Brainy Gamer Confab

Michael Abbott was really kind and let me in on his 2008 roundup of our favorite games this year. I weighed in on Immortal Defense and tried to give it more love. Seriously, play this game.

As a follow-up to the comment I made about screwing the links up, my editor after the convo promptly fixed all the errors I'd made.

Now, as I look at the website and see all the awards the game has won, I see one of them was 2007 Strategy Game of the Year. Man...does it count if I didn't hear about it or play it until 2 months into 2008?

Feedback on Feedback

Shawn Elliott was on the GWJ Podcast talking about the whole symposium backlash. It's an interesting response and he does a better job explaining his intentions with the symposium. There's also the huge losses gaming websites are taking, including 1Up, which I'm gonna miss. There's also a really frank chat about the Pavlovian response culture that develops with writing online.

I don't fare well but I'm not really relevant to the discussion. I do recall pointing out that all of those people do criticism on the side. The points in my Kael piece are no longer really valid as an attack on the symposium, but based on that first post I think you can see why I had the wrong impression. Elliott's goal was to provide a window into a couple of people talking about how they work and their thoughts on video games. I'm not really going to bother defending IGN, I just find their reviews to be pretty decent mechanical guides to games so long as you ignore the score. I'm kind of amazed the podcast didn't take me out back and shoot me in the head, internet speaking.

The actual backlash itself is taking on a life of its own now. PixelVixen707 and Chris Dahlen have both started weighing in with their own questions and advice. At the very least, the whole thing is stirring up a much bigger nest of bees than even I thought existed.

Having since calmed down and been yelled at several times, I wonder if the whole thing would've gone better if I'd written something polite. Hell, it was polite compared to the first angry blog posts people wrote in response. I'm also now on a lot of people's shit lists that I really like but I doubt that will change anytime soon. Can you even apologize online, after something is out there and the impact has been done? When I look at the different responses I've gotten over the week I'm glad people now know what they were missing by the lack of criticism. Given the number of people who have told me they plan to start writing it on their own, I think there's a real hunger for it. Would that have been possible if it had just been a tepid suggestion?

There's not much to it now but to wait. The symposium is going, though the later questions interest me more than the current ones. I thought about going through it and plucking the more insightful quotes but I think I'll just leave it alone. I'm going to keep going at my usual pace once Popmatters fires back up and I'll be continuing the Critic Essays. What I'm really hoping though, is that people will keep producing the criticism we all wish video games had on a more regular basis. At least then this whole mess won't have been for nothing.

Pauline Kael - 4

To begin this conclusion, I asked an older friend about Pauline Kael. She told me she loved her work and had read her all throughout the sixties. I asked why and she said that she always had such a sharp personality. That she always had something different to say than everyone else. I asked how she felt whenever Kael had despised a film that she liked and the friend told me that had never happened. That is what you’re dealing with when you deal with Pauline Kael.

Her obituary at the New York Times quotes Louis Menand, “She made it possible to care about movies without feeling pompous or giddy by showing that what comes first in everyone's experience of a movie isn't the form or the idea but the sensation, and that this is just as true for moviegoers who have been taught to intellectualize their responses to art as it is for everyone else.'' Indeed having now finished the book I think what Kael accomplished during her moment with Bonnie & Clyde (along with several other films) was to withdraw the large stick up everyone’s asses back then. Going back to her review of Hud, the principle message she is communicating as she tears into critics is that the movie was supposed to be a comedy, not a drama. West Side Story is a half-baked version of Romeo & Juliet, not a great musical, and so on. The reason it’s important for someone to do this was that you had people selling intellectualism as a standard way to view films back then. The notion, which is hard to believe even existed, was that critics expected their audiences to always engage with the film on some higher intellectual level. The auteur theory, structural reality, on many levels Kael is constantly just tearing down attempts to shoehorn movies into some neat category. Kael writes, “Criticism is an art, not a science, and a critic who follows rules will fail in one of his most important functions: perceiving what is original and important in new work and helping others to see.” The problem that erupts when you engage with everything intellectually is that you increase the risk of missing things outside your range of experience. When a piece of art comes along that you cannot engage with mentally, a good critic has to at least check themselves by trying to look at it from a different perspective. Kael, with her frankness about sexuality and violence, was able to engage with the films of the late sixties and seventies in a way that most people were missing as they whined about lack of structure or intellectual stimulation.

On some levels, you could almost say it’s the exact opposite problem that we have with video games today. The idea of a critic marching about shredding into people’s reviews and critics with this goal is ridiculous because the vast majority of writers are already engaging with their games on a sensual level. We don’t call it this, we call it fun, exciting, a great thrill, or really scary. I don’t think someone has to go into lavish detail about enjoying shooting an NPC to understand that they are discussing the emotions the game created. The issue with this approach that people seem to be complaining about, whether it’s through the symposium or posts on how to improve reviews, is the lack of any intellectual discourse. We have all become so familiar with these games and their genres that a more finite understanding is being requested. The stick, to put things sexually, has been requested.

What does Kael offer us, as a critic doing the opposite of what our own medium could use, in terms of style? Many people praise Kael for the same reason’s that my friend did, that she had a sense of personal style that people found engaging. She did not actually make money as a critic until she was in her 40’s, meaning that for about ten years she simply wrote whatever she wanted. For ten years she developed a sense of style and passion that was uninhibited by worrying about what people wanted to read. Whether it was running an art house theater or a small radio show, Kael put in the time. She explains, “The role of the critic is to help people see what is in the work, what is in it that shouldn’t be, what is not in it that could be. He is a good critic if he helps people understand more about the work than they could see for themselves; he is a great critic, if by his understanding and feeling for the work, by his passion, he can excite people so that they want to experience more of the art that is there, waiting to be seized. He is not necessarily a bad critic if he makes errors in his judgment. (Infallible taste is inconceivable; what could it be measured against?) He is a bad critic if he does not awaken the curiosity, enlarge the interests and understanding of his audience. The art of the critic is to transmit his knowledge of and enthusiasm for art to others.”

This brings up a problem that I noted with Lester Bangs and the whole “There is no “insert famous critic” in Video Game Criticism.” If, as Kael herself defines it, all she does is communicate a knowledge and enthusiasm for the medium of film then there are plenty of people who do this for video games. If you want to talk about music in games, check out Ben Abraham’s blog. If you want to read an intense analysis of the types of gamers, read Mitch Krpata’s A Taxonomy of Gamers. If you want a clear and well-written explanation of game technology, check out Magical Wasteland. Games that aren’t always hyper-masculine or a female opinion? Sexy Videogameland or Acid for Blood. If I haven't mentioned yours then I'm sorry but the internet is vast and impossible to keep track of. You'll go mad waiting for comments or expecting a response to everything on Twitter. But those are just a few examples of people merrily doing what criticism should be doing.

THAT is the problem with game criticism. That is the problem I have with the Symposium. That’s the problem with every person who says there is no good game journalism or that no one is doing this right. People are so absolutely certain that there is something wrong with video game criticism that they never stop to question the realities of the situation. What the Hell do you think a critic like Pauline Kael is going to sound like in action? Moses coming down from Mt. Sinai? How could there ever be an official, acceptable way to review games? Is there going to be a manual of style that we all follow? If we all follow each other’s ideas, even a conglomeration of those ideas, then we’re still going to be up shit creek when a game comes along that doesn’t comport with them. And even when those people existed, do you really think there was some kind of recognition that they were the greatest critic of their time? By the time people started to recognize that Kael was a great critic she was 60 and rapidly becoming a bad one. Bangs was dead of a heart attack after 8 years of writing about music, leaving an untarnished legacy that he was busily driving into the ground. They’re so busy worshipping a bunch of corpses that they have forgotten that when a person, a critic, is writing in the flesh then it tends to not have quite the same ring. At times I wonder if what the people bitching about video game criticism really want is for one of us to drop dead so we can all commence to worshipping them.

So what exactly happened to Kael? How did this all-star critic that we all wish we had around finish up her career? She was there to change the nature of criticism and make it adapt to the new films of the 60’s and 70’s. She did so with sarcasm, crudity, and praising films that explored darker themes. The book review that I originally thought took Kael down did not actually accomplish this. She continued to write for eleven years afterwards. But Renata Adler’s takedown of Kael may perhaps be the best shred session on another person I’ve ever read. It’s only 3 bucks. Adler begins the essay by pointing out that essentially a critic either writes about a work in a medium that has moved them or does so on a consistent basis to produce a consumer guide. The problem is that large amounts of commercial product don’t actually require a high-powered critic to explain them. For example, you don’t need someone analyzing the plot of Halo 3 because it’s pretty easy to follow. Like I said in the first and second essays on Kael, she uses a ton of power to rip apart silly, inconsistent films. Another issue with one person writing about any artistic medium consistently for long periods of time is that they get tired of it. It’s natural, it’s okay if it happens, if you actively study every single film released in the year 2008 you’d be pretty damn sick of movies by the end of it. By the end of her career Kael watched 2 films a day, 4 days a week. She wrote about movies for 37 years.

With all the complaints I’ve lodged about the trash talking it isn’t a shock what happened: she started writing jokes and making fun of people for their own sake. She stopped using them to accomplish a goal or communicate a point and instead just wrote a long string of jokes and insults. Adler notes, ““[She is] an extreme case of what can go wrong with a staff critic. Prose events that would, under ordinary circumstances and on any subject other than movies, have been regarded as lapses—the sadism, slurs, inaccuracies, banalities, intrusions—came to be regarded as Ms. Kael's strong suit. Ms. Kael grew proud of them.” You can see it happening in her work with I Lost It At The Movies such as her takedown of Siegfried Kracauer’s Theory of Film. By the end of the essay I have no idea what it is that Kracauer said that was wrong or what Kael thinks the solution is. I re-read the essay a few times and all I can gather is that Kracauer really liked authenticity in movies when actors had real moments. Kael is so busy bashing his sentences and quibbles that you can scarcely follow what he was saying anymore. Nor does she even offer an alternative. She ends with beautiful prose, the proud declaration that the goal of art is to astonish us, and yet if her goal was to annihilate a rule system’s restrictions she would have been better off explaining why his system cannot astonish us. Adler, in her shred on Kael, explains, “Over the years, Ms. Kael's quirks, mannerisms, tactics, and excesses have not only taken over her work so thoroughly that hardly anything else, nothing certainly of intelligence or sensibility, remains; they have also proved contagious, so that the content and level of critical discussion, of movies but also of other forms, have been altered astonishingly for the worse.” It’s a rather frightening assertion to say you’ve lost your touch, it’s another to say you set a bad example that has infected everyone else.

