Fair or Unfair Use

I know there aren't many folks reading this site, but I thought I should post my horrible dilemma. For several months, I've been trying to put together a plan for a company and dedicated staff to put together a new kind of game magazine. Now, since we know that we won't make any money for a while and we don't have sufficient capital to do the full start-up mode and hire artists, art director, freelance writers, editors, and pre-press folks, we've been trying to do this on the "cheap." I have a friend who is hosting the website, friends who have contributed articles for free, a friend who would fund the printing of the first year's magazines, and a brother who is deeply committed to the concept with both his limited funds, time, and experience.

Yet, less than a month away from my target date of going to press and just at the time that I was preparing a public announcement, I find myself devastated. My enthusiastic brother contacted one of the more prolific publishers in the industry about cooperation in creating scenarios for some of their existing games. In other aspects of the hobby, this is one of the most enlightened companies. To my brother's surprise, the company took the position that publishing scenarios in a magazine that was sold for profit was essentially making a profit off their intellectual property. And if that company feels that way, they will set a precedent for other companies to feel that way.

Now, legally, this is more of a gray area than one might think. Media can use intellectual property under the rather amorphous rubric of "fair use." For example, even if the art on the cover of a game box is copyrighted by the artist and the publisher, a magazine or newspaper can reprint a photo of that cover and game box to illustrate editorial that mentions that game. This is the editorial use of an intellectual property and is generally accepted as "fair use" by both courts and intellectual property holders. No fee is required and there is unlikely to be any legal action taken against the magazine or newspaper (or television program, podcast, or website) because no "damages" can be demonstrated. In fact, publicity generally increases sales as opposed to deflating them.

With scenarios, this is a gray area because the question remains whether they would be considered product or editorial. I have always considered them to be editorial because they would, presumably, enhance the value of the game that was being used. If I were selling them as a separate download from a publication or packaging them together in a book or boxed set of scenarios for that particular game, I would consider them a product (and the courts would, as well). In the latter case, the scenarios would clearly infringe the intellectual property since they would presumably dilute the potential market for an expansion product or add-on (or a company's in-house publication). Yet, there is considerable question in my mind as to whether a handful of unauthorized scenarios in a publication that featured unauthorized scenarios for multiple games would have the same impact.

For publishers, this becomes a gray area, as well. Does the publisher risk losing protection for the intellectual property in general if said publisher doesn't immediately enforce its copyright or trademark? Actually, there is that risk. Even if the effort to enforce is merely a letter demanding that the infringing person, corporate entity, or publication "cease and desist," publishers must make some effort in order to protect their IPs (intellectual properties).

There is a potential solution, but not one that is likely to be popular. If publishers provided a free license for magazines to publish exclusive scenarios, provided the content of the publication did not use 10% of said publisher's IP within a given issue and the game publisher would own the scenarios upon publication, said publisher would not be allowing infringement, magazine scenarios would not threaten future expansions, and the publisher could sit on or revise poor scenarios rather than allow them to proliferate for perpetuity.

Why would this not be popular? Licenses require legal documents. Legal documents cost money. A magazine publishing scenarios for board games is not likely to generate enough income to make a royalty agreement interesting and auditing the magazines (for content as well as revenue) would cost more in time and resources than it would generate.

So, I sit broken in front of my monitor screen. The vision of a magazine where the content never expired, a game magazine that was more about playing games than reviewing them, and a magazine that would be publisher agnostic (ready to grab the best material from any publisher in order to cover it) lies with its spine broken in my mental image.

I wanted to do this magazine as a labor of love. I wanted it to eventually become self-supporting, but now, it is crumbling away because of a major publisher wanted to protect its legitimate rights. And as for me, if I had unlimited money, I could take the fight to the courts and argue "fair use," but it would still depend on what judge was looking at the issues at what time and how familiar said jurist happened to be with the table game industry and its very low profit margins. Since magazines have even tighter profit margins, it would be a "no-win" court decision for either side.

As a result, I don't think my dream magazine is going to happen. You can't build a user base by only covering the small companies that recognize that any publicity is good publicity and ignoring the companies that have built a following. For now, it looks like I'm going to have to put the dream magazine on hold--perhaps, forever.

Coin-Op Lives

Maybe it was because I was in the presence of coin-op, arcade design greatness or maybe it was because I'm the world's worst photographer--even with a digital camera--but I botched most of the pictures I took at Raw Thrills, recently. Raw Thrills, for those of you who don't keep up with coin-op goodness, is the company founded a few years ago by Eugene Jarvis. Yes, founded by that Eugene Jarvis, the creator of Defender, the mega-quarter muncher of yesteryear and the first video game ever to offer a "radarscope" to let players know about enemies coming from off-screen. As President of Raw Thrills, Jarvis has proven himself to be a survivor in an industry that seems to have reached equilibrium at a level far reduced from its glory years in the Space Invaders, Gorf!, Ms. PacMan, and Defender days, as well as something of a Renaissance Man in terms of design, distribution, innovation, manufacturing, and testing. Eugene can do it all.

Design innovation in coin-op games? Come on, has there been any? Yes, but it may not show itself in anything other than graphics. Graphics are what catch one's eye in the bars, restaurants, and movie theaters where coin-op games thrive in the current, admittedly niche, market. But as those beautiful 3D graphics whip across the screen with lightning flash screen refreshes, there have been advances. No longer do you see blocky images cavorting across a Cathode Ray Tube. Today's cabinets sport the latest flat screen monitors.


But flat screen monitors produced their own challenge. In the old days, one merely used a light gun in order to bounce the signal off a CRT. Today it requires a custom LED approach to read the signal's trajectory. Raw Thrills developed this in-house for their Big Buck Hunter and Big Buck Safari games. The fuzzy photo provided below shows such an array from the Big Buck Safari game.


Another successful game for Raw Thrills has been their Super Bikes game. The impetus for the design innovation in this game was a result of interviews with owners and operators of previous motorcycle games. Their biggest complaint was that the moveable handles would break off and malfunction, so they needed something more serviceable. Raw Thrills opted to make the handles stationary, but provided plenty of simulated movement through force-feedback mechanisms such as the one pictured here.



The in-house dev staff is currently working on Super Bikes 2, but the company has a great-looking boat racing game (imagine their old H2O Thunder on steroids) being developed in conjunction with Specular Interactive and continue to develop products with their Play Mechanix subsidiary.

Speaking of Super Bikes, the successful racing game's construction is particularly illustrative of the Renaissance Man aspect of creating coin-op games. The components for this game require a mixture of injection molded plastic parts, vacuum molded parts, and rotational molded parts. Rotational molding is where plastic pellets are dumped inside the mold and, as they are heated, the mold is moved in a centrifugal pattern so that the melting plastic adheres perfectly to the mold. The bike's body itself was crafted in this fashion. Here is the part before assembly:

Perhaps, the most amazing feature about visiting with Eugene Jarvis, though, is the recognition that he turned the industry on its side with less than 64K. The program itself for Defender was less than 18K and even the dedicated audio and graphics hardware didn't amount to 48K. In an era where 256 MB of RAM means you have a lackluster machine, that seems nothing short of phenomenal. Of course, in an era with all of these scripting languages, it doesn't seem real that anyone would laboriously code in machine language, either.