fuzzy notepad

[blog] Copyright is broken

Undertale is a fantastic game. I might even write about it sometime. But not right now.

See, Undertale’s creator said a few weeks ago that taking Undertale commissions is fine, but selling unofficial merch is not. I said yesterday that I think this is kind of uncool, and I was somewhat surprised to get half a dozen people instantly disagreeing with me for various reasons. I thought about this a lot in the shower, and here are some words.

First let me clarify why I think this is uncool. The merchandise I had in mind was buttons and stickers and prints and other physical incarnations of art. You see this kind of stuff sold rather a lot at anime conventions, because it works really well — it combines a popular subject with unique custom artwork. Commissions are all well and good, but they don’t pay very well and there’s a physical limit on how many a single person can do. It’s much more efficient to put more time into a smaller number of things with broad appeal, then sell them as physical objects to a greater number of people.

That’s what I see being disallowed here. Someone could pour days or even weeks into a beautiful illustration, and then not be able to sell it — to be compensated for their hard work. Meanwhile, the free spread of that same illustration online helps keep the source material popular, fueling more sales of the game.

Some people said, well, he might want to sell his own merchandise. My kneejerk reaction is that maybe he should get on that then? He even had a head start, seeing as he knew everything about the game long before it was released. My second kneejerk reaction is that I really doubt artwork competes with itself as strongly as direct copies might; there are plenty of people who will gladly buy many different depictions of the same thing. There’s a cap on how much a given person can spend, sure, but official merch is always wildly popular and I can’t see it seriously being cannibalized by a few indie keychains.

But the more I thought about this, the more I started to wonder: why do we even take for granted that he should have a monopoly on merchandise?

Copying versus deriving

Copyright was originally invented for books. More specifically, it was invented as a reaction to the invention of the printing press, which suddenly allowed books to be printed at (relatively) little cost. Anyone with a printing press could churn out new copies of someone else’s book and sell them without giving the author a dime.

Sure, okay. If you’re trying to sell a thing, but someone else is either selling identical copies or outright giving it away, that sucks. You might decide it’s not even viable to keep writing, and then everyone loses out, because there’s less writing in the world. Hence, copyright: the right to copy.

But this is about fan work, which is not copying. Fan work is created from scratch. It’s new.

Ah,” you may say, “but it’s the same characters!” That’s great! It’s not a copy, though, for any definition of “copy” I’m aware of. Fanart may take heavy inspiration, but the artist still had to come up with the poses and colors and setting and composition and interactions, plus do the actual work and inject their style.

But,” retorts my strawman, “it piggybacks on his popularity. It couldn’t exist without the source material.” Interesting. Consider this quote from the creator:

The inspiration for the talking system came from Shin Megami Tensei. … The inspiration for the defensive segments came from the Mario & Luigi RPG games and bullet hell shooters like Touhou.

The talking system and defensive segments are pretty fundamental to the feel of the game. You might say the game couldn’t even exist without them, not as it is. That it couldn’t exist without taking ideas from Shin Megami Tensei and Mario & Luigi and Touhou. That it piggybacks on the popularity of those mechanics and genres.

Should he be allowed to make a game that relies so fundamentally on other people’s ideas, which they depend on selling? Of course he should; it would be ludicrous to suggest otherwise. But why? Those aren’t obvious ideas; they’re just very well-known ideas, made well-known by the popularity of the games that used them. He could’ve used different ideas, and maybe his game wouldn’t have been as popular. Artists could draw different characters, and maybe their art won’t be as popular. What’s the fundamental difference here?

I’m not sure there is one.

Maybe anything popular enough to be piggybacked upon in the first place is popular enough that the piggybacking is very unlikely to be a threat.

See, I have this heretical idea that maybe people don’t deserve infinite money. Maybe once they have enough, we should stop wringing our hands over whether they’ll be able to get even more money, and turn our attention elsewhere.


I’m not trying to pick on Undertale here! Really, I’m not. It just happened to inspire this whole train of thought. Allow me to pick on someone else for a moment.

Let’s talk about Undertale and money.

According to SteamSpy, which I suspect is reliable, Undertale has sold at least 160,000 copies via Steam alone. At $10 each, that’s $1.6 million. The creator is a millionaire.

Whoops, no he isn’t. Steam takes 30%. 30%. A third! That’s at least $485K — effectively half a million dollars. For what? The privilege of being well-known and accepting credit cards. That leaves $1.13M, of which $405K will go to taxes (assuming US, filing single), leaving $727K net. We always joke about how taxes will decimate any windfall, but Steam takes 25% more than the IRS.

