Public Domain: What It Is and How to Make Games with It

Contents:

• What is the public domain
• Why the public domain deserves attention from developers
• Examples of using public domain assets in a game
• How to make games based on intellectual property that has entered the public domain
• Can an interpretation of the public domain be considered fan art?
• New is well forgotten old

Where can you find inspiration for creating a unique game? How can you legally use someone else's intellectual property? What if you have a small team and limited resources, but still have a lot of creative ideas for a project? The answers to these questions can be found outside the gaming industry.

Explore various fields, such as literature, art, and film, which can become an inexhaustible source of ideas for your game. Pay attention to current trends and cultural phenomena that can inspire the creation of original content.

It is important to remember that borrowing ideas does not mean violating copyright laws. Use elements such as mechanics, genres, and styles rather than directly copying existing works. There are many ways to adapt and rework ideas to make them unique and align with your vision.

If you have limited resources, focus on simple yet original concepts that can be implemented with minimal effort. Creative thinking and out-of-the-box thinking will help you create an engaging product that will engage audiences. Consider collaborating with other developers or freelancers to combine efforts and create something truly unique.

At GDC 2022, game designer and artist Chris Totten presented a talk on creating games based on public domain works. In this talk, he discussed in detail how to use historical and cultural materials to develop unique game content. Skillbox Media's GameDev editorial team offers insight into the key ideas and recommendations outlined by Chris Totten to inspire developers to leverage the wealth of the public domain in their projects.

Chris, an associate professor at Kent State University and the head of the game design department, is the founder and creative director of Team Nemo. The team is currently working on the non-linear platformer Little Nemo and the Nightmare Fiends. Chris also runs Pie for Breakfast, where he developed the board game La Mancha, inspired by Miguel de Cervantes' Don Quixote. He also organized a video game exhibition at the Smithsonian American Art Museum and is the author of several books on game design, level design, and animation. His experience and achievements in game development and education make him a significant figure in the industry.

What is the Public Domain

The public domain is a body of creative works that is no longer under copyright, usually because the copyright has expired. This allows developers to freely use these works in their projects. It is important to note that the public domain includes not only literary and artistic works, but also musical compositions, films, photographs, and other creative forms. Using public domain materials promotes innovation and creative expression, as it allows for the creation of new works without legal restrictions.

Please note that, depending on the country and jurisdiction, a work may be protected by copyright in one country and be in the public domain in another. The speaker emphasizes that he does not have a legal education. Therefore, if you have any doubts about using public domain works, I strongly recommend consulting with an attorney specializing in intellectual property issues. This will help you avoid potential legal problems and correctly interpret the legislation in your country.

According to US law, copyright in a work, if a specific author is assigned to it, depends on the date of its publication. It is important to understand that for works published before 1978, copyright lasts for 95 years from the date of publication. For works created after 1978, copyright lasts for the life of the author plus 70 years. If the author is a legal entity, the copyright term is 95 years from the date of publication or 120 years from the date of creation, whichever expires first. These rules help protect creative works and ensure that authors and their heirs have the right to receive royalties for the use of their works.

• after 1978 — for the author's lifetime + 70 years;
• from 1964 to 1977 — 95 years after publication or release;
• from 1927 to 1963 (if the owner renewed the copyright) — 95 years after publication;
• from 1927 to 1963 (if the owner did not renew the copyright) — falls into the public domain;
• in 1926 and earlier — the work falls into the public domain.

Russian legislation regulates copyright issues quite simply. Copyright is valid for the author's lifetime and continues to be valid for 70 years after his death. Exceptions to this rule are provided for by the Civil Code of the Russian Federation. This is important to consider when creating and using works to avoid copyright infringement and the associated legal consequences.

When a work enters the public domain, it is important to consider certain nuances. For example, the name of the character Tarzan, created by Edgar Rice Burroughs, is protected by trademark. Large companies regularly license the name, highlighting the importance of intellectual property rights even when a work has entered the public domain. These aspects underscore the importance of respecting copyright and the need to understand the legal boundaries associated with the use of famous works and their characters.

The developer has the right to use the Tarzan character's image, as Dynamite Entertainment did in the "Lord of the Jungle" comic book series in the 2010s. However, mentioning the character's name in the game title will be prohibited. Furthermore, the use of other trademarks associated with the works must be avoided, as they are owned by Edgar Rice Burroughs, Inc., a company controlled by relatives of the author. This restriction is important to keep in mind when creating content to avoid legal issues and protect your interests.

It's important to understand the distinction between public domain and protected brands, such as the character Tarzan. Tarzan, as a literary character, entered the public domain due to the expiration of the copyright on Edgar Rice Burroughs' works. However, the Tarzan brand is protected by trademark and trademark protection, which limits its use. This is why there are many adaptations and interpretations of Tarzan stories, but only those companies that have acquired the license can use the character's name and likeness in their projects. This highlights the importance of legal protection of intellectual property and the need to respect copyright in entertainment and media.

