Wednesday, June 3, 2009

Understanding the Chrono Trigger Trademark Fiasco

A little over a week ago, Joystiq, along with every other major blog concerned with video games, reported that Square Enix sent a cease and desist order to the creators of the fan hack project Chrono Trigger: Crimson Echoes. The fans had been working on the rom for a total of five years before the cease and desist order was issued, but they felt that they had no choice, but to comply with the order. So, the site that originally was making Crimson echoes not only shut down this project, but all other fan projects in order to avoid the costs and hassle of litigation.

But was that the right decision? This blog entry is going to use the copyright and trademark law to analyze rather this was an act of solid, foundational logic, or cowardice on the part of the fans who were creating the game. Also, we are going to talk about why the publisher of the original Chrono Trigger, Square-Enix, may have thought it had no choice but to protect its beloved character, even from the fans who love him most.

First, we need to get a pretty good understanding of trademark law if we are going to try to analyze who was right, or wrong, in this particular situation. First, having a trademark is NOT the same as owning a copyright. Copyrights are only for a specific work of art, fiction, or music. To put it simply, you can own the copyright to Harry Potter and the Sorcer's Stone. However, you cannot own the copyright to Harry Potter. If you wanted to protect the boy wizard as your character, you would have to register him as a trademark. Disney owns the trademark for Mickey Mouse, and Marvel owns the trademark for Wolverine. This keeps people from making money off the characters that Disney and Marvel created.

Second, and this distinction is very important, in a copyright case the owner of the copyright can only sue for any profits made from that infringement. So, if I made $100.00 selling Harry Potter and the Sorcer's Stone, Scholastic could only reasonable expect to sue me for $100.00. With trademarks it does not work like this. Scholastic might expect to get my profits from selling the book, the damages sustainedby them as I was selling the book, and the costs of bringing the lawsuit to court.

The fans who were creating this Chrono Trigger rom were not planning to make any money off of it. Indeed, it was going to be, as far as I know, a free service. If this had been a copyright issue, they would not need to have worried. However, this was a trademark issue, which means that potentially they could have been forced to pay for the millions of dollars it may have cost Square Enix to take the case to court, as well as any damages Square could convince the courts that the rom had done to the franchise. This is the reason that when most small groups get a cease and desist order, they comply almost immediately. Of course, this also lets the trademark holder abuse its power. Its reported, for instance, that Disney sends out a cease and desist order everytime they see a black mouse in any form of media.

It is understandable that the creators of this rom were not going to let this go to court, but if they had, they could have fought it in one of two ways. First, they could have claimed that it was "fair use", which basically means that it was used in reference. For instance, this blog entry has the fair use of Chrono Trigger all over it. Everytime I say the name I am using it fairly, as well as when I used the picture, because I am talking about Chrono Trigger in a fair manner. I am not using Chrono Trigger, or any of the characters in a story, or in a game. Obviously, this is not what the makers of this rom were doing, which is why they would have had a very tough time winning in this way. The other way they could have fought it was by saying that Crimson Echoes was a parody of the original game. The Supreme Court has ruled that parodies of trademarks are allowable because if there were not substantial similarities between the original and the parody, no one would get it. This is why Mickey Mouse can show up on Comedy Central's Drawn Together and nobody gets sued. Judging by the reverence that the fans showed towards the original Chrono Trigger, I doubt that Crimson Echoes would have fit into the parody category. The makers of the Crimson Echoes rom were right to avoid going to court; it would have been very difficult for them to win the case.

The next question is whether or not Square Enix should have issued the Cease and Desist Order. The general buzz around the internet when this story first broke was that this was a dreadful thing, and that Square should be boycotted (at least until the next Final Fantasy comes out). The problem is that Square Enix may not have had much of a choice about the matter. Sometimes, it is necessary to protect your trademark assets even from those who love that asset most. Think about it. If Crimson Echoes was a very extensive project, and if it had done as well as some think it might have, it would have put a serious damper on Square's ability to match it. Imagine, if you will, one very good writer and one mediocre writer with a wonderful idea. For shits and giggles let's call the good writer Stephen King. Let's call the mediocre writer J.K. Rowling. For shits and giggles. Now, imagine, that after the third book of the series Stephen King had stepped in and written the next book for her. Let's assume it was better than anything J.K. Rowling could write on her own, even though he used her characters. Trademarks serve to make sure that something like this cannot happen. The credit goes to the person who had the original idea for a reason, and in this case that's Squaresoft. Perhaps the fans would have made a better game than Squaresoft could make. Perhaps the fans would have accidentally pirated the series by outdoing anything Squaresoft could do themselves. Squaresoft couldn't let that happen, which is exactly why trademark laws exist.

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