Video Games Copyright Law Jon Festinger Q C

Video Games & Copyright Law Jon Festinger Q. C. Allard School of Law QMUL CCLS Centre for Digital Media http: //videogame. law. ubc. ca @gamebizlaw jon_festinger@thecdm. ca

Origins

http: //videogame. law. ubc. ca

Special Issue of the UBC Law Review on “Digital Media, Video Games, And the Law” available… http: //ubclawreview. ca/issues/no 3 sept/

My Gaming Bio

Irrelevant seeking cred moment Fan-boy pilgrimage a few summers ago to Monteriggioni, Italy (Assassin's Creed 2 & Assassin's Creed: Brotherhood) August 26, 2015

…purely as research into video game addiction (of course)…

PS 4…

Video Game Leadership Firsts & furthers, as well as barriers broken: • Interactivity (multiplayer “Spacewar”) • “Control”: mouse, controller, voicecommand, Kinect, Google Glass • Augmented Reality • On-line “community” • Social (Media) • Voice Over IP • Open Worlds

As well as… • Avatars (zeitgeist, memes, identity & equality) • 3 D • Portability (handhelds) • Micro-transactions • Game-Jams, now _____ Jams AND VIRTUAL REALITY…

Is Madden NFL a Sport? “Examined, the Virtual Life Is Worth Living: Madden NFL 25 Portrays ‘Real’ Football” New York Times, August 26, 2013 http: //www. nytimes. com/2013/08/27/arts/video-games/madden-nfl 25 -portrays-real-football. html “And yet Madden NFL is largely ignored by the people who write about, and study, video games for a living; neither sport nor video game, I sit you out, they sneer. This quiet disdain for video game football is why it was shocking to so many, a decade ago when it emerged that National Football League players love to play Madden NFL. Why would real football players spend their time playing fake football? Because it’s not fake. It’s football. ”

And… http: //kotaku. com/first-internationally-recognized-athlete-visa-awarded-1091077937

And…

A Riddle… Games are not IP; Video Games are IP; Explain? Creating “If Picasso had painted a round object…”

BOYDEN

“Games and Other Uncopyrightable Systems” Bruce Boyden (2011) http: //www. georgemasonlawreview. org/doc/Boyden_18 -2_2011. pdf “Games therefore pose a number of challenges for copyright and patent law. Yet to date, intellectual property doctrine and scholarship has not really grappled with the slippery nature of games. Indeed, copyright has developed a very simple black-letter rule to handle them: games are not copyrightable. That rule begins to fall apart on close examination, however. It turns out that while games per se are not copyrightable, most of their constituent elements are: the board, pieces, cards, and even the particular expression of the rules. What could be the purpose of such a rule? ”

Boyden – the key Cases denied copyrights in: (a) systems for the presentation of information; (b) systems that are expressly designed to allow others to organize information. (c) systems of notation (d) contests and betting systems. “In all of these situations, the owners of a copyright in a form, description, or set of instructions were attempting to extend their copyright to material for which the user of the work provided the essential content, not its author. That is what made them systems. They were, without that input, empty shells, waiting to be filled. ”

Boyden - Conclusion “Games are systems in exactly the same way. A game, as sold, is only a game form; the content necessary for an instance of the game comes from the players. That is, the game form establishes the environment for play—the game space —and it defines permissible moves and the conditions for winning or drawing. But the game itself is supplied by the players. Games are systems in the same way that the excluded schemes in the cases above were systems. ” “For systems, the rule against the copyrightability of games demonstrates why systems are generally uncopyrightable and why that term has special significance. The term is not merely a synonym for “idea, ” or “process. ” Systems are shells into which users pour meaning. While they may contain expression themselves, that expression is there merely to facilitate the meaning added by the user. Copyright properly excludes them. ”

Reflections?

But…in video games Stern v. Kaufman (1982 USCA) – “Scramble” knockoff case – “kitchen sink” arguments included that “each play of the game is an original work because of the player’s participation. ”

The Problem with Stern • Defendants point: that player participation meant no “fixation” = Scramble not protected. • Court rejected argument. Found “Someone first conceived what the audiovisual display would look like and sound like. Originality occurred at that point. ” (huh? ) • Consider since that time: 1. massively multiplayer; 2. open world; 3. (effectively) crowd sourced; 4. VR control; 5. …? ? ? . . .