Where does this leave us? What does Kael’s impeccable ethics of what a critic should be and her eventual downfall because of what a critic inevitably becomes truly mean? Let’s talk about the ‘Louder than Words’ piece for a minute. The biggest flaw with my argument is that the level of criticism I’m crying out for does not typically sell. The ZA Critiques, as much as I dearly love them, do not generate clicks. The Monkey Island piece is doing well but let’s face it, everybody likes Monkey Island. When I post my column comparing Far Cry 2 to Heart of Darkness I doubt huge groups are going to flock to it. This lack of profit actually led to a pretty funny exchange of e-mails with me and another writer. He pointed out that until people would actually pay for high-end game criticism, no one was going to bother writing it. I pointed out that I work for no pay. He quoted The Dark Knight and said that if you’re good at something you should never do it for free. I reminded him that when they paid the Joker, he also covered it in gas and threw a lit cigar on it. The writer dryly replied that he’d be impressed when I lit a pile of money someone paid me on fire.

Which puts me into perspective a little bit and should also put the people I called out in that post into perspective. I’m just some dipshit escaping from his dull life by writing about games. A large quantity of bloggers are as well. The Journalists, the ones in that symposium who have a career and their integrity to keep in check, can’t just merrily start writing whatever they want. At least not until some kind of massive demand starts to form for it, in which case I have no doubt they will deliver in spades. The thing you’ve got to remember about the kind of criticism I was asking for is that, like Adler’s critique of Kael outlines, it isn’t a 24/7 thing. There s no need for it. You cannot possibly expect brilliant, enlightening essays on every single game because, let’s face it, most of them don’t merit that kind of work. So you’ve got the consumer report end of the review spectrum and then you’ve got the occasional, hey this one was actually really good kind of essay. That’s what a regular critic actually does. The ones that are still alive, anyways. The ones who make a living on it and are going to stick with this medium for years to come. And that’s all I wanted out of that post, was to see a bit more of the thoughtful analysis and less rambling about how it should be done. And true to my own complaint, I’m the asshole for claiming it didn’t exist. IGN has created a thoughtful section for game reviews. EDGE does a monthly breakdown of an older game that goes in-depth. Hell, just start checking around the blog world.

I was tempted to end this final essay with the quote, “You either die a hero or live long enough to see yourself become a villain.” The ending conclusion was that Lester Bangs died a hero, Pauline Kael passed that phase and discovered that she had become a villain. Yet I wonder now if that really is the lesson of Pauline Kael. The reality that someday your views and ideas will grow outdated and be surpassed by your medium as a critic is something the world will oblige you with eventually. Rather, I think Kael’s lesson comes from how much she accomplished. She didn’t do this because she was good at sarcasm or spotting brilliant movies, she made mistakes plenty of times. She did it because she had standards and she stuck with them. As nebulous and emotional as her views on film might have been, her idea of the critic and their duties was carved in stone. She had a standard and a quality of writing that she consistently delivered without caving into an audience’s complaints or an editor’s pressures. The better quote comes from the scene where vigilantes have begun to dress as Batman and he is forced to intercept them. When one asks why Batman is any different than the average Joe wanting to help he replies, “I’m not wearing hockey pads.” The distinction between Kael and other writers, as in the film, is purely in the quality of the work.

I Made This. You Play This. We Are Enemies.

This is the second Jason Nelson game I've written on and I think it was a bit sharper than his last one. I always try to warn people that this is first and foremost a piece of abstract poetry...art something, the game part is meant to be secondary. When we were putting together that write-up a while ago, he explained that the point was to get people to engage with his art in a new way. So it's a couple of basic platforming concepts that are analogous to the websites that are being spoofed.

The interesting thing about the reaction online was the natural impulse to puzzle the whole thing out. Which, in Nelson's case, I'm not sure is going to work out. I'm not saying there isn't a meaning to the poetry and art, I'm saying there isn't a particular final one or anything I'd call a solution. This all turned into a little rambling about how indie games aren't afraid to do something as bold as just chucking confusion at the player, and learning to enjoy that.

Hell, I dunno. I just love that games like this exist to continually push people's preconceptions about what a game can do.

Escapist Article on Drinking Games

The idea for this article came to me when, appropriately enough, I was getting drunk in a bar. One of my favorite places has a a Big Buck Hunter machine which I happily dispense cash into. Got to doing co-op with a friend and I commented how I normally would never in a million years play this game if I wasn't drunk.

Pop, zing, and suddenly I found myself analyzing the whole thing and trying to figure out how it was designed that made it so appealing while I was hammered.

This thought process led to these conclusions.

Winding 2008 Down

Leave it to my dumb ass to kick up a fuss on the internet just before the webzine goes on its yearly hiatus, this is the last week of posting for the 2008 season for Popmatters. After this, we all go on a much needed break and resume posting on January 6th. It’ll give me time to write, play games, and finish up the Kael project.

In regards to the Kael piece, I don’t want to give the impression I’m on some kind of terror. I just decided it would be a much more interesting piece if I actually tried out and had examples of her style. I think everyone, in all these threads, blogs, and webzines, likes video games and wants the medium to progress. Like I said in the second piece on her, I don’t personally agree with Kael’s methods. I also don’t think that any critic possesses the power to completely inhibit the distribution of a game, so there’s really no need to get up in arms about anything. I'm having a blast writing about games. Honestly, I'm amazed more people aren't in awe at this incredible opportunity. When does anyone ever get to be first at anything anymore? This is the period of an artistic medium where our Edwin S. Porter is about to come along. When our Miles Davis is going to produce something new. I’m just excited to escape from my own dull grind and be a part of it.

It occurs to me in all this Spike VGA hubbub and Best of 2008’s that there hasn’t yet been an award for Greatest Contribution to Video Games. This isn’t a cynical award, I mean this in earnestness. It goes to Maggie Greene. Her work on Kotaku introduced an entire massive audience to a degree of discussion and criticism that they both did not know existed and did not know they wanted. Every weekend, we all knew someone had gathered together an amazing array of genuinely interesting links that weren’t going to be PR, weren’t random rambling, but instead genuinely involved thoughtful discussion. Those links didn’t always produce the kind of results that linking to the latest rumor or inflammatory article would’ve produced, which would’ve paid off more for her. Instead each time a few more people were reached, each time the wave reached a bit higher up on the shore. I know I’d be just another face on the interwebs without that support, along with a lot of other people. Your retirement from Kotaku is sorely felt. Like Edwin S. Porter, who invented the concept of making a movie out of shots, or Miles Davis who just started jamming one day, you weren’t just doing something awesome. You were doing something at the time that everyone needed it most. Who can do it again? Nobody, the moment has passed and you were there to get it done. Imitators and protégés are never the same.

And speaking of final moments, I thought I’d end 2008 rocking the boat a bit.

Pauline Kael - 3

I have a confession to make. After writing my review for Sam & Max: Season One, in which I dipped my toe into Kael’s method of assaulting other critics, the urge to do it again has been coming over me. As we all wait for the symposium’s reports, I’m beginning to wonder if perhaps one solution would be for critics to start calling each other out. I would suggest padding your sword more than Kael does, I didn’t outright call the two magazines I quoted idiots, and I even agreed with their scores in the end. It just got annoying that they were criticizing the game for stupid reasons instead of pointing out what was actually wrong with it. And it happens all the time. Far Cry 2 isn’t bad because you have to drive around and shoot too many enemies, it suffers because it’s too damn long for the message the game is delivering. Game Informer’s pithy paragraph for Mushroom Men, in which it declares the game is “just another platformer”, fails to ever qualify why this is a bad thing. Super Mario Galaxy is just another platformer. Fallout 3 is just another FPS. Is my analysis helping you yet?

Kael, much like video games today, was faced with a massive philosophical shift in her chosen artistic medium that large quantities of critics were failing to comprehend. Her largest contribution occurred during the 60’s and 70’s when sex, anti-heroes, and films that didn’t mindlessly make everyone happy were being released. That’s a broad generalization for the time period that David Cook in A History of Narrative Film marks with the release of Bonnie and Clyde. If you’ve never seen the film, do yourself a favor and rectify that, its advertising slogan sums it up decently: “They’re young! They’re in love! And they kill people!” Critics, unfortunately, universally panned the film while it went on to become a box office smash. It is the only film the Times has ever posted a retraction for. The problem with the movie is that if you walk in expecting a traditional gangster film it’s not very good. If you walk in expecting a sharp political satire that blends comedy, violence, and sex then it’s brilliant. Kael, at the time of its release, was one of the few who stood up for it. By this point she had been a film critic for ten years, had a decent following and radio show, and was just as witty as ever. If you’ve never seen the woman tear into somebody, I think Pulp Fiction’s ‘Mushroom Cloud Laying Motherfucker, Motherfucker’ sums it up nicely. As Bonnie and Clyde appealed to an entire generation sick of their uptight parents, it was Kael, doing what she always did, who inadvertently became their champion.

