Introduction to the Limits of Soft IP.

Torchlight 2 looks and feels a lot like Diablo 3. League of Legends is a modification of DOTA, and League of Legends has been ripped off for mobile platforms. The beat of Katy Perry’s “California Girl’s” matches alarming well with the beat from Kesha’s “Tik Tok.”  Despite the kinds of similarities that might make a teacher suspect plagiarism, these kinds of things (ideas, beats, the “feel” of a game) cannot be trademarked or copyrighted.

One might ask: If these can’t be owned as property, what purpose do Intellectual Property laws have? The goal of IP is to balance the interests of the producer/creator/artist with the interests of the consumer and other artists. It is partly about notions of a fair market, partly about notions of art and freedom to create and express. (These notions are not always at odds with one another.) Therefore (I argue), understanding IP requires both economics and aesthetics. Some lawyers have a background in economics, but few have a background in art.

Patent examiners and prosecutors (though not patent litigators) are required to be scientifically competent (usually by having a bachelor’s degree in a hard science or engineering) before they can even take the Patent Bar Exam. Copyright and trademark lawyers are not required to have any similar background or training. Perhaps this is because the nature of copyright does not require me to have a thorough understanding of English Literature or even proper rules of grammar before helping someone register or defend a copyright for a book.

Maybe it’s because copyrights last 70 years after the death of the author while patents typically last 20 years (14 in some cases), but US law does not allow the copyrighting of ideas, only the tangible expressions of ideas. I sometimes wonder how much more diverse the arts might be if we allowed copyrights of plots, character archetypes, narrative devices, musical rhythms and beats, cinematographic techniques, directorial visions, and so on. Some might fear that an approach to copyright modeled after the philosophy underpinning patents would dry up the artistic wellspring. On the other hand, maybe Hollywood would produce something DIFFERENT every summer…

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