Confused Judge Says Video Game Play Has No Copyright, Because The Work Is Not 'Fixed'

from the that's-not-what-fixed-means dept

Wed, Jan 3rd 2018 3:33pm — Mike Masnick

Just last month we joked about how confused the creator of PlayerUnknown's Battlegrounds, Brendan Greene, was when he claimed that there was no intellectual property for video games. That's completely wrong, and there are many, many cases to show that it's wrong. Yet... now there's a case that bizarrely, argues that video games don't get copyright (hat tip to Rick Sanders and Owen Barcala for flagging this one). The case is one that's been dragging through the courts for years, bouncing around, concerning publicity rights of former professional football players when used in EA games like Madden NFL.

The latest issue involves EA asking for the latest iteration of the case to be dismissed based on another ruling concerning NCAA basketball players and their publicity rights. In that ruling from April of this year, the 9th Circuit ruled (among other things) that federal copyright preempted state-based publicity rights claims. I don't want to dig too deeply into what all of that means, but suffice it to say that under the 1976 Copyright Act, the law says that federal copyright law now trumps all state copyright or copyright-like laws, and you can't hide behind some state law when federal law should apply. Here, the court said that the state-based publicity rights claims were blocked because of that, as the only issue should be covered under federal copyright law, where they would fail.

So, EA asked for this other case, filed by Michael Davis, to be dismissed, citing that ruling about preemption of publicity rights claims. But the district court judge, Richard Seeborg, has denied the motion, claiming that the ruling in that earlier case does not apply here. And he does so for... the most bizarre of reasons. Basically, he claims that large parts of video games don't get copyright... because they're interactive.

Here, game play in the Madden games is dynamic, interactive, variable, and in the hands of the consumer. Plaintiffs contend the avatars allegedly representing their likenesses even have performance characteristics representing plaintiffs’ own capabilities in their time as active NFL players. While recordings of actual football games are subject to copyright notwithstanding the independent actions of players during the course of the games, such recordings satisfy the requirement of copyright that the work be “fixed” in a tangible medium of expression. See Dryer v. Nat’l Football League, 814 F.3d 938, 942 (8th Cir. 2016) (“Although courts have recognized that the initial performance of a game is an ‘athletic event’ outside the subject matter of copyright . . . the Copyright Act specifically includes within its purview fixed recordings of such live performances.”); 17 U.S.C. § 101. The Madden games, in contrast, allow game play that is not fixed in a tangible medium of expression, and part of plaintiffs’ claims is that their identities are reflected in that game play.

So... while there's something compelling about this particular reasoning for those of us who believe copyright has been stretched way too far, I'm pretty sure this is simply... wrong. The term "fixed in a tangible medium" generally just means that the work is somehow "recorded" on some form of media. It's basically saying that ephemeral things do not get copyright, but something that is recorded on paper, film, tape or a digital hard drive or whatever is "fixed." And thus, I'm pretty sure that Judge Seeborg... is just wrong here.

There is, potentially, a different argument that might be interesting if the works are created by artificial intelligence -- at which point we'd have to remember Naruto and the fact that non-humans don't get copyright. However, assuming that the actual artistic elements in the game were created by people working for EA, and are "fixed" within the game, it's difficult to see how the judge's ruling would hold up.

The fact that the game is dynamic when playing doesn't change the fact that the elements of the game itself are fixed in a tangible medium. I wouldn't necessarily mind it if copyright did, in fact, determine that individual game play elements were not fixed, but I can't see how under the law today that's actually the case. I would imagine that EA will appeal this particular ruling, and lots of copyright holders may weigh in on problems with the ruling itself.

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Filed Under: copyright, fixed, michael davis, publicity rights, richard seeborg, video games
Companies: ea

29 Comments

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Stephen T. Stone (profile), 3 Jan 2018 @ 3:42pm

at which point we'd have to remember Naruto

Do we really have to? I mean, the filler arcs were garbage and I still can’t believe they found a way to keep it going after…

…OH YOU MEANT THE MONKEY.
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Anonymous Coward, 3 Jan 2018 @ 3:49pm

The judge is not confused: you are.
First separate "game play" from the "game program". I'm PRETTY sure that you can, but like judge you TOO have produced a tangle of text.

Then move on to just "recording of game play" and the "publicity rights" which is actual basis of suit -- though I'm not even going to try to unscramble that.

Let's just agree for once: that "publicity rights" should not be tangled up with "copyright", and move on to a topic of interest and importance.