I commented before that I didn’t think there was a guiding principle that drove Kael and I think perhaps it’s because she had a guiding instinct instead. She comments after observing an audience that disliked a banal film, “People take from art and from popular entertainment only what they want; and if they are indifferent to story and motive and blank out on the connections, then a movie without physical action or crass jokes or built-in sentimental responses has nothing for them.” What Kael wanted from movies proved to be very different than what the other critics of her time period wanted. Whereas they praised the film Room at the Top, she witheringly pointed out that the hero essentially gives up love for the sake of security and position. The film is a salute to the ideals of the older generation’s morality, and it is Kael who points out what an atrocious message that becomes in the film’s context. Another example is where a critic named Crowther (whom she made a project out of tearing down from his pedestal) destroyed the chances of The Cousins appearing in theaters by panning it. She comments, “Why did American reviewers consider the honest, plodding, unimaginative, provincial cousin the hero? Possibly identification.” In the film, it is the innocent bumpkin who fails miserably at life while the cynical, drunk, nihilist succeeds. Her point is that the film is simply being honest about who survives in a Bohemian city culture. To declare something awful simply because it does not mix with your values does seem to warrant a rebuke.

To gain a better understanding of the culture Kael is waging war with, it helps to remember that this is before videotapes. This is before internet, Amazon, and all the other ways we typically consume our media. Like theater critics beforehand, film critics had an unnaturally large amount of power over their medium because if you were read by enough people and could persuade them, then the film would not be distributed to theaters. When Crowther shot down The Cousins, he completely destroyed its chances of appearing in cinema houses. The people who ran the projectors saw that it was “awful” and thus did not procure a copy and sell tickets. Theater critics worked the same way, the play was only going to run as long as people were going to see it. Once they tore it apart, that was it.

Culturally, critics today no longer possess this degree of power. Roger Ebert’s column about the death of the film critic curiously seems to miss the point for why he is no longer needed. People can just go check it out for themselves. Netflix, Youtube, and good old fashioned digital piracy mean I can get access to any show or film and see it for myself. There may be a delay with the box office, but I’d hardly compare that to the same destruction a critic was capable of wielding back before technology rendered them irrelevant. The parallel between this and video games is simple: the exorbitant cost of a video game means that the critic wields a sliver of power on that scale again. The parallel continues because that sliver is rapidly fading away. Downloadable content is going to eventually destroy the cost barrier in games because they’re just going to start selling it in ten dollar chunks. The recent release of a 70 minute Force Unleashed level demonstrates how people are already experimenting with this. Leigh Alexander’s post about no one knowing who she was at Gamestop is equally indicative of the rental and used-game culture removing this barrier. The reason anyone gave a damn about a critic was not because they were some silver tongued saint, it was because they were a trustworthy person for knowing whether or not to bother with something. The more you remove the difficulty with the actual bothering part, the more the critic and reviews aren’t really important. People will just go try it for themselves.

Kael, back in the days where critics were in their prime, used her abilities to wage a fight with other critics about which films made it into theaters and which didn’t. One critic commented that a film is intrinsically “not pictorial”. Kael dryly asks what story is intrinsically pictorial? And furthermore, why are movies just a pictorial medium when there is sound, acting, emotion, camera, and lighting all in play as well? When dealing with an international love story that won rave reviews, she complains that she doesn’t see why love fading is such a tragedy. She argues, “Isn’t it rather adolescent to treat the failure of love with such solemnity? For whom does love last? Why try to make so much spiritual desolation out of the transient nature of what we all know to be transient, as if this transciency somehow defined our time and place?” When a film tries to do anything that isn’t the same old crap we’re always being handed in a new skin, she is there to point out that something is going on. She sums up the entire critical bias quite nicely in her essay on Shoot the Piano Player, “They[Film Critics] want unity of theme, easy-to-follow transitions in mood a good, coherent, old-fashioned plot, and heroes they can identify with and villains they can reject.”

I’m also not the first person to take umbrage with her attitude, although after a lot of research I started to appreciate why she had to elevate it to the level of nastiness that she took. Kael is a single mother in the 1960’s. One angry reader snidely comments that Kael isn’t married because she’s so hateful and brags about her husband. She gamely responds that heaven forbid a woman ever behave any other way except submissive, happy, and desperate to please her man. Another acidly declares that she should make a film of her own before she trashes them so extensively. She comments that one does not have to lay an egg to know if it tastes good. One reader cannot believe that she didn’t like The Parent Trap and that all she ever does is praise indie films while ignoring ‘name’ movies. She does not disappoint, “What makes a “name” movie is simply a saturation advertising campaign, the same kind of campaign that puts samples of liquid detergents at your door. The “name” pictures of Hollywood are made the same way they are sold: by pre-testing the various ingredients, removing all possible elements that might affront the mass audience, adding all possible elements that will titillate the largest number of people… Was it popular in any meaningful sense or do we just call it popular because it sold?” She even handles men like me, cheerily replying that she does not mind the dog comparison so long as I don’t start insinuating that she actually wants a penis as well. You have to hand it to someone who can write a witty retort from the grave.

As it stands now, I should warn anyone that starts studying Kael or samples the art of attacking other critics that it is a dangerously pleasant feeling. That Sam & Max essay, despite the 7/10, is posted on TellTale’s website and praised because I argued that if you stop expecting it to be a video game and treat it like a comedy then it works just fine. I wrote about those other reviews because they kept complaining that there wasn’t any action and that modern gamers wouldn’t like it. Right now we are currently facing the exact same wave of cultural change that Kael faced. As video games diversify, as games that no longer offer the typical victory porn and self-congratulating game design become popular, we are reaching a crossroads. People who want them to stay the same and people who are interested in change are both speaking up. One of the popular comparisons to our current cultural crisis is to comic books. When faced with The Watchmen and The Dark Knight Returns critics dropped the ball and kept promoting the violence and nastiness instead of the wit, satire, and innovation. Their Bonnie and Clyde arrived, their comic book that everyone loved, and their critics went right back to business as usual after it was done. What’s our moment? Is it the Wii? Countless critics and gamers bash the console because of its bizarre line-up. The critics who pan it typically prefer single-player games, which the console distinctly is not about. Perhaps if we stopped expecting it to be an Xbox 360 we might appreciate it a bit more. Is it Braid? The incessant complaints of it being tricky to play despite the fact that it features an unlimited rewind mechanic is a wee bit silly. The fact that the narrative employs time travel by even having the prose reflect that may not be easy to follow, but it is certainly innovative. And the more you become distinctly aware of people pushing video games in one direction, you will feel the same temptation to do as Kael did. To just start calling people out on it. To start naming them, not because you dislike them, but because they are driving the medium into the ground. Like I said about Kael in another piece, she loved the medium and fought for it so much that they eventually ended her career for it.

The final portion of the book is an enormous essay on the state of film criticism, how it should be done, and publicly crucifying a few people in an explanatory fashion. Her obituary, the article that eventually made her quit writing, and a few choice interviews are also on top of my pile of notes. I’ll put them together for a fourth post eventually. After that, I’ll factor in reader responses and organize this into another essay for Popmatters that will be like the Lester Bangs one.

Louder than Words

The interwebs have been having a big stir of game journalists coming together to create better standards and a proper language for discussing games. Shawn Elliott is hosting an epic e-mail exchange of the biggest names in the business, inviting them all to participate in the debate. About a year ago, Greg Costikyan observed a very similar gathering at the GDC. Except he made an observation that Elliott’s list seems to be missing: journalists are not the same thing as critics. Pauline Kael (whom you can read about my mixed feelings for below) was not a film journalist. Her editor did not expect her to report the latest gossip. Her readers did not read her because they wanted to know the latest scoop on the next big film. They read her for criticism.

How is that different from journalism? Well, there are a variety of arguments you could make but chiefly the distinction is analysis. A journalist doesn’t really analyze anything, they report facts. A person reading a newspaper isn’t really interested in what the journalist thinks, they want to know what’s going on, who said what, and how it relates back to them. Analysis, as defined by the ever-trusty dictionary.com, is “a philosophical method of exhibiting complex concepts or propositions as compounds or functions of more basic ones.” That’s number 4 but they basically all mean the same thing.

Naturally, all of the journalists on that list are capable of analysis. Some of them mix a little bit into their work when no one is looking, others appreciate it like a fine wine and praise it when they see it. Some of them engage in it occasionally, but because their jobs require them to stay up to date with new games and constantly playing them they don't have the time to address older titles, much less reflect on them. They’re journalists, their bread and butter is reporting the facts. Some of them run private blogs and you can see them flex that intellect, but in terms of publishing it on a major website? Is Kotaku even allowed to write such a thing? MTV Multiplayer? Newsweek? Do their readers even want to see it?

Let’s not beat around the bush either, I consider myself a critic and not a journalist. I write at Popmatters, which is webzine that covers everything involving pop culture, and in January I posted a ten part series of essays on this exact same topic. The pain in the ass I realized after writing it is not that people won't read it or care, it's that it doesn't do anything by itself. People are going to flip through it, nod or disagree, and then go back to thinking of games the same way they always do. So it gets a bit tedious to see so much digital ink and brain power dumped into a task that is ultimately just talk and a wee bit of navel gazing. And it's reaching such a pitch (who hasn't posted an essay on this topic?) that it's becoming this year's gimmicky 'Why is there no Lester Bangs?' column fodder. Which I did something to rectify.

Nor is talking about how to review games even relevant. They're fine. IGN writes good reviews, questions about their scoring aside. Nor does anyone need to care or start suddenly doing things the same way for reviews. Hell, my views on games are completely batshit: I don’t think game design has to innovate to be relevant, I factor in outside reviews, and I need to beg Ralph Koster to forgive me if I ever meet him for being such a brat about not liking mastering rules. But my take on reviews doesn’t matter because I don’t consider them criticism. They’re consumer reports on the elements of a game that advise the person of what they’re buying. Instead of trying to make a fish walk on dry land, I started a separate series of essays on my blog that ARE criticism. I analyzed how the awkward controls in Silent Hill 2 work to make the game scary. I discussed the ways The Darkness creates a moving plot about one person/the player losing their soul. There are several others and there will be plenty more after that. The point of this post isn’t to get into a pissing match about how it should be done, the point is to ask you to set aside a warm little space in your magazine, blog, or webzine and just do it.

