Scrabble ownership and the public domain

As reported recently, Facebook has been asked by Hasbro and Mattel to remove the "Scrabulous" game from its web site. Hasbro and Mattel jointly own the rights to the "Scrabble" game, something that most people have at some point in their lives played at least once. Scrabulous was a software version of the game which enabled users to play others across the Internet, and proved quite popular on the booming social networking site.

I never played Scrabulous, but it occurred to me while reading news of the takedown notice that the notion that Hasbro and Mattel "own" the rules of the Scrabble game seems very odd. According to wikipedia, Scrabble was created in 1938 by unfortunately named Alfred Mosher Butts, though it only acquired the name "Scrabble" when a lawyer named James Brunot bought the rights to the game and released it under a new title.

The point to that history is that Scrabble has been around for a VERY long time. When does it reach the level of games like Chess, Backgammon or Checkers, entering the public domain so that anyone can use and reuse it, all the while calling it by the name with which history has bestowed it (versus having to, on trademark grounds, call it by a new name so as not to annoy former trademark owners)? The answer, at least from a legal standpoint, is "not for a very long time." Assuming that Alfred Butts is treated as the creator according to the "Sonny Bono Copyright Term Extension Act" of 1998 (a man who, as member of the singing duo Sonny & Cher, had a vested interest in such extensions), copyright won't expire until 70 years after the death of Mr. Butts. As he died in 1993, that means Scrabble could be under copyright protection until 2063.

That just seems wrong to me, and completely contrary to the original point of copyright expiration dates, which exist to ensure that aspects of shared culture lose their tollbooths at a certain point so that they can, like chess, be used and reused without cost. Granted, Scrabble is worth a lot of money. In 1994, Mattel bid $79 million to buy British toymaker J. W. Spear and Sons in order to gain control of the international rights to Scrabble, a game that accounted for a third of the toymaker's revenue. That's big bucks, to be sure. But Chess would be worth "big bucks," too, if someone owned the rights to it.

The ability to make money is an important aspect of copyright, as it provides the incentives that drives more to create than would exist in the absence of some form of compensation. On the other hand, human culture and progress dictates that such copyrights eventually expire and the creation enter the public domain, ensuring that future generations can slice and dice shared knowledge into new creations. It is in the nature of human knowledge that, like pyramids, it builds on what was learned before

Copyright expiration is an incredibly important concept, and over the years, it is a concept that has been eroded by powerful interests. We've moved a long way from an original copyright period of 14 years that only applied to works created in the United States. Today, it's highly likely that creators of popular works can benefit their grandkids financially with their creativity.

Why does that make sense?

I think we will find more and more people bumping up against the excesses of long copyright periods as more acquire the tools of media creation and learn the means to distribute those creations using the Internet. Consider what would happen if I decided to use a short section from a Beatles song in a home video. As most people realize, that is completely illegal, as I am not allowed to use even a piece of a song in my own original creation (at least if I want to post it on a website). Citation rights don't exist in the world of music.

When Moby created his high-selling album "Play," he used a lot of samples from songs before 1923, because those works are considered part of the public domain. That, however, leaves out large swathes of our shared culture - particularly those bits most relevant to the people living today - from proper consideration in new creative works.

I've talked about the digital revolution, and how new technology is making it possible for the "little guy" to create original media content and distribute it as easily as big studios might. The big studios, however, still have an ace up their sleeves. Copyright periods with expiration dates so far into the future that they are practically non-existent mean that only companies who can afford to pay high licensing fees have access to the full range of tools in our shared cultural toolbox.

That, of course, suits big studios well, which is why we are unlikely ever to fix the copyright problem in any of our lifetimes.