mod legalities: copyrights, derivative works, contracts

[bigThinker]

I've been musing upon the legalities of mod production. It's a fun issue and, as I'm working on a mod right now, the topic is both relevant and important. I'd appreciate your educated thoughts/feedback here.

If you want to cut to my pressing, practical issue, skip to the last paragraph.

According to the Uniform Partnership Act, any peoples who work together on a "business for profit" without any other legally binding agreement are operating as a de facto partnership. It's been made clear that the project I'm on is not going to be monetized. Thus, we are operating in the gray space, I assume, as individuals. While this does simplify things in the event that a member, who may otherwise be a partner, leaves the project with malicious intent, operating as individuals has it's concerns as well. The one which I'm currently considering is copyrights.

The US Copyright Act provides that the copyright holder of an original work has the exclusive rights to authorize the production of derivative works. A derivative work is defined as work based upon, recasting, or reproducing an original. The author of a derivative work has rights only over the portion of the derivative work that is "distinguished from the preexisting material employed in the work." Indeed, the principles of originality have been well established.

This has pretty significant implications. It begins with your concept artists. Lets say they create a modeling sheet for your characters. Then you have a 3d artist come in an create the character according to that modeling sheet. Plainly, the model is a derivative work of the modeling sheet. After all, that's the entire point of the modeling sheet, and concept art in general. Similarly, an artist who illustrates an area is an original author, and the level designer who creates that area in a 3d space has created a derivative work. While the concept artist does not actually own the copyright to the model or the level, the model or level would be infringing upon the copyright of the artist if the artist chose not to give his consent to its creation.

This raises an interesting, basic question: How is consent to the creation of a derivative work determined? Given the context of the artist's work, I imagine it could be argued that consent is implied. In either event, assuming there has been no formal agreement, can the artist rescind his consent at a later date and render the derivative work a copyright infringement?

However, a more interesting question comes to mind: What about the game mechanics itself? It's been established that a game system cannot be copyrighted because, so they say, the system is an idea. Only the expression of ideas may be copyrighted or viewed as original works. But what if your designers have developed important, core algorithms/equations for the game which the coders have simply implemented? Is the algorithm/equation considered an idea in and of itself, or is it an expression of the idea of their game mechanics? I suspect, since this hinges upon the creative, expressive (read: cultural) legitimacy of a video game, that this is pretty new legal territory. If the algorithms/equations are deemed to be expressions of an idea (copyrightable), is not the code a derivative work?

Thinking more broadly, consider the "design document." In game production we typically find that designers create a design document from which, literally, the game is meant to be created. As a document, isn't it an "expression" of the ideas of the designer? Or is it only an "expression" if the document itself is made to convey, experientially, what the game should ultimately be? I assume a rough prototype would suffice in this regard, though a case could likely be made for a script, given that a "faithful" film adaptation of a book is a derivative work of the book.

If a team is working from an expression of a game idea, be it a design doc or a rough prototype, doesn't the possibility exist for their work to be derivative? I imagine that the actual determination of whether an asset is a derivative work of the design document would have to be determined on a case by case basis by comparing what was expressed in the design document to what was produced. Nevertheless, assuming the game is being produced based upon an "expression" of the designer's ideas, the game as a whole should be considered a derivative work of the expression. ...There's a lot of gray space here.

So, musing aside, what's to be done? From where I'm sitting (the producer and game designer), it seems like the safe thing to do is to draw a document for everyone to sign. The document should give me an irrevocable, non-transferable license to use the assets my teammates submit, provided the assets aren't being monetized. I'm iffy on exclusivity. In this case, should money come into the picture, new licenses would need to be obtained for the use of each asset. (What a mess, sheesh.) Has anyone else been down this road? Why don't more people ask these questions? Advice?

[Naticus]

First things first. Drop the can opener and slowly step away from that can of worms.

Kidding of course…

Let me first say that your post was extremely well written. Your advanced education shows! I have had many sleepless nights thinking about intellectual property issues related to gaming. Your potential issue is certainly a valid concern.

I think that drawing up an exclusivity agreement can’t hurt. This is especially true if you are contemplating using the material to make money down the line. To recap, your scenario is when the concept artist becomes disgruntled and tells you that you can’t use anything based on his or her work.

