Legal Opinion: Can free mods get away with copyright infringement?
By Patrick Vuleta on August 16, 2012 at 3:15 pm
In a sure sign that the world needs more lawyers, Valve just removed at least 1,400 copycat items from the Steam Workshop. These items had no original creativity, and were simply ripped from other games.
Valve’s mod-purge started after finding that a particular mace from the MMO Aion was copied and sold as an item to buy in DOTA 2. The plagiarist won’t be seeing any money from the sales, but what is more interesting is the money-centric line some drew afterwards. Apparently, charging money for rip-offs = bad, making them for free = open season.
I can’t agree with this. Modder plagiarism is bad for reasons more than financial rewards, as we’ll discuss today.
Why copyright exists
Copyright rewards creative expression. It takes a lot of work to make creative assets from scratch—art, sounds, and general game design. It takes much less work to simply copy. Copyright is meant to stop others from making these easy copies.
As such, the basic justification for copyright is that without protection from piracy, creators won’t have incentive to make new works. Our law lets creators sue pirates for economic damage caused by copyright infringement.
However, copyright protects more than just financial profits. Reputation is a big part of copyright, and Australian copyright law guarantees that creators are identified as part of their moral rights. As such, copyright also ensures that you’ll be able to build a track record based on your original work.
Arguments against copyright
Against these justifications, two main arguments are used to justify copycat mods. First, that the mods aren’t hurting the creators. If a mod is distributed for free, then it’s arguably not taking any money away from the creator of the original game. As such, the economic justification doesn’t apply.
Second, that the mods are paying homage. The view goes that the mods are just an expression of fandom, and imitation is the sincerest flattery. As such, original creators should welcome, nay feel privileged that their works have inspired such copying. Therefore, the moral rights justification is sidestepped.
However, I can’t agree with either.
Copycat mods hurt a creator
One thing mods do is put a liked feature of a one game into another game. This is fine, when the feature is fairly generic, like when I put redheads into Skyrim. However, if a game has a really specific feature, like particular art or models, then a mod that copies these removes the need to actually play that game to experience that feature.
A great example is mods that place Forza car graphics into Grand Theft Auto . If you want to drive those cars, you don’t need to play Forza anymore. You can just play Grand Theft Auto, a game made by a completely different—and competitor—developer. This type of modding erodes the differences that people play different games to experience, and so hurts the uniqueness of the original game.
Copycat mods give undeserved recognition
Modding is big business these days. No longer dependent on simple community sites, mods enjoy large distribution channels like the Steam Workshop, and the attention of large gaming sites. We’ve personally covered mods like DayZ and Tekkit.
For many people, this kind of internet fame is sweeter than money. Saying that “I didn’t receive any money, therefore I didn’t profit from my thievery” is disingenuous. Of course the modder profited from the attention, and if their mod contains work ripped straight from another person, the profit was unjust.
A true homage has original effort
Of course, there are homage mods that no one has a problem with. GoldenEye: Source comes to mind. While almost a direct copy of GoldenEye 64, it is far more original than most of the mods on the Steam Workshop.
While GoldenEye: Source shares many aspects of the original, all the code was created from scratch. All-new music was written. This makes GoldenEye: Source much more than just a slapped-together collection of someone else’s art. As such, the publishers of GoldenEye 64 presumably haven’t had a problem with it, which brings us to…
A true homage allows the creators to object
Many times an original creator will actually allow copyright infringement to pass. Gaming fan-art is a good example—Bioware has a very liberal approach to it. When a fan draws an erotic picture of Kelly and Leliana, together, the benefits of further emotional investment into the Mass Effect and Dragon Age franchises are seen as outweighing the costs of the infringement.
However, the sheer number of mods for a popular game like Skyrim will often make this difficult for a publisher to monitor, unless they have an army of lawyers scrutinising the internet. In contrast, a high-profile homage, like GoldenEye: Source, is easy for the original creators to monitor, approve, or deny as they wish.
For a mod to be ethical, it needs to either respect the right of the original creator to object, by informing them of any copying, or be original and not copy. Just because the Grand Theft Auto Forza-cars mod hasn’t drawn the attention of Microsoft doesn’t make it OK. It’s just a copycat that tries to sneak under the radar, and the modders should feel bad.
Disclaimer: As always, this is general opinion rather than advice on specific circumstances. Talk to a lawyer if you need legal advice.
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First off, glad to see that my reputation for being wrong is intact.
Second, what of the various sites that host modded content for a particular game (be it maps, character skins, sound packs or something else)? I’ve seen quite a few pieces of modded content for UT99, Quake 3 and other games that are based on licensed properties such as Star Trek, The Simpsons, South Park and others.
