The IP Implications of Video Game Mods

The size of the video game industry has expanded greatly from the early 2000s to the present. There are more games being released and sold today than ever before. However, not every video game is perfect for every person who buys it. Some games may have a bad story, have terrible visuals, or just be riddled with bugs. Even some of the critically-acclaimed games are not immune from this phenomenon.
For many gamers, this is where modding comes in. Simply put, modding is altering the code of a game to change it in some way. This can include relatively small things like small bug fixes to larger changes, such as improving graphics or even building an entirely new game on top of the original game’s code. While modding has been a part of the video game industry for many years, it has recently become increasingly popular. This rise in popularity may be due to the relative ease that gamers now experience in sharing mods with one another on sites, such as Valve’s Steam Workshop. With this increasing popularity, modding’s interaction with intellectual property rights has become increasingly important.
The first intersection between modding and IP occurs when a modder uses the IP of a third party in his or her mod for a game. Several recent, high profile examples of this include mods allowing the player to play as Iron Man and the Hulk in Grand Theft Auto V or as David Ortiz in Fallout 4. Such mods allow gamers to play as beloved characters from other franchises and media in a new setting that would not be possible in just the base game. However, the company that owns the IP may not be too pleased seeing their unsanctioned IP in a game. For instance, Major League Baseball pulled the plug on the aforementioned David Ortiz mod in Fallout 4, saying that, “the use of these marks is an infringement of our rights.”  Such enforcement by MLB and the subsequent unavailability of the mod shows that many of these mods are subject to the will of corporations that might not take kindly to them. The Iron Man and Hulk mods are still available, but those could be taken down subject to the will of Disney, just as the David Ortiz mod was. This example shows how tenuous the ability of modders is to create mods using third party intellectual property. If all third parties decide to exercise their rights as MLB did, they could bring to a halt the creation of many non-commercial mods that allow gamers to experience games in new ways using beloved outside properties.
Another major area of concern when it comes to modding in video games is who owns the copyright to mods: the creator of the game or the creator of the mod. Copyright Law and Video Games by Greg Lastowka discusses many issues of copyright in video games, including copyright of user-generated content and suggests that the creators of mods should have the copyright to them. Lastowka argues that creating user-generated content is “more like painting a portrait and less like playing basketball” and so should not be barred from copyright by a “rule excluding game play from authorship”.
Lastowka’s argument came in response to a 1997 court ruling in National Basketball Association v. Motorola, 105 F.3d 841 (1997), in which Judge Winter wrote that sports events are not authored and not copyrightable. This premise could be transferred to video games, where playing the video game is the sports event. In this context, if a person is using tools provided in the game to create something, then that person is merely playing the game and not creating a work. However, this reasoning seems to be a stretch, considering Lastowka’s argument. If one were to create a work in a different program, such as Microsoft Paint, there would be little argument that Microsoft rather than the creator owns such a work.
One way that video game producers have attempted to make clear that they own the rights to user mods created through the video game’s software is through disclaimers, such as the one included in Nintendo’s Super Mario Maker. These disclaimers seem to cut off any potential future copyright claims that Nintendo used their content without permission.
Ultimately, these disclaimers that players agree to while creating content will probably be enforced by courts and limit any potential claims of copyright for gamers. A more interesting question is who owns the copyright of content created in a game using third-party software. Both sides would have at least a partial claim; the game producer made the backbone while the gamer made the specific mod. In the end, it seems very similar to the Microsoft Paint example mentioned earlier. However, cases such as Micro Star v. FormGen Inc., 154 F.3d 1107 (1998) seem to suggest that courts consider user-generated works as derivative content belonging to the copyright owner. This case does not fit the situation of content-created with third party software exactly, so there may be some space for such content to be considered owned by its creator.
Either way, this question will need to be answered in a more complete manner as modding becomes more and more popular.
 
Christopher Pearson is a J.D. candidate, 2017, at NYU School of Law.