LEVELING UP: UNDERSTANDING COPYRIGHT IN VIDEO GAMES
INTRODUCTION
Video games today are as diverse as the players who enjoy them. From indie standouts to blockbuster hits, video games cover every corner of creativity. No two games are the same, and each offers its own unique experience. They can appeal as much to kids as they do to OGs like me (Original Geriatrics).
Understanding the different gaming platforms and genres is integral to navigating the business of games. Genres are varied and can appeal to virtually anyone. A sample includes: RTS (Real-Time Strategy), FPS (First-Person Shooter), RPG (Role-Playing Game), Survival / Crafting, Sports, 4X (Explore, Expand, Exploit, Exterminate), Simulation, Platformer, Mobile, Fighting, and Stealth.
Each genre offers a unique experience, allowing players to assume command of an army or fleet, run their own city or theme park, travel to different solar systems, rain down threes like Steph Curry, be James Bond or Harry Potter, fly as a fighter pilot, lead a civilization, escape a haunted mansion, live in a post-apocalyptic world or the rob a train in the wild west. The number of possible experiences is literally infinite, often within a single game.
But while the experiences may be different, every game, regardless of genre or subject matter, has one thing in common: Copyrights. It’s the one universal constant in an otherwise unlimited multiverse. In fact, as important as it is to know game platforms and genres, understanding the role of copyrights is the key to understanding the gaming business and its unlimited potential.
COPYRIGHTS: THE ESSENCE OF GAMES
Modern copyrights, derived from the 1710 Statute of Anne, granted authors exclusive publishing rights. In 1790, the United States enacted the first Copyright Act, which protected books, charts, and maps. It was thereafter amended and expanded to include music, translations, dramatizations, and recordings.
Copyright protection (ownership) is initially granted to authors of a particular work. To be copyrightable, a work must meet three criteria: (1) Originality (independently created and possess at least a minimal degree of creativity); (2) Fixation (fixed in a tangible medium e.g., on paper, saved digitally, recorded); and (3) a Work of Authorship that falls within a statutory category, including literary works, musical works and lyrics, dramatic works, pantomimes and choreographic works, pictorial, graphic, and sculptural works, motion pictures and other audiovisual works, sound recordings or architectural works.
The U.S. Copyright Act grants certain exclusive rights to authors, which allow them to control how their original works are used and exploited. This includes: (1) the right to reproduce the work, meaning the author controls copying it in any form (e.g., print, digital, recordings); (2) the right to prepare derivative works, which includes adaptations like translations, sequels, or film versions; (3) the right to distribute copies to the public by sale, rental, lease, or lending; (4) the right to publicly perform the work, applicable to plays, films, music, and other performative works; (5) the right to publicly display the work, relevant to visual art, photos, or text; and (6) for certain works like sound recordings, the right to publicly perform the work by means of digital audio transmission (e.g., via streaming services). These rights can be licensed, transferred, or retained. Infringement occurs when anyone exercises one of these rights without the author’s permission, subject to exceptions like fair use.
Unlike most other forms of art, however, video games are audiovisual works that combine multiple copyrightable elements: Source code and object code; visual elements such as character models, environments, textures, and animations; artwork, such as concept art or user interface design; musical compositions and sound recordings (e.g., background scores, sound effects, and voice acting); dialogue and script; maps, worlds and characters can also be protected.
Each of these original elements or creative expressions are created by “authors”. Thus, e.g., programmers write the source and object code that governs mechanics and functionality; 3D artists and animators design visual assets such as character models, textures, environments, and animations; concept artists and UI designers create visual artwork and interfaces; composers and sound designers produce musical compositions, sound effects, and recordings; writers and narrative designers develop the script, dialogue, and backstory; and level designers and world builders may construct maps and in-game environments.
THE OWNER NEED NOT BE THE AUTHOR
By default, each of the foregoing contributors is considered the author (and owner) of their respective work, unless their contributions are properly acquired by the game developer. The developer typically acquires ownership (which is separate from authorship) of these contributions through one of four legal mechanisms. First, if the contributor is an employee, the work is generally deemed made for hire and owned by the employer. Second, if the contributor is an independent contractor, the developer secures an express written agreement stating the work is a “work made for hire” (and, if it fails as such, it is assigned to the developer). Third, the developer may acquire rights through an inbound license, often used for third-party engines, middleware, or pre-existing assets, including music. Finally, the rights may be purchased through a formal assignment.
