Horace Goes Copyright Striking
In the universe of video game mascots, Horace's star dimmed long ago. Hero of 8-bit hits Hungry Horace and Horace Goes Skiing, he was a shapeless blob with holes for eyes and a flick of hair generally mistaken for a single stunted arm. No official sequels have appeared for decades and few modern players even know his name. But Horace was recently embroiled in controversy after his apparent new owner, a retrogaming entrepreneur, issued copyright strikes against the character's only YouTube superfan.
The target, whose real name is Sarah but publishes as Octav1us Kitten, reported that she logged in to find her YouTube account flagged with two such strikes, without warning or prior communication.
"All my videos featuring Horace as a character have been taken down," she wrote. "I am absolutely beside myself. These videos are ones I put my all in...."
Octav1us Kitten, with about 27,000 subscribers, publishes light-hearted videos about the most bizarre and shoddy corners of retrogaming history. Occasionally joining her on reviews of comically mediocre titles such as Granny's Garden and songs about Roland on the Ropes is a parody incarnation of Horace, the crude sprite posed as her saucy sidekick, its voice a subtitled scramble of cassette data.
The attitude of her videos mocks and honors GamesMaster and Bad Influence, the anarchic and off-color video gaming variety shows of 1990s U.K. teen TV. (Her appropriations of Horace and other characters is also reminiscent of the snarky puppets used as filler content between kids' shows on the BBC and ITV) Her work, and her use of the characters, serves up ironic nostalgia for British millenial nerds-and satirical reflections on the tropes of their childhood media diet.
A YouTube copyright strike, meanwhile, is the equivalent of nuking a video from orbit. YouTube has an internal system, ContentID, that allows copyright holders to monetize uploads or take them down without official legal action. A copyright strike, though, means the IP holder has formally threatened YouTube itself, with serious (if unlikely) consequences for misrepresentation. Google, YouTube's owner, reports that ContentID claims outnumber strikes by 50 to 1. But both systems are easy to abuse, and often suborned to silence critics, chill political speech and put the kibosh on fair-use artistic or editorial repurposing of copyrighted material.
"This has shown me how fragile YouTube channels are," she wrote. "One person can destroy it with copyright claims, whether justified or not."
Knowing that another complaint would result in the deletion of her YouTube channel, Octav1us took it down and set out to figure out what was going on.
The only clue: Subvert Inc., the complainant listed by YouTube.
HORACE GOES RESEARCHINGGoogle the name and you'll land on the UK government's official register of companies, and from there to the name of its director, Paul Andrews.
It's a name familiar to the UK retrogaming scene, attached to the successful ZX Vega retro-console and the less successful ZX Vega Plus, which was funded with $657,446 in pledges but arrived late and in unimpressive shape.
Other enterprises listed under Andrews' directorship include a company named "Erotic Chatbots" and a press that charges authors for services associated with publishing eBooks.
Subvert itself appears to be a "nonpracticing entity", a company that acquires so-called intellectual property for licensing purposes without clear plans to produce anything itself. At its website, it reports acquiring "games, copyright, artwork rights, and all relevant IPs" for classic UK 8-bit brands such as Imagine, Ocean, Microdeal, Artic Computing and Pixel Productions. (Subvert Limited has not, however, acquired its own domain name from the blogger at subvert.com or the squatter occupying subvert.co.uk, and is instead parked at subversive.uk)
Within hours of Octav1us publicly reporting Subvert's copyright takedown of her Horace videos, a YouTube hashtag campaign, #FreeHorace, sought to right the perceived wrong.
A designer crafted satirical covers for retro Horace games, with titles such as "Horace Goes To The Job Centre Because His IP Holder Took A Shit On Literally The Only People Who Give A Fuck About The Character". An artist created a lavish comic strip featuring an unnervingly detailed cartoon Horace forced to dance by an invisible puppetmaster.
From https://t.co/iKQyZp39vU #FreeHorace #JeSuisHorace #ZXSpectrum pic.twitter.com/2PZuvJrDxn
- RZX Archive (@rzxarchive) October 25, 2019
A popular Facebook group for ZX Spectrum nostalgiacs announced it had banned Andrews; retrogaming forums lit up with heated discussion.
Just as fast, a cadre of anonymous Twitter accounts sprang up to attack Octav1us under the #FreeHorace hashtag--much of it abusive--and to ensure no tweet supportive of her went unanswered
Octav1us turned to the crowd for advice, and tweeted at Andrews to contact her via email. He replied publicly on Twitter: "Follow me back so we can dm".
CHAIN OF CUSTODYThe immediate backdrop to Horace Goes Copyright Striking is the demise of Atari SA, a French company that amassed a sprawling wunderkammer of classic game brands (naming itself for the most illustrious acquisition) before bankruptcy forced a fire sale of its portfolio.
But Horace's chain of custody, it turns out, is murky-and it may even be that he was never Atari SA's to sell.
He was originally created for Beam Software in 1982 by William Tang, an Australian programmer, and his original series was published by its parent company, Melbourne House. Hungry Horace, a Pac-Man clone, was followed by Horace Goes Skiing, a two-fer clone of Frogger and Atari Skiing. A third game, Horace and the Spiders, was a basic but solid platformer released in 1985.
Sinclair Research, manufacturer of the ZX Spectrum, included Horace Goes Skiing in the Spectrum Six Pack, an official sampler of titles often bundled with the massively successful machine by retailers. Horace's trip to the piste introduced a generation of British youngsters to computer gaming.