Why Public Domain Content Deserves Developer Attention

Using such content is free, making it accessible to any project. It can also significantly transform your project, infusing it with freshness and new ideas.

Chris illustrates his point with a still from the 1957 cartoon "What's Opera, Doc?" In this scene, Siegfried, depicted as a Viking, pursues his adversary, Bugs Bunny. In response, the rabbit takes the form of the beautiful Brunhilde, thereby luring the protagonist into a love affair.

This story is an improvisation inspired by the plot of Richard Wagner's opera "Die Walküre," first performed in 1870. An example of reimagining classical works is the project "What's Opera, Doc?", which demonstrates how artists and performers adapt and interpret classical themes in a modern context.

One of the most famous musical compositions from the opera, "Ride of the Valkyries," is heard in an iconic scene in Francis Ford Coppola's film "Apocalypse Now" (1979). This epic motif accompanies a thrilling scene where aerial cavalry bombards the coastline and a Vietnamese settlement, creating a tense atmosphere and emphasizing the drama of the action. Wagner's music in this context enhances the emotional weight of the plot and remains in the memory of viewers as one of the most striking moments of cinema.

After the release of the film, the composition became a symbol of a large-scale air attack and its devastating consequences. A reference to Coppola's film is present in the game Far Cry 3, where similar themes can be seen.

Wagner's operas span several generations and continue to influence contemporary art. The musical, sound, and visual elements of his works, which have entered the public domain, open up opportunities for various interpretations and adaptations over time. These elements can be used as cultural references, conveying atmosphere and emotional charge, or, conversely, serve to create a comic effect. As a result, Wagner's legacy becomes not only a source of inspiration, but also an important tool in the contemporary cultural context.

Examples of using public domain assets as game assets

This screenshot shows a scene from Four Last Things, developed by Joe Richardson. It is an adventure game with point-and-click mechanics that uniquely combines elements of original Renaissance paintings. The "Tormented Middle Ages" aesthetic attracted the attention of players and critics, generating numerous positive reviews. This unconventional visual approach has led to the game winning several prestigious awards. Four Last Things offers players an immersive storyline and vibrant graphics, making it appealing to adventure game lovers.

Chris Totten took a unique approach in his project Lissitzky’s Revenge, drawing inspiration from the posters of El Lissitzky, a renowned Russian avant-garde artist of the 1920s. As an artist and game designer, he created 2D assets for his game himself, allowing him to seamlessly combine art and game mechanics. This project not only showcases Totten's talent, but also highlights the importance of avant-garde art in contemporary game design.

Suprematism is difficult to convey through the sounds of modern free music, so the developer turned to a website dedicated to early 20th-century music. Like Lissitzky's works, the compositions on this site were considered public domain, allowing the game designer to use them as the soundtrack for Lissitzky's Revenge. The game's uniqueness is given by the characteristic crackle of vinyl records, creating an atmosphere and immersing the player in the Suprematist era.

Chris noted that it took him about two weeks to research the music. Since Lissitzky's Revenge took approximately three months to develop, this means that music selection accounted for about one-sixth of the total development time. If you plan to use public domain content in your games, be sure to dedicate sufficient time to researching and verifying sources. This will help ensure high quality and compliance with your project.

Using music from the last century allowed Chris to significantly reduce the budget. However, this did not simplify the development process of Lissitzky's Revenge. The game designer had to not only select suitable thematic music but also create art that matched the artist's style. It was also necessary to develop engaging level design and finalize the overall concept of the game to make it truly appealing to players.

When working with public domain content such as music, photographs, and paintings, it is important to carefully research its origins. For example, the rights to the recording of "Ride of the Valkyries" performed by the Orchestre de Paris belong to the German recording company Deutsche Grammophon. To avoid legal issues, it is recommended to download the original sources from trusted portals that specialize in content in the public domain. This ensures that you are using copyright-free materials and can legally integrate them into your projects.

Original files for works can be found on specialized websites dedicated to the historical era of their creation. It is important to carefully check the information on each resource to ensure its accuracy and relevance. This will help you deepen your knowledge and better understand the context of the work.

How to Make Games Based on Public Domain Intellectual Property

Let's consider the issue using the original book "The Wonderful Wizard of Oz," written by L.F. Baum in 1900, as an example. The success of this fairy tale inspired the creation of a series of subsequent stories, which were published even after the author's death. Today, Baum's works are in the public domain, which explains the large number of film adaptations, many of which were released in the 1970s and 1980s. The main reason for this interest in adaptations is the expiration of intellectual property rights. Literary classics continue to inspire new generations, confirming their relevance and significance in the contemporary cultural context. Works that have entered the public domain continue to inspire new stories. A striking example is Gregory Maguire's novel "The Witch: The Life and Times of the Western Witch of Oz," in which the author profoundly reimagines the world created by L.F. Baum. This shows how classic literature can serve as a basis for fresh interpretations and new narratives, allowing modern readers to rediscover familiar plots and characters.