We all know this is what has to be done for games to get better. Developers are just repeating old mistakes or worse, ignoring the great things games past have done. Just get a thesis, apply it to a game, and see what happens. Or as Chris Dahlen said on twitter, “If people think there's no good game criticism, let's just go write our asses off.” He has a point, doesn’t he? Talk is cheap and in abundance on the internet, it’s actually doing something that’s in such short supply. If you want things to change, just act that change out yourself.

I’ll even go first.

Weapons in Games

An article at The Escapist got me to thinking about weapons in games and how one goes about judging them. Since the developers are creating both the setting it's used and the player is actually using it instead of merely observing it seems the best way to judge a weapon is both the puzzles it exists with and the item's function itself.

It goes into other territory but that's the gist of it.

I'm almost done with these god forsaken exams. I'm behind on blogs, gaming, ideas, reading, self-improvement, self-destruction, and all the other stuff in-between. I may just take a break, post some old essays, and maybe dive into some other mediums for a bit.

Or, much more likely, I'll finally get an Xbox and Gears of War 2 and start going online.

Best Cultural Video Game Trends of 2008

*Edited 12/9/08



I saw that Time Magazine has released their top ten list of the year. It isn’t bad, it’s a bunch of games I’d consider showing to someone if they said “I want to play a video game for the first time that isn’t Wii Sports.” All have fairly traditional, linear stories. All are fairly easy to master and reasonably interesting to a person who hasn’t played a million other games like it. Reading over the list made me think that I should write something to applaud the things in gaming with a bit of humor.

Top Game To Blame Youth Violence On:
In addition to winning Time’s game of the year, Grand Theft Auto IV holds a special place in the hearts of Chicago, Thailand, Michigan, and several other charming places. Whether its residents are demanding ads for the game be taken down, pushing our First Amendment rights in ways the Founding Fathers might not have foreseen, or causing a child to murder a cab driver and then cruise down the street in his car…GTA IV has caused some pretty impressive stirs in the media. International points also go out for encouraging fights and debate in Eastern Europe about whether Niko is Yugoslavian or Croatian.

Top Game To Generate Some Controversy for Old Time’s Sake:
This years award goes to Drug Wars. Recently announced as an addition to the DS GTA game, the tried and true appeal of dropping red tops, green tops, or yellow tops on the corner is back in gaming. It’s also making an appearance on the I-Phone gaming market as Underworld, tapping into the same bored generation that once played the same game on their TI-83. Here’s hoping “I just sold a ton of crack” is still as impressive sounding as it was back then.

Top Genre to Blame for Ruining the Game Industry:
To be honest, I was surprised the FPS was dethroned. As a consistent winner of this award for the past 2 years, I didn’t think it would happen. And it’s not like there haven’t been FPS titles by the bucket load. Thanks to Fallout 3 and Mirror’s Edge though, the genre was dragged kicking and screaming back into relevancy and artistic merit. This year’s winner is the ever amorphous “Casual Game”, which has undergone several definitions as people think up new ways to complain about them. Whether it’s complaining about being too easy, too cartoony, or too something or another, the casual game threatens to destroy everything we know and love. No word yet on if the hardcore genre will return to the spotlight after its mysterious disappearance in 2005.

Industry Wide Accomplishment in Publishing Every Single Game in a 4 Week Period:
This award goes to no one in particular, but deserves a standing ovation from gamers everywhere. Thanks for not coordinating your releases like every other media industry and releasing all your 10 to 20 hour games in the same month. That way, reviewers, critics, and players will just bop around randomly and never form a coherent conversation or discourse. With the economy in such grand shape, players wondering what game they should get for Christmas are going to encounter a grand seething mass of different people playing different games instead of a one singular message. Guess we’re gonna find out about that recession proof claim soon.

Special Achievement in Racism & Stereotypes:
Gamers don’t typically like to discuss racism in games both because of the average youth of the player (they sorta missed a few things) or because such a generalization denies a basic foundation of a video game. The player is participating as well and may not be behaving or thinking in a way that should be called racism. I find it kind of cynical to assume that because a game features a less than positive portrayal of someone it is automatically assumed that the player is just absorbing everything the game projects without bringing their own opinions to the table. Player input. That’s what makes it a video game, stop thinking of it like a movie or a book.

But let’s face it, there’s some stupid shit out there that deserves mentioning. This year’s award goes to Mercenaries 2. I rented this game on one of those weekends that everyone I knew was sick of Halo 3 and only some of us had Xbox Live accounts. As we were picking out our characters we read in awe at some of the most ridiculous game text I’ve ever seen. The woman character laughs at all emotion, only cares about money, and her super power is to run fast. One wonders why they did not just write “Gun Prostitute” and be done with it. The black character has the ability to carry extra weight and has endured great hardships. Given the long montage of clichés and gangster slang coming out of the character, one gets the impression this is what it would look like if Duke Nukem wore black face. Add to that the game’s thin disguise of Hugo Chavez and Venezuela and you get a game that’s not only being culturally relevant, it’s taking a shit while it does it.

Outstanding Achievement in Bullshit Scheme to Suck More Money Out of People:
2007’s brilliant but flawed “We’re making a trilogy, that’s why the story is crap” strategy proved to not survive for another year. Several games ended up being hampered by the move while others are making controversial decisions to appeal to new audiences by setting the game in France. This year though, the reigning champ is downloadable content. Developers might as well start including a “10 Dollars Off The First Map Pack” coupon with the first 1,000 orders at this point. Whether it’s new guns, missions, or just actually finishing the original game, DLC is almost a guaranteed way you’ll be spending money this year. Special Nod: bragging about the Xbox Arcade being $199.99 when not having a hard drive makes the console about as useful as a wet fart on a submarine.

After posting this a couple of people commented that 2008 has been a good year for gaming and I'd like to heartily agree. 2008, in terms of rich and interesting cultural media, has been almost staggeringly off the scales. Los Campesinos, the new Batman flick, Obama, Sarah Palin jokes, Fallout 3, GTA IV, The Black Keys new album being fantastic, Braid, the corner market stocking Sun Drop. Games, along with other media, have produced such a crop of quality stuff that I feel like I'm going to be enjoying things with a 2008 stamp on it for years.

I'd also like to explain this joke with a story that might give some insight into the 3-headed Cerebrus that is my sense of humor. Back in highschool, the school allowed students to give a 'Senior Showcase' and do something to say goodbye. Being fairly pissed that I didn't win the prize for literary studies, I decided to have an awards ceremony of my own. Biggest slacker, biggest asshole, worst mooch, Most Likely to Go to Jail, etc. I stirred in just enough sincerity in my speech that a lot of people had a good laugh and enjoyed the whole thing. To me, celebrating our flaws is as important as celebrating our strengths. I often find it's the flaws that make me love someone or something in the first place.

Alas, this time I think my bleeding cynicism and strung out nerves from exams made this post mostly come across as angry or bitchy. I love the fact that GTA IV is causing controversy, it gets people to take games seriously. I love a good scam and I admire the DLC scene for paving the way for indie games by getting people used to buying stuff online. And even Mercernaries 2...which will always be my crutch game for pointing at and saying, "That's racist and stereotyping." By God, that's gotta count for something!

So those are the top accomplishments (of sorts) in video games culturally from 2008. I figured this thing was vulgar enough and represented my own irritation at so many different elements of video game culture that it didn’t deserve being published on my usual stomping grounds. So take a little pity on me, it’s just a bit of a roast. To cut this short, I’ll end with a poem by the great Ogden Nash that sums all of this up quite well:

The pig, if I am not mistaken,
Supplies us sausage, ham, and bacon.
Let others say his heart is big –
I call it stupid of the pig.

Persona 4

I gotta tell ya, this was the first time I ever reviewed a game before it was actually released. Not a bad feeling, not a bad one at all.

I don't think metacritic even lists Popmatters when it comes to video games (that's probably a blessing) but I'm noticing that I'm coming in a bit low despite the fact that reading my review shows I really liked it. There's a definitive scale we go by but sometimes I like to boil it down more into a conversational test. If a stranger asked me about that game and my response would be, "Yes, buy it now" it's going to get a 9. If I say "Yes, but..." then I count off how many of those "but" issues there are.

In this case, I explain that the way the game generates its difficulty is a pain in the ass because there are a lot of cheap shots. This is made worse because if your main character dies then you instantly lose the battle. It occurs to me that fans of the series might be used to this because apparently you can't control your party in the previous games. In 4, I pretty much switched to controlling them as soon as I had the chance.

I appreciate the insta-kill mode as a throwback to the old style of play now and I acknowledge that it does intensify the relationship you have with these characters by depending on them. It's just that reviving me when I go down should be included in that. Towards the end I became sharp enough at the game to quit dying but the initial few dungeons were a bit frustrating. Not because I was screwing up, but because my main character would get taken down while the rest of the party was perfectly fine.

Anyways, despite all that cynicism, read this to listen to me ramble about how great it is.

Web-Browser Doom

I understand there are starting to be a couple of FPS games that are free to play and download that are massively multi-player, but nothing quite seizes on the nostalgia factor of Doom. Or the ability to play a game through a browser instead of downloading it.

Give it a swing and see what I'm talking about.

Best Game of 2008

It's probably becoming noticeable that I enjoy the experimental and artistic sensibilities of indie games over mainstream titles.

So my pick for best game of 2008 should not be a surprise.

The Game of Giving

I've been commenting away on The Escapist forums for over a year. I was hooked the moment I found out they were based in Raleigh, NC. I have to listen to jabbering about the West Coast or New York constantly, so having a company that was based a few hours from me somehow made them more tangible. I'm not sure I actually contribute much to the culture there, I can be an asshole in the basic forums but I try to say something sharp on their articles. The folks that designed that website know how to create a well-oiled online machine full of feedback and community development tools. Honestly, if you've never interacted with the site before, it's fascinating to watch it suck you in like an MMORPG does. They have freaking badges for forum posting!

