Intellectual Property and the Newly Professional Creator

If you’re a backer of the Mobile Frame Zero 002: Alpha Bandit, you know that I changed the name mid-campaign to Intercept Orbit. I changed the name as a part of an surprisingly functional trademark agreement with a surprisingly awesome guy named Matthew Rivaldi of Wiggity Bang Games, who was about to launch a campaign for his own, near-identically-named game, Alpha Bandits.

I want to talk a bit about how intellectual property law works from the point of view of a serial crowdfunder, why Matthew and my dispute went well, and how it might be a model for such interactions as creator-publishers become the primary creative force of the 21st century.

The Types of Intellectual Property

First, let’s make sure we all know the basics of US intellectual property law. It comes down to three types of property:

  1. Trademark
  2. Patent (and trade secret)
  3. Copyright

Each of these three works a different way, with different intentions and standards. Trademark and Patent law are governed by the United States Patent and Trademark Office (the USPTO). Copyright is governed by the Copyright Office of the Library of Congress. Each of them covers a different kind of creation.

Trademark is effectively a signature. Trademark is managed by the trademark department of the USPTO. The stated intent of a trademark is to assure the potential customer that the product that carries the mark was created by the owner of the mark. When I sign my work “Joshua A.C. Newman” or “the glyphpress”, it’s to assure anyone who sees it that the work is actually by me, or at least made with my approval. Likewise, when a product carries the phrase “Mobile Frame Zero” or with any of its distinctive parts (the logo, the words “mobile frame”, “MFØ”, “MFZ”, or “Rapid Attack”, for instance), it’s an assurance that it is, in fact, what it says. Trademark law covers both written words (“Coca-Cola”) and “marks”, like logos and signatures. The standard is whether or not it would confuse a potential customer.

If I pay the fees (and a lawyer to set it up for me, to the tune of some $5000 per mark), I can register a trademark with the USPTO. That’s when I get to put an ® by the name. If I don’t register it and I use it as a trademark, I really should put a ™ by the name so that anyone who sees it knows I’m actually using it as such. Mobile Frame Zero’s logo integrates the ™ as unobtrusively as I could get it. Registration makes it easier to make the case that I own the trademark and what my business is, but I can also establish those facts by doing business under the name and putting the ™ by it.

Now, here’s an important distinction: if you own and operate a street cart that frames people’s pictures on their lunch break and you call it “The Mobile Frame”, then it’s obviously not me because we’re not in the same business. (To be honest, I’m not sure if you’ve got a very good business model. But then, I design and publish games, so what do I know?)

This last distinction — that we’re not actually in the same business — is important! A brand is a lot like a particular spot in a shopping mall. Ever noticed that you don’t have competing businesses directly adjacent to each other in a mall? That’s because the management of the mall wants to make sure each retailer has a unique spot, where customers won’t be able to casually check between Radio Shack and Best Buy for their iPhone charger prices. They’ll at least have to walk past the food court to do comparison shopping. Trademark is like that: if you’re competing, you have to make a distinction. If you’re not competing, you don’t.

Gerber makes baby food. Gerber makes knives, scissors, and other tools. Fortunately, few people confuse one with the other. Either form of confusion would lead to terrible, terrible camping trips. Just the worst. So, while they share a name, they’re obviously not the same company.

But what’s competition, and what’s a near miss? The courts have answered that: you must defend your trademark. If someone else makes a game about a lunch cart that frames pictures, and I don’t say to them, “Hey, that’s my spot!” then a court might decide that the distinction is that my game has robots. Or maybe the distinction is that it has LEGO pieces. Or maybe that it’s a book. If a court decided that MFØ’s distinction is that it’s a book, then someone else might be able to publish a card game called Mobile Frame Zero. And then my trademark has very little value to me, because no one knows for certain when I publish a thing that it’s really me. It has become dilute because I haven’t defended it in the areas that don’t matter to me.

