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How video game developers navigate character usage from the public domain

Posted at 4:45 AM, Mar 04, 2024

At the start of 2024, characters and material from 1928 including Tigger from Winnie the Pooh as he first appeared in A.A. Milne’s The House at Pooh Corner, Peter Pan as he first appeared in J. M. Barrie's Peter Pan play, and earliest versions of Mickey Mouse as he appears in the animated short film Steamboat Willie, became available in the public domain.

That means they’re not subject to copyright. It is fair game for content creators, including video game developers.

“Characters like that, I think, really have a lot of appeal, especially when people are looking to share the characters that really meant a lot to them in their childhood with their children and their grandchildren,” said Renee Gittins, CEO and Creative Director of Stumbling Cat, the game studio she runs.

Gittins created the adventure-crafting video game for younger audiences called “Potions: A Curious Tale”debuting March 7, 2024.

The video game follows the journey of a young witch, Luna, who overcomes obstacles with potions she brews. The game uses folklore and fairy tale characters from around the world, including classic characters like Snow White.

The general story of Snow White and the Seven Dwarfs has been in the public domain for a long time.

“When it comes to my use of Snow White in particular, while Disney has used Snow White more recently, Snow White was originally published in the fairy tales by the Grimm Brothers, which came out in 1812. So, I didn't have to do too much use of my own interpretation of Snow White as long as I was ensuring that I was staying away from the Disney interpretation of Snow White,” Gittins explained.

Not every storyline though, may be appropriate for young minds, which brings up that ongoing conversation on video game safety and what new content kids will be exposed to. Case in point, a quick internet search and you'll see horror games featuring Steamboat Willie.

“Of course there are always people who are going to try to profit on the shock value of using those characters, but I think you'll see other uses of those characters as well that tend to be a little bit more in line with their historical personalities and meanings,” said Gittins.

“In any circumstance where you have a character that's fallen into the public domain, you want to make sure that you understand the full scope of the rights,” said Joshua Simmons, an intellectual property litigator with law firm Kirkland & Ellis LLP.

Simmons recommends creators familiarize themselves with the laws and is one place to start.

“We've seen over time characters develop over multiple works. One may be the first works in the public domain. But multiple other works are not until there's a little bit of a trickiness there,” Simmons explained.

According to Gittins, having a familiar character in a fantasy world brings that extra magic that can be hard to create if you just introduce someone new no one knows.

“It allows these characters to be seen in a perspective that is greater than the game itself, right? It expands the bounds of the universe that I’m working within.”