Responding to Things We Think About Games:When is a Game Actually Considered "Dead"?

In yesterday's blog post, I mentioned a couple of older games that had game mechanics that simulated or encouraged mundane activities in games devoted to heroic activities. These activities ranged from the item creation and crafting rules in Dungeons and Dragons Third Edition and DC Heroes post-character creation Gadgeteering rules to the Karma rules of Marvel Super Heroes and the kingdom governing rules of D&D's Birthright Setting. Looking back at that list, I realize that quite a few of those games are what can be considered "dead" properties. This got me to thinking about an entry in Will Hindmarch & Jeff Tidball's book Things We Think About Games:

STATEMENT 88
A game that is no longer supported is called "dead."

But that's business jargon. Don't let the state of a game line's release schedule determine whether or not you play it. Play it because it is fun.

Gamers who are active in the "Old School Renaissance" community are definitely followers of this maxim. Since the creation of the Open Gaming License, which put the mechanics of the 3rd edition of D&D into the Open community, the "Old School Renaissance" has been actively promoting the play of older role playing games. Some of the games that have benefited from this community's efforts include Dungeons and Dragons (Original, Advanced, and Basic editions -- I'm still waiting for the OSR 2nd Edition and the storm of controversy that will cause in the community), Gamma World, TSR's Conan RPG, and Marvel Super Heroes. Every one of these games has had an OSR reboot designed to introduce new players, or rekindle the imaginations of old school players, to the joys of those early systems.

These homage editions vary between efforts that retro-fit the rules set made open by the OGL and efforts that are designed under the assumption that the specific wording of rules can be copyrighted but not the underlying mechanics. Regardless of how technically correct those who design games under the second assumption may or may not be, they have all made a concerted effort to avoid use of undeniable product identity. Zefrs and 4C fall into this category and demonstrate how one can make an engaging rpg while stripping out the underlying trademarked source material.

I carefully couched my words in the above paragraph for a couple of reasons. The first is that I don't actually agree with the premise that the underlying mechanics aren't copyrighted with the other parts of the intellectual property. I would argue that those mechanics constitute the actual intellectual property and not the particular phrasing of those mechanics. Second, I think that these creators are doing us a great service. These products have been completely abandoned by their creators, with regard to the underlying mechanics, and a copyright system that doesn't take into consideration the concept of "abandonware" is in need of revision. Third, the Old School Renaissance community I was very active in during the late-nineties and early aughts took a very different approach to the issue -- and even that approach has some interesting complications.

I was a very active member of the DC Heroes online community, a community so active in the support of its game system that some of its members licensed the right to produce another game based on that system in order to keep it alive. That game, Blood of Heroes wasn't the most professional looking product with regard to illustrations, but it contained a meticulously playtested version of the underlying mechanics of the game. What is interesting is that even though Pulsar Games, a company made up of fans of the DC Heroes' MEGs system, licensed the use of the rules, they still may not have been perfectly within the law.


According to Ray Winninger, the author of the 2nd edition of the game and of a derivative work called Undergroung:

As for DC HEROES itself:

1) Our contract with DC specified that DC Comics holds the copyright on every product we released. If you check the indices, you'll note they all say "Copyright (C) DC Comics Inc." The contracts didn't specify anything like "Mayfair owns the copyright to the actual game rules, while DC retains the rights to its IP" or anything similar, just "all DCH products are copyright DC Comics-period." This would suggest that DC actually owns DC HEROES. I know for certain that DC *believes* they own all rights to the game and everything produced for it and I suspect they're probably right.

2) Greg Gorden believes that his contract specified that he retained ownership of the DCH game system once DCH was out of print. When I was at Mayfair I looked for this agreement and couldn't find it-but that doesn't mean it doesn't exist. One potential problem is that it's unclear that Mayfair could have made such an arrangement with Greg in the first place. Remember, the DC licensing agreement specified that DC would retain full and perpetual copyright over everything we released.

3) Pulsar licensed DCH from Mayfair but it's not 100% clear that Mayfair ever had the necessary rights to grant such a license in the first place (#1 and #2 above). I believe that Pulsar later made a separate arrangement with Greg.

4) UNDERGROUND uses a variant of the DCH system-none of its specific text, tables or charts. The copyright to UNDERGROUND is not tied to the rights to DCH in any way. Mayfair no longer owns the rights to UNDERGROUND.

What is technically legal with regard to underlying rules hasn't been truly tested in a court of law, even though the Copyright Office has articulated that it is only the "form" of the rules that is currently protected -- tbone has some discussion why this should disturb the freelance game designer here. Personally, I favor greater protections for the game rules than the law currently holds, but I also am a huge advocate of greater creator rights and a diminishing of the dreaded "work for hire" that pervades the industry. There is no reason that Wolfgang Baur shouldn't have some ownership, in the form of residuals at minimum, if Hasbro decides to make derivative product from Dark*Matter except that the system of work for hire is broken.

On the positive side, the Wild West nature of the protections given to underlying mechanics do mean that we don't have to wait for a company to officially declare that something is abandonware before we start producing products using a reworking of the underlying mechanics for a neglected fan base -- and that's what we are really talking about here.

In a world where roleplaying game products can be stored on servers, at close to zero cost, for fans to purchase at any future time there is no excuse for a company letting a game "die." A company's bottom line with regard to a product doesn't determine the life span of play. It does determine the "product life span," but not the play life span. It is fans, and creators working after a product has "died," who determine whether a game is truly dead. And the internet has ensured that so many games aren't actually dead.

I still receive daily digests from the DC Heroes Yahoo Group. Every day someone is reworking the rules and converting characters. Savage Worlds would likely never have gained the audience it has today were it not for digital distribution and devoted fans writing for digital fanzines. The OSR is reviving games that I actually thought were genuinely dead. I was surprised to learn that people still play White Box D&D. I think it is awesome, but I was surprised.

In a post-internet world, when is a game truly dead? Does it require distributed support, even fan support to be counted as alive or does it merely need players?

What are your thoughts?