Copyright Infringement Wars in the Gaming Industry

In the immersive universes of titles like Call of Duty: Modern Warfare, Gears of War, Star Wars, and Warcraft, epic battles unfold on digital battlefields. Yet, behind these vivid conflicts lies an equally intense struggle, a relentless war waged not with RPGs, M4A1s, or MP5s but with streams of code, mountains of data, and endless legal briefs. In this arena, creators and publishers fiercely defend the value of their ingenuity, locking horns over every pixel and file. 

Much like the splashes of blood in a blockbuster firefight, every lawsuit and copyright claim marks a clash where the pen indeed proves mightier than the sword. 

The US gaming industry is a battleground for both gamers and developers. In recent years, fierce copyright wars have erupted over game cloning, digital distribution, and the unauthorized use of intellectual property. These wars are far from novel. In fact, some gaming enthusiasts argue that copyright wars are as ageless as Tython, one of the oldest Star Wars' inhabited worlds in the Galaxy.

The challenge of protecting creative work in video games can be traced back to the early days of arcade gaming. Courts struggled with the issue of whether an interactive, ever-changing work could be fixed enough (fixation is one of the grounds for the copyrightability of creation) for copyright protection. 

Early disputes, such as the Atari Games Corp. v. Oman case, set the stage by examining whether a game like Breakout, with its simple geometric shapes and dynamic imagery, could be seen as a cohesive audiovisual work. Ultimately, the US Court of Appeals for the District of Columbia Circuit held that if the overall "look and feel" of a game meets a minimal threshold of creativity, even basic elements can be protected.

However, this challenge continues to evolve with the evolution of video games into more narrative-driven, visually rich experiences. In this article, we will discuss what copyright is with respect to the gaming industry, the challenges in protecting video game copyrights, how video game developers can best enforce their rights, and conclude by highlighting leading disputes in the gaming industry and how they shaped copyright law in that industry.

What is a copyright?

The US Copyright Act, Title 17 defines copyright as a form of legal protection automatically granted to original works of authorship that are fixed in a tangible medium of expression. In essence, once an idea is expressed in a physical form such as a written document, a recorded song, a digital file, or a video game, the work is protected, giving the creator exclusive rights to reproduce, distribute, perform, display, and create derivative works from it.

Additionally, subsequent amendments, such as the Digital Millennium Copyright Act (DMCA) of 1998, have expanded these protections by addressing issues related to digital distribution and technological protection measures (TPMs).

The nexus between copyrights and video game assets

Video games are complex works of authorship containing multiple art forms, such as music, scripts, plots, videos, paintings, and characters, that involve human interaction while being executed with a computer program on specific hardware. This implies that video games contain several copyrightable assets. These include:

• Character designs: The visual designs of a character in a game, including their appearance, clothing, and overall aesthetics, making them distinct and unique. 
• Environment: All 3D and 2D artwork, including backgrounds, concept art, early sketches and design documents, themes, and scenic art, can be protected under copyright laws. 
• Sound design and music: Music compositions, sound effects, background music, and voice acting are all protected under the copyright of sound recordings and musical compositions.
• Dialogue and narrative: The dialogues and script involved in the game can be protected under literary work under copyright laws. 
• Game code: The source code is a sequential programming written by creators and protected under copyright.
• UI/UX design (user interface and user experience): The user interface elements, icons, menus, and graphical elements are protected by copyright.  
• Game logos: This would come under trademark and copyright law protection. For instance, "Assassin's Creed," which features a unique emblem, is copyrighted and trademarked.

Challenges in protecting video game copyrights

Several unique challenges are associated with the protection of video game copyrights. These challenges pose serious enforcement issues for copyright holders, and others have resulted in insurmountable battles between video game developers themselves and between video game developers and the US Copyright Office. We have enumerated them below:

Defining the "fixed" work in an interactive medium

Video games are inherently interactive and dynamic. This quality has often raised questions on whether their constantly changing output can be considered "fixed" in a tangible form. This poses a challenge as fixation is one of the requirements for copyright protection. 

The case of Atari Games Corp. v Oman highlights this fact very clearly. In this case, Atari sought copyright registration for its classic arcade game Breakout. The Copyright Office initially rejected the application on the grounds that the game's simple geometric shapes and dynamic visual output didn’t meet the fixation requirement. However, the US Court of Appeals for the District of Columbia Circuit ruled that the overall "look and feel" of the game, considered as a whole, was creative enough to warrant copyright protection.

User modification and reverse engineering

The current gaming culture welcomes user modification (mods) and reverse engineering. However, it’s difficult to determine when these activities cross the line into copyright infringement. It’s becoming increasingly hard to tell when they amount to a creation of an unauthorised derivative work.

