Modding – the practice of modifying video games to create unique experiences – has become a thriving mainstay within the gaming community. These modifications can range from simple aesthetic changes to complex overhauls that introduce new gameplay mechanics, characters, or storylines. Online platforms and forums, such as Nexus Mods and Steam Workshop, provide spaces for people to share their creations, discuss techniques, and collaborate.

As modders craft their way deeper into the world of customisation, more and more questions around the use of protected intellectual property (IP) are raised. Modders and hosting platforms alike straddle the lines between creative replication of treasured fictional characters and environments that potentially abuse and breach the IP protections held in those works.

IP Concerns

Copyright infringement looms large as a primary concern for modders. Game developers hold copyright over the original game's code, assets, and other creative elements. Modders risk infringement when they incorporate, alter, or replicate these elements without proper authorisation. Substantial use of the original code or distinctive character designs can lead to legal repercussions for modders and hosting platforms alike.

Recent instances, such as Nintendo's takedown notices and legal warnings related to PALWORLD mods, underscore the real-world consequences of copyright violations. Hosting platforms may opt to remove infringing content to avoid legal repercussions, impacting modders and their creations.

Fair Dealing and Moral Rights

While South African copyright law provides for fair dealing exceptions, the application is limited and requires adherence to specific criteria. The factors that will be taken into consideration and that modders should take into account include, the nature and purpose of the use, the amount and substantiality of the portion used, the effect of the use on the original work, and the nature of the copyright work.

Additionally, modders should respect moral rights, which incorporate the right to be identified as an author and grant the author the right to object to any derogation of the work that is prejudicial to the author's reputation. This could lead to possible restrictions or the complete removal of modifications.

Terms of Service, Licensing and Permission

To mitigate legal risks, modders should at all times, where possible, seek permission or adhere to established guidelines when using protected IP. Carefully reviewing the terms of service and understanding the permissions granted are crucial. In cases where modders derive benefit from their mods, financial or otherwise, adherence to licensing terms becomes even more of a necessity.

IP concerns when using copyrighted material will always be present, modders in creating their content must be cautious in their approach to avoid unnecessary legal challenges, to avoid these pitfalls as a modder you should:

  • Do your research: Familiarise yourself with copyright laws and the specific IP policies of game developers and the owners of the content utilised. Understanding the legal landscape will help you make informed decisions about your mods. In instances where you are deriving a financial benefit, it would be especially advisable to seek professional legal advice to correctly establish your requirements for use.
  • Ask for permission: If you plan to use copyrighted material in your mods, reach out to the copyright holder for permission, where possible. Clear communication and documentation can help avoid legal disputes.
  • Follow the rules: Follow any guidelines or terms of service provided by game developers and the owners of the content utilised regarding modding. Respect the boundaries set by copyright holders to avoid potential conflicts.
  • Consider using alternative content: If you encounter difficulties obtaining permission for copyrighted material, consider creating original content or collaborating with other modders to develop unique creations.

Modders must ensure legal compliance to safeguard their creations and avoid costly legal disputes. By understanding copyright laws, respecting IP rights, and adhering to guidelines, modders can handle the legal challenges of modding while fostering creativity and innovation within the gaming community.

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.