How User-Created Game Content Affects Intellectual Property Owners
The release of Bethesda Softworks’ Fallout 4 will keep many a gamer roaming through post-apocalyptic Boston for quite some time, and it has been one of the most well-received titles of the year.1 There is a subset of fans, however, who see what can be rather than what is, and look to improve on Bethesda’s offerings in Fallout and their other flagship series, The Elder Scrolls. Modifying, or “modding,” has been a common practice among the Fallout and Elder Scrolls communities for several generations of the games, and allows gamers to rewrite a game’s code to include just about anything a gamer wants in the game. But what if a gamer wants to include protected material that an owner has not given permission to put into the game?
That’s the issue facing one gamer who wanted to see Red Sox star David Ortiz taking on mutants with a barbed-wire baseball bat. In a game that features Fenway Park and other prominent Boston landmarks, Richie Branson figured it was only right to have one of Boston’s biggest sports figures navigating post-apocalyptic Boston. So he played around with the game’s code to include a character model that looked just like the Red Sox slugger, and clothing options that put him in a Red Sox uniform. Major League Baseball did not take kindly to this creativity, however, and is mulling its options with regard to enforcing its rights.2
Ultimately, what the MLB does in response to one potential infringement is less compelling than the conversation the entire ordeal starts. User-created content is becoming more prominent in the industry as gaming consoles get more advanced, and has always been a staple of PC gaming. Two of the more popular titles out right now, Minecraft and Super Mario Maker, are based entirely on content made by the game’s players rather than the game’s developers. With many games encouraging user-created content, how will developers combat copyright and trademark claims for potential infringements that the developers themselves are not committing? When a major selling point of a game is how the user can fundamentally alter the game, does an owner pursue claims against the user, the developer, or both?
Going after the user seems to be a lost cause from the start. Gamers like Richie Branson have no financial stake in creating their mods, they do it entirely because they enjoy what they are adding to the game and think others would enjoy it as well. But going after game developers may prove just as fruitless. When developers create a game, they are not envisioning every mod that can or will be made. Ordering Bethesda to take the David Ortiz mod off the servers will win MLB this battle, but hundreds of other modders can come up with ways to infringe MLB’s intellectual property and upload them without any obstacles. It will then be up to MLB and other IP owners like it to monitor the servers for infringements, a task that is almost definitely not worth the while.
Metacritic (Nov. 10, 2015), http://www.metacritic.com/game/playstation-4/fallout-4 [https://perma.cc/7LRQ-6A3S].↩
Steve Annear, MLB cries foul over ‘Fallout 4’ Ortiz jersey, Boston Globe (Nov. 12, 2015), https://www.bostonglobe.com/metro/2015/11/12/you-can-now-david-ortiz-smash-video-game-fallout/oFyo5DVb0qijiZ2rVuus0N/story.html.↩