Such as: Google today announcing that it'll pre-emptively ban links which don't exist at time DMCA notice is received. Apparently it's given up and found that its computers can do the required comparisons in about a second for ALL infringed and potentially infringed works, so it's not just worth fighting. -- Either that or Google is now siding with MPAA and turning against pirates...
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Anonymous Coward, 3 Jan 2018 @ 3:55pm

Re: "…OH YOU MEANT THE MONKEY."
As linked: https://www.techdirt.com/articles/20160129/14291233463/monkey-see-monkey-do-judge-says-monkey-gets-n o-copyright.shtml

Here's a tip for YOU, since you were so helpful to me today: when you get something wrong which you discover on your own, don't advertise that your mental processes are faulty. It does not build confidence.

Please don't clutter the site with OFF-TOPIC irrelevance in that (frequent) case.
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JoeCool (profile), 3 Jan 2018 @ 4:33pm

Re: Re: "…OH YOU MEANT THE MONKEY."
WHHHHOOOOOOOOSSSSSHHHHHHH!
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Stephen T. Stone (profile), 3 Jan 2018 @ 4:36pm

From the not-getting-the-joke department
Remember: Never attribute to passive ignorance what can best be explained by active stupidity.
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Uriel-238 (profile), 3 Jan 2018 @ 5:08pm

Let's see...
You can copyright the look and feel as was done with Scramble in the 1980s.

And you can patent game mechanics (such as the Crazy Taxi Arrow). Sega is still thought of as a jerk for that one.

And you can trademark certain franchises like Mario and Star Wars and Assassin's Creed.

As is typical with most IP laws, they tend to more inhibit new content.

For me, I remember Freespace which took the best of Wing Commander and X-Wing and made a very derivative but amazingly good space fighter combat sim.

And these days everyone seems mostly okay with sharing ideas like First-person POV or fog-of-war in real-time strategy or realistic physical mechanics simulations.

Except when they're not, of course. Try making a doll-house game and see how long it is before EA lets slip their lawyers.
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Drew, 3 Jan 2018 @ 5:18pm

fixed is not the same as static
It appears that the judge has conflated "fixed" with "static" - making the point that video games are "dynamic, interactive, variable, and in the hands of the consumer" as compared to Maloney's "fixed photographs."

Obviously that's not the meaning of "fixed" for Copyright but makes an interesting argument re copyrightability given that the avatars are under the (limited) control of the game player. However, given that it's the underlying algorithms which allow for avatar control (and provides limits) the copyright should still be with the developer / producer.

If, instead of a sports game we were talking about Minecraft, could a colorable argument be made about who owns the copyright on a design created by a player in-game?

(Answer: Yes but it would fail because the game's license very likely forbids this very thing.)
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Lawrence D’Oliveiro, 3 Jan 2018 @ 5:32pm

Re: fixed is not the same as static
What does it mean, then?
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Mike Masnick (profile), 3 Jan 2018 @ 5:46pm

Re: The judge is not confused: you are.
Such as: Google today announcing that it'll pre-emptively ban links which don't exist at time DMCA notice is received. Apparently it's given up and found that its computers can do the required comparisons in about a second for ALL infringed and potentially infringed works, so it's not just worth fighting. -- Either that or Google is now siding with MPAA and turning against pirates...

Just a quick note on this. I know TorrentFreak wrote an article about this today, but Google announced it was doing this in early 2016. This isn't new.
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Anonymous Coward, 3 Jan 2018 @ 6:20pm

As always, software should be afforded copyright and that is it. Exact copies are infringing, similar but not a copy is not infringing - just like novels, you can not copyright, patent or trademark the idea of; romance stories, murder mysteries, science fiction .... you get the idea.
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Anonymous Coward, 3 Jan 2018 @ 6:28pm

Re: Re: The judge is not confused: you are.
Personally I'm more interested in the prospects of a Google-MPAA alliance in that out_of_the_blue's head will finally implode...
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Drew, 3 Jan 2018 @ 6:47pm

Re: Re: fixed is not the same as static
"Fixed" in this context generally means that the content is capable of being perceived for more than a "transitory" duration.

For example: a photo of a sandcastle is sufficiently fixed while the sandcastle itself (assuming an incoming tide) is not.
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David (profile), 3 Jan 2018 @ 6:51pm

The Honorable Mistake should check out twitch
Or YouTube.

So gameplay that is recorded and shown on YT or Twitch is copyrighted by the individual that is recording to a medium, e.g. HDD, SSD, or VCR (or whatever).

I would personally like to see EA's nose tweaked by them insisting that some YT/Twitch user is violating their copyright with a slap down because the USER now has the copyright of the game play. Which EA has no right to.