To be fair, Steam’s actual services still cost money. Alright. Undertale is 125MB, times 160,000 copies is 40TB of transfer. Amazon S3 charges $3,450 for that much transfer in a month. Stripe charges 2.9% + 30¢, which is 59¢ per copy sold, or $94,400. Those are the only things Steam contributes to this game, and purchased directly, they cost less than a hundred grand. They should be even cheaper for Steam itself, which can operate in hyperbulk. So in total, Steam has taken $400,000 from this indie developer as overhead. A quarter of his sales. Just because it can.

People tell me they’re concerned that a few artists making a couple hundred bucks selling buttons are the real danger, taking advantage of a popular thing to turn a profit. They might, hypothetically, eat into the sales of the hypothetical things he might decide to sell later. All the while, a middleman is eating a massive chunk of his sales now, but no one bats an eye.

Our perceptions of these systems are completely, utterly fucked up.


Consider that fanart is basically verboten, everywhere, always. It’s nice that Undertale’s creator said it’s okay, but (I am not a lawyer) I’m not sure that’s legally binding — if he felt like being a colossal asshole, he could just delete his tweet and sue you. Entirely within his rights. The default of copyright is total control, and without some kind of legal agreement, that doesn’t change.

The only creators with the resources to write such an agreement are the ones least interested in doing so. What are you going to do, email Nintendo and ask for permission to sell Pikachu stickers? They don’t know who you are; they don’t want the liability of entering into any kind of contract with you; they have no reason to say yes.

They might have had one reason: goodwill. People will respect you a lot if you come out and say directly that fan work is okay. But not enough people for it to be worth it to a corporate monolith, because most people don’t really care. We’re kind of accustomed to this state of affairs. It makes perfect sense that someone can draw from Dracula and write Twilight, but you can’t do the same with Mario. That would be mere fanfiction, and yet the very phrase “Dracula fanfiction” seems preposterous.

Why? There’s no good reason. Dracula and Mario were both invented by a person, and refined by other people’s ideas over time. Both of them have existed for longer than I’ve been alive. The only real difference is that we ascribe Mario to an entity that’s still around, so we take for granted that they deserve exclusive use of an idea that’s in everyone’s head. An idea that they profited off of putting in everyone’s head.

Law inspires our sense of morality; we easily confuse what is legal with what is right.

Yet paradoxically we draw fanart anyway. The general unspoken consensus seems to be that we ought to be able to do this, and that the world is a little richer for it. There are entire miniature economies built upon artists selling their fan work.

This is exactly what copyright is supposed to accomplish! It’s meant to encourage creation, not just for the sake of the creator, but for the sake of everyone else. For the sake of culture. This isn’t some zany hippie interpretation; here is a quote from the Google Books decision earlier this month:

While authors are undoubtedly important intended beneficiaries of copyright, the ultimate, primary intended beneficiary is the public.

Plus it’s in, you know, the goddamn Constitution:

To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries.

This is why copyright expires at all: because the whole point of encouraging people to make more things is that they get added to the culture. Copyright is not supposed to be a magical money fountain that makes you rich forever because you had an idea once. It’s a nice thing everyone else does for you, to encourage more people to make more things.

But all that fanart violates copyright. All that creation, of new things, could be shut down if the copyright holder felt like it. Even though none of it is actual copying. At some point copyright gained the notion of a “derivative” work, which is a very fuzzy and poorly-defined concept that a court has to turn into black and white. There’s not really any gray area: you infringe or you don’t, it’s fair use or it isn’t. We’re left with this paradox around fan work, this tension that no one seems sure how to address, because it utterly defies what the law tells us is right.

When copyright was introduced, “creators” were a sort of elite. You had to have a lot of equipment and resources, or more likely, you had to attract the attention of someone who had a lot of equipment and resources. But now you can create all manner of things with a computer, an internet connection, and maybe a few hundred bucks’ worth of hardware. You can learn to make anything, and share it with the world. But copyright law is still designed for that ancient fantasy world, where everyone either spits out new and entirely original works or is a quiet consumer of them.

Copyright is strangling us. In a time when creation is easier and ideas spread more quickly than ever, you’re not allowed to actually use most of pop culture as inspiration. You can hope to stay under the radar, you can start from complete scratch, or you can limit yourself to things made before 1923. A glorious new world.


Copyright also keeps ballooning in scope and duration, because the people with all the money want to be able to milk their work for as long as possible. Because they “own” it. It’s “theirs”.