That’s part of the reason that you see brand expansion happen. The perfect example is Oreos. They’re chocolate cookies with sugary crisco in between them, right? Well, no, they’re also a cereal. And cake frosting. And I bet, if it was practical, they’d try putting the mush on the outside and a cookie in the middle. For our purposes, what they’re doing is saying, “You can’t make a cookie called “Oreos”. Or, it turns out, any other kind of food. But I bet I could make green and purple bicycle handle grips and call them “Oreo Grips”.

But maybe not! Ingersoll-Rand, owner of the Kryptonite lock brand, now has an agreement with DC Comics where they have to make it clear that Kryptonite, for their purposes, is only about accessorizing 2-wheeled vehicles, and is not related to Superman, Supergirl, Superboy, or probably even Krypto, the Embarrassing Supersidekick.

It turns out, there’s a company called Mobile Frame that makes business-to-business, smartphone-friendly websites. We’re not competitors, but that didn’t stop them from sending me a nasty Kickstarter message, telling me to abandon my (already highly-successful) campaign.

I consulted my lawyer, who advised me that lawyers always advise their clients to bluff on defending a trademark, because it’s cheap. This way, they can demonstrate, if push comes to shove, that they’re doing their work to defend their trademark and don’t even have to go to court if I just cave.

I haven’t heard from them since telling them I’d talk with my lawyer about it.

Patent law covers inventions and is also managed by the USPTO. The stated purpose of a patent is to foster invention by giving a limited monopoly over the implementation of a design (e.g. this shape of handle; this kind of machine) or process (e.g. this mode of interaction with a phone; this manufacturing process), so that other inventors will be inspired to create even greater inventions by circumvent the existing patent. In order to make this possible, all patents are public. As public things managed by the US government, the Feds can use patented designs themselves without caveat.

The standards of patents revolve around it being a non-obvious and novel invention.

Interestingly, mathematicians may not patent mathematical or logical algorithms, for precisely the reason that software patents have made such a mess of the patenting system: the abstraction of them is the implementation of them. This means that you can now patent what is effectively an idea of a way to do something because the computer turns the idea into a machine. I won’t go deeper into this controversy becase more knowledgable minds than mine are engaged in this problem as we speak.

Patent law is an enormous and fascinating field full of controversy (e.g. existing DNA sequences are patented, including bits of your very own DNA, as are pieces of software indistinguishable from other, existing pieces of software). Expect this field to evolve rapidly in the coming decades.

Game rules may be patented, but it’s an awful lot of money for relatively little return. You’d have to be selling a LOT of copies to make it worth it to you. That’s one of the big issues with patents right now: it’s expensive for an independent inventor to get one, and easy for a big corporation. It’s gotten easier and less expensive in the last couple of years with provisional patents, where you can effectively get a patent, then work on marketing it for a year before having to complete it.

Sometimes, rather than patenting a design or process, an inventor will choose to keep their creation a trade secret. It’s illegal to steal trade secrets (since, like other forms of IP, they’re considered property), but it’s legal to use them once they’ve entered the public sphere. That means that you can reverse-engineer a secret (like by doing a spectral analysis of Coca-Cola’s “X-13” recipe), but you can’t, like, break in and fish it out of their filing cabinet. It also means that you can stumble across the same solution to a problem, and the original secret holder has no recourse.

Copyright law covers creative works, and is managed by the Library of Congress. The stated intent of a copyright is to give a creator a limited monopoly over the production and reproduction of their art in order to encourage them to add elements to our culture that will enter the public domain — that is, free for all to use, like Cinderella or Poor Richard’s Almanac. Recently, copyright to all works was cynically extended to “the age of Mickey Mouse or younger”; that is, copyright law is being used to prevent works from entering the public domain, in direct opposition to its original function. It’s a particularly sinister reading of the law, not to mention ironic, given that Disney has made its money by implementing public domain works like Cinderella.

The standards of a copyright center on the implementation of an idea with artistic merit, not an idea itself. That is, I can claim copyright a philosophical essay, but not the philosophy behind it. I also can’t claim copyright on lists of facts or public information, like a phone book. I can’t claim copyright on the dick I drew in my notebook — not because it shows a questionable understanding of anatomy and proportion — but because it’s not distinct from all the many dicks drawn in notebooks and walls throughout history; that is, it doesn’t have artistic merit in its own right.