Anywho, I saw that they were publishing an issue about Christmas and I decided to google a good Christmas game and write about it. To my surprise, there is no such thing. I think there was a game where you kill aliens trying to stop Christmas as Santa, but that's about it. The article then became a discussion of why that's the case.

A bit of brainstorming, some e-mails bounced off Jason Rohrer (who was incredibly nice and willing to help brainstorm out the ideas), and I sent this in.

ZA Critique: Okami

While I was playing Okami, I took a break from it that was only meant to last a few days. That turned into two weeks. I finally dragged myself to picking it back up and played another 3 hours before I found myself wanting to quit again. Just as I was about to give up on writing this essay it occurred to me that what I was experiencing was worth digging into. Why did I not feel like playing the game anymore?

Some stat checking showed me I wasn't alone in this response and some comparison to the game it resembles yielded some interesting results. It's easy to become unconcsious of how a game is structured and flows but seeing how Okami flows in one long gushing stream instead of an organized series of divisions was worth discussing.

I'm still probably going to catch heat for this since so many people loved it.

Does Video Game Criticism Need A Lester Bangs?

Part of the reason I like Popmatters so much is that I get to level these kinds of essays at an audience that is mostly ambivalent to the conversation about video games. Talking about a music critic itself means that the primary audience of the magazine, music fans and film buffs, will probably take more interest than they normally would.

The piece itself is the culmination of all the conversations and blogs I made while reading about Bangs in his book. The link to the radio show was provided to me by a reader via e-mail and nicely rounded out the argument, plus a little bit of insight from Samuel Johnson to bring it all together. The result of this bizarre mixture was surprisingly sharp and simple. Even though it spans 3,000 words, at the core Bangs had a couple of basic driving principles that we could all take note from:

"What Bangs did was tell people to listen to the music they had missed or ignored, making it sound cool so that they would appreciate its contribution rather than neglecting it altogether. He was a person observing the storm and pointing out what it missed, as opposed to where it should go."

That's just a chunk of it though. There's the humility, the belief that the mainstream press is just a part of the machine, understanding the business of your medium, and understanding your own role in it too.

Quite happy with this one.

Art Style: Rotohex

The damned problem with reviewing these great games is that there is so little to say. My Orbient review ended up being mostly a giant argument about when a game's challenge shifts from passive learning to skill. I didn't really feel like cooking up some new critical game theory for this one because its simplicity didn't really afford it.

It's Tetris with triangles and music rewards.

A Standardized Controller

This was one of those posts that has been sitting in my private slush pile for a long time. I kept pulling it down and trying to figure out what was missing or what the flaw was. On one level, claiming that all games should use the same control scheme seems like a perfectly reasonable argument to make. At the same time, there's the problem that this may inhibit game design. I use adventure games as an example of the diversity using the same setup can produce but that's also a medium that stagnated due to its failure to evolve in a way that attracted new comers and kept old fans happy.

As with anything in the slush pile, I gave up, gave it another linguistic polish, and posted the thing.

And wouldn't you know it, I'm already finding out the stuff I missed. Damn.

Machinima FilmFest 2008

A quick write-up of one of the winner's from Machinima FilmFest 2008.

God Bless Gamasutra and their link-friendly ways.

Sam & Max: Season One

As an experiment for that Kael piece below I also dabbled in shit talking for a review to see how useful it could be. Although I was quickly able to spot a lot of problems in other people's write-ups I was surprised that I ended up giving the game the same score as these people I considered "wrong".

In the end I decided that the problem was they weren't really expressing what was wrong with the game and instead just tacking it onto the issues they understood it lacked.

They're not wrong, they're just not saying it right.

Pauline Kael - 2

Several crashed hard drives and long weeks of studying for law exams later, I’ve decided to scratch this insufferable itch and write about Pauline Kael again. I’m halfway through I Lost It At The Movies, the book I was informed was her best. My initial complaints have grown quite louder and more thorough. To start this piece off, I’m going to do precisely the thing she does not do. I’m going to admit my biases. I said in the last piece that I was an adamant proponent of Samuel Johnson and Matthew Arnold and I’d like to explain what that means. I base the value of an artistic work on the number of people who like it. More specifically, I base that value on whether people still talk about it well after it has ceased to be financially viable for the author or publisher. There is no marketing sustaining it, there is no consumer zombie purchasing the product because everyone is talking about it. It persists for a reason that defies our conventional understanding of what makes people consume a product and is often still economically viable well after the period it should have faded. I no longer consider my task as a critic to revolve around talking about why I like the product. That’s mostly irrelevant. My task is to explain why the hell this piece of art, this game, persists. I then offer my pithy opinion as to why this is occurring and generally listen to other people bark out their own. That’s what it means to follow their school of thought, roughly (actually very roughly) speaking. Yes, I have opinions and believe me when I say they leak out all the time when I try to do serious criticism, but I also acknowledge that they aren’t very important in the scheme of things when millions of people disagree with me.

Enter Pauline Kael. I noted that I didn’t think a critic like her could survive on the internet and I still stand by that statement. Thanks to the editorial insistence that we all have comment options on our articles and downright encourage it, you can’t just post a mindless opinion piece without suffering the consequences. The intrinsic problem I have with Kael, the question I scream every time I read something by her, is where is the other side’s opinion? The basic tactic she uses is to quote them and then launch into her own opinion. Given the vast amounts of writing power she possesses and the critic's inability to ever fight back, it’s a bit like watching someone create a Socratic dialogue with their friends. She comments about one film review, ”Time put it down more coolly in a single-paragraph review that distorted the plot and missed the point.” She comments about a Variety review, “if someone I knew said of [film name removed] what Variety did, I would feel as if the Grand Canyon had suddenly opened at my feet.” Or at her most charming, “I won’t degrade you and me by attempting to quote the barbarous language of the local critics: they didn’t distinguish themselves any more than usual.” I’m cherry picking and isolating her from the flowing praise she laps on these films, but it’s no worse than what she does to other people. Keep in mind that each time she is naming someone, calling out their magazine, and using that quote to parade about their idiocy, she is never talking about the rest of their arguments or even acknowledging they had one.

Kael eventually lost her job with the New Yorker because the Editor felt she refused to give a mainstream film positive marks. This starts to come up even in her early work here. Her dislike of ‘West Side Story’ is not so much an exercise in logical discourse as it is finding everything possible to complain about the film. I’m not anymore fond of “I Want to Live In America” than the next person, but complaining that the film is butchering ‘Romeo & Juliet’ seems a bit obtuse. It’s a dipshit musical fused with a reliable narrative, I’m not expecting it to jump through flaming hoops. Kael comments, “The irony of this hyped-up, slam-bang production is that those involved apparently don’t really believe that beauty and romance can be expressed in modern rhythms – for whenever their Romeo and Juliet enter the scene, the dialogue becomes painfully old-fashioned and maskish, the dancing turns to simpering, sickly romantic ballet, and sugary old stars hover in the sky.” She complains that the Old Friar has become an Old Jew, she complains that the Puerto Rican gangs aren’t Puerto Rican enough, and she wastes no ink deriding how corny the lines are in the lover’s scenes. Given that the film cleaned house at the Academy Awards and is still shoved down people’s throats to this day…one wonders if what she is complaining about is that everyone likes a film that she did not. The reasons paraded around and the critics mocked are just icing to cover up a very ugly cake.

What does it even mean when a large quantity of people like something that you do not? Are they stupid and you’re smart? Do you comprehend that something has a massive flaw that millions of people are missing or is there a much simpler solution? Is it possible that it’s just you? Before you have a response to that one way or the other, think about how you’re going to phrase either argument. As I said in the previous essay, another problem with Kael is that she does not seem to operate on any kind of definable logic. Were a game to receive low scores that you personally loved, surely we could at least point to a rational explanation for it? You like FPS games, this is a solid FPS, ergo we all understand your critical tendencies. There is no way to understand what Kael is going to like or dislike. People appreciate their critics being predictable in the sense that they see us as specialized filters. Take me, if a game combines game design, plot, and player input in a coherent way that delivers an interesting experience you’re going to get a good score out of me. My disgust with that experience is irrelevant (you don’t want to know how many games I give high scores that I don’t personally like), I’m just observing how the parts come together and gauging the whole. If I judge the developer’s intent and final product to have succeeded, then that’s all I expect. The rest I leave up to the audience. Kael, on the other hand, is a veritable Animal Farm with her willingness to change standards. She praises the Paul Newman film ‘Hud’ for its course humor, rape scene, and notes how the audience loved it. Yet when the film ‘One, Two, Three’ comes up she derides it’s sexual humor and class jokes as “overwrought, tasteless, and offensive, - a comedy that pulls out laughs the way a catheter draws urine.” Witty, yes. Powerful prose, yes. But there’s a goddamn maniac behind the controls of that power and it’s going left when the last time that same pattern was presented to it she went to the right. To put this into perspective, I hustled up the film student I knew from college who had studied Kael and got his opinion on the matter. He said, “To be totally honest, I never saw much logic to her liking or hating a film either. It just seemed to boil down to what time of the month it was for her.”

I’m not going to name the person who said that nor is it very appropriate that I just repeated it. Such sexist conceptions are as shallow as Kael’s struggle to find something wrong with a film that did not jive with her when there was no intrinsic flaw beyond her own distaste. To believe that either audience or critic has an inferior perspective because of their failure to cohere with your own raises a lot of fundamental issues. Given the number of films that Kael goes to great lengths to embarrass other critics for liking or disliking that I’ve never heard of, I can safely say that getting into an intellectual pissing match with someone over a piece of art is 99.9% of the time a waste. The fact that a film student would say something that nasty about her warrants something else: if you live by the sword then you die by it. For someone who talked as much shit as Pauline Kael does for no reason other than some funky ass like or dislike for a film…perhaps it’s warranted to mock her mood swings. In the last post I had several commenters argue that there is a value in calling out critics for their failures and pointing out that a game everyone is praising is actually not particularly great. Is there value in such discourse? Yeah, definitely. Kael is still a genius and like I said, she’s in command of an awe inspiring degree of power to shape and twist people’s minds. Given her psychotic fan base and the charming inspiration for shit-talking that she created, one might dare wonder how the critical world would go on without her influence. But I still believe that using that ability to talk shit about a bunch of critics that nobody remembers and rip into a film that no one recalls except its adamant fans accomplishes only one thing. You sound like a giant bitch.

