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Dr Michaela MacDonald
Senior Lecturer, The School of Electronic Engineering and Computer
Science
Queen Mary University of London
Interac(ve Entertainment
Law 2
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Copyright – Overview
Copyright law determines the following:
• Subject matter
• Authorship
• Ownership
• Term of protection
• Economic rights
• to copy the work
• to issue copies of the work to the public
• to rent or lend the work to the public
• to perform, show or play the work in public
• to communicate the work to the public
• to make an adaptation of the work or do
any of the above in relation to adaptation
• Digital exhaustion
• Exceptions – fair dealing and fair use
• Moral rights
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Video Games and Copyright
• Legal classifica+on of video games
• Video games are complex digital products – which elements and aspects can be
protected individually, and can video games be protected as such?
• Digital exhaus+on
• Does digital exhausDon apply to complex digital products?
• Sale of goods or provision of service?
• Copyright infringement
• There are unique uses and pracDces with regards to video games that may give rise
to copyright infringement
• Genera+ve AI and copyright
• QuesDons about the authorship and ownership of computer-generated works and
potenDal infringing pracDce with regards to the training data
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Legal Classifica;on of Video Games
• Different jurisdic.ons have different approaches to protec.ng video
games
• Unitary approach
• Audiovisual works
• Computer programs
• Something else?
• Distribu.ve approach
Andy Ramos, Laura López, Anxo Rodríguez, Tim Meng and Stan Abrams, The Legal Status of Video Games:
ComparaCve Analysis in NaConal Approaches (WIPO) (parCally outdated)
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Nova Produc+ons Ltd v Mazooma Games Ltd
[2006]
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Legal Classification of Video Games – UK
• Claim that two arcade games infringed copyright in Nova’s Pocket
Money game
• No direct copying of source code – the claim was for copying the
program by copying the outputs that appeared on the screen
• Nova also argued the defendants have copied the look and feel and
mechanics of the game
IELR 3.2: Copyright protection of video games in the post-Brexit world, article +
video
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Legal Classifica;on of Video Games – US
“Courts in this Circuit and others have long held that elements of
computer programs may be protected by copyright law. This includes
both the code for the program as well as the graphical elements for
programs such as video games.”
[Tetris Holding, LLC v. Xio InteracDve, Inc. 863 F.Supp.2d 394 (D.N.J.
2021)]
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Legal Classifica;on of Video Games – EU
“As is apparent from the order for reference, videogames, such as those at issue in the main
proceedings, cons6tute complex ma9er comprising not only a computer program but also
graphic and sound elements, which, although encrypted in computer language, have a
unique crea6ve value which cannot be reduced to that encryp6on. In so far as the parts of
a videogame, in this case, the graphic and sound elements, are part of its originality, they
are protected, together with the en6re work, by copyright in the context of the system
established by Direc6ve 2001/29 (InfoSoc Direc6ve).”
(C-355/12 Nintendo)
(C-5/08 Infopaq)
(C-310/17 Levola at [42] – precise and objecDve form of expression
(C-683/17 Cofemel)
1. Original
2. Expressed in a manner that makes it idenDfiable with sufficient precision and objecDvity, even
though that expression is not necessarily in permanent form
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Relevance
• Author
• Different authors may be identified depending on the type of work, e.g.
audiovisual works may have a different author depending on the jurisdiction
• “The principal director of a cinematographic or audiovisual work shall be considered as
its author or one of its authors. Member States shall be free to designate other coauthors.”
