By Francis Tiongson
The video game world is in constant metamorphosis- from the rise of the home console to its subsequent crash in 1983, to the transition from 8 bit graphics to 3D graphics, to the console wars of the mid 2000s.[1] In the undercurrent of this industry exists a community of user generated content – video game mods. In that community lies uncertainties on how their content exists in relation to video game studios (“studios”).[2] Moreover, who retains ownership of this content and whether the current doctrine, like that of some mods, is in need of an overhaul.[3]
Video game modifications (“mods”) are user generated content from content creators (“modders”) and shared to other players in the game.[4] A mod may alter one or more aspects of the game, ranging in scale from small “tweaks” and “bug-fixes” to complete overhauls that can sometimes extend beyond the initial product offered by video games studios.[5] The action involved in creating mods is known as modding.[6] Modding a game occurs when a modder changes the game through manipulating the game’s files and assets, with the scope limited entirely to the modder’s imagination.[7] Modders develop a strong sense of community, sharing ideas and resources with each other, as well as uploading content for players.[8] Notably, modding does not necessarily require coding experience because the mods simply alter the game rather than form a new game, the game is akin to a canvas by which modders can paint their work .[9]
The first game to have the largest modding community was Doom in 1993.[10]. Video game modding has been used to develop massive projects that can increase the longevity[11] of a game and has even been used as a way for some modders to obtain employment.[12] The growth of this community is observable by community hubs such as NexusMods which holds 398,503 mods with more than 35 million members and over 6 million downloads of user generated content.[13] The response of the video game industry has tended to be positive with active encouragement in user generated content through a centralized hub like Little Big Planet[14] to Bethesda Studios giving consumers the “creation kit” as in The Elder Scrolls V: Skyrim[15], though others like Nintendo have challenged modifications of their IP in the past[16] with continuing opposition to this day.[17]
Yet despite these actions, mods created by the consumers are not their own work, but the IP of the studios per their end user license agreements (EULAs).[18] Unlike film studios or comic book publishers, where the companies generally have intellectual property ownership rights for works created by their employees[19], here the modders are not the employees but lose ownership of the work when assenting to the EULA.[20] Since a studio has ownership of content created by video game modders, they are free to profit on that content.[21] For example, in 2015 Bethesda Studios attempted to enforce that right in creating “paid mods” which were met with backlash.[22] Bethesda later successfully monetized mods through the Bethesda Creation Club, a hub for the studio to allow consumers to purchase mods.[23] Though the creators of the mods in this Creation Club are given 25% profit from any mods purchased,[24] Bethesda was not obligated to do so, and the creators do not retain ownership.[25]
With regards to the ownership issue of video game mods, there are three cases that indicate who retains ownership. In Midway Manufacturing v. Arctic International, the 7th Circuit held that video games are copyrightable as audiovisual works under the 1976 Copyright Act.[26] Alternatively, the 9th Circuit in Galoob v. Nintendo took a middle position in holding that though the studios can copyright their works, the modifications are not infringement but rather fair use.[27] Yet with respect to mods themselves, though fair use, the modders do not retain ownership for their works as they were viewed to be derivative and thus owned by the studios.[28]
Despite these decisions, there is still a debate on who retains ownership rights to video game mods.[29] As such, there is a need to reexamine the controlling doctrine so that it can undergo a metamorphosis in line with the industry- a change that balances the rights of the corporation in protecting their intellectual property interests with the time, effort, and dedication modders have put in the works they created.
[1] History.com Editors, Video Game History, History.com (June 10, 2019), https://www.history.com/topics/inventions/history-of-video-games.
[2] Christopher Pearson, The IP Implications of Video Game Mods, NYU J. of Intel. Prop. & Ent. L. (Feb. 29, 2016), https://blog.jipel.law.nyu.edu/2016/02/the-ip-implications-of-video-game-mods/.
[3] Id.
[4] Soham De, What Are Mods in Video Games, MakeUseOf (Nov. 24, 2021) https://www.makeuseof.com/mods-video-games/.
[5] Id.