Let’s for a moment play this scenario out a little further. You ignore the demands of the disgruntled concept artist and finish and release your mod with textures, models and characters based off the concept art. Let’s also say it is free to the gaming community so you don’t make any money off of it. The first question is, could the disgruntled concept artist sue you for copyright infringement? Sure, however I don’t think there is an attorney out there who would take the case. As part of a copyright infringement claim or any tortuous claim for that matter you must be able to show damages and, specifically, what you are seeking to be made whole. What damages could the disgruntled concept artist claim? They are not missing out on any money being made for the mod. The only question left is if there were some sort of residual benefits or good will from the mod that could be valued and recoverable as damages. I think that would be a difficult sell to any court.

If there is even a hint of profit down the line, I would do it right from the start and do the exclusivity agreement. If you are eventually going to sell the mod then you can how you want your business to be organized and draw up agreements for compensation when the time comes.

A question that still remains unresolved for me is what about “nonprofit” mods that are using copyrighted intellectual property from movies or television? Since the mod is using copyright material they should technically be getting permission for their derivative work from the copyright holder. If the mod leaders choose to skip this step and their mod raises enough attention from the public, I could easily see a company like, let’s say, Lucas Arts, sending a cease and desist letter. Imagine if the C&D letter comes right before a release after years of work had been poured into the project. How depressing would that be to those that had worked on the project?!?

Many may be thinking why would a company, like Lucas Arts, care about a mod that is not going to make any money? Well, if that mod is high profile and attracts many new players to the particular game platform it has been modded for, that could very well be a problem. Money would be made by Valve if this high profile mod generates many new purchases of HL2. So now Valve may also have an interest in sending a C&D letter for use of non-authorized copyrighted material. But I’m sure those folks at Lucas Arts are very generous so I bet they will gladly authorize derivate works of their major money making franchise.

Sorry, didn’t mean to go off topic. I was just throwing out some food for thought. But going back to your last question, I also really wonder why more people don’t ask these sorts of questions.

[dragonfliet]

The reason that people don't ask these types of questions is that they're basically moot. You two are way overthinking.

When a mod team communicates via email and forum, an asset is requested and given, then the consent is obviously there. If someone contributes to a mod team, the mod team can use what he contributed. This is very, very simple and there is no possible way for any lawyer to make a case. That's why no one ever gets sued, even though plenty of people get all pissy from time to time.

As for a gameplay mechanic, they can be patented (which requires a detailed writeup and an application and then approval by the patent office) but not copyrighted. A design document cannot protect the idea for a mechanic in such a way. You will also essentially not see people patenting gameplay ideas because it's silly and mostly developers aren't twats about this yet and they realize that if a patent system were involved it would essentially destroy the games industry as even most semi-innovative ideas are pretty damned derivative.

So as the producer/director/whatever, you should worry about getting your artists to contribute and getting your game done, not worrying about copyright issues. IF your game went retail, you would need to talk to lawyers and business managers, but essentially you would have to buy off any assets you wanted to use from the people that created them. If they didn't consent to what you were willing to offer, then you would simply have to create a new asset (which you would probably be doing anyways-ever see a mod go retail that didn't undergo a pretty decent overhaul from free to retail?). Also, there is a 590,204,204 to 1 chance that your mod will not go retail, so you can relax.

~Jason

[joe_rogers_11155]

What mods have ever gone retail without the express support of the content providers? Wouldn't the point of retailing the copyrighted content become the "sue us" flag unless the copyright holder teams up with the modders? I'm thinking about Counter-Strike going retail, but only once backed by Valve. Valve had to step in and recognize the business potential of the mod content.

So what other mods have gone retail? Have their cases been similar?

And to ask another question I have about the original post: let's say a big-name mod, oh say, Black Mesa Source, releases on time and is hugely popular. Popular enough to get people to buy the Orange Box so they can play the mod. You say Valve would find it in their interest to send a C&D letter......wouldn't Valve want more sales though? Especially since the mod was free, Valve isn't being cheated out of anything. I don't understand.

[Dionysos]

Red Orchestra on UT2004 engine went retail, but they won the Make something unreal contest in which they won the license to the unreal engine. Those challenges should be way more common...