ArsTechnica posted an article today about the current intellectual property holders of Atari being in communication with game developer Llamasoft (aka Jeff Minter), who programmed Tempest 2000 for the Atari Jaguar in 1994, to suppress a game he recently released called TxK, which appears to be an update or sequel to Tempest 2000. (Tempest 2000 is itself a sequel of the Atari 1981 arcade smash hit Tempest, which was designed and programmed for Atari by Dave Theurer.)
On the face of it, it would appear that “Atari” has a pretty solid case. Very likely, Minter doesn’t own Tempest, Atari did (and the current owner of the Atari brand now does). Minter/Llamasoft almost certainly would have created Tempest 2000 as a work for hire, and the rights to it almost certainly were and are the exclusive domain of Atari. I don’t know the facts, I’m not a lawyer, but I am familiar with a bit of intellectual property laws, and to me it seems likely that unless Minter has a contract stating that he or Llamasoft is a part owner of the IP rights to Tempest 2000, unfortunately he probably doesn’t have much of a case should it come to a legal action against him for creating a game that is essentially Tempest 2000 for modern machines.
The thing is — and this is why I put “Atari” in quotes — the real Atari went out of business years ago, and the current company who owns their intellectual property isn’t the same company or the same people who created . This doesn’t change their legal standing with regard to ownership, unfortunately, and creates an interesting situation of the actual guy who created the game not having the rights to his own creation, aka John Fogerty syndrome.
While the legalities are probably pretty clear cut, my sympathies are with Minter, who clearly is more of a creator of Tempest 2000 than the current holder of Atari’s intellectual properties could ever hope to be. And the game he has produced does look like a worthy update to a classic game that was loved well by the golden era gamers of the pre-crash arcade era. Being a Jaguar release, Tempest 2000 was not as widely played or appreciated as it should have been, and a modern update that can be enjoyed by more people ought to be welcomed by the market. But because of trademarks and copyright and “works for hire”, Atari’s ghost probably does have it within its legal rights to quash the game if that’s what it wants to do. Hopefully, they and Minter can come to a happier arrangement. It sucks that a company that is doing little or nothing with an old back catalog of games can prevent its original creators from coming out with new innovations that build on their own earlier works.
Personally, my feeling is that the actual-creators should always retain a right to produce new stuff. It should be literally impossible for a creator to sign away the right to produce new original or derivative works of any property they had a hand in creating, even if they’ve sold the rights to a previously-created work. If a publisher wants to commission a work and wholly own it, such that the creator is labor and is paid one time for the work, and has no future rights to the work itself, I still feel that the actual people who did the creative things ought to be able to say, “I’m the creator of [X] and although it’s not an officially recognized part of the canonical [Publisher]-owned [X], here, world, have a new [X]-thing that I made, because I had some more ideas and I wanted to make them, and share them with or sell them to the world.
But, in the legal real world, it doesn’t work that way. It all comes down to who the owner is, and ownership can be transferred. There’s no permanent right residing with an original creator, and it all comes down to the terms under which a work was authored and published.
This harkens all the way back to the early days of Atari, the famous Activision split, where several of Atari’s best developers went to Atari President and CEO Ray Kassar, asking for recognition of authorship and to have their names attached to the games they were producing. Kassar refused, famously insulting his best creators by telling them they had no more to do with Atari’s success than the people who assembled the games and put them in boxes. They left in revolt and formed Activision, the first third-party developer of console games, and credited themselves on their own creations and paid themselves royalties.
And more recently, Konami just had a falling out with Metal Gear auteur Hideo Kojima, and are in the process of removing his name from his creations. So in the future, if Hideo Kojima wants to create something new, it can’t be in the Metal Gear universe, which is owned by Konami. And Konami can do whatever they want with Kojima’s creations, legally, even if it sucks or is completely contrary to the spirit that Kojima put into his works.
There has always been this clash between business and creator, really any time a creative enterprise is something larger than one person can realize — any thing that requires teamwork necessarily entails contracts, and contracts are ugly things that can trip up someone who doesn’t have expert legal counsel on retainer, and that’s almost always something too expensive for creative types who often struggle financially to afford. This sort of thing happens all the time to creators with their works, and it’s terrible.
What it comes down to is this: Creators create properties. That’s where the value is. Owners tend to the the ones who monetize properties. But owners’ interest in monetizing properties shouldn’t inhibit creators from creating more properties. Because ultimately, it’s creations that are the thing we should value, and ought to encourage.
I hope that Minter and Atari are able to work something out that is mutually beneficial, and doesn’t result in the game being pulled from the market. Like Minter said, they should be hiring him.