Here’s a neat thing about copyright: you already own the copyright on everything you write (with a single, horrible caveat, that we can talk about in a moment). You don’t even need to register it or anything. Once you created it, you own the copyright on that work. That counts for your blog posts, your DeviantArt works, your 3D models, your mopey teenage poems, and the drawing of a dick on your notebook (as long as it has artistic merit).

The horrible caveat is called work-for-hire. That is, when someone else takes the “economic risk” to hire you to create a piece of art for them, they can own the copyright, even though you made it. That’s why Disney animators don’t have copyright of their own 3D models, paintings, or drawings — even when they didn’t make it into the final movie.

(Another interesting caveat: all US Government documents are public domain. They can not be copyrighted, and may only be withheld for state security reasons. Of course, it’s hard to determine if they’re being withheld for a good reason if the reason itself is redacted.).

Creative Commons

The Creative Commons license system is a really interesting hack on copyright. It seeks to do to creative works what Open Source does for software: give everyone the ability to do some combination of share and remix existing creative works without fear of legal retribution by the copyright holder.

Just like you can allow someone via a license to use your copyrighted works (say, to publish it, or to post it for you on DeviantArt), you can make a general-purpose license that allows others to copy and share it (CC/Creative Commons), for noncommercial purposes (NC/Noncommercial), attribute it to the creator (BY/Attribution), and require the same license on all works created from it (SA/Share-Alike).

Creative Commons doesn’t put any restrictions on the creator. You could put the CC BY-NC-SA license on a piece of music, then license it commercially to one person to use in a movie, then decide later to remove the BY (Attribution) aspect later to make it easier to remix, if you wanted. You could even revoke the whole thing, though of course your changes can’t be retroactive.

How I Use Copyright, Creative Commons, and Trademark

I wield the trademark of Mobile Frame Zero with might and authority! One can reproduce the text of the game and modify it for free as much as they want, (or commercially by separate, individual license) but it must pass the three qualifiers that I place on its publication, paraphrased here:

  1. Play within the setting or make your own. If you are creating something different in spirit from the Solar Calendar (where motivations are economic; where mobile frames are the mightiest tool and weapon; where the societies and technologies are, or are like, those described in the text), then create your own calendar.
  2. The creator must own the copyright. If it is to be sold, the creator must own the copyright. If the publisher is not the creator, the license they have with the creator must be non-exclusive; that is, the creator can still do whatever they want with their creation.
  3. The fiction is about people fighting for things they need. The fictional material you create may not imply that authoritarian systems of social control are, in fact, the only or best reaction to an uncontrollable universe. No characters are destined for greatness or humility. All events are the results of human decisions, or at least reactions to natural events. If any faction in the conflict achieved their objectives, they would stop fighting and go about their lives with the advantage they’ve gained at great cost.

These are pretty odd limitations! But they’re important to me, and no one may use the Mobile Frame Zero brand without adhering to them. I could establish that you have to pay me one hundred million dollars in gold Krugerands, to be paid to me in full by a wizard on the moon, if I want. Obviously, no one would agree to it, so I wouldn’t get any takers, but I can put any stipulations on it I want. (OK, I admit it: I’m holding out to license it to Baron Von Wizarding of Moon.)

Mobile Frame Zero’s CC-BY-NC-SA license doesn’t limit me to reproducing it noncommercially — it puts no limitations on the creator at all, other than that you can’t modify the CC license at all. Because I’m the owner of the copyright, I can license my parts to others for money, as can Vincent (who wrote the rule chapters), and Soren (who designed all the good mobile frames in the book; that is, not the Osprey, who definitely needs better legs.)

Occasionally, someone will want to make a free derivative work (like Cristian Rasch’s MFZ: Condensed), and they don’t even need my permission to do it.