How can you claim to permanently own an idea that’s in the heads of hundreds of millions of people?

And how does this perform the job of copyright, to encourage more creation, to enrich public culture? Nothing new has been added to the US public domain since 1998, and nothing new will be added until 2019 — assuming we don’t extend copyright duration yet again. Meanwhile, especially for big players, this eternal exclusive right to an idea encourages beating a dead horse for as long as it’s profitable. Why would you risk introducing a new thing, when you can just keep reinterpreting something you already know is popular? Surprise: we live in a world of sequels, a world where Nintendo is still charging $5 for Super Mario Bros. thirty years and innumerable other Mario games later.

Did you see that HTML5 reimplementation of SMB? Completely original engine that happened to use another game’s graphics and levels. I assume the developer made it because they have fond memories of SMB as part of their childhood. Part of their culture. Nintendo had it taken down. How can they continue to sell nostalgic people a game they’ve already played, if it’s online for free?

Even the original protection against “copying” is crumbling and doing plenty of collateral damage as it goes. Computers make copies all the time. We still don’t even know what “copy” means as applied to digital work. So we’ve skipped the idea entirely and don’t even try to sell digital work; instead we sell licenses.

You have a right to resale, and the rise of licensing trashes it. Steam, EA’s thing, every single console with a digital store, iTunes, Amazon Kindle, the list goes on — none of them allow you to sell or give away the things you’ve bought, and most enforce this with DRM. Because you haven’t bought things, you’ve bought licenses. For physical objects we would find this utterly ludicrous, but we quietly accept it once you put it on a computer.

Physical objects seem different because they can’t be trivially copied… but that’s the only point of the DRM, right? So you’re limited in what you can do with the thing you bought to prevent you from copying it, and you still can’t resell it or give it away or get a refund? Excuse me?

You could fabricate a philosophical reason for this, but here’s my much simpler one: they make more money this way, and they can get away with it. Why sell only one of a thing, when you can sell several of it, possibly even to the same customer? (How many times have you bought Super Mario Bros.? It’s just one game, the same every time. They didn’t do anything new to do it; they just put it in a different box. It was only a quirk of technology — or, now, entirely deliberate — that you couldn’t play the old game on newer systems.)

Is this what copyright is for? To “protect” multinational corporations from the tyranny of not being able to sell the same thing to the same person more than once?

And copyright is now 70 years after the death of the author. That’s two entire lifetimes between something’s creation and its entrance into the public domain. To put this into better perspective: if these rules had applied to the US Constitution, it would have remained under copyright until 1907.

Who does this benefit? You could argue that a creator deserves to own their own for their entire lifetime, but then why the 70 years? Does a great-grandchild really deserve exclusive ownership of a work that they didn’t create?

This really only benefits corporations, who incidentally, don’t actually make anything. They aren’t people. They have no imagination. They can fund things, and then buy the copyright, but that’s about it.

I kind of resent how copyright is so often framed as “protecting creators”, when the copyright on the most popular things isn’t even owned by the people who created them.


It’s kind of a joke, anyway.

IP law is largely civil. There are some criminal bits — did you know you can be fined up to $2500 for removing the signature from an illustration? — but they only matter if the federal government decides to charge you. And they have no reason to go after you for $2500 when that won’t even cover the court costs. So copyright really only protects you if you’re willing to sue someone for violating it. Suing is a long, painful, expensive process, and if you’re an independent creator, you might not get enough out of someone to cover your court costs either. That’s assuming you even know who they are so you can sue them.

The people best equipped to actually enforce copyrights are the same people who already have gigantic piles of money to fuel their legal teams — the same people who are least threatened by copyright infringement.

There’s the DMCA, of course, which carries some of the stern weight of a legal threat without needing to actually be one. But it’s pretty easy to send a fraudulent one, and if the target is some nobody, there’s not much risk of legal retaliation. If you’re a big company, you can even hire automated systems to send tons of DMCAs automatically with little regard for whether they’re valid, or maybe wield them as a club against your competitors:

In its submission, Google notes that more than half (57%) of the takedown notices it has received under the US Digital Millennium Copyright Act 1998, were sent by business targeting competitors and over one third (37%) of notices were not valid copyright claims.

We don’t know how much those categories overlap. If not at all, then only 6% of the DMCAs that Google receives are actually valid. If entirely, then two-thirds of the ones sent by businesses to their competitors are fraudulent. Either way, due to how DMCA takedowns work, Google doesn’t get to judge their validity; it has to obey them.

