Copyrights have historically been easy to obtain and hold—indeed, an author or designer owns a copyright in a work that he or she created even without registering or applying for protection from any organization or government entity. Copyright subject matter includes “original works of authorship fixed in any tangible medium of expression,” and need merely include a “minimal level of creativity” on the part of the author. See Feist Pub’ns, Inc. v. Rural Tel. Serv. Co., Inc., 499 U.S. 340, 345 (1991). Copyrights have been applied to poems, songs, architecture, and t-shirt decals.
In general, the more creative or original the expression of an idea, the more likely it is to be granted official copyright protection if registered or challenged. But as applied to video games, and in particular, the sprawling set of multiplayer games involved, recent evolutions in the law have turned that concept on its head. Individuals and third-party developers should be aware that some of the most beautiful, original content generated and designed is typically not recognized as copyrightable–yet.
No matter the quality, gameplay generally cannot be protected under current copyright laws.
In the gaming arena, the underlying code is usually protected as a literary work, and the expression of artwork and sound are protected as an audiovisual work. Intuitively, individual players may believe that their performances should be protected under copyright—after all, each game is different, and each player’s individual decisions at each stage in the game would seem to necessarily include a “minimal level of creativity.” Players might also assume that they “own” their own personal gameplay. However, the U.S. Copyright Office specifically stated “Copyright does not protect the idea for a game, its name or title, or the method or methods of playing it.” United States Copyright Office, “Copyright Registration of Games,” FL-108. While this concept was originally applied to board games, recently, federal courts have at least suggested that it also applies to a player’s gameplay within video games. See, e.g., Epic Games, Inc. v. Mendes, No. 17-cv-06223-LB, at *16 (N.D. Cal. June 12, 2018) (citing Allen v. Academic Games League of America, Inc., 89 F.3d 614 (9th Cir. 1996)).
There is a wrinkle in this analogy, however. Currently, courts are divided over whether an application for a copyright in source code also creates copyright protection for screen displays. Epic Games, No. 17-cv-06223-LB, at *6; see also Digital Communications Associates, Inc. v. Softklone Distributing Corp., 659 F. Supp. 449 (N.D. Ga. 1987); Whelan Associates v. Jaslow Dental Laboratory, Inc., 797 F.2d 1222, 1234 (3d Cr. 1986). Plausibly, then, while gameplay as it is manifested in code may not be copyrightable, the unique visual representation on the screen may be, or vice-versa; this issue is yet unresolved.
When original content is added to a game, that original content loses the ability to gain copyright coverage.
Counterintuitively, most game “mods” or “add-ons,” including “skins,” are generally not protected. Within online gaming, a “mod,” or modification, is a change to a tool or other feature within the game. An “add-on” is an addition, such as a new unit or weapon. In many games, players’ avatars may choose outfits, or “skins” that either add pure aesthetic enhancement or may improve or change an avatar’s capabilities. Mods and add-ons are, by definition, comprised of changes to the original (known as “vanilla”) game code. While they may introduce entirely new concepts, designs, and possibilities into a game or game segment, mods and add-ons are currently considered ineligible for copyright protections themselves. See, e.g., Micro Star v. FormGen., 154 F.3d 1107 (9th Cir. 1998). The reason is that mods and add-ons are considered “derivative” works. They both need the original, copyrighted code (or visual expression) to function themselves. See 17 U.S.C. § 101. In copyright law, only copyright owners have the exclusive right to produce derivative works based on the original, copyrighted works. However, owners can grant permission, in the form of a license or assignment, for others to create derivative works without infringement. Some developers, such as those behind Half-Life, have realized that creating mods offer great benefits for their games, as they extend the relevance and appeal of a property by introducing continuous updates and revisions to a game that might otherwise go stale. But the considerations regarding opening up licensing of code for individual users and third-party developers to freely create mods and add-ons are complex, as games derive much of their value from their proprietary nature.
A frequently-cited exception to the derivative works problem for individuals and third-party developers is the “fair use” doctrine. That doctrine allows individuals “to use copyrighted material in a reasonable manner without the consent of the copyright owner.” Section 107 of the Copyright Act lists four primary factors that determine whether a work falls within the fair use exception: 1) the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes; 2) the nature of the copyrighted work; 3) the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and 4) the effect of the use upon the potential market for or value of the copyrighted work. The majority view is that creation of mods and add-ons is fair use, but only when the use of mods and add-ons is for individual use, and does not affect the market of the original copyrighted work. See, e.g., Lewis Galoob Toys v. Nintendo of America, 780 F. Supp. 1283, 1294 (N.D. Cal. 1991). In the larger context of esports, which are by definition designed for large audiences, the argument for fair use of mods and add-ons is on much shakier ground.
The copyright landscape is currently fraught for original content creators when their content is dependent on the original code of another person.
While copyright law is intended to protect creativity and original content, individuals and third-party developers alike should be aware of the unexpected exceptions to that rule in the context of gameplay, modifications, and add-ons. Gameplay, regardless of quality or innovation, does not merit copyright protection in the majority of circumstances. In addition, new designs, techniques, player skins, and tools usually cannot earn protection if creators generate them for use in someone else’s game.
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