On the other hand, someone will occasionally want to make a commercial version available, perhaps using their own calendar (what MFØ calls a setting, following the Gundam tradition of multiple universes). Maybe they want to publish a version that uses trolls and cavalry, or maybe they want to sell frames online, as with Because they’re doing it commercially, they do need our permission. We will often ask for a return. Sometimes, it’s a cut of profits; sometimes, it’s a beer when we meet next time. It depends on what we see as the potential profit on the venture, since we don’t want to put anyone out of business with nickles and dimes. If it looks like there’s good money to be made, though, we’ll want some of it.


Wiggity Bang Games and the glyphpress Are Friends

Around January of last year, I started rummaging around for ways to do the space battles-themed MFØ game I’d been thinking about. The project needed a name, so I tried a bunch of things out. Knowing that the name might turn into the final project name, I looked through the USPTO’s list of trademarks as I came up with titles. Finally, I settled on Alpha Bandit. Nothing came up on a Google search, and the USPTO told me no one had registered the name. In my notebook (now, infuriatingly, lost on an airplane), I listed all the names I was trying out. I liked the name because it describes the moment of contact — a “bandit” is a confirmed enemy plane in US fighter pilot jargon. The “alpha bandit” is therefore the first one you contact.

Unbeknownst to me, though, in February of 2014, another game publisher named Matt Rivaldi was finalizing his own marketing decisions for his word game in which you steal letters from each other. He’d gone through the same naming process — a process so similar, in fact, that he had also settled on the name Alpha Bandits. I can see why: it’s a word game with the initials “AB”, it’s a play on the word “alphabet”, and it describes play.

His plan was to fire up his Kickstarter in the Spring or Summer. Just like mine.

So he was justifiably upset when he saw in April that I was running a Kickstarter with almost the same name as his that he was to run in July. He wrote me an email that said, in short, “Dude, you gotta change your name. I registered that trademark and am about to launch.” He shared with me his materials so I knew he wasn’t putting me on, and I looked up his registration on the USPTO website.

His tone, while serious, was one that said that he was ready to deal. And this is an important part. He is unequivocally in the right: he registered the name before I started using it in public. He obviously didn’t get the name from me, as it existed only in my notebook at the time, and his trademark was registered with the USPTO. Hypothetically, I could have gotten the name from him by finding recently registered trademarks just for the sake of the fight, but I obviously didn’t: our projects are both games (and therefore competing), but have almost nothing else in common. So he wanted to be reasonable instead. His lawyer, on the other hand, wanted me to take down my Kickstarter and begin again.

But he and I both realize that we’re small fish (though Wiggity Bang has much greater volume than I do) in a big pond. By supporting each other, we stand to benefit more than if we just tear each other down.

So I had to make the first conciliatory move.

The first thing I said was, “Shit! I’m sorry! Totally a mistake, but you obviously own the trademark. I’ll do some more research and switch the branding before the Kickstarter ends! I’ll make sure all my backers know, and I’ll make sure that they know about your project. I’ll also make it clear that you’ve been a singularly excellent fellow creator, since we both want them to support independent game production.

I was really happy when he agreed. For his part, I asked him to tell his backers about my game. We’re both writing articles about our experience, as well — he, for Games Magazine,and I for my blog, right here, right now. Because I’d love it if word game-loving players of Mobile Frame Zero would back his project, and wargame-loving backers of his game to play MFØ.

I really hope that, as small creators, we can come to this kind of arrangement more and more. When we see other small creators succeeding, we shouldn’t see competitors; we should see potential allies. Because I’m not competing with Matt and Wiggity Bang for Alpha Bandit ownership. I’m not competing with Vincent Baker for roleplaying game time. I’m not competing with Heavy Gear for tabletop wargame time. Nope. We’re all competing with Hasbro — whose creators are all work-for-hire.





2 thoughts on “Intellectual Property and the Newly Professional Creator”

  1. You forgot one important caveat: you can absolutely use someone else’s trademark, in the same market, provided you make it clear that you don’t own the trademark, who does own the trademark, and you’re using it in a non-confusing way. That’s why Walitin can say right on the box “compare to Claritin(tm)” and the auto parts store is absolutely *full* of products made by one company and sporting another company’s trademark(s).

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