Third, I don’t see the Forza mod for GTA 4 being an issue as they’re two different styles of game that have absolutely nothing to do with each other. Now if it was Saints Row cars in GTA4 then I could see a problem going by your logic.
Fourth, I’m betting it was you that made the Kelly/Leliana erotic fan art.
Finally, I think copyright as a whole needs a complete overhaul. It’s being abused too much by big media companies and was never written for the digital age (as evident by the insane number of grey areas in the laws as they’d be applied in real world scenarios).
So if the Forza-cars mod for GTA had’ve been done from scratch, ie. the cars look similar but were created from the ground up by the mod author(s), etc, do you think it would’ve been ok? (just curious)
TL:DR , but the answer to the question posed by the title of the article is of course “Until someone notices, and gets annoyed”
Good question.
The Forza graphics are based on real life objects, so it’s a bit hard to copyright a real life car interior.
I think their main issue was that they were direct rips afaik and was posted by Cas in the comments of the news topic.
Yeah but the conclusion posted was that’s a bit unethical and shouldn’t be celebrated. ;)
Gotta agree with Palzer0, copyright just doesn’t work anymore and needs a serious going over for the digital age. Talking about right and wrong with something that’s fundamentally broken just seems like a waste of time and a distraction.
I sometimes wonder why people would bother with a straight copy from one game to another. Yeah it would be cool to run around Skyrim wielding the Soul Blade, for example, but why? Why not find the bits about that particular weapon you like and make a derivative work that’s just loosely like the original? I’m sure it would be more interesting to make your own stringy bacon sword with an eyeball than steal the original pixel for pixel, right?
It’s the thing that always bugs me. Person/group X announces mod/remake of game Y and then get all disappointed when company Z issue a cease and desist order. Why didn’t they just make their own game/content with similar attributes of game Y instead? It would have been a lot more satisfying outcome in the end anyhow. We could be exploring new content instead of being given an apology because the content no longer exists. <_<
Copyright is only applicable if you have the money to back it. Without that you are already going to lose.
It’s rampant abuse by large corporations against smaller and less financially powerful company’s/individuals is becoming ridiculous (remember Bethesda vs Scrolls…). The whole scenario where people are copyrighting words from a dictionary in the hope they can make people pay to use them, well hey the madness will end somewhere eventually.
Pity it got to this really though.
As mods go though that Forza to GTA mod is comparing apples and oranges. The cars from Forza are indeed based on real cars, whereas the GTA ones are fictional. people wished more realism in the GTA gameworld and so a mod was born. It certainly doesn’t harm Forza from a Dev or Sales point of view as the games are certainly not in competition with each other in the slightest (with the minor exception both have cars). If it was Forza cars in GT5 that would be a different matter…
There is also a large portion of the racing community that dislike the deals brokered by the large publishers with car companies and vice versa. Locking games out of certain brands and causing a major lack of diversity in some games limits their appeal and potential sales (Test Drive Ferrari…). Most racing enthusiasts want to have that diversity and the way it’s limited by the publishers stifles that creative aspect, hence there will always be a willing Russian who starts the ball rolling, who I for one do applaud.
I cant imagine a world without licensed franchise based mods. Such as the Star trek and Stargate mods for Sins of a solar empire (both of which are really good) all the way through to Goldeneye: Source. So long as they don’t make any money from making the mod there is no reason for it to be shut down. A Stargate mod for Homeworld 2 for example now has MGMs permission (apparently) to make the mod and use assets such as sounds and MGM pretty much see it as free advertising (which it is).
I think maybe it comes down to laziness and lack of talent.
It’s one thing, for instance, to create from scratch a set of space marine armour for use in Skyrim (using the ‘likeness’ of someone else’s IP), another thing entirely to rip it from another game like Dawn of War or Space Marine (if that were actually possible) which is literally copying and pasting. The former (to me) would be a lesser infringement than the latter, although I guess in both cases it’s really up to the mod creator(s) to ask for permission from the copyright holder
darthlondar,
How about, instead of space marine armour, the author creates armour with similar traits that he likes about it? The big shoulder pads, the battle scars, painted logos and seals etc. I’m pretty sure someone with an ounce of creativity could sketch out and eventually design and model a set of armour that looks as cool as that but different enough that they don’t have to worry about “Games Workshop” breathing down their neck?
I guess, as you say, it’s just laziness and lack of talent. Oddly enough most mods that “pay homage” are never finished anyhow, due to those reasons, so I don’t see IP holders having to worry too much. Except for small items.
“A great example is mods that place Forza car graphics into Grand Theft Auto . If you want to drive those cars, you don’t need to play Forza anymore. You can just play Grand Theft Auto, a game made by a completely different—and competitor—developer.”
