By: Chris Reid

Much digital ink has been spilled over the legal fog surrounding today’s online video games and the rights (or lack thereof) of their players. The confluence of copyright law and videogames may once have seemed to many as best left to academics or bored teenagers. However, one need only look up the sales figures for the 2007 release of Microsoft’s Halo 3 (which shattered US entertainment sales records, grossing $170 Million in its first 24 hours on sale) or the number of people playing Blizzard Software’s “World of Warcraft” (9.3 Million players, as of mid November 2007) to see that the amounts of money at state rival those in Hollywood (and in some cases surpass them).

With financial interests of this size at stake, it is a wonder we have not yet seen any cases involving the growing field of expression known as “Machinima” (pronounced “mah-shin-i-mah”). Machinima is best understood as shooting virtual film: the studio is the world of the video game, the actors are characters in the game, and the camera can range from the screen of another player, to recording features built directly into the game. The result is a low cost, time efficient method for amateur would-be animators to create videos without access to expensive 3d rendering software. Voiceovers in addition to other standard video editing techniques are often employed to enhance the final product. Initially, most machinima projects were humorous in nature, often spoofing on the games used to create them. However, as videogames have sported more and more sophisticated graphical engines, and as online communities dedicated to the art form have grown up (see www.machinima.com for instance, which offers hosting of videos, discussion forums, tutorials, peer feedback, networking and other information for interested machinimsts), there are an increasing number of different applications of the technique, ranging from music videos, to talk shows, to documentaries about the recent riots in the suburbs of Paris. Machinima gained widespread exposure when South Park aired the episode “Make Love, Not Warcraft,” about half of which featured footage “shot” inside the game World of Warcraft.
To date there have not been any cases dealing directly with machinima, but potential legal hurdles abound and are exacerbated by the lack of clear caselaw dealing with videogames. Are machinima videos derivative works? If so, do they constitute fair use? Does it make a difference if the machinimists replace all of the original game characters and environments with custom made content (often called “modding” or “skinning”). What if the video makes use of trademarks?

The End User License Agreement (EULA) which many computer programs (including games) force users to “click through” before installing or using the software often purport to answer some of these questions ex ante. Tellingly, both Microsoft and Blizzard Software (the publishers of the Halo series and World of Warcraft, respectively) recently clarified their stance on machinma (official documents for Halo and World of Warcraft) made using their popular games. World of Warcraft includes a mandatory click-through EULA which initially which strips users of all rights to use the game for anything but its intended purpose, but to which Bizzard’s recent modifications added a new “machinima license” effectively re-granting certain use rights related to machinima. Halo does not require a EULA, so Microsoft’s statement simply attempts to clarify the company’s stance regarding players’ use of its game for machinima purposes. Among other things, the Microsoft statement forbids (1) use of the game to create anything “pornographic or obscene … or otherwise objectionable” (which is somewhat vague), (2) the use of sounds or music from the original game (a reasonable precaution since Microsoft does not own the copyright to all of these assets), (3) extension of the Halo story or “universe” (an inoculation against future suits based on unsolicited “fan fiction”, as happened famously with Rocky IV), and (4) the “sale” of any Microsoft IP (although paid ads on sites hosting Halo-based machinima are allowed).
The vagueness of (1) raises potential first amendment flags, although we might well expect them to come head to head with trademark tarnishment claims (the “actors” of Halo machinima most often use the game’s main character Master Chief who’s green, armored, and helmeted image is ubiquitous in advertisements and marketing materials for the game). When you consider the legal and legislative uproar surrounding a hidden, sexually themed minigame (made accessible only by unauthorized software patches released on the internet) in Rockstar Games’ popular “Grand Theft Auto” title, it is easy to see how companies might become sensitive to the use of their games. Furthermore, adaptations of copyrighted characters into works deemed lewd have not traditionally fared well in courts (see Walt Disney Productions v. Air Pirates , 581 F.2d 751 (9th Cir. 1978)).

In the copyright area, any analysis would involve two steps: first, a determination of whether the machinima video is a derivative work, and second, if so, whether permission from the copyright holder is exempted under fair use. Dealing with the first step requires that we determine which copyrighted work is actually being adapted into the alleged derivative work. In the case of video games this can become tricky, because a game could comprise many overlapping copyrightable elements, all of which combine to form a seamless experience for the user. The characters, the story, the music, the graphical representation of the characters, and the underlying computer code might all be the subject of different copyrights. Furthermore, it has been argued recently, that what few tangentially on-point cases exist all make use of an overly technical analysis when dealing with videogames, one which is ambivalent as to whether it is the code or the user’s end experience that is the subject of the copyright. See Mod as Heck, 8 Minn. J.L. Sci. & Tech. 681). Surely each individual play-through of a videogame does not create a new derivative work, authored by the player, and yet, if this is so, on what grounds is a video capture of a given player’s game experience (which, minus additional user-contributed content such as voiceovers and editing, is essentially what machinima is) classified as derivative?

Finally, even assuming most machinima counts as a derivative work, does the highly transformative, and non-competing nature of many of the videos render them fair use? Halo 3’s sales numbers certainly seem to suggest that, if anything, Halo-based machinima, like the popular Red vs. Blue series have helped build the popularity of the franchise (but see Red vs. Blue’s creators’ sale of their show on DVD, which might weigh against them on the commercial nature factor of fair use analysis).

The above-mentioned issues are only a first pass at the complexities inherent in this new art form. Ultimately, some of them will be resolved outside of court, perhaps with EULAs or some other licensing scheme. Other issues will likely end up in court, giving the judiciary a chance to adapt the law to a new context. And while this may be wishful thinking, we may even see legislation which begins to treat videogames and their offshoots as the distinct legal and artistic issue they truly are. Until then, machinimists and game publishers alike will have to guess.