There are a variety of reasons for writing these posts about Pauline Kael and there will be more once these damned exams are over with and I’ve got some time to finish her book. The reason I started these posts months ago was because of bloggers yammering about how video games needed someone like this critic and I decided to study what they were talking about. But with Kael…I think her most important lesson to video games is what not to do. This is too diverse a medium, this is art that is principally defined by player input. You cannot become upset at the notion of someone having a different experience from you in a video game, that is intrinsic to the very reason they are video games. Parading about the complaints of other critics without at least exploring their points is not just short changing your argument, it’s short changing the very reason video games are interesting. People can have different experiences with them and those will each be equally valid.

I still don’t really know what to tell a video game critic about how to approach their medium. I’ve studied a lot of different people crossing multiple artforms now but none of them had much insight on how to handle something like video games. So I just keep figuring it out as I go and mixing up as much old wisdom as I can possibly make fit. I do my little song and dance, but I’m as much a crap shoot as the next blogger. I wish I believed in the critical power that Kael believed in. That what I said was somehow going to change everything and make people start believing in some profound stronger view of what the medium was capable of. I think video games are going to achieve that but I certainly don't believe it's going to be because of me.That I could somehow make some AAA title with millions in marketing fail based on my very word and will. And yet…by achieiving such a goal I wonder if being a cultural guide would just turn into a giant session of ‘Where can we go next?’ By all accounts, Kael became so popular that she destroyed the profit margins of films and ruined several director’s careers. And by all indications from what I read, the logic of that power was so bizarre that she shifted the goal of where films should go whenever it suited her and to the suffering of others. If a critic is just a person coercing an artistic medium they love to achieve a certain potential, what happens to them once that medium has done it? Do you accept the victory or do you keep pushing it until you’ve run out of ideas? I suppose that’s more up to the critic than the medium, if Kael is any indication.

ZA Critique: Call of Duty 4

I often don't have enough space to go into every element of a game in the blog posts. It just doesn't make sense to throw more than 1200 words or so at a person in that format. It's a get in there, get the idea across, and end with flourish kind of setup. So I decided to narrow this critique down and just focus on the most interesting part of the game.

On a lot of levels this is how the process is sustained best, ignoring the faults and just talking about the interesting parts of the game. In COD 4' case, the three passive sequences and how they are exercises in amusement park ride design. The rest of the game is fine, you play an especially badass marine/SAS soldier and the game design reflects it.

These moments however, are quite interesting.

Video Game Mods and Copyright Issues

My Prof. has returned my law paper with generally good marks and I've completed one of my final requirements before I can graduate from law school next spring. And now...the thing is basically just going to fade into oblivion. The high and mighty forces at the Law Review deemed the topic to be too speculative and not important enough to merit coverage. I can't blame them, I'm not on staff and I'm essentially predicting a lawsuit that is going to happen in 3 to 5 years. That and my GPA isn't high enough and blah blah blah, the inner-workings of law student drama makes the cast of 'Mean Girls' look evenly tempered.

Anyways, I'm not going to let something I've spent 6 months on go to piss like that. Below is a hacked up and easier to understand version of the essay that I like to think a layman willing to sit through a lot of law babble could understand. It's basically an explanation of why the courts are completely unprepared to handle mods, their ownership, and how it's going to be an unholy legal battle unless Congress puts some legislation together. It doesn't take a law review article to calculate the odds of that happening.

As always, I AM NOT A LAWYER. The conclusions in this essay are opinion and interpretation. Should you have any legal questions, please contact a licensed attorney. Under no circumstances do you tell someone that some dumbass law student wrote about how you might have a legal right to your mods. This is purely an exercise in research and conjecture.

This just a copy and paste job. I cited my sources with footnotes for the paper because my professor preferred it that way. I didn't code in the HTML from the paper either, so brace thine eyes for raw, unmarked words.


Introduction

Video games and copyright law have always had a tenuous relationship. The problem is threefold. First, players significantly alter the content of video games and keep them from ever being a fixed series of images. Second, the software used to generate the images has rarely been considered a protectable asset by the courts unless it is copied in its entirety. Third, courts have typically relied on the audio visual display clause of the Lanham Act to protect the images produced by the software and to dismiss the player input as a relevant aspect. Although this system worked when video game disputes were first coming about and well into today, a new trend in video games may upset this method. The culture of player modifications and improvements to pre-existing games that have traditionally been viewed as fair use by the courts creates a new problem for copyrights and video games. Do these qualify as fair use, a derivative work, or both? If the player is increasing the value of someone’s product without compensation, what rights do they have to their original work and what rights do the companies have to these improvements? The first part of this essay will outline the Legal Background that was established during the eighties that people rely on to demonstrate their copyrights and the rulings that create a loophole for player modifications. Then it will discuss the current trends in video games that are leading to this problem. Finally, it will go into the Legal Analysis courts use for copyrights and how those can best be applied to video games.

Legal Background

The foundation of video game litigation comes from what some scholars refer to as the Atari Trilogy. Three lawsuits over three different video games that determined the parameters by which a videogame’s copyright could be gauged. The first, Atari, Inc. v. Amusement World, Inc., was the infringement of the game Asteroids. In that game the player commands a spaceship through a barrage of space rocks and obstacles. The defendant’s game was substantially similar: it was an arcade machine and involved piloting a spaceship through space rocks. The courts found 22 similarities between the games and 9 differences. The defendant’s principally had different visuals, sounds, and played faster. The game was copyrighted under the Lanham Act under the category of audiovisual works and the courts concluded this was legitimate. The game was fixed in the circuitry of the computer and it was clearly projecting a film back at the user. However, relying on Herbert Rosenthal v Kalpakian, the defendants did successfully argue that the plaintiff was unfairly trying to copyright an idea as opposed to the expression of that idea. The Defendant was entitled to make a game about navigating a field of space rocks so long as their version of it was substantially different in the protectable elements. The 22 similarities were necessary for any game involving space rocks and thus the defendant was not infringing.

The second, Atari, Inc. v. North American Philips Consumer Electronics Corp., involved a PacMan clone and whether or not it was substantially similar to plaintiff’s copyrighted work. Unlike the previous ruling however, the courts held that the game was infringing. PacMan is a game where the player controls a yellow ball that moves around a maze eating dots while being pursued by ghosts. When the player directs Pacman towards a larger sphere found at the corners of the map, they have the ability to eat the ghosts. Defendant’s game was entitled K.C. Munchkin and involved a blue ball navigating a maze while ghost monsters chased it. In that game the player is also able to gobble a power pill and fight back against the ghosts. The mazes were different and the ghost exit shifted every 90 seconds. Players could also create their own maze and store it on the home version of K.C. Munchkin. The sounds and visual representations were also significantly different. The courts decided that Judge Learned Hands abstraction test would be the best method for comparing the two games. The courts found that the idea of the game itself was not protectable, however it outlined that the shapes, sizes, colors, sequences, arrangements, and sounds provides something new or original to the basic idea. The use of a gobbler character, ghosts, power-up pills, all while chasing around a maze were found to be conceptually similar enough as to constitute a copyright violation. The fact that the defendant had different components and audiovisual displays did not preclude finding infringement. The courts declare, “Video games, unlike an artist’s painting or even their audiovisual works, appeal to an audience that is fairly undiscriminating insofar as their concern about more subtle difference in artistic expression. The main attraction of a game such as PAC-MAN lies in the stimulation provided by the intensity of the competition. A person who is entranced by the play of the game “would be disposed to overlook” many of the minor difference in detail and “regard their aesthetic appeal as the same” The problem with the game was that it captured the “total concept and feel” of PacMan. This differed from the previous ruling which relied much more on a conceptual analysis of the two games without actually playing or analyzing the appeal of either game. Rather than argue the merits of the actual characters being known and copyrightable entities, as in Anderson v. Stallone, the courts tried to analyze the overall experience the game itself generated.

The third, Atari, Inc. v. Ken Williams dba On-Line Systems, involved another PacMan clone entitled Jawbreaker. It was essentially a home computer version of the game that ran on different programming. Although it still involved moving through a maze, being pursued, and eating power pills the game was otherwise substantially different in terms of visuals and sound. The courts ruled that there was nothing protectable about the game of Pac-Man itself and that the laws do not protect the strategy of moving through a maze while being pursued. The ruling was partially based on the fact that the two games were in substantially different markets and thus would not affect one another. One game coming out for the personal computer, the other was exclusively on the Atari game system and could thus not seriously affect one another’s sales. It’s important because it reinforces the standard set in Atari, Inc. v. Amusement World while outlining that so long as the two games are working on different systems, they will not be as likely to infringe with an existing copyright.

The issue then became defining what is a necessary element for any idea a video game is expressing and what can be unique. In Williams Electronics, Inc. v. Bally Manufacturing Corporation, the courts had to decide whether two pinball machines that used a similar interface were infringing on one another. The plaintiff’s video game used a combination of standard pinball devices with an electronic interface to create a new kind of game. Players would aim for targets and receive feedback via an electronic screen, flashing lights, and digital noises. The game was called Hyperball and the plaintiff had successfully copyrighted the game in 1982. The defendant’s game, Rapid Fire, used similar electronic feedback but had a substantially different visual theme to it. The game was specifically marketed as superior to Plaintiff’s game. The courts were quick to point out that the purpose of copyright law is the expression of an idea, not the idea itself. The actual game of pinball cannot be copyrighted but rather a particular expression of the game. The more this expression moves away from the general form and into a unique form of the game, the more that is protected. Relying on the standard proposed in Atari, Inc. v. North American Philips Consumer Electronics Corp., the courts concluded, “In a video game, the audiovisual aspects of the game that appear on the screen are conceptually separable from its utilitarian aspects – a computer program and hardware.” The canon and rolling ball are obviously utilitarian, so the courts relied much more heavily on the audiovisual aspect to distinguish the two games. Using this exclusive method of only comparing the audiovisual product, the courts found no infringement.

