United States: Crowdsourced Content In Video Games: How Ownership Issues Almost "Ganked" A Copyright Case

In Blizzard Entertainment v. Lilith Games (Shanghai) Company, a federal court denied a motion for partial summary judgment for alleged copyright infringement involving some of the biggest names in the video game industry. The case — in which Blizzard Entertainment and Valve Software sued mobile game developers uCool and Lilith Games for allegedly infringing the copyrights in the "Defense of the Ancients" series of games (commonly known as "DotA") — demonstrates how important it is for would-be claimants to have their chain of title documents in order, lest they be "ganked" (snuck up on and defeated by an opponent) in the early stages of litigation.

There are also twists to the case: Much of the intellectual property identified in Blizzard's and Valve's complaint was based on content created by players, not by the game publishers themselves. Moreover, the relevant end-user license agreements (EULAs) did not assign the rights in those assets from the players back to the game publishers.

The lawsuit, therefore, raised an unusual question: Can game publishers sue for copyright infringement of crowdsourced content?

The Rise of DotA

The DotA games trace their origin to Blizzard's blockbuster hit, "Warcraft III" — the progenitor to the well-known massively multiplayer online game, "World of Warcraft." Warcraft III was a computer strategy game in which players controlled armies of different fantastical species aiming to dominate the fictional world of Azeroth. The game included an editing tool called the "World Editor" that enabled players to create new battle maps, settings, characters, storylines and gameplay rules. It allowed players to share these modifications with the rest of the online gaming community. Importantly, Warcraft III's EULA did not contain any provisions assigning the intellectual property rights of content created in the World Editor from the players back to Blizzard. It did prohibit players from using their creations for commercial purposes, however.

In 2002, a particularly ambitious player named "Eul" created a mod for Warcraft III called "Defense of the Ancients." The mod significantly altered the gameplay, rules, sequences and character roster of "Warcraft III," making DotA almost a new game. (As a mod, DotA required a copy of Warcraft III in order for players to play it.) Eul's mod placed a heavy emphasis on the special "hero" characters from Warcraft III in addition to including a number of new hero characters. 

DotA was a huge hit in the Warcraft community, inspiring dozens of other spin-off mods created by avid fans. Building on one of these spinoffs, a different player known as "Guinsoo" released his own mod called "DotA Allstars." It included a series of new characters, spells and improvements, many of which were suggested by other players. 

In 2004, Eul decided to retire from managing DotA and announced that "DotA is now open source," and that anyone who wished to release a new version of DotA may do so without his consent as long as they give him "a nod in the credits to [their] map." Soon after, Guinsoo also stepped down, leaving players "Icefrog" and "Neichus" to manage future DotA development. At this point, the game had attracted so many new fans that a forum dedicated to DotA was seeing over one million visitors every month, with a million page views every day.

Seizing on this popularity, Valve began development of its own standalone game, "DotA 2," based on DotA and DotA Allstars. Valve eventually hired Eul and Icefrog, who agreed to assign any rights they had in DotA and DotA Allstars over to Valve. Guinsoo was eventually hired by Riot Games (of "League of Legends" fame). Like Eul and Icefrog, Guinsoo assigned his rights to DotA Allstars to his new employer. Riot Games later assigned those rights to Blizzard.

After Blizzard and Valve Sue, uCool Moves to Dismiss

In September 2015, Blizzard and Valve jointly filed a copyright infringement lawsuit against California-based uCool and China-based Lilith Games. They asserted that uCool's "Heroes Charge" and Lilith's "DotA Legends" mobile games infringed on the copyrights in DotA and DotA 2. Blizzard's and Valve's amended complaint alleged various forms of infringement, but paid particular attention to the similarities between characters in the games at issue. uCool responded by moving for summary judgment against Valve, arguing that the company could not prove that it owned all of the copyrights in DotA and DotA Allstars that it needed in order to sue.

uCool's arguments focused on the DotA and DotA Allstars characters — specifically, whether Valve owned the copyrights to all of the characters it asserted against uCool and Lilith. The company contended that many of the characters allegedly copied from DotA and DotA Allstars never belonged to Eul, Guinsoo and Iceforg, but were instead created by other fans. uCool pointed to evidence that many of DotA and DotA Allstar's characters — including their appearance, abilities and backstories — were based on concepts and suggestions that fans submitted to Eul, Guinsoo and Icefrog. According to uCool, this meant the fans — not Eul, Guinsoo or Icefrog — owned the copyrights in many of the characters asserted in Valve's lawsuit. Under this theory, Valve would have needed to obtain separate assignments from each creator in order to assert the fan-created characters as part of its lawsuit.

uCool also argued that DotA and DotA Allstars were properly viewed as "collective works" — works that take others' copyrightable expression (e.g., the game characters) and combine them into a single package, like a newspaper or an encyclopedia. Under this characterization, Eul, Guinsoo and Icefrog only owned rights in the selection and arrangements of characters in DotA and DotA Allstars, respectively; they did not own the rights to the underlying characters. Again, this theory would have required Valve to obtain assignments from the characters' creators — something it did not have. The crowdsourced nature of the DotA and DotA Allstar's characters raised an important question: In assessing ownership, should a court's analysis focus on the individual characters, or the overall game? In denying uCool's motion for summary judgment, the court offered a clear answer: The focus is on the game as a whole.