Putting a skin on a car in GTA (in this case, one from Forza) will not give you an experience anywhere close to that of Forza. At all.
Copyright law wasn’t created with the modern age where the most successful and engaging application are based on user generated content. Users like/want/need to engage in their favourite worlds, regardless of their copyright status. It was designed to protect original creators, but now serves only as a blanket weapon by big media to stifle user generated content.
The reason is simple and obvious, as more users (read: “consumers”) engage in content creation (this is right across the medium: games, film, music, etc) then less attention (read: “money”) is spent on tradition corporate media. Its a shift in culture and the way we entertain each other, and Big Media are pushing back with copyright lawsuit, and law reform/introduction (PIPA, SOPA, ACTA, etc).
I understand your position as someone trying to protect IP Marius, but until international copyright laws are reformed to take into account new media and user generated content, I cant agree.
Sorry to be picky but you headed this article as ‘legal opinion’ but instead wrote about whether copying someone else’s creation is or isn’t ethical. Couldn’t you have written a bit on what would constitute illegal copying and what wouldn’t?
I thought I did… the end covers issues like originality and whether copyright is a complete prohibition or not?
GoldenEye Source would be illegal copying if the creators had objected to it.
At the least, understanding ethics is a big part of law. :P
It’s still hurts differentiation between products. Creators have objected to infringement for much less, and it’s their right to do so. :)
At the very least it’s complete laziness, and pretty much equal to someone ripping off someone else’s university assignment.
yurtles:
“Gotta agree with Palzer0, copyright just doesn’t work anymore and needs a serious going over for the digital age. Talking about right and wrong with something that’s fundamentally broken just seems like a waste of time and a distraction.”
Hmmm… I think it still has a lot of merit. What gives me pause is that people’s version of ‘right’ seems to be outright plagiarism. Copyright is still being debated heavily, but most of the reasoned positions against it tend to agree that it still serves a purpose, even if it has to be reformed.
Even reformed, it certainly shouldn’t allow people to just rip off others’ work.
I do agree with palzer0 on a number of points, though I wouldn’t throw the accusation of fan-art out there. That’s bringing a nuke to a knife fight here.
The Forza car graphics in GTA thing seems really quite irrelevant, as someone else pointed out if the games were actually competing then this could be a legitimate point. As it is that just comes across as a bit tight-ass, GTA is not a racing simulator, it’s an open world game with very limited car physics etc. Nobody who genuinely would have played Forza would view GTA as a substitute for it.
The comparison to Goldeneye seems to me to be that if you have a huge amount of resources and corporate backing then Homage/Copyright infringement can be ok, but for the average joe modder without an army of Valve lawyers it isn’t?
The games industry really does fail to understand the discourse of copyright infringement on a number of levels. Not only that but they are trying to essentially force the public to take a point of view which as others have said, SORELY needs examination and update in light of the last 20 years of technological development. In fact I wrote a post about it less than a week ago.
http://outsideinsight.net/copyright-infringement-off-the-port-bow-why-crying-wolf-should-have-an-activation-limit/
Thanks for the long comment!
AFAIK GoldenEye Source wasn’t endorsed by Valve, just used their source engine. The main point that was to bring up was that the mod is ok because it didn’t try to hide its copying.
Basically, GoldenEye was completely upfront about itself and so gave the original creators the chance to respond. That was the legal part of this article – that the owners have a choice to enforce their copyright or not.
But many mods don’t do anything of the sort, and just publish without informing the original copyright owners of it. In doing so that takes away any rights of the original owners, and is just flat out disrespectful.
It’s one of the reasons why I’m wary of people saying the law needs to be reformed. While many academics DO support such reforms, they come from a very different place from modders saying “Let us do whatever we want without telling anyone.” In your article you linked you said that you want the industry to have a proper copyright discourse with gamers, but respect flows both ways.
You take that back!
Patrick Vuleta,
Fair point, I am just curious as to what the legal test would be to determine whether something is in fact infringing copyright, in order to know in what situations the publisher actually has the right to object to the copy. Is the test something like whether it is wholly or substantially based on someone else’s original work?
I actually wrote an ENTIRE article about that a few months ago that got nuked in the site upgrade, and didn’t want to repeat myself. That may have been why this article seemed light on the law side.
The test involves a number of factors. Generally, it must be for a valid purpose (like to review, criticise, parady etc), and involve substantial original content. Being non-profit is a relevant consideration, but not the only one.
It is, however, rather grey. The most you can do is make a good stab at being original and… pray. So I still maintain the best course is to either be totally original, or be upfront about any copying before someone gets annoyed/you’ve invested 100s of hours into it.