The audiovisual comparison is settled by determining how great of a change had to occur in the videogame display for it to not be infringing. Two arcade games that were released, Scramble and Scramble 2, featured nearly identical audiovisual elements. The plaintiff sued for copyright infringement. The defendants argued that the plaintiff did not have a proper copyright because they had not registered the actual computer program that protected the game and instead only owned the audiovisual elements. The courts dismissed this argument and pointed out, “The popularity of a video game depends on the creativity of its audiovisual display, not for its computer program. Indeed, a potential customer does not care about the program except insofar as it affects the audiovisual display.” They went on to conclude that the heart of a video game is the actual play, echoing the sentiment in the ruling concerning Atari, Inc. v. North American Philips Consumer Electronics Corp. The overall feel and play of the game created by the audiovisual work was what the copyright protected, not variations in the display produced in the video. Whereas courts are willing to allow someone to copyright software code fairly easily, they are much more reluctant to let someone copyright a visual element. This idea was also explored in the case Apple Computer, Inc. v. Microsoft Corp. except in that instance Microsoft had licensed the software but were arguing they were allowed to use similar visuals because they could not be copyrighted. Microsoft won, illustrating that any attempt at combining the two standards creates a radically uneven set of ideas that the courts are protecting.

Several courts had problems with the audiovisual protection however, since no specific consensus could be reached on how to gauge the audiovisual elements. In Midway Mfg. Co. v. Artic International, Inc., the courts fully outlined the problems that come with this method of assessment. The court states, “Playing a video game involves manipulating the controls on the machine so that some of the images stored in the machine’s circuitry appear on its picture screen and some of its sounds emanate from its speaker.” The judge then pointed out how this was highly problematic with the 1976 Copyright Act. Section 101 notes that the audiovisual work must be a series of “related images”, which conflicts with video games because the image changes every time someone plays it. Furthermore, the image stored in the programming are not specifically what are seen in the game, these change due to player input. The judge compares this to “arranging the words in a dictionary into sentences or paints on a palette into a painting.” The dilemma is whether the act of playing and creating a unique image constitutes a creative act on the part of the player and thus conceptually changes the nature of the video game itself. The courts determine that when it comes to play alone it does not. Merely changing the course of events in a game or how an action sequence is not enough to be creative input. Since the number of images and variation the player can create are still kept to a definable minimum, they are not like a painter. They instead are choosing from various options stored that create a set number of possible paintings. Finally, the Judge concedes that speeding up some artistic works is considered fair use such as with a record at a club. This was considered fair use by some courts as DJ’s in record clubs were accelerating records to make them more involving for the club’s patrons. A sped up record only appealed to a small number of potential customers while a sped up video game was appreciated by a large group of players because of the heightened challenge. However, because the demand for sped-up records is much lower than two nearly identically video games, the infringement is sustained.

The software portions of games were not immune to copyright dispute. Although courts were willing to acknowledge copyright infringement for audiovisual similarities, reliance on similar software was also debated in courts. In Accolade, Inc. v. Distinctive Software, Inc. a licensing dispute forced courts to outline what areas of code could be infringed and what could not in regard to the audiovisual display in a videogame. The defendant was contracted by plaintiff to create The Duel – Test Drive II. Defendant subsequently created their own game entitled Outrun, which used similar software but the audiovisuals were significantly different. The question was whether Accolade could own the computer software in the game. The courts determined that they could in regards to the likelihood of winning on the merits. Due to the nature of the licensing agreement Accolade had not fully stipulated their full rights to ownership, but the courts gauged the two programs for the sake of the case. The defendant’s pointed out that only routine library commands were duplicated and not any substantial element. The courts state, “Duplication limited to routine commands, we believe, is not sufficient to establish substantial similarity between the design concepts of the two games.” Although the courts did note that outside experts could be introduced, they concluded that as long as the portions of code used were generic and not specific to that game then there was no infringement.

In contrast to that is a ruling where the courts did find violation of copying the software as in Williams Electronics, Inc. v. Artic International Inc. The plaintiff’s game, Defender was significantly similar to defendant’s game Defense Command in terms of both audiovisual and software components. The audiovisual elements were what the player observed while they manipulated the controls, the software was what generated the image through programming and circuitry. What makes the case important was that plaintiff had copyrights for both the audiovisual display and the computer program that ran the game. Although the circuitry was slightly altered, the software was so similar that glitches and diagnostic patterns both ran exactly the same way. An outside expert eventually concluded that 85% of the programming elements were identical. In conjunction with the copyright notices found throughout the game’s audiovisual elements and in the code itself, this was deemed a sufficient violation of a video game’s software copyright.

Yet the problems noted in Midway Mfg. Co. v. Artic International, Inc. were to begin arising again as the technology in video games developed more fully. The question of authorship in a videogame in regards to input would come from a variety of angles. In Midway’s game Mortal Kombat 2, live actors were used capture the motions of appearance in the games. After the contract failed to extend into the promised commercial and film options, the actors sued. A part of the case involved the plaintiffs alleging that their images and likeness had been used unlawfully or in the alternative that they were joint authors of the program. Due to the contract the unlawful use was dismissed but the second claim generated discussion. The courts defined a joint work as “a work prepared by two or more authors with the intention that their contribution be merged into inseparable or independent parts of the unitary whole”. The two aspects of the collaboration must be able to stand on its own in a dispute without the other work, working together alone will not produce joint ownership of a copyright. Since Midway never considered the actors as co-authors, edited the actor’s performance, and altered it significantly using digital effects, then there was no joint authorship. Because they were contractually stipulated as ‘work for hire’ and have no ownership rights to the source code, then they were not joint authors.

Subsequent lawsuits concerning the role that outside authors and video games would play became important in terms of altering either the software or audiovisual display. In both instances, the courts ruled in favor of the person creating modifications and selling them. However, the contractual obligations that barred the actors in the Midway case was not an element. In Lewis Galob Toys, Inc. v. Nintendo of America, Inc. a device known as a Game Genie was created that could modify pre-existing cartridges that would allow the player to tailor the game’s audiovisual display. The device functioned by blocking data sent through the cartridge into the Nintendo game console. It was attached to the cartridge and did not alter the data in any permanent way. The dispute was whether or not the device constituted a derivative work of Nintendo’s copyright. The courts argued that it was not because the alteration was in no way permanent or that it incorporated copyrighted works in the Game Genie itself. The court comments on this non-fixed nature by stating, “For example, although there is a market for kaleidoscopes, it does not necessarily follow that kaleidoscopes create unlawful derivative works when pointed at protected artwork. The same can be said of countless other products that enhance, but do not replace, copyrighted works.” Attempts to argue that the audiovisual display was being violated since Game Genie displayed the images from the cartridge were ignored because no images were imbedded in the device itself. The device is useless by itself and does not inhibit the sales of Nintendo products. Had it somehow adversely affected the value of the product, then it would be in violation of ‘fair use’. The main standard for fair use in this regard was established in Sony Corp. of America v. Universal City Studios, Inc. where the courts struggled to define whether taping a show or movie constituted fair use. Sony demonstrated that a significant number of copyright holders would not object to their work being distributed in this manner and the plaintiff failed to prove that it would have a significant negative impact on their sales. The only remaining possible argument, that Nintendo wished to release a similar product, was also debunked.

The courts have been willing to extend this right of fair use regarding video games and players beyond just mechanical modifications. The most significant ruling was in Microstar v. Formgen, Inc., where the issue of audiovisual modifications first came under scrutiny. The defendant distributed the game Duke Nukem 3-D which included a level editor and brief instructions on how to use it. Players then used it to create their own levels and would distribute these on the internet. The game even went so far as to include a message that reminded players about the editor and to try it for themselves. The plaintiff went online, collected many of these levels, and sold them as a boxed set of new content for the game. Relying on the ruling regarding the Game Genie, the plaintiff pointed out that the levels do not run without first purchasing the original game. All of the copyrightable elements of the game are not on the disk, only code to construct maps after the game reads it. The courts ruled that this was fair use. However, they did note that since defendant claimed it intended to release its own map pack this could potentially be in violation. The issue of whether this content could be distributed for commercial purposes without the defendant’s intent was also addressed. Since the plaintiff had knowledge of the Licensing Agreement, the mere fact that users were permitted to create works for non-commercial purposes does not imply an agreement to commercial competition. The courts state, “[Plaintiff’s] claim that movants waived or abandoned their copyright protection by encouraging its users to share new levels, or MAP files, with the rest of the world is rendered moot by the fact that what the users create and share is not protected in the first place.” Thus, the courts concluded that the maps created with the level editor were not copyrightable or commercially malleable at all. The issue here is not so much the court’s failure to define the status of the mods but rather their ruling that the game developers did not specifically own them. Since these were just downloaded maps that had not been specifically created by the distributors either, the courts asserted that they did not own them either.

Modern Trends and the Mod Community

As the internet enabled mass distribution of files and data between people, a community of people who would create modified versions of video games and distribute them for free began to grow. Known as ‘Mods’, these files were very similar to the Duke 3D Maps. One still had to own an original copy of the game to play them and Game Developers encouraged this because it gave an extended life to the game. Numerous strategy games such as Command & Conquer or Heroes of Might and Magic began to include map editors to increase the viability of the game. As this trend continued however, the user modifications began to be more popular than the original games that had been released.

