Copyright issues in the realm
of digital games:
Case Study Research Paper

Product Information

 Jasper, Summer and Dak are studying a Bachelor of Communication Studies in AUT. Recently they have developed a new video game for mobile devices, which could further be developed into PC and console version in the future. This is a puzzle video game with heavy emphasis on its visual style, atmospherics and plot, where all members of the Trio have contributed equally. The game is already completed and ready for distribution.

Copyright Eligibility 

Without appropriate rights and licenses to protect their work, the Trio may find they are not able to distribute their game or truly leverage its value. What they own is intellectual property, and it needs to be protected (Greenspan, Boyd, & Purewal, 2014). Therefore, law prevents others from copying and exploiting creative work and reputation of the author and provides remedies in case this happens (Bainbridge, 2006).  There are four conditions, which determine if a work can be protected by copyright. First, the work must be original and of a field where copyright exists. Moreover, the nationality of an author or origin of the work must be one that qualifies for protection and the work must be fixed in a material form (Ministry of Business, Innovation and Employment, 2014). Consequently, the Trio’s game qualifies for copyright protection. It was produced by their own design, while the game’s separate elements, such as artwork, soundtrack and code, are copyrightable by law. Lastly, their game is fixed in electronic form while it was created in New Zealand, where copyright law exists.

Copyright Protection

Despite the fact that digital games constitute a substantial part of the modern media landscape, most countries in the world, including New Zealand, do not have any specific provisions for video games (Ramos, Lopez, Rodriguez, Meng, & Abrams, 2013). Moreover, every video game incorporates a wide range of art forms, including music, animation, paintings, codes, which makes it a complex work of authorship (Ramos et al., 2013). As a result, digital games cannot be classified into a single category; contrariwise they are a combination of single elements, which can be individually copyrighted (Ramos et al., 2013). As a consequence, video games technologically and formally establish a unique realm of interactive media within a domain of copyright law, while also giving various forms of authorship to the player as he or she engages with the game (Lastowka, 2013). Finally, other video game subject matters can be eligible for copyright protection, including video game plot, script, well-developed characters, pantomimes and choreographies, maps and architectural elements (Ramos et al., 2013). Consequently, the Trio can expect copyright protection on the majority of game elements.

There are a number of international treaties, which provide a framework for the administration and regulation of copyright (Ramos et al., 2013). However, the Berne Convention specifies that domestic law govern the protection of copyright in the country of origin ( Berne Convention for the Protection of Literary and Artistic 1971). Therefore, the elements of the Trio’s video game will only be copyrighted if they meet each jurisdiction’s criteria for protection (Ramos et al., 2013). However, different countries exercise different practises towards video games. In Canada, China, Russia and Singapore they are classified as computer programs. On the contrary, Germany, Japan and the USA believe that games have a distributive classification, meaning that the Trio would seek separate legal protection for each element. Finally, Kenya and Republic of Korea label video games as audio-visual works. Furthermore, New Zealand does not require formal registration system. Copyright is granted the moment the work was fixed in material form, and is protected overseas (Copyright Council of New Zealand , 2015). Nevertheless, certain countries have voluntary registration procedures in order to establish the nature of the work, also granting the developers a number of economic and litigation benefits (The Canadian Trade Commissioner Service, 2015; U.S. Copyright Office, n.d.). However, this may be a meticulous paperwork process, requiring registration fees and lawyer assistant, only complicating the process of ensuring copyright protection for the Trio.

Nevertheless, these issues can be avoided if the Trio finds a video game publisher. In general, publishers undertake the commercial risk of the project and request a transfer of all intellectual property rights (Ramos et al., 2013). In this scenario, the publishing company itself would ensure that copyright is respected around the globe. Additionally, the publisher will have to pay royalties to the Trio based on a percentage of the net sales revenue (IGN, 2006).  According to Imagine Games Network study a typical royalty ranges between 10% and 20% (IGN, 2006). Although, due to the emergence of electronic forms of distribution and crowd-funding platforms, such as Kickstarter, the roles of publishers and developers are shifting (Greenspan et al., 2014). Subsequently, rights for the intellectual property could be shared with the Trio or even owned by them, while bigger royalties can also be negotiated (Greenspan et al., 2014). Otherwise, the Trio can use social media to build up their fan-base and upload their game on Google Play and Appstore. Consequently, they could also rely on their fan community to help them translate and localize their game abroad. This process is known as co-creation, where consumers and developers work together on value creation (Moisio & Rokman, 2011). For instance, Facebook has proved being a useful tool for increasing public interested and encouraging consumer involvement in creative projects, by proving benefits of a physical studio accessible anywhere at any time (Smith, 2009). Although, the Trio would rely on themselves to defend the game in case it was exploited.

In terms of ownership, the given game will be treated as work of joint authorship, where Jasper, Summer and Dak own copyright together, as their contributions are not distinct from one another’s (Copyright Act 1994). Otherwise, the Trio can register themselves as game studio, for instance a limited liability company, assigning the copyright to it. This will also grant some legal protection from liabilities in case the project fails (Reuting, 2011). Furthermore, due to the fact that Trio’s video game is created of a number of material and computer-generated elements, the copyright duration for them will vary, with a least of 50 years from the end of the year the game was made (Copyright Act 1994).

