My rule of thumb is, generally, "Is the creator still earning from this product," and in the vast majority of cases where gaming software is concerned the answer is no. There is a push through sites like GOG.com to put many old games back on sale, but often it's through middle-men and holding companies and I doubt a dime of some of the more obscure titles goes anywhere near anyone who actually helped create the things.
The result is assorted holding companies picking up a few extra pennies, but a huge range of more obscure works are still the domain of abandonware sites and efforts like the Archive.
This also isn't an apt comparison, because no one is claiming that enthusiasts should own the copyright to Mario Kart.
A better comparison would be Steamboat Willie, but even that is confusing because copyright is so caught up with trademark Disney characters. IANAL, but it seems to be that Disney should be able to have exclusive ownership over Mickey the character, but not the work in which he first appeared. (Which muddies the water, I know.) Does Disney make any significant money off Steamboat Willie? (They actually might, given its culture status, I just don't know.)
An even better comparison would be if the only way Disney would let you view Steamboat Willie in a Disney-owned-and-operated facility. Like, they'll sell you a ticket or a DVD or a download, but in all cases you have to bring it to a Disney facility to actually play it back. And then one day Disney closes all the facilities, and now you have some copy of the work without any legal way to view it.
Which, if you accept the analogy, brings the situation pretty close to the one addressed by U.S. v. Paramount Pictures in 1948 (http://en.wikipedia.org/wiki/United_States_v._Paramount_Pict...), which ended the practice of studios owning their own theaters and refusing to show their pictures anywhere else.
You can still buy Steamboat Willie on DVD. Using it as an example is sort of problematic, because it is not an orphaned work, and a lot of people don't see the problem with Disney maintaining control over it. A better example would be the many orphaned animated features from the late 20's and 30's who languish in legal limbo instead of being released into the public domain (if you can't think of any examples, that's a symptom of the problem more than anything else).
Well, that's the Disney Vault in action. (Which is a legitimate release strategy, and it's hard to claim that Disney doesn't generally try to keep its historical works available. I imagine it'll be re-released at some point in the future.)
...it seems to be that Disney should be able to have exclusive ownership over Mickey the character...
I have to disagree with this on cultural grounds. Part of the reason that copyright expires is to fertilize the ground from which new stories are grown. Shakespeare does not own Romeo. Dickens does not own Scrooge. To the extent that Mickey has become a part of our cultural mythos, Disney should not own Mickey.
The only reasonable expectation a creator should have after a reasonably short copyright term is protection from malicious misattribution and defamation. Everything else in the last century of IP law is implemented completely wrong, in my opinion.
Super Mario Kart was released for the SNES in 1992. I would absolutely argue that it should be in the public domain by now. I would also argue that Mario Kart 8 should be as well, and I'd argue you should not have copyright at all.
I'd be interested in the source for this. I can see Walt having to relearn the newer Mickey style, kids only know the movies from the past 5 years anyway, but I'm pretty sure he drew the original ones. There's a lot of evidence for Ub Iwerks's really making the Disney empire's early important innovations happen in terms of animation but it wasn't like Walt was talentless at drawing.
Which is convenient, since Disney-the-company will never die, and need not have any actual human connection to Disney-the-man-who-actually-created-the-intellectual-property. So it provides a mechanism for people other than the person who created the work or his heirs/designated beneficiaries to profit from his work forever.
Defining "creators" as actual human beings provides a useful marker for how long a copyright is useful: at some point that human dies, and then at some point later his heirs die, and then at some point later their heirs die, etc. So you can look at the question in terms of how many generations should have a monopoly on their forefathers' works. Defining corporations as creators takes that marker away.
Copyright protects the works of natural persons, not corporations. It protects the individual creators when they make a work; they can of course immediately assign their rights to the company, eg by a work-for-hire arrangement, but [co-]creators are always natural persons.
Sure, but there's a difference between selling copies of something and pirating it for personal use. Maybe not legally, but in my opinion at least morally, and also you're much less likely to get noticed for doing the latter.
I tried running this to ground with some old Applesoft and Integer Basic games, even going so far as to contact the original author of a particular work for which I had the Basic listing, but which had been sold multiple times across an ocean or two, and presumably resided in the possession of some rolled up big name gaming concern. (Think: 1981 through a succession of things that ended up 20+ years later in TakeTwo.)
Even then I didn't feel comfortable creating a derivative work. The creator wasn't earning money (he was paid off in the 1980s when he sold it, although it was clearly his pride and joy), and the brand of the legal derivatives faded from favor over the years due to technology improvements.
You can find a lot of these types of games in the recently-released distro of DiscoRunner [1], an Integer Basic/Applesoft Basic interpreter. I love that these games and their source is preserved, although as someone who respects IP rights of creators, I always feel a twinge when I see someone's REM statement with a copyright and their name on it scrolling by when I do a LIST command.
There's kind of a circular dependency here, since several companies use emulators developed by enthusiast reverse-engineers to package their games for resale: http://en.wikipedia.org/wiki/DOSBox#Usage
The result is assorted holding companies picking up a few extra pennies, but a huge range of more obscure works are still the domain of abandonware sites and efforts like the Archive.