Move over Get Out, The Handmaid’s Tale and Kendrick Lamar. A California federal judge has just thrown his hat into the ring for one of the most thought-provocative pieces of authorship this year. The topic of U.S. District Court judge Charles Breyer’s latest decision is itself authorship, and with a crazy number of pop culture references, he explores a situation wherein game players become creative gods and the attendant implications.
What follows is a summary, although the full opinion is a highly recommended read.
Fifteen years ago, Blizzard Entertainment came out with a computer strategy game titled Warcraft III: Reign of Chaos, full of humans, orcs, elves and zombies fighting for dominance. What made this game even more popular for fantasy fans was the fact that Blizzard enabled players to create “mods,” featuring new settings, characters, storylines and rules. At the time, Blizzard didn’t require players via an end-user license agreement to assign rights back to the company. Blizzard only prohibited the commercial distribution of mods on a stand-alone basis.
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“Some mods proved more contagious than others,” writes Breyer. “A high-school student named Kyle Sommer, operating under … his online moniker ‘Eul,’ was Patient Zero for one of the most infectious: Defense of the Ancients a/k/a ‘DotA.’ His mod pitted two teams of heroes against one another, each trying to destroy the other’s ‘central structure’ while defending one’s own.”
After working on DotA for two years, Eul went to college and with other things to do, he declared on a community web forum that from that point forward, DotA would be open source. All the teenager requested was some credit.
Thus came new strains of DotA, including DotA Allstars, developed by players who called themselves “Meian” and “Madcow.” In turn came other contributors including “Neichus,” “Syl-la-ble,” “Zetta,” “Terrorblaze” and “Guinsoo.”
Then, there was Abdul Ismail, a.k.a. “Icefrog,” who took a leadership role on the development of this universe and was hired in 2009 by Valve Corporation after it began work on Defense of the Ancients 2. Eul also took a job with Valve and for what the judge calls a “handsome price,” both assigned rights to their creations to Valve.
Over time, the gaming market shifted.
“As any millennial could tell you, players no longer need a computer or console to enjoy video games,” writes Breyer. “The market for video games built specially for smartphones has exploded in recent years.”
Two companies — uCool and Lilith Games — came in. They are the defendants in this case because in February 2014, Lilith released a smartphone game called DotA Legends while uCool released its own game titled Heroes Charge.
Blizzard and Valve are now suing for copyright infringement of DotA 2, with uCool challenging whether the plaintiffs really own rights.
That’s the background — but it’s Breyer’s discussion of the legal issues that’s equally sure to become a classic.
“With literally hundreds of versions of DotA and DotA Allstars floating around in the ether, the Court confronts quite the copyright conundrum,” he writes. “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). Third and finally, the Court will consider just what result(s) flows from the answers to those questions.”
In figuring out the first part, Breyer considers whether versions of the game are a unitary work or a collective work. An example of a unitary work is a movie. There may be “inseparable and interdependent parts” like direction, acting performances, cinematography and costume design, but all of that is merged into a whole. In contrast, an example of a collective work is a magazine. A publisher might have the privilege of reproducing and distributing the collected contributions, but the authors of each article can retain independent copyrights to their respective works.
uCool argued that DotA Allstars was a collective work, pointing to the many players who took the most popular heroes from DotA to arrange them for a new game.
“But by that logic Star Wars: The Force Awakens (Walt Disney Studios 2015) would be a collective work because it arranged the most popular Star Wars heroes, settings and one-liners into a new movie,” counters Breyer. “The same might be said of Love Actually (Universal Pictures 2003), given its all-star cast and web of different storylines. But Castaway (20th Century Fox 2000), with its solitary protagonist and even more solitary plot, would presumably be a unitary work. None of this can be right, and the Copyright Act does not suggest otherwise.”
Breyer adds that DotA Allstars is nothing like The New Yorker, The Beatles Anthology or Encyclopedia Britannica.
