U.S. judge denies summary judgment in video gaming dispute, in which he dissects unitary vs. collective works and their implications for copyright, infringement claims

With a cast of characters rivaling a Tolstoy novel, and almost as many iterations and spin-offs as Pride and Prejudice, a recent video game dispute involving modification or modding has come down to concepts that underlie a good old-fashioned night at the movies. These led U.S. District Judge Charles R. Breyer in San Francisco to deny summary judgment in a suit by video game maker uCool against distributor Valve for copyright infringement of its characters. (A tip of the hat to the Hollywood Reporter for posting the ruling).

What lessons can makers and distributors in the red-hot 21st century video gaming industry draw from the practices of the likes of Johannes Gutenberg and Cecil B. DeMille?

Mods amok

The uCool-Valve drama can be traced to 2002 when Blizzard Entertainment released Warcraft III: Reign of Chaos, a game that blew up in popularity because Blizzard allowed players to create their own mods, that is it let them modify characters, story lines, and rules. That’s when the plot thickened. Blizzard then didn’t, as analysts have noted, take legal steps to get players to assign back to the company the rights for the mods. It only barred them from peddling them themselves.

Because Blizzard left that door open, creative and passionate gamers started running through mods with abandon. First and most notable was “Eul,” who came up with the hit mod DotA (Defense of the Ancients). After working on DotA for two years, he posted on a community web forum that DotA would, from then on, be open source, asking only for credit. That mean modding went wild, with hip creators like “Meian,” “Madcow,” “Neichus,” “Guinsoo,” and “Icefrog” racing to the fore. Eul and Icefrog both took jobs at Valve, after the company started work on Defense of the Ancients 2. Both assigned their rights to their mods to the company and got paid.

In 2014, uCool and Lilith Games released smartphone games Heroes Charge and DotA Legends, respectively. Blizzard and Valve then sued for infringement of DotA 2. uCool countered, asserting the action invalid because Blizzard and Valve didn’t own rights to the mods.

Breyer noted of this complicated case: “With literally hundreds of versions of DotA and DotA Allstars floating around in the ether, the Court confronts quite the copyright conundrum. To sort through things, it must first determine just what, exactly, is the work(s) at issue here. Second, it must determine who is the relevant author(s).”

Sorting the players out

He said it would be crucial for the court to determine if the varied versions of the game were a unitary work (as plaintiffs Blizzard and Valve contended) or were they a collective work (as defendants Lilith and uCool argued). Breyer said a prime example of a unitary work would be a movie, in which many contributing members—set and costume designers, director, writers, editors, actors—all come together, blending their efforts into one film. No contributor stands alone. This has been Hollywood’s practice since talkies flickered on the screen. In contrast,  he cited magazines as examples of collective works, where a publisher collects and distributes the product but individual authors own rights to their work. These practices hearken to Gutenberg’s day, when printing was a collective endeavor.

Breyer examined DotA Allstars,  finding it “nothing like The New Yorker… or Encyclopedia Britannica.”  He said the individual pieces, contributed by many different gamers, work collectively. Characters, actions, and plots cannot be separated out. One character isn’t akin to one article in a magazine. The game is more like a movie, with each addition integral to the final result but incapable of standing on its own. Further, he wrote, “Each version [of the game] is a unitary derivative work based on earlier versions DotA and DotA Allstars.”

To determine relevant authors, Breyer continued with the movie analogy, finding Eul, Guinsoo and Icefrog all were masterminds or auteurs of their game versions. Just as a director solicits ideas and suggestions and receives contributions from actors, writers, and myriad others in her crew, the director is the owner of, and responsible for, the final version of the whole.

Breyer’s bottom line: Valve did much more to secure rights than had uCool. Valve paid Eul and Icefrog “a handsome price” for the rights to their game contributions. They were auteurs behind their versions but took many suggestions from willing contributors; like directors, they were their works’ masterminds. In answer to uCool’s argument that the courts should block Valve from capitalizing on second- and third-level contributors’ “free work,” Breyer referred to a case involving the controversial film the Innocence of Muslims.  In that dispute, cast member Cindy Lee Garcia sought to claim ownership of her performance to block the work’s wider release; the U.S. Court of Appeals for the Ninth Circuit denied her claim.