Evil Ass company getting stabbed in the ... well, face would be best. So we can all watch. Yeah, that would be good.
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Stephen T. Stone (profile), 3 Jan 2018 @ 7:21pm

Re: The Honorable Mistake should check out twitch
Who owns the rights to gameplay recordings is still a legal issue that, to the best of my knowledge, has not been settled in any way. Game developers/publishers can argue that footage of the gameplay constitutes a display of copyrighted content that only the legal end user(s) of the game should have a right to view. Streamers can argue that their recording of gameplay, presumably with some kind of commentary attached, constitutes a transformative use of the footage and qualifies for Fair Use protections. This issue will not be easily settled if it ever goes to court. Then again, I doubt any game company is itching to settle the matter with a lawsuit.
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Anonymous Coward, 3 Jan 2018 @ 8:05pm

Masnick Pro-Copyright? NO! Who would have imagined?
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Anonymous Coward, 3 Jan 2018 @ 8:44pm

Re:
You should’nt comment every single time you poop yourself. Save it for special occasions.
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Anonymous Coward, 3 Jan 2018 @ 9:01pm

Re: Re:
Now that MyNameHere needs to get a new pseudonym ready his colleagues have to fill in for overtime.

I'd say be understanding, but trolls feed on understanding like stray dogs feed on kindness. Once you start feeding them the stuff they want you're never getting rid of them.
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Ninja (profile), 4 Jan 2018 @ 4:27am

Re: Re: The judge is not confused: you are.
And it would be very interesting if suddenly all games lost their copyrights. Ohh boy it would. I actually agree with copyright to protect from commercial exploitation by other commercial entities.
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crade (profile), 4 Jan 2018 @ 6:18am

Re: Re: The Honorable Mistake should check out twitch
Even a video of someone playing a game with no commentary at all is vastly transformative. Just ask anyone who paid for a video game and was given a video of someone playing the game instead.
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crade (profile), 4 Jan 2018 @ 6:19am

Right.. and movies don't get copyright either because they aren't fixed, they are moving!
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crade (profile), 4 Jan 2018 @ 6:29am

Re: Re: Re: fixed is not the same as static
Yes, it's the context that is getting completely screwed up here not the word.

"Fixed" can certainly mean "unmoving" as well as "solidified" or "finalized". It's just blatantly obvious that it is being used to mean solidified or finalized in the law and not unmoving.
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Anonymous Coward, 4 Jan 2018 @ 6:37am

Re: fixed is not the same as static
The idea is that while some of the content may be done "on the fly" (ie. random map/allied party/enemy generation/RNG), it's still done with paramaters set by the developers, there are *fixed limits* to this behaviour programmed in from the start.

Aside from (sometimes hilarious) glitches, a video game does only what it's been programmed to do.

Mods are a whole other thing, but I don't think even they should change that the base content of a game be copywritten.
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ANON, 4 Jan 2018 @ 7:01am

Re: Re: fixed is not the same as static
Exactly. The judge *is* confused. The program "Word" is copyright. The documents it produces are not (by Microsoft - they are by the individual users). That does not mean that anyone else can copy the icons, screen layout, everything. Those elements, although they may pop up at random in various locations on the screen in response to where the user clicks, are still copyright. Similarly, the likeness of the players and the team logos are elements that are copyright, no matter where on the screen the end users sends them.

And of course, unauthorized depiction of an individual ("stealing their publicity value") is pretty much already established as a copyright or trademark violation. You will still pay big bucks to use a computerized version of a dead movie star, something not unheard of in today's media.
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Anonymous Coward, 4 Jan 2018 @ 8:06am

I wonder
What would he say about choose-your-own-adventure books?
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Anonymous Coward, 4 Jan 2018 @ 8:41am

Re:
Nor are statues as you can rotate them and they look completely different from the other side!
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Châu, 4 Jan 2018 @ 6:47pm

Law fixed?
Judge show law not fixed too!
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CrushU (profile), 5 Jan 2018 @ 11:29am

From the article
> In that ruling from April of this year,

WHERE DID YOU GET A TIME MACHINE?!
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The Wanderer (profile), 6 Jan 2018 @ 4:19am

Re: From the article
There is sometimes a considerable delay between when an article is written and when it actually gets posted for public visibility. (I'm given to understand that those with access to the Techdirt Crystal Ball can see such articles sooner, though how far in advance I don't know.)

As can be seen from the date in the URL, this article was written in 2017.

(Admittedly, one could argue that this wording detail should have been corrected in an editing pass before publication.)
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james, 11 Jan 2018 @ 6:13pm

circuit split
Hey Mike, this holding is indeed in direct conflict with what other circuits have said about the issue of interactiveness preempting the fixation requirement. See Stern Electronics v. Kaufman, 669 F.2d 852 (2d Cir. 1982) (display of video game is fixed where simply permanently stored in memory device); Williams Electronics Inc. v. Artic Int'l, 685 F.2d 870 (3d Cir. 1982) (rejecting argument that work is not fixed where gameplay generates a different user generated presentation on every play-through).
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