“Heroes do battle in teams on fictional battlefields — together,” he notes. “They do not stand alone in self-contained bubbles. So like Star Wars: The Force Awakens and Love Actually, each version of DotA Allstars is no collective work. To the contrary, each version is a unitary derivative work based on earlier versions DotA and DotA Allstars.”
Next question: Who are the authors?
For the answer, Breyer turns to a rather famous (at least in legal circles) opinion concerning Malcolm X. When that 1992 film came out, an individual named Jefri Aalmuhammed came forward to say that he was an expert on the 1960s civil rights hero and that he was hired by Spike Lee for input. Aalmuhammed claimed to have rewritten several passages of dialogue that appeared in the film. Thus, he claimed Malcolm X was a “joint work” and that he was a co-author entitled to a portion of the copyright.
The 9th Circuit Court of Appeals disagreed with Aalmuhammed because joint works are “intended by everyone involved with it to be a unitary whole,” and in the case of Malcolm X, Spike Lee wasn’t bound to accept his suggestions. It was the writer-director who was deemed the ultimate mastermind.
“The record contains ample evidence that Eul, Guinsoo and Icefrog were the masterminds behind their respective versions of DotA and DotA Allstars,” writes the judge. “uCool concedes as much with respect to Eul … Guinsoo and Icefrog are no different, legally speaking. They, like Spike Lee, took suggestions from others — some elaborate, some less so — and decided which ones made the cut. So just as Spike Lee was the author of the work at issue in Aalmuhammed, a reasonable jury could (and perhaps must) conclude that Eul, Guinsoo and Icefrog are the authors of the various works at issue here.”
Breyer then puts this together by saying that as long as Valve validly acquired rights from player-creator “masterminds” like Eul and Icefrog, it is entitled to own the work that was allegedly copied by uCool in its smartphone version of the game. But what about all the other players who made contributions? uCool attempts to argue that Valve must demonstrate ownership of particular heroes and other visual elements, but the judge disagrees and turns again to the Malcolm X case to explain why it’s not necessary to “chop up” copyrights in this fashion.
Actually, Breyer comes up with this scenario:
“Spike Lee assigns his copyright in Malcolm X to, let’s say, Warner Brothers,” the judge imagines. “Disney comes along and makes a cartoon version of the movie called Malcolm ABC. Warner Brothers sues, claiming Malcolm ABC infringes its copyright in Malcolm X. Disney responds that Aalmuhammed, not Spike Lee, wrote the scene chronicling the protagonist’s Hajj pilgrimage, which appears in both Malcolm X and Malcolm ABC. And under Aalmuhammed and Effects Associates, Inc. v. Cohen, Aalmuhammed owned a copyright in that scene. Warner Brothers, the argument goes, does not own the Hajj scene, and so cannot recover for Disney’s copying of that piece of Malcolm X (nor for its copying of any scene, character, or other cinematic element dreamed up by anyone not named Spike Lee).”
“Winning argument?” the judge asks. “No, and it was a loser even before Garcia v. Google,” writes Breyer, referencing the Innocence of Muslims case where an actress’ attempt to own her performance was ultimately rejected. “The whole point of Aalmuhammed’s contributions was to integrate them into Malcolm X, and so they must be understood as parts of the movie to protect copyright in the movie. Copyright in movies, comic books and video games would be worthless otherwise.”
So then the question becomes whether Valve validly acquired Eul’s and Icefrog’s copyrights given that Blizzard originally put limitations on commercial distribution of mods. Breyer seems intrigued here, but for whatever reason, uCool didn’t argue it. The judge deems the argument thus waived. Too bad.
But how about the possibility that Eul abandoned his copyrights when he made his version “open source”? Drumroll, please … that question appears to be going to a jury.
Here’s how Breyer sums everything up:
“At bottom, uCool asks why Valve should get to capitalize on others’ ‘free work.’ The answer is because Valve, if it prevails, will have proved that it acquired copyrights from people who spent years creating, growing, and (yes) masterminding much of the DotA universe. Help along the way does not drain those efforts of their considerable value. If helpers feel cheated, they may come to court. But theirs is not uCool’s case to make.”