In the gaming industry, City State Entertainment studio presented an original concept inspired by the Oz book series. They developed a unique tower defense game for iPad called March on Oz. This game combines strategy elements and an engaging storyline, allowing players to immerse themselves in the magical world of Oz, defending their territories from various threats.

If you plan to use a public domain work in your project, it is important to ensure that your story does not include copyrighted elements from previous interpretations. For example, you should not give the heroine the red shoes known from the 1939 film "The Wizard of Oz", since the rights to that film are owned by Warner Bros. You should also avoid using silver slippers to avoid copyright infringement.

Content can be inspired not only by classic works of art but also by films. George Romero's original film "Night of the Living Dead" fell into the public domain due to a distributor error. This circumstance inspired indie developer Salt & Pixel to create a prequel to this cult film for the Game Boy platform using GB Studio's game builder. This approach demonstrates how film and video games can intersect, inspiring new creations and offering fresh ideas for developers.

Chris Totten chose Winsor McCay's Little Nemo in Dreamland (1905–1914) comic book series as the basis for his new project, Little Nemo and the Nightmare Fiends. The game designer has good reasons for this choice. This classic work is known for its vibrant illustrations and unique storyline, making it the perfect basis for creating an immersive game universe. McCay's comics immerse readers in a dream world where reality and fantasy intertwine, opening up ample opportunities for interaction and exploration through playful exploration. Incorporating comic book elements into a video game will create a unique atmosphere and attract both fans of the original and new players interested in exciting adventures. Thus, the project has the potential to be not only a tribute to classic art but also an original work capable of engaging a wide audience.

• There is no need to pay for a license.
• The work already had its audience: fans of both the classic series and more modern adaptations in the form of the animated film Little Nemo: Adventures in Slumberland (1989) and the Netflix family adventure Slumberland (2022); people interested in comics; representatives of the educational sector.
• All of these social groups include video game fans.
• Using the famous series opens up alternative ways of promoting the game, such as displaying it in museums, libraries, and bookstores.

Can an interpretation of public domain material be considered fan art?

Chris recalls that at the Open World: Video Games & Contemporary Art exhibition, curator Teresa Bembnister explained the differences between fine art and fan art. Artwork presented in galleries, magazines, and museums is subject to rigorous review and critical analysis. Fan art, however, which demonstrates the illustrators' high technical and commercial skills, attracts little interest from cultural institutions. Such projects rarely receive curatorial support and are not subject to preservation in museum collections, which calls into question their status in the world of contemporary art.

Can content based on a public domain work be considered fan art? Technically, yes, since the author may be a fan of the original work. However, it's worth noting that fan art cannot be sold. For such cases, the art industry has a separate category: derivative work. Some may perceive this definition as snobbish, but in reality, it refers to creative work that retains key elements of the original source. Derivative works often become the basis for parodies or readymades. The creation of such works can bring new ideas and interpretations to already known plots, expanding the boundaries of creativity and inspiration.

Developing games based on public domain works allows for a new interpretation of the original material and strengthens its cultural heritage for future generations. For a project to be unique, it is necessary to infuse fresh ideas and approaches into the source content, as was done in famous examples such as the composition "Ride of the Valkyries". This not only enriches the player's experience, but also contributes to the popularization of classic works in the modern world.

New is well forgotten old

While mastering the fundamentals of the architectural profession in his youth, Chris actively explored the cultural objects surrounding him. This gave him the opportunity to draw inspiration and find solutions to various problems based on specific examples. He might study works in a favorite architectural style or create a project that references or contrasts the original source. This is the essence of art, but games don't always cope with this task effectively.

Achieving true originality in the modern environment of technology can be a challenging task. However, as practice shows, masters in various artistic fields successfully cope with these limitations. Chris recommends Austin Kleon's book "Steal Like an Artist." This book had a significant influence on his process of creating the board game and can be useful for those who strive for innovation in their creativity.

Creating games requires significant effort and resources, and even the most careful plan does not guarantee success. In developing La Mancha, Chris had to actively collaborate with literary scholars, manage the board game's production remotely, and organize logistics. These tasks required two years of dedicated work. A similar situation developed with the Little Nemo project: Chris invested a lot of time in research and experimentation to better understand McCay's visual style and adapt it to the video game. These efforts resulted in a successful Kickstarter campaign, which confirms the importance of a quality approach to development and research in the games industry.

Reimagining a public domain work depends on the developer's breadth of vision, creative skill, and ingenuity. It's important to avoid simplistic gimmicks and inappropriate use of intellectual property. A high-quality approach to interpreting such works opens new horizons for creativity and contributes to the development of culture. It's important to maintain respect for the original while adding your own ideas and concepts, which can lead to interesting results and a deeper understanding of the work.

The itch.io platform offers developers a unique opportunity to experiment with public domain content by hosting annual themed jams. These events highlight the creative use of open resources. In addition to the main jams, third-party events are organized from time to time. For example, the Spanish Ministry of Culture supported a jam dedicated to projects based on national public domain works. This highlights the growing interest in cultural heritage and its integration into modern developments.