In Lewis Galoob Toys Inc. v Nintendo of America Inc., the legality of the Game Genie, an accessory that altered the data transmitted between Nintendo cartridges and consoles, was addressed. Nintendo argued that these modifications resulted in unauthorized derivative works. Despite this argument, the court held that the changes did not constitute copyright infringement because they were temporary.

Game cloning and the expression versus the idea debacle 

Many games stem from the same idea (mechanics) but differ in terms of how that idea is expressed (artistic expression). For instance, both Dream League Soccer and EA Sports developed their respective games from the idea of interactive football, but they differ in terms of narratives and visual expressions. Determining whether a cloned game has infringed on the original is not an easy task.

In Tetris Holding LLC v Xio Interactive Inc., Xio Interactive's game, Mino, was scrutinized for its similarities to Tetris. While the falling block mechanic is a common idea, the court focused on unique elements such as the specific arrangement, color scheme, and design of the blocks and game board. The ruling affirmed that these distinctive artistic choices were protectable, and copying them constituted infringement.

In Spry Fox LLC v. Lolapps Inc., Spry Fox sued Lolapps for cloning many of its creative elements in the game Yeti Town. Despite differences in presentation (2D vs. 3D), the court found substantial similarities in the overall "look and feel" - including the hierarchical structure of objects and UI elements - that went beyond unprotectable ideas. This led to a settlement where intellectual property rights were consolidated.

Digital battlegrounds: streaming and distribution

Streaming platforms like YouTube host an innumerable amount of game content. Most of these uploads are unauthorized. Creators have also suffered the consequences of fake DMCA notices inspired by fraudulent copyright strikes. These disruptions can endanger careers built over the years.

How to wage a winning war in the gaming industry

Publishers and developers need to ramp up their legal and technological efforts towards protecting their work. In light of the evolving infringement tactics, it’s important to be wary of not only infringers but also individuals that use circumvention tools to bypass digital rights management (DRM) systems. Developers need to develop strategies that cover both physical cloning and digital piracy.

Developers ought to keep abreast of the impact of emerging technologies such as artificial intelligence, virtual reality, and real-time streaming on their rights. Future copyright cases may address AI-generated content or the integration of user-generated modifications. It’s essential to be prepared for this.

Gaming has become a global phenomenon. Legal battles in the US are likely to impact the industry at a global scale. Accordingly, it’s crucial to have in place an effective cross-border enforcement strategy, and coordinated international effort to safeguard gaming copyrights.

As video gaming continues to evolve, enforcement challenges evolve with it. It’s important to have someone at your corner that understands these cases and the issues they address, in order to better navigate the legal complexities of protecting creative works in an ever-evolving, ever-dynamic gaming world. At Trademarkia, we understand this. Let us walk the journey of protecting your gaming copyrights with you. Reach out to us!

Additional resources

• How to File a Copyright Lawsuit for Infringement
• Can AI Invent or Author Registrable Work? Let's Explore

Glossary of legal terms

• Copyright: Legal protection automatically granted to original works of authorship fixed in a tangible medium, giving the creator exclusive rights to reproduce, distribute, perform, display, and create derivative works.
• Copyright infringement: The unauthorized use or reproduction of a copyrighted work that violates the exclusive rights of the copyright owner.
• Derivative work: A new work based on or derived from one or more preexisting works (such as adaptations, modifications, or translations) that incorporates protected elements of the original.
• Fixation: The requirement that a work must be captured in a stable, tangible medium (e.g., a written document, digital file, or recorded performance) to qualify for copyright protection.
• Fair use: A legal doctrine allowing limited use of copyrighted material without permission for purposes such as criticism, commentary, news reporting, teaching, or research.
• Digital Millennium Copyright Act (DMCA): A 1998 amendment to US copyright law that addresses digital distribution challenges, including anti-circumvention measures and safe harbor provisions for online service providers. Read the DMCA.
• Intellectual Property (IP): Creations of the mind - such as literary works, inventions, symbols, names, and images - that are legally protected from unauthorized use.
• Reverse engineering: The process of analyzing a product (often software or hardware) to determine its design, architecture, or composition, usually used to develop compatible or competing products.
• User-Generated Content (UGC): Content created and published by end users (such as gameplay videos, mods, and fan art) that may be subject to copyright if it incorporates protected elements from existing works.
• Trademark: A symbol, word, or phrase legally registered or established by use to represent a company or product, helping to distinguish it from others in the marketplace.
• Takedown notice: A notification typically filed under the DMCA that requests an online service provider to remove or restrict access to infringing content. 
• Digital Rights Management (DRM): Technologies used to control the use of digital content and devices after sale, intended to prevent unauthorized redistribution of digital media and restrict ways consumers can copy content.