Dismissal Denied

First, the court rejected uCool's argument that DotA and DotA Allstars were collective works. Referring to Section 101 of the Copyright Act, the court concluded that each version of DotA and DotA Allstars should be viewed as a unitary whole with "inseparable" and "interdependent parts." Even though characters are independently copyrightable, the court noted that the "[h]eroes do battle in teams on fictional battlefields — together. They do not stand alone in self-contained bubbles." 

Second, the court rejected uCool's argument that individual fans had authored many of the characters featured in DotA and DotA Allstars, and later asserted as part of Blizzard's and Valve's lawsuit. Drawing on well-established Ninth Circuit precedent in the movie-making context, the court concluded that the "master minds" behind a work — the people who exercise creative control — are considered the work's "authors." It further noted that individual contributions, even if "extremely helpful" or separately copyrightable, do not transform the corresponding contributors into authors of the overall work. 

Even if Eul, Guinsoo and Icefrog solicited and even incorporated fan feedback into DotA and DotA Allstars, the evidence showed that they ultimately decided which suggestions made it into the final games and which did not. Because they exercised creative control over the final product, Eul, Guinsoo and Icefrog were the games' authors. To interpret ownership any differently, the court concluded, would allow individual contributors to carve out ownership rights in their own contributions, rendering worthless copyright in movies, comic books and video games.

As a result of the court's decision, Valve did not need to obtain assignments from individual fan contributors. Eul's and Icefrog's assignments to Valve would be sufficient so long as they were valid — an issue that was left for the jury to decide.

Takeaways and Cautionary Tales

The court's denial of uCool's motion highlights the important but sometimes overlooked role that ownership plays in every copyright infringement lawsuit. Would-be claimants should make sure that their chain of title documents are in order to avoid a potentially devastating blow early in a litigation, especially in cases of crowdsourced, user-generated content where ownership is likely to be a contentious issue. 

The case also offers a cautionary tale about the importance of EULAs. Recall that Blizzard or Valve might never have been put in this position if Warcraft III's EULA had assigned the rights in any player-created content in the World Editor back to Blizzard. It's unclear whether this was a conscious choice by Blizzard to give fans an ownership stake in the content they create — a trend we see with increasing regularity in current gaming communities. But the message remains the same: Game developers should regularly review their consumer-facing agreements to ensure they meet both the legal and business objectives of the company.

Meanwhile, the DotA dispute shows no signs of slowing down. As of this writing, Lilith has moved to dismiss Blizzard's and Valve's second amended complaint. A number of important aspects of the case remain unresolved, including whether Eul's decision to make DotA "open source" amounted to copyright abandonment — an issue that could severely limit the scope of the lawsuit — and the validity of the relevant assignments.

Although the future of this dispute remains uncertain, one thing is clear: The battle over DotA's Azeroth-inspired in-game assets will have a lasting impact on the copyright protections for crowdsourced content.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on Mondaq.com.

Click to Login as an existing user or Register so you can print this article.

Authors
Events from this Firm
21 Jan 2019, Speaking Engagement, California, United States

Now entering its fifth year, the Pocket Gamer Connects events series has grown to become the biggest and most influential mobile games conference in the west as well as th​e biggest games event overall in the UK and Helsinki.

8 Mar 2019, Conference, Austin, United States

Join the world’s largest gathering of creative professionals at the 2019 SXSW Conference & Festivals in Austin, Texas from March 8-17.

Similar Articles
Relevancy Powered by MondaqAI
Frankfurt Kurnit Klein & Selz
Fenwick & West LLP
 
In association with
Related Topics
 
Similar Articles
Relevancy Powered by MondaqAI
Frankfurt Kurnit Klein & Selz
Fenwick & West LLP
Related Articles
 
Related Video
Up-coming Events Search
Tools
Print
Font Size:
Translation
Channels
Mondaq on Twitter
 
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
 
Email Address
Company Name
Password
Confirm Password
Position
Mondaq Topics -- Select your Interests
 Accounting
 Anti-trust
 Commercial
 Compliance
 Consumer
 Criminal
 Employment
 Energy
 Environment
 Family
 Finance
 Government
 Healthcare
 Immigration
 Insolvency
 Insurance
 International
 IP
 Law Performance
 Law Practice
 Litigation
 Media & IT
 Privacy
 Real Estate
 Strategy
 Tax
 Technology
 Transport
 Wealth Mgt
Regions
Africa
Asia
Asia Pacific
Australasia
Canada
Caribbean
Europe
European Union
Latin America
Middle East
U.K.
United States
Worldwide Updates
Registration (you must scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions

Mondaq.com (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of www.mondaq.com

To Use Mondaq.com you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these Terms or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.

Disclaimer

The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use of the Content or performance of Mondaq’s Services.

General

Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions