When discussing rights in video games, EULA can be a complicated topic: it represents the rights that the gaming company is granting to anyone who buys a copy of their game. While there is a natural feeling of ownership in our games, this isn’t completely accurate.

Despite purchasing a game, consumers do not have unlimited use, such as printing copies or making sequels. This is because the copyrights remain with the development studio (or whoever paid for the rights from them). One of the several rights included in copyright in the United States as per the Copyright Act of 1976 is the exclusive right to make derivative works.

A derivative under copyright law is a work that includes major, copyrightable elements of an original work. A mod, or modification, is an alteration to a video game, typically by a player who holds no rights beyond what is granted in the general EULA. This could involve minor tweaks like altering or replacing characters or objects in a purely cosmetic way, or large ones that could significantly change or extend the environment and gameplay. A streamer in video games is someone who records themselves playing a game, typically while providing commentary.

Once completed, a modification is a new work that often incorporates major, copyrightable elements of the original game. Similarly, a player streaming themselves playing a video game is creating a video that includes major, copyrightable elements of the game that they are playing, arguably making it a derivative work of the video game. Under copyright law, video games are protected by treating source code as literature, so modding or streaming would be somewhat akin to making fan fiction.

Whether any particular mod or stream is a derivative property that infringes upon the game’s copyright holder can be a complicated calculation. This typically revolves around whether a mod is allowed in the EULA, and if not, would there be a defense such as “fair use?” Fair use is an affirmative defense to copyright infringement in the United States under the 1st Amendment’s guarantee of free speech.

Fair use is decided by four factors:

  • The purpose and character of use, such as whether it’s for commercial or nonprofit educational purposes, or whether the use is “transformative,” that is, whether it adds new expression or meaning
  • The nature of the copyrighted work, such as whether it is factual or a work of fiction, with works of fiction typically receiving more protection
  • The amount and substantiality of the portion used in relation to the copyrighted work as a whole, such as was a small part of a game copied in the mod or displayed in the stream to create a much more extensive work, or was there a significant degree of copying or displaying of substantial elements of the game
  • The effect of the use upon the potential market for, or value of, the original game: this can include a streamer that is going on an offensive rant that is damaging a brand, or a mod that creates an offensive version of a game
    Keep in mind fair use is both complicated and affirmative: it can be challenging to apply to any particular mod or stream depending on a combination of the factors mentioned earlier, and, if you’re asserting fair use, you’ve probably already had a few bad days leading up to it.

Because of the broadly varying needs of studios and even individual titles, different levels of modding and streaming are allowed, tolerated, or even encouraged. Modding comes with pluses and minuses for copyright owners. For example, a mod of a struggling title can bring revived interest and new players for its online gaming community. It can also offer significant replay value if a good mod is made that improves or expands the game. Similarly, a streamer can generate new interest by displaying gameplay or providing a positive review.

On the flip side, a thriving title that executives feel needs more quality control may offer less or no leeway in modifying a title. Additionally, mods to an online game can drastically affect the gameplay of the community as they can often give a player an unfair advantage with an OP’ed item or ability.

Likewise, a player may portray a game in a negative light with a bad review or lousy gameplay (looking at you, Leeroy Jenkins), or provide an undesired association depending on the game’s circumstances and community, as well as the streamer’s persona. This can include streamers that use offensive language or display offensive images, such as gaming wearing little or no clothing.

Most popular games do not allow mods, though several well-known titles have a thriving mod community like The Elder Scrolls V: Skyrim, Fallout: New Vegas, and Grand Theft Auto V. Similar to cosplay, however, this can be a bit of an openly tolerated violation of copyright.

However, it’s good to familiarize yourself with both the EULA and community before modding or streaming. Keep in mind if the EULA prohibits derivatives but the owner of the title tolerates it, this is their choice to do so. If circumstances change, they could change policy to enforce their rights (often resulting in a cease-and-desist letter or DMCA takedown request).

If you want to know more about the allowable uses of a title, most make theirs available online like Rockstar Games (though expect to have to read through some legalese).

Ryan Campbell is an attorney who writes on the site The IP Geek- http://theipgeek.com/

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