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.

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