[6] Nathaniel Poor, Computer Game Modders’ Motivations and Sense of Community: A Mixed-Methods Approach, Sage Js. (Sept. 24, 2013), https://journals.sagepub.com/doi/10.1177/1461444813504266.
[7] Id.
[8] Poor, supra note 6.
[9] Rafi Letzter, Online Communities Are Changing Video Games to Make them Better, Weirder, and Much More Wonderful, Bus. Insider (July 20, 2015, 11:49 am), https://www.businessinsider.com/video-game-modding-2015-7.
[10] Olli Sotamaa, On Modder Labor, Commodification of Play, and Mod Competitions, First Monday (Aug. 19, 2007), https://firstmonday.org/ojs/index.php/fm/article/view/2006/1881.
[11] Andrew Kersley, Why won’t Skyrim Die?, Wired.com (Sept. 26, 2021), https://www.wired.co.uk/article/skyrim-mods-longevity.
[12] Jeremy Proome, Skyrim Mod Created as Bethesda Job Application, Mygaming.com (July 18, 2013), https://mygaming.co.za/news/pc/56420-skyrim-mod-created-as-bethesda-job-application.
[13] Network Statistics, NexusMods.com, https://www.nexusmods.com/about/stats#display=downloads&min=1104537600000&max=1662146492641&bh=ignore (last visited Sept. 3, 2022).
[14] Zachary Taylor, Little Big Planet and the Impact of User Generated Content, Prezi.com (May 12, 2022) https://prezi.com/p/0pv0m1al_sm8/little-big-planet-and-the-impact-of-user-generated-content/.
[15] Bethesda.com, Creation Kit for Skyrim Special Edition Released!, Bethesda Game Studios (Oct. 31, 2016) https://bethesda.net/en/devnote/4fbELAzKLSMoGCYkksUU4M/creation-kit-for-skyrim-special-edition-released.
[16] Lewis Galoob Toys v. Nintendo of America, 964 F.2d 965, 968 (9th Cir. 1992).
[17] Andy Brown, Modders Unite to Convince Nintendo to Stop Removing Modded Videos, NME (Jan. 15, 2022), https://www.nme.com/news/gaming-news/modders-unite-to-convince-nintendo-to-stop-removing-modded-videos-3138381.
[18] Matt Liebl, Bethesda Owns the Rights to your Skyrim Creation Kit Mods, Gamezone (2022) https://www.gamezone.com/news/bethesda-owns-the-rights-to-your-skyrim-creation-kit-mods/.
[19] Stan Lee’s Copyrights and Work for Hire, Intel. Prop. Ctr. at McDowell Rice Smith & Buchanan, (Nov. 15, 2018) https://theipcenter.com/2018/11/stan-lees-copyrights-and-work-for-hire/.
[20] Liebl, supra note 18.
[21] Michael McWhertor, Bethesda Responds to Blowback over Skyrim Paid <ods on Steam, Says it’s Listening, Polygon (Apr. 27, 2015, 6:09 PM), https://www.polygon.com/2015/4/27/8505513/bethesda-skyrim-paid-mods-valve-steam.
[22] Id.
[23] Austin Wood, Top Fallout 4 and Skyrim Modders Weigh in on Bethesda’s Creation Club, PC Gamer (July 8, 2017), https://www.pcgamer.com/top-fallout-4-and-skyrim-modders-weigh-in-on-bethesdas-creation-club/.
[24] Victor Ren, Pay for Skyrim Mods: Revenue for Valve and Creators Frustrates PC Gamers, GameSkinny (Apr. 12, 2018), https://www.gameskinny.com/l5bg4/pay-for-skyrim-mods-revenue-for-valve-and-creators-frustrates-pc-gamers.
[25] McWhertor, supra note 21.
[26] Midway Mfg. v. Arctic Int’l, 704 F.2d 1009, 1012 (7th Cir. 1983).
[27] Galoob, 964 F.2d at 969.
[28] Micro Star v. Formgen Inc., 154 F.3d 1107, 1114 (9th Cir. 1998).
[29] Pearson, supra note 1.