Scrabble ownership and the public domain

Scrabble ownership and the public domain

Summary: 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.

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TOPICS: Browser, Mobility
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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.

Topics: Browser, Mobility

John Carroll

About John Carroll

John Carroll has delivered his opinion on ZDNet since the last millennium. Since May 2008, he is no longer a Microsoft employee. He is currently working at a unified messaging-related startup.

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15 comments
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  • Be careful John

    You're starting to channel Lawrence Lessig.
    Yagotta B. Kidding
    • True enough

      ...though I have always seen value in the public domain. I just also see a lot of value in the profit incentives system.

      Balance is needed, and I am sure Lessig would agree with me, even if we might disagree where that balance might lie.
      John Carroll
  • Is "2067" a typo?

    1993 + 70 = 2063

    Or is it not as simple as that?
    TheTruthisOutThere@...
    • No, it's a typo

      Thanks for catching that.
      John Carroll
  • RE: Scrabble ownership and the public domain

    [i]Today, it???s highly likely that creators of popular works can benefit their grandkids financially with their creativity.[/i]

    Do the math: 1938-2063 is 125 years of copyright protection. You can fit 6 generations of Butts in that span of time.

    That monopoly is far more than creators in the 30s found to be sufficient incentive to create. When did creators get greedy? Before the 1998 extension, a creators' copyright would enrich her great-great-great-grandchildren if she had Butts' timing. Were creators witholding their creations until Congress would enrich their great-great-great-great-grandchildren as well??


    [i]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.[/i]

    Exactly. Copyrights have long ago morphed from incentives to create into artificial barriers to entry into markets. Why else would incumbents regularly lobby for extensions? Copyrights for life of the author have been around for decades already. Really, how much more incentive does an author need??






    :)
    none none
  • Incentives to Create

    Good post, John. Modern copyright law is simply ludicrous. When originally enacted, copyrights were intended to give incentives to creators and balance that with the public good.

    Today, the public good is long forgotten. And as for incentive... people have incentive to create ONE popular work, then make a tidy living by sitting on their butts and suing others for the use of it for the rest of their lives. IOW, the people who have proven ability to create have less incentive to create anything NEW, as they continue to milk whatever it was they did 50 years ago. IMHO, it diminishes the creators as much as it diminishes society, and that's a sad, sad thing.

    In my lexicon, the Copyright Term Extension Act of 1978 is "Sonny's Boner".
    dave.leigh@...
  • People create for all sorts of reasons

    "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"

    What evidence is there to support copyright laws have
    led to more creations?

    The game of Scrabble was create without this
    incentive. Hasbro and Mattel must be creating great
    games in there thousands given the copyright laws of
    today;-)
    Richard Flude
    • A test

      Go into a building and see how many people you could get to try to write a song for your advertisement for free.

      Next, do the same thing, but offer the winning candidate $10,000.

      Not proof, but a logical experiment, and one borne out on a macroscale (capitalism works better than socialism, and it has everything to do with incentives).

      I don't think it's a question as to whether incentives cause people who otherwise wouldn't create to create. Where the question lies is whether you need to give that person 120+ years of exclusive distribution rights in order to inspire creativity.

      Methinks that someone would create in return for 20 years exclusivity as much as for 150. At that level, human inability to think rationally long-term makes the profit differences matter little from an incentives standpoint.
      John Carroll
      • Ignores the majority of music created

        "Go into a building and see how many people you could get to try to write a song
        for your advertisement for free."

        The jingles used in advertisements are a tiny proportion to music created every
        year. If your measure of creativeness is bases on how much you pay for it, I'd agree
        money determines creativeness, however I don't measure it in this way.

        Yes it costs money to get people together to create thins, like a jingle. However it is
        not copyright that is driving you to spend the money is it?

        "Methinks that someone would create in return for 20 years exclusivity as much as
        for 150."

        I agree, because it is not a significant incentive component.

        IP, including copyright, is abused by corporations (increasingly large) to profit and
        increasingly threaten competition. Little of this profit is used to create, but to
        support the ever growing number of corporate lackeys required to fill the
        increasing number of seats.
        Richard Flude
        • More than that

          [i]The jingles used in advertisements are a tiny proportion to music created every year. If your measure of creativeness is bases on how much you pay for it, I'd agree money determines creativeness, however I don't measure it in this way.[/i]

          The urge to create exists irrespective of financial incentives. Financial incentives enhance that creativity, making it more long lasting and prolific...

          ...at least, the well designed incentives do. Like I said, I don't think its debatable that incentives increase created work. A desire to create might exist apart from that, but financial incentives incent people to create more.
          John Carroll
          • Incenting.

            [i][b]A desire to create might exist apart from that, but financial incentives incent people to create more.[/b][/i]

            I understand and agree with the spirit of what you're saying. I'm going to pick a tiny, tiny nit, though.

            Creative people create [i]anyway[/i]. The problem is that most of it is either lost or simply not shared or is of no use to anyone but the creator. What incentives do is encourage people to focus that creativity, use it to benefit a broader audience, and save and share it. That's why Copyright is in the public interest, and why it's mentioned in the US Constitution in the first place. The purpose of Copyright is NOT and has NEVER been to benefit the creator. Benefits to the creators are there for the larger purpose of benefiting the public.

            [i](of course, those same incentives might preserve creations that should have never seen the light of day, like this nonsense: http://www.cratchit.org/music/BillyJean.html )[/i]
            dave.leigh@...
          • People shared their creations long before copyright laws

            "What incentives do is encourage people to focus that creativity, use it to benefit a
            broader audience, and save and share it."

            The pace of creation continues to grow (built on those created before us) but
            people created and shared long before copyright law, and continue to do so today without an understanding of copyright law.

            People have other incentives to create ad share than copyright generated revenue,
            indeed few creator would be familiar with IP protection laws.
            Richard Flude
          • And the soviets

            ...created great science. Doesn't mean incentives systems don't create MORE good science (and that is borne out in the history books).

            Creativity is an impulse that exists apart from financial incentives. Financial incentives, however, are a useful motivator.
            John Carroll
  • Present value of money

    For those who have studied economics, it's possible to assign a value to an income stream.

    Assuming, for instance, a constant inflation-adjusted revenue stream [1] and an inflation-adjusted opportunity cost of 4%, that stream [i]in perpetuity[/i] has a present value of roughly 25 times the annual income.

    If the stream is cut off at some point in the future, it decreases in value exponentially with the cutoff date. Obviously, a stream that cuts off after one year is only worth about 4% of the infinite-duration amount. One that terminates after 28 years is worth about 67%.

    One that terminates after 50 years is worth 86.5%. Tacking on another 20 years only increases the value to 94%, an increase in present value of 8.6%

    Since the uncertainty in the amount of any revenue stream is much greater than that, no creator with any sense is going to be in the least concerned (or motivated) by that kind of postmortem increase, even if hir great-great-etc. grandchildren are all that s/he cares about in the world.

    Rather more to the point, publishers won't pay any more for those distant rights, not least because there's no guarantee at all that the work will still be selling just as well in the future as it might next year.

    [u]That[/u] is the reason for the near unanimity among heavyweight economists on the failure of today's terms as incentives.

    [1] We're already into "spherical cow" territory here
    Yagotta B. Kidding
    • Since it's not the money...

      ...it's gotta be about control. Maybe Disney et al. don't want Snow White, Mickey Mouse, etc. starring in a prOn movie. Maybe that's just too bad.

      Alternatively, these characters are so associated with Disney that Disney could, should, and maybe already HAVE trademarked them (in the case of Snow White, the illustrated character but not the name, which is obviously PD unless one of the Grimm brothers wants to hit someone upside the head with the DMCA). Trademarks have always been perpetual, as long as you use them regularly (use it or lose it).

      That would give Disney the control they need (and one could argue deserve) without shackling a bunch of old movies to a bunch of poorly-defined rightsholders in the name of not a whole lot of money (for the most part).

      Another alternative would be to require escalating renewal fees every 5-10 years to maintain a copyright. This would encourage rightsholders to let marginally profitable works enter the public domain, while still let Disney cash in on their works (at least the better-selling ones like Snow White, vs. esoterica like the Alice Comedies).
      jabster17