Copyright Law

• Author: Marc E. Mayer
• Pages: 61-117

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Copyright Law

Marc E. Mayer1

Takeaways

• Computer and video games are copyrightable works

of authorship. However, they are unique in several

significant respects. For example:

(a) Computer and video games are both “audiovisual

works” and “computer programs.” Thus, copyright

may subsist both in the underlying code and in the

audiovisual displays that result from the interaction

of code with a personal computer, console, mobile

device, or computer server.

(b) Computer and video games have both a static

component (the software code, art, and music)

and a dynamic component (the way that a game

unfolds either through the interaction of game and

player or game and multiplayer server). Thus, there

are questions as to whether copyright subsists in

dynamic virtual worlds and whether (or when)

1. Marc Mayer is a partner in the Intellectual Property Practice

Group at Mitchell Silberberg & Knupp LLP and chairs the firm’s

interactive entertainment practice. Marc thanks Mark Humphrey

for his assistance with this chapter. This chapter is a revision of a

chapter first written by John M. Neclerio and Matthew C. Mousley

for the first edition of this book. For complete author biographies,

see the Contributors section of this book.

COPYRIGHT LAW

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player interactions with computer code or online servers create

derivative works.

(c) Most computer and video games contain a set of underlying

rules and gameplay mechanics that are expressed and manifested

through visual representation and implemented via user interfaces

and artificial intelligence. The interrelationship between rules, code,

artwork, and user interface makes it extremely difficult to separate

the difference between traditionally uncopyrightable game “rules”

and copyrightable expression.

• User-created video game content, such as game “modifications”

(“mods”), custom levels, user-created “skins” or characters, or user-

designed virtual spaces, are becoming a very important segment of

video game content. They also are generally considered to be derivative

works of the original computer game that cannot be exploited without

the consent of the copyright owner. Courts have begun to address some

of the ownership and infringement issues associated with game mods

and collaborative game projects. These issues will continue to evolve as

collaboration takes place in virtual spaces and as users seek to monetize

their creations.

• The diversity of computer and mobile video games has spawned a broad

and diverse body of infringement claims. These range from “traditional”

claims of substantial similarity arising from the use of similar plots,

storylines, and characters; to claims arising from the creation of “clone”

or “copycat” games; to claims involving the manipulation of online

games through disruptive and harmful software programs such as

“bots” or “cheats.”

• The growing popularity of e-sports, combined with the ease by which

gameplay can be recorded, streamed, and disseminated online, has

led to an enormous secondary market for the passive consumption of

gameplay videos or live sports competitions. The recording and online

broadcasting of video games implicates the rights of the owners of

copyright in those games.

Introduction

The application of copyright law to video game and interactive

works is nothing new. Courts have applied copyright law with

respect to video games as early as the late 1970s and 1980s in law-

suits involving early arcade games such as Pong, Pac-Man, and Gal-

axian. But as video games and virtual worlds have evolved, courts

have grappled with an entirely new set of questions and issues that

Introduction 63

were never considered at the time the current Copyright Act was

enacted in 1976.

The range of copyright issues facing the video game industry

is wide-reaching. This is due in large part to the vast range of inter-

active electronic entertainment now being made available to con-

sumers. Many games, such as those in the Call of Duty or Uncharted

franchises, are nearly indistinguishable in relevant respects from

major motion pictures in that they feature complex characters,

detailed storylines, thousands of lines of dialog, and photorealistic

graphics. Others such as Minecraft offer players an endless virtual

sandbox where they are free to create their own virtual “worlds”

and invite others to participate. Meanwhile, competitive games (or

“e-sports”) such as League of Legends and Overwatch have come

to define an increasingly large segment of the video game world

and have turned video games into spectator sports—and perhaps

even an Olympic sport. And on top of everything is the massive

and growing world of mobile games, which include casual puzzle

and matching games, arcade-style games, complex adventure and

role-playing games, and competitive collectible card games.

Courts are just beginning to address some of the copyright

issues arising from contemporary computer and video games.

These include, for example, copyright ownership of user-generated

content, how to differentiate between game “ideas” and “expres-

sion,” and whether copyright extends to the “dynamic” virtual

worlds generated when a client interacts with a server.

This chapter discusses some of the key concepts of U.S. copy-

right law, and their application to some emerging issues in the

video game industry. Specifically, I first discuss the basic require-

ments for copyright protection, including how video games are

protected under the Copyright Act, as well as certain limitations

on the rights of copyright owners, including the idea/expression

dichotomy and its applicability to video game “rules.” I then dis-

cuss concepts of authorship, ownership and joint authorship,

including authorship of user-generated content. Finally, I discuss a

few specific examples of copyright disputes that have arisen over

the past several years.