In regards of legal protection, copyright grants its owner two forms of rights: economic and moral (Bainbridge, 2006). Economic rights give a number of exclusive privileges including the right to copy the work, make adaptations and transfer these rights. This indicates that if someone else rather than the Trio performs any of these acts, they will be infringing copyright. First of all, this prevents plagiarism in video games. For instance, Limbo of the Lost has used visual assets from The Elder Scrolls IV: Oblivion with no primary authorization. As a result, the game was withdrawn from physical and digital outlets even without filling a lawsuit (Boyes, 2008).

Furthermore, Atari Inc. has accused North American Philips Consumer Electronics Corp., of creating a game called K.C. Munchkin very similar to Pac-man. Atari won the case even though Pac-Man as a game was not protected by copyright as such, and no direct assets were violated (Ramos et al., 2013). This case established how copyright applies to the “look and feel” of the games as it proved that even substantially similar works could infringe copyright even if it was created independently of the Trio’s game (Ramos et al., 2013).  

Nevertheless, this being an advantage to the Trio, it may have adverse effects on end-users and creatives in general. It can be argued that the copyright law is too restrictive and gives rise to impediment of future innovation and creativity in vide game industry (Kim, 2008). It restricts people’s freedom to create using available cultural resources and ideas. However, in another memorial case of Atari, Inc. v. Amusement World about the similarities of ‘Asteroids’ and “Meteors”, Atari actually lost (Lastowka, 2013). The court ruled that the game similarities were inevitable driven by the “idea” of spaceships combating in space, which is not copyrightable. In contrast, K.C. Munchkin exploited the expression of the idea itself. This case essentially transformed Asteroids into a genre of video games (Lastowka, 2013). This illustrates that it is possible to further explore the Trio’s idea as long as it is not exploited further than within the bounds of the genre and refrain from creating a game “clone” by contributing new elements over the original idea.

Lastly, moral rights give the Trio an extra degree of protection and are not transferable (Bainbridge, 2006). These include a right for attribution, right to oppose derogatory treatment of the work and a right not to have a work falsely attributed to them (Intellectual Property Office, 2007). This gives the Trio extra negotiation leverage with a publisher about the game uses or anyone else who uses the game content in derogative manner.

 

Creative Commons 

Although, there is an alternative to automatic “all rights reserved” copyright known as Creative Commons licenses. It allows people to share their creative work with others, and they are able to legally build upon it, while giving author a credit (Creative Commons, n.d.). However, it can be argued that Creative Commons is not appropriate to the Trio’s game.

To begin with, Creative Commons licenses would allow users to share Trio’s work with others without any monetary compensation. As a result, approximately 73% of CC licensors do not generate money from their works, with 19% admitting that their copyrighted work is a supplementary income source (Kim, 2008).

 Furthermore, CC licenses allow uses of the work that might violate Trio’s moral rights. If the Trio applies for 4.0 license, they would agree to waive their moral rights to the extent necessary for the public to use the Trio’s work. This is done to ensure that the license is legitimate internationally and to minimize the effect of moral right constraints on licensees (Creative Commons, 2015).

Nevertheless, Creative Commons is seen as a driver of creative progress, an alternative to copyright, which restrains talent and innovation. However, due to the electronic nature of digital games, the Trio will be able to adopt an End User License Agreement. EULA is a legal contract between software application author and its user, where the user chooses to agree with all stated conditions in order to launch an application (Rouse, 2005). Consequently, if the Trio wanted to allow others to build on their work, they could simply enter that condition in EULA.

 

Recommendations

Dear Trio,

As your manager I recommend upholding to copyright protection. It is granted automatically on the creation of your video game and subsequently protects its visual, audio and literary elements. Taking into account that New Zealand is a member of a number of international treaties, your work will also be protected overseas. Although, few countries require registration for an extra degree of protection, yet that is voluntary. Moreover, it is simpler to secure a monetary compensation for you efforts if maintaining copyright as all creative commons licenses allow free content sharing. Although, if you want to further contribute to the creative industries, I recommend composing an appropriate EULA, allowing end-users to modify your work. Furthermore, it is easier to find a publisher with a commercial work. A publisher will help you to market and distribute your work, while also defending your game in court in case of infringement. Additionally, you could negotiate more appropriate royalties and copyright ownership terms. Even if you transfer most of you rights to the publisher, you still keep your moral rights to prevent your work from being treated derogatively. Otherwise, you can distribute the game yourselves in Google Play and Appstore, using crowd-funding websites and social media to promote it and request your fans’ help with localizing the game. Although, you would rely on yourself to defend the game in case it is infringed, however, the same applies to Creative Commons licenses.

 

Reference List

  • ‍Bainbridge, D. (2006). Intellectual  property (6th ed.).  Essex, England: Pearson Education Limited.
  • Boyes, E. (2008). Limbo  in limbo after plagiarism outcry. Retrieved March 26, 2015,  from http://www.gamespot.com/articles/limbo-in-limbo-after-plagiarism-outcry/1100-6192456/
  • Copyright Act 1994. Berne Convention for the  Protection of Literary and Artistic 1971, Article 5. 
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