Academic journal article Harvard Journal of Law & Technology

Changing the Rules of the Game: How Video Game Publishers Are Embracing User-Generated Derivative Works

Academic journal article Harvard Journal of Law & Technology

Changing the Rules of the Game: How Video Game Publishers Are Embracing User-Generated Derivative Works

Article excerpt

    A. Microsoft's Game Content Usage Rules
    B. Blizzard Entertainment's Letter to the Machinimators of
        the World
    C. Comparison of the Rules
    A. The New Rules and Creators of New Works
    B. The New Rules and Current Content Owners
    C. Expanding the Role of Machinima Licenses


It was the kind of Cinderella success story of which most people can only dream. A group of friends turned their short, unfunded films into a genre phenomenon, with nearly one million viewers eager to watch each new installment as soon as it was released. (1) They received critical acclaim from sources such as the BBC and The Village Voice, (2) held sold out screenings at Lincoln Center, (3) and were hired to create a series of broadcast commercials for Electronic Arts based on their films. (4) They made enough money to quit their day jobs and support themselves as full-time artists doing what they loved. (5) The group of friends, now known as Rooster Teeth Productions, (6) became one of the first breakout stars in a relatively new art form called machinima--a portmanteau of machine and cinema, pronounced maSHEEN-i-ma--that re-imagines video games as a filmmaking medium. (7)

Rooster Teeth's breakthrough hit was a surrealist comedy series entitled Red vs. Blue, created using Microsoft's hugely successful (8) first-person shooter video game, Halo. The main story of the Halo series features human soldiers with an array of weapons and transport vehicles battling their alien enemies. (9) Red vs. Blue largely eschewed the dramatic interstellar storyline of the game in favor of an exploration of the relatively mundane interactions among the human soldiers during their down time. (10) The episodes feature existential arguments and an absurd sensibility that drew comparisons to Samuel Beckett, the playwright of Waiting for Godot, (11) while simultaneously winning the approval and praise of soldiers deployed in Iraq. (12) Rooster Teeth developed episodes by first writing and recording dialogue, then animating the video by networking multiple Xbox game consoles, each running a copy of Halo. (13) One actor simulated a camera, composing the shot by manipulating his game character's point of view and then recording what appeared on the screen. (14) The other game characters were manipulated like puppets, moving in synchronization with the pre-recorded dialogue. (15)

By using an existing video game's graphics and characters, and sometimes its sounds and music, an amateur machinimist can create what looks like a reasonably high quality, computer-animated film at a relatively low cost. However, this powerful mechanism is also machinima's greatest liability: by incorporating existing copyrighted assets, machinimists are creating derivative works, and thereby possibly infringing the copyright holders' rights under the Copyright Act. (16) While some machinima may be protected under the doctrine of fair use (17) (a highly fact-specific affirmative defense), the economic risk inherent in relying on the doctrine--not to mention the up-front costs of defending a lawsuit or seeking a declaratory judgment--would require most machinimists to yield to a cease and desist notification if a copyright holder objected. (18) Alternatively, fear of liability could cause budding machinimists to abandon their work altogether.

Fortunately for machinima, video game publishers seem to have recognized that suppressing machinima would not be in their best interests. Microsoft even allowed Rooster Teeth to continue producing Red vs. Blue without paying licensing fees. (19) However, the majority of Machinimists--who had not negotiated individual licenses--continued to create under the specter of legal uncertainty. For many, this changed in August 2007, (20) when Microsoft issued the Game Content Usage Rules, which unilaterally licensed the limited use of copyrighted content from many of their video games to create new derivative works. …

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