Without these arrangements, the developer may not hold exclusive rights, risking fragmentation of ownership, enforcement difficulties and legal disputes. Once the developer acquires these rights, however, it can then license any or all of them to others, e.g., a game publisher to reproduce, market, promote, distribute and sell the game and all its copyrightable elements. Or to record labels (for soundtracks), film studios or streaming services to create movies and shows as derivatives, as well as other derivatives such as merchandise (that can also rely on trademarked characters or logos), books, theme parks, theatrical performances, board games, etc.
NOT ALL ELEMENTS ARE COPYRIGHTABLE
Despite the foregoing, it is important to understand that not all elements of a video game are protected by copyright. This issue often arises when one developer contends another has “cloned” its game. The game may have the same “look and feel”, and it may be similar in many respects, but often the “copycat” game is using the same unprotectable elements contained within the first game. It is, therefore, important to understand the “idea/expression” dichotomy, which holds that protection extends only the original expression of an idea, not the idea itself.
A good example of this was litigated in Atari, Inc. v. Amusement World, Inc. over the game “Asteroids”. Atari sued Amusement World over its game “Meteors”, which closely resembled Asteroids. There, the court held that gameplay mechanics and general ideas - such as shooting rocks that break into smaller pieces - were not protected, because they were unprotectable ideas. But the court acknowledged that Atari could protect specific audiovisual expression of ideas such as the visual design of ships, rocks or distinctive sound effects.
Another example involved Pac-Man and the game K.C. Munchkin!, which was strikingly similar. There, the court found that although maze-chase mechanics were unprotectable ideas, the Defendant copied the audiovisual expression, including ghost behavior, maze design, and dot-chomping animations in a way that constituted “substantial similarity”. The court emphasized that even if the general idea of a game isn’t protected, copying its expression and arrangement can still be copyright infringement.
Similarly, the scenes a faire doctrine excludes from protection standard elements that are commonplace, stock, or dictated by genre conventions. These things are not copyrightable. In other words, infringement does not exist by copying elements that are standard, unoriginal, or dictated by the genre.
Thus, e.g., in Incredible Technologies, Inc. v. Virtual Technologies, Inc. the creators of Golden Tee Golf sued over an alleged copycat. The court held that many of the similarities such as use of a power bar, scoring formats, golf terminology, and virtual golf courses were scenes a faire for golf video games. That is: Elements common to (and necessary for) golf video games, such as clubs, swings, or scoring, were standard and not protectable.
The same was true for Data East USA, Inc. v. Epyx, Inc. (1988): Karate Champ vs. World Karate Championship. There the court ruled that features like two competitors in a martial arts match, a referee, similar scoring, and a side view were unprotectable scenes a faire: These elements naturally flowed from depicting a karate competition.
While there are many other examples, the point is that, although gameplay mechanics or rules (i.e., abstract ideas) are not copyrightable, the expression of those mechanics such as how levels are structured or puzzles are visually presented can receive protection. These are important considerations for developers that are claiming their game was “cloned”. Important to consider, that is, before writing cease and desist or demand letters, or filing a lawsuit.
CONCLUSION
While video games offer an endless variety of themes and experiences, their underlying legal foundation is unified by copyright law. Understanding how copyrights attach to the individual creative components of a game, and how developers must secure those rights from their creators, is essential to navigating the business of gaming. It is essential for developers that want to license their games, or any of its elements like characters, for use in other mediums or merchandise. Without proper rights acquisition, developers risk disputes and limitations on exploitation. And while not every element of a game is protectable - such as general ideas, gameplay mechanics, or stock genre features - the expressive execution of those ideas often is. In the ever-expanding multiverse of interactive entertainment, mastering the interplay between creativity and copyright is not just important - it’s mission critical to the success of a successful launch.