Love your work as per usual. Especially that you addressed the non monetary gains for using other people’s work. Building reputation, fans etc by stealing someone else’s work is just as bad as taking their work and selling it directly. Especially given that things like Kickstarter exist now. A fanbase can be directly translated into money.
In your example it’s not like plagiarism of a university assignment. And in your example it doesn’t hurt the differentiation of the two different games because they are completely different games.
I can understand where you are coming from in extreme cases, but the example you used (both in your article and in your reply) is poor.
Lastly you contradict yourself by saying Goldeneye source is fine because the creators don’t object, but you shouldn’t use Forza skins in GTA even though there is no objection from Turn10 or Microsoft (That I am aware of).
You think that Nintendo or whoever owns copyright there doesn’t know about GoldenEye Source after the many years its been out and the way it’s been featured on just about every major gaming news site in existence? :P
The point is they were notified, while it’s highly likely that the Forza modders haven’t notified Microsoft. I can’t see MS, which is a huge stickler for copyright, actually liking it.
I accept that my argument for that example is an assumption, but it’s an educated assumption.
If your problem is *just* with the example, then we can remove it from the equation. It still equates to blatant copying with no original effort. I don’t see how even a reformed copyright law could ever support that.
And yeah, it is just like plagiarism of an assignment, because they didn’t make anything new. They just ripped the art assets from the game code…
The key distinction in this case is that all of the assets in GE:Source were built from the ground up. Each of the models are created and textured from scratch by the GE:S mod devs.
The GTA skins/models situation is some “authors” are literally converting the models and textures straight out of other games (lots of Need For Speed conversions as well). This is literally copy-pasting work others have created and inserting into another game without modification beyond making it work in the new game engine. While this process is not necessarily illegal (e.g if you own both games and reverse engineer it yourself), redistributing the end product to everyone without authorisation IS.
At the end of the day, copyright enforcement is in the hands of the copyright holders (as it’s civil law, not criminal) so if a copyright holder chooses not to take down a mod that’s up to them. In most cases mods create more fans for the ip and don’t harm sales or compete with official stuff so they let it slide.
A great example is the resurgence of StarGate mods. Not long ago MGM were slapping mods down left-right and centre, but not so much now because they realise they epic-failed 3 times to create a modern StarGate game. With no new shows or material the Stargate franchise would be practically dead if not for things like mods.
I guess my issue is the hyperbole of the article. But as you stated right at the bottom it’s an opinion, so I should probably disregard it as just that. Carry on, good sir.
Patrick Vuleta,
Thanks for the response Patrick, I totally agree that respect flows both ways. But in this case there is a dynamic where in a legal context, the power rests almost 100% in the hands of huge very well resourced companies with armies of lawyers on retainer.
Your average modder is far more likely to just publish without consulting anyone because who do they have to consult? Certainly not corporate lawyers unless they’re very well connected. The law is quite complex in this regard and honestly many modders just make something because they enjoy it and want to share it with others.
I guess my point is that no matter what modders do they are unlikely to have the power to effect any kind of change, so I feel that in some senses the onus rests with the large and powerful copyright holders to realise that currently the system is broken, it’s not working for them because the modders are doing whatever they want and while the big companies are legally in the right, there’s little they can do by way of enforcement unless they lock the internet down and force everyone to run signed code only (windows 8 anyone? /paranoia).
So it’s all well and good to say that respect flows both ways, and I do agree with you in principle. But the facts on the ground are that the laws are very complex and that modders don’t have the time and resources to learn the laws as they are now AND make mods, even if they were willing to do so. The big companies need to see that perhaps a compromise would ensure that there was the possibility of compliance by modders, and also that this might mean they would need less enforcement and all parties would be happier.
Of course rainbow shitting unicorns may evolve before this happens…
Okay, so as I understand you, you think that anyone who creates unique content should have the copyright on that?
So a bloke that wanders past admiring the way I have mixed roses and leeks in my garden to create a unique effect should pay me when he replicates that exact design in his own garden?
Or the woman that photographs my garden shed and goes off and builds her own replica owes me a licence fee?
Or should the girl that copies my exact l33t moves from the latest FPS to get her KDR up pay up her dues?
Can you see how putting a price on patterns of information is farcical yet or shall we talk about how US companies are starting to patent the human genome, making procreation a copyright offense?
Copyright only exists on certain things.
But how about the indie developer who uses his game to support his family? Should I be able to copy Lunar Flight and sell it? ;)
Obviously not. The main line seemed to be drawn here is that it is ‘ok to rip things from large companies’. That’s not enough in itself to justify it.