(Art 2(1) Term Directive)
• Term
• Different length of protection depending on the type of work, e.g. for
audiovisual works
• “The term of protection of cinematographic or audiovisual works shall expire 70 years
after the death of the last of the following persons to survive, whether or not these
persons are designated as co-authors: the principal director, the author of the
screenplay, the author of the dialogue and the composer of music specifically created for
use in the cinematographic or audiovisual work.” (Art 2(2) Term Directive)
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Relevance
• Ownership of work created by employees
• PotenBally different rules depending on the type of work, e.g. for soDware
• “Where a computer program is created by an employee in the execuDon of his duDes or
following the instrucDons given by his employer, the employer exclusively shall be
enDtled to exercise all economic rights in the program so created, unless otherwise
provided by contract.” (Art 2(3) Computer Program DirecDve)
• Exhaus.on
• C-128/11 UsedSoD
• C-263/18 Tom Kabinet
• TPMs
• C-355/12 Nintendo
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Digital Exhaus;on
• Authors have an exclusive right to authorise or prohibit distribu.on of
their works (and their copies) by sale or otherwise, for example by
lending or even by distribu.ng free copies
• Within the EU, this right is exhausted aZer the first authorised
distribu.on of the work on the EU market
• Does the exhaus.on principle apply to digital copies as well?
• CJEU has ruled that the InfoSoc and SoZware Direc.ve are outside
the remit of the exhaus.on principle
• The InfoSoc Direc.ve is the general rule (the exhaus.on principle
does not apply) and the SoZware Direc.ve is the lex specialis
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UsedSoft v Oracle
• The CJEU confirmed that exhaustion can take place for digital
distribution, but only for software (so far), and only if the following
conditions are met: the permanent character of the ‘licence’, the
appropriate remuneration of the rightsholder, and the reseller making
their copies unusable for after the resale
• The Software Directive as lex specialis will apply only when it
concerns computer programs per se
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Nintendo v PC Box
• The court ruled videogames, such as those at issue in the main
proceedings, consDtute complex maFer comprising not only a
computer program but also graphic and sound elements, which,
although encrypted in computer language, have a unique creaDve
value which cannot be reduced to that encrypDon and fall under the
remit of InfoSoc Direc.ve
• The principle of exhaus.on does not apply
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Tom Kabinet
• The case concerns the Tom Kabinet website, a challenger to the
publishing industry, who operates a marketplace for people to sell
and buy second-hand e-books
• In order to sell used e-books, sellers can upload e-books onto the site
by agreeing to delete their own personal copies from their hard drive
and they are asked to verify that the e-books being uploaded were
legally obtained
• The CJEU ruled that the supply to the public by downloading, for
permanent use, of an e-book is not a covered by the concept of
‘distribu.on’, but by that of ‘communica.on to the public’, and
therefore cannot give rise to exhaus.on
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Capitol Records v ReDigi (US)
• Case regarding the reselling of digital goods like music and e-books
• The court ruled that the company’s secondary market for digital
music infringes on the copyrights controlled by record companies
• The case has been closely watched as a test of whether the first sale
doctrine — the legal principle that someone who owns a copy of a
copyrighted work, like a book or album, is free to resell it — can be
applied to digital goods
• The judge ruled that ReDigi’s system infringed on Capitol’s
reproduction rights because it transmitted an unauthorized copy of
the file over the Internet
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Sale of Goods or Provision of Service?
• Another important considera.on is whether the interac.on between
the rightsholder and the end-user is a sale of goods or a provision of
service
• If a customer pays for using a digital product, an e-book or a video
game, for example, does this qualify as a sale or service?
• A crucial dis.nc.on in copyright law between the (exhaus.ble)
distribu.on right and the (inexhaus.ble) right of making available
• Will the concept of cloud gaming upset this dis.nc.on even further?
IELR 3.2 Trepova-Fava, Aren’t we all exhausted already? EU copyright exhausDon and video games resales in
the Games-as-Service era
Longan, Dimita, Michels, and Millard, Cloud Gaming DemysDfied: An IntroducDon to the Legal ImplicaDons of
Cloud-Based Video Games, Queen Mary Law Research Paper No. 369/2021 (SSRN)
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Copyright in Choreography
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Copyright in ta-oos
reproduced in video
games
• Are tattoos capable of copyright
protection?
• Do you need a license to reproduce it
in a video game?