BREAKOUT Issue: The “creativity standard” in copyright.

Atari v. Oman - 1989/1992 USCA DC Cir. * “BREAKOUT's audiovisual display features a wall formed by red, amber, green, and blue layers of rectangles representing bricks. A player maneuvers a control knob that causes a rectangular-shaped representation of a paddle to hit a square-shaped representation of a ball against the brick wall. When the ball hits a brick, that brick disappears from its row, the player scores points, and a brick on a higher row becomes exposed. A "breakout" occurs when the ball penetrates through all rows of bricks and moves into the space between the wall and the top of the screen; the ball then ricochets in a zig-zag pattern off the sides of the screen and the top layer of the wall, removing bricks upon contact and adding more points to the player's score. Various tones sound as the ball touches different objects or places on the screen. The size of the paddle diminishes and the motion of the ball accelerates as the game is played. ” District court judge asked counsel for the Register, "If Picasso had painted a round object on a canvas, would you say because it depicts a familiar subject--namely, something that's round--it can't be copyrighted? ” Atari Games Corp. v. Oman, 979 F. 2 d 242 - 1992 - ourt of Appeals, Dist. of Columbia Circuit Atari Games Corp. v. Oman, 888 F. 2 d 878 - 1989 - ourt of Appeals, Dist. of Columbia Circuit Atari Games Corp. v. Oman, 693 F. Supp. 1204 - 1988 - ist. Court, Dist. of Columbia

Pause once again…

Reactions?

DERIVATIVE WORKS

MODS ?

FAN FICTION? FAN ART?

An Un-enumerated Right Where is the FREEDOM TO CREAt. E ?

Charter of Rights (Canada) 1. The Canadian Charter of Rights and Freedoms guarantees the rights and freedoms set out in it subject only to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society. 2. Everyone has the following fundamental freedoms: (a) freedom of conscience and religion; (b) freedom of thought, belief, opinion and expression, including freedom of the press and other media of communication;

U. S. Constitution, 1 st Amendment “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances. ”

The Universal Declaration of Human Rights Article 18. Everyone has the right to freedom of thought, conscience and religion; this right includes freedom to change his religion or belief, and freedom, either alone or in community with others and in public or private, to manifest his religion or belief in teaching, practice, worship and observance. Article 19. Everyone has the right to freedom of opinion and expression; this right includes freedom to hold opinions without interference and to seek, receive and impart information and ideas through any media and regardless of frontiers.

Closest to establishing a “Right to CREAt. E”? “Girls Lean Back Everywhere: The Law of Obscenity and the Assault on Genius” Edward De Grazia Query: Is all Art political?

But always good to get back to basics: Areopagitica by John Milton (1644)

“For Books are not absolutely dead things, but doe contain a potencie of life in them to be as active as that soule was whose progeny they are; nay they do preserve as in a violl the purest efficacie and extraction of that living intellect that bred them… And though all the windes of doctrin were let loose to play upon the earth, so Truth be in the field, we do injuriously, by licencing and prohibiting to misdoubt her strength. Let her and Falshood grapple; who ever knew Truth put to the wors, in a free and open encounter Lords and Commons of England, consider what Nation it is whereof ye are, and whereof ye are the governours: a Nation not slow and dull, but of a quick, ingenious, and piercing spirit, acute to invent, suttle and sinewy to discours, not beneath the reach of any point the highest that human capacity can soar to. ”

IS Creativity More Important than Property?

Right to Remix/Mod/CREAt. E ? “Right to CREAt. E” Not “Right in the Creation” Right to Remix-CREAt. EMod as a creative/expressive right rather than an IP right/property protection.

WHAT IS AN “ORIGINAL” GAME (IN Law)?

STEP 1

First key is the… IDEA/ EXPRESSION DICHOTOMY

STEP 2

THE IP THRESHOLD FOR GAMES

BREAKOUT Issue: The “creativity standard” in copyright.