Much more often, copyright is “enforced” at the platform level, via various ad-hoc mechanisms. YouTube, for example, has its ContentID system. Which is trivially defeated by borders and pitch-shifting, which is frequently confused or abused into putting ads on creators’ work that pay out to someone else or blocking work because it “infringes” a derivative work, and which has no real appeals process. Oh and just for fun here’s a story about a musician who was told their channel would be blocked if they didn’t agree to have ads on their own free music.

Fair use and derivative works are murky enough concepts in the court system, so it’s no surprise that they break down entirely here. No one’s quite sure what fair use is in the age of remixing, and if you want to find out, you have to go to court.

This system is really designed around the usual demands of the music and film industries: extract every penny in every way you can possibly imagine, or we will take our contracts and money elsewhere. Surprise, Google appeases them.

Under current copyright law, they have every right to do this, of course. (Even without it, they’d have every right to do this; you can dangle your piles of money however you want.) But I have to wonder when it stops being “rightful protection of what’s mine” (or, rather, “what I bought”) and starts being “really fucking greedy”.

The theme I’m going for here is that big players get to do whatever they want (even violate copyright with little fear of punishment), while small players are largely left to the mercy of middlemen.

Or… maybe it’s not. Remember that Patreon scraper? It’s still up, still scraping. Pretty sure that violates copyright law, like, a lot. Doesn’t seem to be helping. But then, The Pirate Bay is still up, too. And as far as digital work is concerned, one isn’t much better than one thousand.

So maybe the real theme is that despite everything, the very thing copyright sought to prevent is still rampant — and the world has not ended. Movies and games have larger budgets than ever, but make more money than ever. Indie creators usually get ripped off by people who can’t create anything on their own, and thus don’t have the audience to pose any serious financial threat. Lots of hosts and platforms will take down obvious ripoffs without a formal DMCA, because they believe it’s the right thing to do.

We want, individually, to reward creators for their work. We want them to keep creating. That’s why Patreon can even exist. Do we really need such paranoid shackles?


It seems to me that the world of copyright law is actually two worlds: the big and rich who can wield the court system to enforce their whims, and everyone else who relies on the goodwill of hosts and platforms.

It seems to me that the current copyright system encourages greed and stagnation and concentration of influence more than it encourages a rich and fluorishing culture.

It seems to me that we could all stand to be a little less possessive of our ideas, and a little more delighted when they inspire someone else.

It seems to me that we live in an era where transforming things into new forms is trivially easy, and we’re missing out by not having corresponding protections.

It seems to me that copyright law is not actually a silver bullet in practice, yet we’re managing pretty well nonetheless.

I don’t propose abolishing copyright entirely. If nothing else, it does still serve one important function, its original function: it prevents a large publisher from mass-producing an individual’s work without permission.

I wouldn’t mind seeing a few… minor adjustments, though.

  • Cut copyright duration to something like 10 years. Maybe a bit longer (or shorter) for a corporate owner, maybe account for delayed publication. 10 years is a pretty good chunk of a human life; consider using that time to make a second thing. I don’t care about your damn kids; they can make a thing too.

  • Severely curtail the scope of “derivative work”. Give more breathing room to fan artists.

  • Explicitly acknowledge that the more popular an idea becomes, the less ownership you can reasonably claim to have over it. Kind of a fuzzier version of what happens with trademarks, where they can be lost if they enter the vocabulary as a generic term. This is the cost of hyperpopularity.

This probably isn’t going to happen. Even now, the TPP is trying to entrench the US’s ludicrous copyright terms internationally. Alas.

On the bright side, the world is changing, even if the law isn’t. Technology has made photography and digital art trivially accessible, and it’s well on the way to doing the same for music. Games and video are getting there. As it becomes ever easier to create things without a huge upfront investment, publishers will become gradually less relevant. Cultural power will be less concentrated. No one will need to amass millions of dollars, because they won’t need all that money to fund their next thing.

I can dream, anyway. It doesn’t help that gatekeeping is still a thing, or that there’s a strong trend towards further centralization on the Web, or that the existing law is so entrenched that suggesting anything else sounds heretical. I hope the winds change, and we stop believing that having a thought gives you a monopoly over other people’s thoughts.

In the meantime, have you considered releasing your work under Creative Commons?

  • #law

If you like when I write words, you can fund future wordsmithing (and other endeavors) by throwing a couple bucks at my Patreon!

(illus. by Rumwik)