• Solid Oak Sketches, LL v. 2K Games,
Inc. and Take-Two Interactive
Software, Inc., (2020)
• Alexander v. Take-Two Interactive
Software, Inc., (2020)
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Copyright Infringement
• CreaDon of a video game
• IncorporaDon of third-party intellectual property
• Cloning
• DistribuDon of and access to a video game
• Emulators and ROMs
• Key selling
• Account transfer and second-hand video games
• AlteraDon of the video game
• Modding
• In-game user creaDons
• Interfering with the integrity of the video game
• Re-purposing the video game
• UGC
• Livestreaming and E-sports
Key issues:
• Cloning
• Modding and in-game
user creaBon
• Key selling and account
transfer
• Interfering with the
integrity of the video
game
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Cloning
• Cloning refers to the prac.ce of crea.ng a game which replicates the
game experience of the original game, usually by a compe.tor
• Not a new problem, but becoming more common / large scale
• Elements that are being copied:
• Look and feel
• Game mechanics
• Characters
• Graphics and visuals
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Cloning
• Copying can be:
• Literal
• Literal copying of abstract features
• Non-literal copying
• Video game copying / cloning usually involves non-literal copying,
which is the most difficult to prove / succeed with a claim
• Jurisdiction-specific
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Tetris Holding, LLC v. Xio Interac+ve, Inc.,
863 F.Supp.2d 394 (D.N.J. 2012)
• The Court stated:
“there is such similarity between
the visual expression of Tetris and
Mino that it is akin to literal
copying”.
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Spry Fox LLC v. LOLApps Inc, No. 12-00147, 2012 WL 5290158 (W.D.
Wash. Sept. 18, 2012)
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Alterna;ve Avenues
• Patent law
• Trademark law
• Multimedia trademarks
• Design law
• Unfair competition and passing off
• Takedown requests
• ‘Naming and shaming’
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Altering a Video Game
• Modding
• In-game user
crea1ons
• Modding
• From recolored versions to
exis.ng ouhits and hairstyles for
The Sims 4 to complete
overhauls (see images for
comparison)
• These altera.ons – ‘mods’ – are
distributed online free of charge
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Modding – Crea;on
• Crea.ng a mod
• Introducing new content, feature, or element to the original video game
without copying it (add-on, plug-in); but more oDen
• The new elements may imitate the structure and organizaBon of exisBng
code, or incorporate features of the exisBng art
• Copyright implica.ons
• Copying (of the work as a whole or of a substanBal part or similar equivalents)
implicate the reproducBon right in the original video game and/or its
consBtuent works, as well as adaptaBon or derivaBve works rights
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Modding – Use
• Using a mod
• The player must have the original video game which it modifies already
installed on their gaming device
• The mod alters the content, when interaction with the original video game
• It does not operate as stand-alone pieces of software
• Copyright implications
• Mere use of a mod may constitute copyright infringement, particularly where
the EULA expressly prohibits players from modifying it
• Take-Two Interactive Software v. James (UK)
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Modding – Making available
• Making a mod available online
• Copyright implica.ons
• The making available of mods online potenBally implicates the distribuBon,
making available to the public and/or communicaBon to the public rights in
the original video game
• Where a mod contains infringing material, the operator of the website on
which it is hosted may also incur liability, except where the “safe harbor” rules
for Internet service providers apply
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Integrity of a Video Game
• Private servers
• Chea.ng in online video games via the use of hacks, bots, or the
provision of unauthorized private servers
• It impacts the integrity of the game and users’ experience
• Copyright implica.ons
• Infringing the reproducBon right and the communicaBon to the public right
• It may also amount to a circumvenBon of TPMs and a breach of EULAs
• MDY v Blizzard (US)
• Riot Games, Inc v Stefan Delgado Argote et al. (US)
• Epic Games, Inc v Joseph Sperry (US)
• Blizzard against Bossland (Germany, UK)
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Key points
• Copyright considerations underline creating and using video games as well
as the tools needed to develop them
• Other IPRs complement the protection available to a whole range of assets
present in video games, and any other associated products and services,
both physical and digital, altogether creating a complex matrix of IPRs
• Interactivity and creativity hinges on the questions of
• legal nature,
• scope of protection,
• what qualifies as infringement,
• are there any valid exceptions?
• Multi-layered enforcement strategies are required (litigation is not always
the best option)
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Thank you!
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