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.
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.
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.
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.
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.