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Ever wonder why publishers – when they are talking about games, television programmes, movies and such – refer to them as “franchises”?

What it boils down to is copyright and derived works.

From a publisher’s perspective, the concept of a franchise is an important one. It can produce, or authorise others to produce material that is based on the original work (a derived work). That’s value over and above the sales-worth of the initial game, show, book or movie.

The short version is:

Only the owner of the franchise is allowed to tell new stories with the unique elements, characters and setting of the franchise, or to authorise others to do so.”

The authorisation of the owner is worth money. Often quite a lot of money. Millions of dollars may change hands to bring a book to film, to authorise a novelisation, a television series or a game sequel. Parties that want that authorisation will pay big, because the owner is the only game in town, and if they get that authorisation the existing consumer market for that franchise is open to them.

The folks who are spending and receiving all of that money, however, feel that the value for an authorised work is diminished significantly if everyone’s getting their fix of the franchise from unauthorised sources. It doesn’t matter if that feeling is actually true. The franchise is worth what the buyer and the seller agree its worth, and that’s based purely on their perception of the market.

Therein lies the problem.

The official side of the franchise cannot be all things to all fans. Someone will do a novelisation that not all of the fans like. Someone else pays umpty million dollars for authorisation for an MMOG (and then another dozen or twenty million dollars to actually make it), but it only resonates with a small number of fans.

So the hell what, you might think. There’s risks in any market, and any adaption.

But the people taking the risks obviously want to minimise them wherever possible.

Thousands of role-players come to play in Star Wars themed settings throughout Second Life (and other virtual environments) every week, to dress up as Stormtroopers, or clone armies, rebels, imperials, Jedi knights or Sith. They build their own sets and costumes, get together and get their Star Wars fix by role-playing in the fictional universe that they’re so fond of.

But they’re not going to Star Wars Galaxies – the officially authorised MMOG, that cost millions of dollars to license and yet more millions to develop and heaven-knows how much to actually operate. For whatever reason they’re not doing their thing there. They’re telling new stories with Lucasfilm’s properties, and doing so in an area where only Sony (the operators of SWG) and Bethesda Softworks (creators of the upcoming Knights of the Old Republic MMOG) have been authorised to do that – and who paid umpty millions of dollars for the privilege.

Bethesda and Sony could, in theory, make more money if they were the only games in town. Lucasfilm could certainly charge more money for authorisation, if that were the case. The law allows them to do this.

But it’s okay if it’s not for profit, right?

Actually, in the eyes of the owner and their authorised agents, it’s worse. Free is more accessible, and cuts into the market far deeper than something you have to pay for.

This is like the first three of the Old Testament Orthodox commandments:

You shall have no other gods before me. You shall not make for yourself an idol, whether in the form of anything that is in heaven above, or that is on the earth beneath, or that is in the water under the earth. You shall not bow down to them or worship them; for I the Lord your God am a jealous God, punishing children for the iniquity of parents, to the third and fourth generation of those who reject me, but showing steadfast love to the thousandth generation of those who love me and keep my commandments. You shall not make wrongful use of the name of the Lord your God, for the Lord will not acquit anyone who misuses his name.

Franchise owners almost never approve of something that draws interest from the authorised and official expressions of their franchise, whether that is online role-players telling their own stories within the milieu, writers of fan-fiction, or people actually ripping things off to make a buck. All of that reduces the value of the franchise as a licensable asset, as far as they’re concerned.

Yes, there’s exemptions within copyright for what is called ‘personal use’.  Personal use is a very hazy thing. You can make a game to play with your kids, or write a fan-fiction for your own pleasure. Once it becomes available to others, however, your personal use protections erode very quickly. Whatever you do must be kept private, locked away and out of sight.

Fan-fiction is a widespread phenomenon, and a bit of a legal gray area having never been taken to court. The reason for this is that – thus far – every writer of fan-fiction targeted by a franchise owner has capitulated with the cease-and-desist letters, or settled before a lawsuit has gone to trial. Some of those have gotten legal advice, and the legal advice appears to largely boil down to “roll over”.

What about changing all of the names? Is that enough?

Well, you can run around with Stromgroupers, and Jarra knights and Spiff lords, and enjoy the powers of the light or dark side of the Flux – and that’ll satisfy basic trademark issues (trademark and copyright are two quite different things) – but at the end of the day, they know that you’re creating a derived work, you know it, and – by cracky – the lawyers, officers of the court, judges and juries are all going to know it too.

You're not fooling anyone, you knowThat doesn’t bode well for you. It might be enough to satisfy the franchise owner, but only if they say they’re actually satisfied, and trust me, you’ll want that in writing, signed, and notarised. As corporate lineups and ownerships change, memories can be short.

What about homage? Aren’t fan works good advertising for the franchise owner and their authorised agents?

I have no idea. Do you have figures that show that to be the case? I certainly don’t. A franchise owner might have some data that shows things one way or another – but they’re almost always on the end of stifling unauthorised use, so if they do have figures, they either suggest that these uses are not significant to them, or they don’t care.

In any case, put yourself in the shoes of the company that’s just spent tens of millions of dollars obtaining the rights to a franchise and building an MMOG, and want to see a return on that investment. How happy do you think they might be about all those folks swinging light-sabres and doing their Star Wars role-play over in Second Life?

If they’re not getting enough custom to break-even, they’re probably feeling like they just set fire to a colossal pile of cash, and are wondering how the heck to make sure all those people have to come through their door.

Then the lawyers come, and everything gets kind of biblical.

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Categories: Business, Culture, Law.

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