Transistor is really, really beautiful. Through every minute of play, I truly enjoyed the graphics, the game design, the story, the characters, the artwork—I even have the soundtrack on my iPod. It has some astonishing aesthetic quality. All of that said, I did not particularly enjoy playing it. The combat was awkward and annoying, the customization feature was poorly explained, and I never felt like I’d really accomplished anything more than some bothersome errands.
Transistor succeeds magnificently as a work of art. It fails as a piece of entertainment.
I’ve talked about games as art before, but I think a distinction between art and entertainment can help explain the perverse twists of copyright law we see today. One analysis of the current state of copyright is that it has not kept up with time, and even the DMCA provisions fail to bring copyright law fully into the digital era.
Entertainment is marked by an ultimate aim at financial gain. Entertainment needs money. For this reason, it is often symbiotic with advertising. It is frequently exploitative because it needs attention to thrive. It fails when ignored and succeeds when it sells.
Art wants to be enjoyed (or sometimes it only wants to express its artist). Art is probably the origin of entertainment, but art does not require the financial success that entertainment seeks. Art can be evaluated on aesthetic terms of beauty or expression, rather than ticket sales or ad revenue.*
Copyright law is meant for entertainment, not art. Art does not have the same legal concerns that entertainment has because it does not have the same financial concerns. In the US, copyright law focuses largely on economic questions, not moral questions (as it is in Europe). The treatment of damages (money you can get if you win in court) in copyright law makes sense for large entertainment entities (e.g., movie studios or record labels) in the 20th century, though it makes hardly any sense when applied to small-scale artists and typical citizens in the 21st century.**
Most copyright laws are enforced at the discretion of the rights holder, and artists often decline to enforce their rights the way that entertainment companies do (though one reason could be the cost of enforcing those rights, rather than a desire to enforce them).
Judges have always made a pointed effort not to make aesthetic judgments while applying the law. This means that both bad art and bad entertainment get the same legal rights. It also means that the law will not distinguish between art and entertainment.
Understanding this difference between art and entertainment makes sense of why an area of law is applied vigorously by some people and ignored by others. It also explains why smaller artists are less favorable toward many parts of copyright law while large studios are stronger proponents of strong copyright law.
Transistor is a good case study for illustrating this distinction. It is a game made and produced as entertainment, but it acts and feels more like art. I’m sure Supergiant studio would protect it as entertainment, as would SuperGiant Games and distribution services like Steam. And under US law, that’s fine. Just because something is artistic doesn’t mean it should be subject to piracy or hampered from monetization. But it’s worth remembering that the copyright law isn’t about protecting the artistic integrity or beauty of Transistor’s sounds and images—it’s all about protecting its potential to maximize profits.
Too many discussions around copyright law and reform fail to address this fundamental difference in the genus of media. Recognizing this distinction could make discussions about copyright (and copyright reform) much more clear and productive, and would help in presenting the issues at stake.
*Obviously, these traits can overlap and diverge: a work can be artistic and commercially successful, and a person can have goals of creating something beautiful and charging lots of money for it. However, a work can be evaluated independently under both of these categories.
** One of the exciting effects of networked digital technology is that it made the entire area of copyright law suddenly relevant to the bulk of the population (who previously had very little reason to think about it).