted into new, official rules and mechanics.

Another consequence of throwing open the rights to their rules system was allowing more competition. Some of their staff left and started a rival game publishing company (Paizo), utilising the content covered in OGL, and taking it in a different direction. Normally that is exactly what you don't want from your IP regime.

Doing another assignment, I was also impressed to find that Microsoft's online pictures included coins and banknotes from Australia, and Ethiopia. Putting them in a document includes a text box with the licencing information. Specifically, "This Photo by Unknown Author is licensed under CC BY-SA". This is a creative commons protocol, meaning that anyone can use the image freely, anywhere, including for commercial purposes. 

Other specific terms of the licence say, "indicate any changes made. Any sharing of transformed material must be distributed under the same licence as the original". After all, the point of creative commons is to encourage widespread use of their content by removing any barriers. For the images of currency, its purpose is similarly to be distributed for indiscriminate use, which raises the question that if everyone should have it, should it have any IP protection?

Yes, in fact. When Australia changed from pounds to dollars in 1966, we originally had $1 notes. With the best of intentions at the time, they had aboriginal art printed on one side. The artist, David Malangi, recognised the work was his, and successfully sued the Reserve Bank, which admitted they had not asked for permission to use his designs.

When it comes to digital publications, IP protections are intertwined with other concepts and technological capabilities. Metadata is a big one, since it can effectively determine who gets credit, and who gets paid. Digital rights management software [DRM] is another emergent battleground, since it combines questions of ownership and distribution with access. It can therefore be seen that copyright and other considerations of disseminating intellectual property on the internet are a rabbit hole that requires professional understanding to navigate.