Public Domain Mario

For many people, the original Super Mario Brothers is the game.  Many people in their mid to late 20s grew up playing Super Mario when they were kids, and pretty much every gamer plays a few of the Mario games at some point in their lives.  The game is iconic, recognizable to gamers and non-gamers alike.  

Recently, a college student by the name of Josh Goldberg attempted to write a browser version of Super Mario (called Fullscreen Mario). The website copies over the entire game so that it can be played in a browser.  This has, unsurprisingly, gotten Goldberg in trouble with Nintendo.  Nintendo sent a cease and desist order, asking Goldberg to take the site down.

As Timothy Lee over at the Washington Post points out, Super Mario Brothers would be in the public domain in a few months under the original 28 year copyright period (one 14 year period with the option to renew for another 14 years).  The public domain consists of works that are no longer protected by copyright, and can be used by anyone.  That second part is the most important part of the public domain.  Since anyone can use the material (such as the levels in Super Mario), they can reimagine or create their own versions for public consumption.  Many companies actually put public domain works to great use.  For example, Disney built many, many movies around Brothers Grimm fairy tales owned by no one (Snow White, Sleeping Beauty) as well as recognizable works whose copyright terms expired (Alice in Wonderland and The Hunchback of Notre Dame for example).  Disney’s works are often vastly different from the original material, and that difference gives the works an inherent value apart from the value of the original. 

With copyright terms significantly longer than 28 years (the current term is the life of the author plus 70 years), fewer and fewer works (like Mario) fall into the public domain.  The problem with the length of that term is that a number of works (some going back to the 1920s, like Steamboat Willy) remain locked up by the descendents (sometimes the grandchildren) of the original creators.  This curtailed public domain limits the ability to infuse that material with a fresh perspective or different approach.  The gaming community knows this particular benefit well, given the strength of the modding culture that permeates computer gaming.  Modding (derived from “modifying”) involves making tweaks or changes dedicated individuals make to the code of a game.  These range from silly (if you ever wanted to fight a dragon version of Macho Man Randy Savage in Skyrim, you can) to significant (dedicated fans actually found cut content for Knights of the Old Republic 2 and added it back into the game).  While there are some profound differences in the legal status of a mod versus a project like Golberg’s, both bring added value to the source material independent of the original creators.  Works instead get locked up for well over a century, severely limiting the ability of young artists (or programmers in this case) to create.

That should be it for this week.  Enjoy your weekend everyone. 


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