A fourth game, Horace to the Rescue, was announced but never completed. Tang reportedly suffered a collapsed lung in 1986 and has no development credits since, though Horace did receive a final official outing on the PSION 3 series-a rare UK palmtop-in the 1990s. Other fans have kept the flame alive, with a handful of unofficial freeware Horace games appearing since on modern platforms.
Beam Software was sold to Infogrames, a French game publisher which bought Atari's remains in 2008 and began wearing its illustrious corpse. Bankrupted in 2013, Atari SA began selling off its trove of retro trademarks and game rights it had picked up along the way.
According to Piko Interactive, an active and popular creator of retro-themed games, it bought the Beam Software catalogue in 2017-but not Horace.
"We ... acquired lots of IP from Infogrames (Atari SA), Including Beam/Melbourne stuff. However we do not own Horace games. ... We did help acquire Subvert Ltd Some IP, but our involvement is just up to there," Piko wrote in a posting on the Atari Age forums. " ... It is unfortunate what it is currently happening, but we wish to not be involved in this. And we hope all parties can resolve their differences amicably."
Tang himself "definitely doesn't [own] any rights of the game", according to a former Beam employee, Gary Liddon, himself a veteran game developer and writer.
"Knowing how shambolically run [Beam Software] was," Liddon wrote on the same forum thread, "it would not surprise me if the rights ownership of the games they created was badly documented and unclear."
Indeed, while Subvert was confident enough to declare ownership of Horace to YouTube, Andrews subsequently issued a statement saying that "to the best of our knowledge and also the best of Atari SA's knowledge, these IPs belonged to them in their entirety", raising the possibility Subvert may not have had the right to issue a copyright takedown in the first place. Andrews did not return requests for comment sent to his social media accounts and through a contact form on one of his websites.
The mess is typical of recent scandals where YouTube's easily-exploited policies and procedures make it easy for a determined user to remove or disable content they don't like.
But it's also a trend in the retrogaming scene, where enthusiasm and opportunity often outpace legal prudence. Teasing ownership from vague contracts and poorly-documented acquisitions might take years, but nostalgic crowdfunding campaigns whizz by in days.
Japanese giant Bandai-Namco and retrogaming company AtGames are currently at war over the rights to manufacture new Ms. Pac Man arcade cabinets, after AtGames acquired rights to an unusual royalty rights contract from the original third-party developers.
Steve Wilcox of Elite Systems, another ancient 8-bit British gaming brand, was embroiled in a spat over unpaid royalties after successfully kickstarting an app that included classic games.
Tim Langdell, operator of 1980s game publisher The Edge, became infamous decades later as a trademark litigant seeking settlements from companies using the word "Edge" in connection to video games. At first successful, these efforts were exposed after after targets and sleuths banded together online. The trademark was not canceled, however, until deep-pocketed corporate targets such as EA Games decided to join the fight rather than settle.
At the dawn of the web era, Ian Bell and David Braben, co-creators of legendary space-trading game Elite, publicly fueded over the property. Like the Horace scandal, it was fought through public statements and fragmentary disclosures of private communications: an epistolatory tragedy of errors that made resolution less likely the longer it went on.
INTELLECTUAL IMPROPERTYAndrews' company, Subvert, has also registered UK trademarks on various other 8-bit era UK brands including "Sinclair Spectrum", "zx80", "zx81" and "A500", apparently in reference to a model of the Commodore Amiga platform popular in the UK.
The original 1982 trademark for the ZX Spectrum, however, remains live as of 2019, assigned to a subsidiary of Sky Group-the final legal resting place of creator Sinclair Research (via Amstrad, yet another defunct consumer electronics company that bought Sinclair in 1986 and was itself absorbed by Sky).
In 2018, Subvert also filed trademarks on classic 8-bit games Jet Set Willy, Manic Miner and Ant Attack - more titles that apparently (if not entirely convincingly) fell into Atari SA's vault and hence to Andrews and Subvert, decades later.
In Australia, homeland of Horace's creator and publisher, trademarks for Horace as a "man, stylized monster" were filed in 1982 and designated as "lapsed" in 1985. In the U.K., a trademark for "Hungry Horace" is assigned to one Richard de Courcy-Wheeler, but is under the category for "honey", not "vaguely nightmarish retrogaming mascots."
Note that the copyright in the games themselves is different to any trademarks held in the name and the character. While the distinction isn't clearly made in statements of ownership from Subvert or Andrews, copyright is what's relevant to the YouTube strikes that nearly brought down Octav1us's channel.
GAME OVER FOR SIDEKICK HORACEA week after the controversy began, Octav1us announced that she'd come to a private agreement with Andrews. He would withdraw the copyright strikes on her channel, so long as she agrees not to create any further media featuring Horace (or his other acquisitions) without written permission.
For his part, Andrews says Octav1us's use of the Horace character "sexualized" a family-friendly character and that he has plans to develop new material featuring it.
Had she had issued an official counterclaim to Andrews's copyright takedown, Octav1us (who did not reply to an email inquiry) might have prevailed. But with no guarantees and her channel vulnerable to a killer third strike in the meantime, meeting Andrews' demands was the quickest way to ensure she stayed in business.
"I'm not holding out for an apology but I forgive the person entirely," Octav1us tweeted. "I just want to make my crappy videos."
As of November 14, her social media channels are deactivated, reportedly to avoid the continuing abuse she receives from anonymous users.
For a young woman appropriating the obscure personas of 8-bit British game history, hostility comes in forms both legal and personal. But the message is always the same: stay off the slopes.