STEP 3 Copyright

No protection for: general concepts, plots, themes and genres; scenes a faire, ideas “merged” with expression; content not original to the author

Meaning no protection for: basic game concept, rules, method of play, stock characters, common sports moves, other aspects of games “driven by genre”

FAIR USE/FAIR DEALING

https: //youtu. be/e 6 vwku. SH 1 c. Q

THE 4 FACTOR TEST

1. Purpose and character of the use, including whether the use is of a commercial nature or is for non-profit, educational, news, review, parody or satire 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.

Scenes a Faire

Dead-rising wins declaratory judgment

STEP 4 What is protectable…

“look and feel”, game progression, graphics, instructions (verbatim), underlying Code, storyline, Sounds, can be protected

STEP 5 Defenses: Copyright invalidity; Independent creation; Fair dealing/use.

Summary of Copyright Analysis Step 1: Identify game’s genre and others that fall into it Step 2: Identify un-protectable aspects of such games Step 3: Compare the games

APPLYING THESE RULES: …

K. C. Munchkin & Pac-Man won on appeal

Scrabble & Scrabulous Changed name to “Lexulous” as part of settlement. Delhi High Court found “game” couldn’t be copyrighted

Cityville v. Mega. City Settled with Vostu making changes to it’s games and paying some $ to Zynga

Tetris & Mino Tetris wins case in Summary Judgment

Triple Town & Yeti Town Court denied 6 Waves (Yeti Town) motion to dismiss Spry Fox’s (Triple Town) infringement claim and case settled with transfer of Yeti Town’s copyright to Spry Fox.

Sims Social & The Ville EA sued Zynga. Settled. Both games shut down almost simultaneously.

Farm Heroes Saga & Farm Epic removed by 6 Waves as part of settlement with King.

Pet Rescue Saga & Treasure Epic removed by 6 Waves as part of same settlement with King.

Tiny Tower & Dream Heights Nimblebit (Tiny Tower) shames Zynga (Dream Heights)

STEP 6 Trademark

Blingville & Zynga ? ? ?

The Learning Co. & Zynga renames its game “Pioneer Trail”

ESS Entertainment & Rock Star The Play Pen & The Pig Pen Defendant Rock Star (Pig Pen) WINS

STEP 7 Personality Rights

Personality Rights: PRIVACY ACT [RSBC 1996] Unauthorized use of name or portrait of another 3. (2) It is a tort, actionable without proof of damage, for a person to use the name or portrait of another for the purpose of advertising or promoting the sale of, or other trading in, property or services, unless that other, or a person entitled to consent on his or her behalf, consents to the use for that purpose. Action does not survive death 5. An action or right of action for a violation of privacy or for the unauthorized use of the name or portrait of another for the purposes stated in this Act is extinguished by the death of the person whose privacy is alleged to have been violated or whose name or portrait is alleged to have been used without authority.

Noriega v. Call of Duty

http: //www. latimes. com/opinion/op-ed/la-oe-raustiala-video-games-lohan-noriega-20141031 -story. html

Karen Gravano v. GTA V Gravano loses 9. 1. 16

Lindsay Lohan v. GTA V Lohan loses in same decision 9. 1. 16

But…

Lady Miss Kier v. Space Channel 5 SEGA (Space Channel) 5 WINS

Justin Bieber v. ‘Joustin Beaver’ ? ? ? – Who cares

? ? ? http: //www. allyourlawarebelongtous. com/justin-biebers-joustin-beaver-lawsuit/

No Doubt v. Activision Publishing, Inc. (No Doubt & Band Hero) SETTLED

Dillinger v. Electronic Arts John Dillinger & “Dillinger Tommy Gun”

http: //volokh. com/2011/06/24/electronic-arts-prevails-over-dillinger-heirs/

STEP 8 Patent Rights

Crazy Taxi v. Simpsons Road Rage SETTLED

Golden Tee v. PGA Tour Golf Defendant PGA Tour Golf WINS

STEP 9 What do YOU think?

Thank You

Always include a cat picture

Our Academic Partners