The best example of this is a modification to Valve’s game Half-Life. The game itself is classified as an FPS (First Person Shooter): the perspective is always from the head of your character and gameplay chiefly consists of moving through 3-D levels and shooting enemies. Two programmers, Minh Le and Jess Cliffe, created a mod called Counter-Strike that added a multi-player component to the game. Players would either play as the army or terrorists and fight until one team had accumulated a set number of kills. It was immensely popular, garnering over 10,000 downloads in its first 2 weeks online. Realizing that the modification had commercial appeal, Valve hired the two programmers and released several commercial expansions based on the game. With each of these, numerous user mods were created to adjust the experience to a player’s tastes. People would add different weapons, characters, or game play methods. As time went by, Valve sought to increase sales of its newer game Half-Life 2 that ran on a different engine. It instituted mandatory advertising in all Counter-Strike games, forcing players to observe posters and banners for the new product. Many players expressed deep frustration at having their work invaded, resulting in a huge petition claiming that Valve was violating the original terms of service. The thread was eventually deleted without anymore explanation.

The commercial viability of allowing users to create their own levels did not go unnoticed by console developers. Typically editors were a feature only seen in computer games, but the latest generation of consoles began to include similar features. A player could create a map and have it automatically exchanged whenever someone wanted to play them on it. An example would be Halo 3’s Forge feature. This allows you to take pre-existing maps and adjust the location of weapons, vehicles, ramps, and spawn points. A spawn point is where the player re-appears after they are killed in a multi-player match. The game’s developer, Bungie, opted to not allow full-scale map editing so that they could continue to sell maps to players as additional revenue. The game is played in a very similar manner to Half-Life. Several games planned for release this year will include a feature but numerous additions. Ubisoft’s Far Cry 2 will feature a full-scale editor that allows players to make their own maps as well. Previous entries in the Far Cry franchise featured this element but the company is actively advertising this feature. Ubisoft’s current plan is to allow users to upload 5 maps and see how they’re rated. If a user releases high ranking maps, then they will be allowed more slots to upload more maps. Both games are deriving an extensive amount of value from the modifications that were considered unprotected in the Duke 3D case. However, given that the players don’t have the ability to create their own assets it could probably be argued that it’s still no different than actually playing the game. As with the ruling in Midway Mfg. Co. v. Artic International, Inc., the player is just rearranging words in a dictionary, not creating new content. The scale upon which they are rearranging these words is significantly larger though.

The most significant of the new games featuring mods this year is Sony’s Little Big Planet. Players are able to not only manipulate the map but also create objects and characters in the game. Entirely original art & assets will be created and distributed using an in-game editor and passed around using the internet. This is a significantly large amount of outside influence than other console editors, the difference being the extreme ease that players will be able to use it. Unlike new art assets in previous mods, which were relatively few and hard to make, a massive amount of free content is going to be generated. Sony has been reluctant to grant users rights to their works however. The On-Line User Agreement states, “You will have the option to post, stream or transmit content such as pictures, photographs, game related materials, or other information through PSN to share with others (“User Material”), provided no rights of others are violated. To the extent permitted by law, You authorize and license SCEA a royalty free and perpetual right to use, distribute, copy, modify, display, and publish your User Material for any reason without any restrictions or payments to you or any third parties.” All users must agree to these terms before they can distribute content from Little Big Planet online. As of this writing, there are already significant complaints being leveled at the games moderators for deleting levels that featured any form of infringing copyrighted material from separate media.

The mod community has been so successful that several companies are now simply releasing the software and asking players to create content for them. The website Kongregate does not actually own Flash, the software used to make their games, but features a full selection of Flash titles made by amateur programmers. The programmer receives a percentage of the ad revenue generated by the game. In order to encourage development of new and interesting games, the website now features a series of “Shootorials” that teach the player how to make games themselves. Another website that is focused on distributing a game engine is Metaplace. Developed by Ralph Koster, the game would be a massive aggregation of art assets and programming. People would create games using each other’s art with one universal program and distribute it through the internet. Finally, even Microsoft has begun to distribute software that would allow players to create basic games for their Xbox Live service. Like Kongregate, players would receive a percentage of the profits a game generated. Each of these engines will allow the user to create a unique audiovisual display using the companies software. As with the console mod options, the companies are actively encouraging this and deriving value from the mods produced.

Whether it is from companies distributing software for mod production or console games that allow for variation of the game, the ability to create modifications is becoming an intrinsic part of the video game industry. As more money begins to come from player generated content, such as with Counter-Strike, the issue of what rights and claims both the player and company can make comes into question. Due to the differing methods of analysis laid out by the courts, that question is still highly debatable.

Legal Analysis

There are three basic legal issues that need to be addressed in order to deal with the mod communities inevitable financial impact. First, the separation of audiovisual elements and software must become firmly recognized by the courts. Second, the rights of mod authors must be outlined and recognized by the courts. Third, a new method of assessing the copyrights of video games that addresses games beyond their audiovisual display must be developed to encourage incentives for those contributing to a video game without actually making the initial copyrighted product.

The reliance on the audiovisual elements of a videogame was a necessary step by courts when first addressing copyright infringement in videogames. As the court in Atari, Inc. v. North American Philips Consumer Electronics Corp. pointed out, the average consumer is unaware of the program inside the arcade game. With the large number of games that are now dependent on the player owning a particular piece of software before they can actually play the mod, this distinction no longer works. A mod created with a videogame is intrinsically linked to the game it originated from and consumers will now be aware of it. To qualify for the standard of fair use is to not damage the sales of the original software and the game developers must have intended the users to create content in this manner anyways. Given the inclusion of user-friendly development tools, one could argue that the latter is almost a given while the former raises a lot of question. With software now allowing users to create unique objects and art inside the game, the courts will have to confront two mods having very similar audiovisual elements but relying on separate programs. Whereas the courts dismissed the software variations as unimportant in the Williams case, a clear decision must be made as to whether two similar games originating from different software will count as infringement. On the one hand, developers are going to be interested in preserving mods unique to their software and not letting them be extensively mimicked. Mod authors should be rewarded for their ingenuity and incentives must be provided by assuring them their games will be protected. On the other, ingenuity and creativity could be repressed if authors are not allowed to explore other people’s ideas and build upon the principles of ‘Fair Use’. This would specifically relate to the third element of the four factor test, “the amount and substantiality of the portion used in relation to the copyrighted work as a whole”. By creating a clear separation between these two elements that allows audiovisual work to be protectable independent of their software, authors will be assured of greater rights to their work and thus encouraged to produce more. The owners of the software itself receive the benefit of sales by creating successful software that people find the most adept for creating mods. In this way, the software becomes a tool while the mod becomes an expression.

The rights of the mod creators must be firmly established by the courts. The rulings in the Mortal Kombt 2 case and Duke 3-D both highlight contractual methods to exclude the author’s rights. In the former case, establishing that the actors were considered ‘work for hire’ by the company and the contract took away the rights to their audiovisual contribution. As the courts noted there, the contribution must be able to stand apart from the initial product in order to have joint authorship. As mod features become more complex as in Little Big Planet, modders will now be able to point to a significant amount of contribution to the game. Adjustments to physics, programming, art, sound, and music are all possible today. A distinct standard that establishes how different and how much new art must be contributed before a mod is separate must be established. By creating legal opportunities for the modder to receive protection from copyrights it will encourage development of new games and creative ideas. Although the ruling in the Duke 3-D case does not establish authorial intent (the distributors of the map pack did not create the levels), by declaring the mods unprotected it removed the incentive a player might have to create more advanced works. These rights must be established within the context of the mod still relying on a piece of software. An objective analogy would be the relationship a film director has with the television. Even though they need the T.V. to show their film, the creators of the T.V. do not have any distinctive rights to the products being displayed.

Finally, a firm standard for comparing the audiovisual elements of a video game must be established. Judge Learned Hand’s ‘abstractions test’ provides an excellent foundation that even someone unfamiliar with videogames would be able to make an analysis with. The actual idea of the game is not protected, but rather the expression of that idea. A mod must establish itself as a sufficiently unique expression of a game through the audiovisual display. A side by side comparison of the original would be the best way to determine this. This does not fully explore the potential for infringement however, as the courts noted in Accolade, Inc. v. Distinctive Software, Inc. an outside panel or expert may be necessary. An outside audience of gamers may be needed to test for the Scenes a Faire element or the parts of a game that are simply conventional. Scenes a Faire is the legal term for a moment or sequence in a copyrighted work that would have to be there no mater what. Videogames feature many elements like this like control schemes, weaponry, or display conventions that are simply considered the industry norm. The use of a particular kind of gun or weapon may be so commonplace in games that it is not protectable or unique to any game. Testing for these elements would ultimately rely on an audience test to see if the common person would notice the lack of difference. If they do not, there cannot be any infringement even if careful analysis demonstrates it.

Ultimately, the overall standard that should govern any copyright infringement with videogames should be the “Total Concept and Feel” Standard as utilized in Atari, Inc. v. North American Philips Consumer Electronics Corp. The test requires the entire concept or product to be observed, not just individual elements, and to see how they come together. This best covers the dual nature of video games and covers the importance of player participation. Unlike a film or book, which is observed passively, a video game is itself about the feelings it inspires from the player. As the courts noted in the Atari case, ““Video games, unlike an artist’s painting or even their audiovisual works, appeal to an audience that is fairly undiscriminating insofar as their concern about more subtle difference in artistic expression. The main attraction of a game such as PAC-MAN lies in the stimulation provided by the intensity of the competition. A person who is entranced by the play of the game “would be disposed to overlook” many of the minor difference in detail and “regard their aesthetic appeal as the same” Mods and video games must be judged on a case-by-case basis that compares the overall feel of each game in conjunction with the audiovisual elements to detect infringement.

Conclusion

In the end, a sound legal and financial plan to accommodate the rights and needs of the mod community is inevitable. With developers actively encouraging their presence through easy-to-use tools and financial incentives, the inevitable copying and infringement that comes with such an environment must be developed while still encouraging the constitutionally protected incentives that the Copyright system provides. If a proper legal foundation can be set out from the beginning, then it could pave the way for greater growth and development in video games.