The Lawbringer: Copyrights and WoW
by Amy Schley 
Apr 26th 2010 at 6:00PM
Welcome to The Lawbringer, WoW.com's weekly tour of the intersection of law and the World of Warcraft. I am a third-year law student acting as your tour guide (and trying not to get run over, myself).
Greetings! After an unintended hiatus (pesky finals to study for), I'm back and ready to start a new theme here at The Lawbringer. For the last couple months, we've been examining issues of contract law as it relates to the End User License Agreement and Terms of Use to which we as players agree. For the next few months, we'll be examining issues of copyright law as they relate to our favorite world ... of Warcraft.
Greetings! After an unintended hiatus (pesky finals to study for), I'm back and ready to start a new theme here at The Lawbringer. For the last couple months, we've been examining issues of contract law as it relates to the End User License Agreement and Terms of Use to which we as players agree. For the next few months, we'll be examining issues of copyright law as they relate to our favorite world ... of Warcraft.
Before we delve too far, though, I want to note that copyright law is a complex field of law with antecedents dating back 400 years. Add in national constitutions, international treaties and the paradigm shifts in technology in the last 50 years, and you end up with a subject that cannot be compressed into a 1,200-word column or three. If I appear to be skipping over your favorite bit, rest assured, I will probably address it at some point. Join me after the break, where we'll examine the nature of copyright and how it covers our favorite game.
Copyright law in the United States begins with Article 1, Section 8, Clause 8 of the Constitution, which empowers the Congress:
To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries.
I want to note that a specific reason is given for the establishment of these exclusive rights. Under U.S. law, a copyright or patent is granted as part of a grand exchange -- the nation gets inventions, literature and art, and in return the creators get periods of time (17 and 28 years originally, now 20 and life plus 70) to be exclusively rewarded for those works. This right is not, however, any kind of recognition that hard work creates a right or that a creator has any moral claim to the fruits of his creation. This is a utilitarian bargain, pure and simple, and it stands in contrast to the natural law-based copyright laws of other countries.
The scope of copyright is laid out in 17 USC 102 and covers the following when fixed in a tangible medium from which they can be retrieved:
- literary works
- musical works and accompanying words
- dramatic works and accompanying music
- pantomimes and choreography
- pictorial, graphical and sculptural works
- motion pictures and other audiovisual works
- sound recordings
- architectural works
Now, the WoW EULA lists many of the protected properties that belong to Blizzard. I'll note how each of these is covered by the copyright statutes:
- computer code -- literary work
- themes -- literary work
- characters -- literary and AV work
- character names -- literary work
- stories -- literary work
- dialog -- literary work
- locations -- graphical work
- artwork -- graphical work
- structural or landscape designs -- graphical work
- animations -- AV work
- sounds -- Musical Work
- musical compositions and recordings -- Musical work
- audio-visual effects -- AV work
- storylines -- literary work
- character likenesses -- graphical work
I could explain the case law behind why each of these comes down the way it does, but that would be boring and repetitive, even for someone interested in this stuff. I do want to address two points -- why the few million ones and zeros of Blizzard's object code are considered a copyright protected "literary work" and why a video game like World of Warcraft, with all the randomness and changes that come from player interaction, is considered "fixed in a tangible medium."
Copyright is intended to protect expression of ideas, not ideas themselves. The story of star-crossed lovers who are drawn together despite their families' feud, marry and resolve that feud is not protectable; the author of such a story can't win a suit against another author for just having those same elements. Only the expression of that idea, peculiar to the author's work, can be protected -- this is why Lion King II doesn't infringe West Side Story, for example. Same idea, clearly different expressions. (Bernstein's > Disney's, IMO.)
Pop quiz: Can you see the inherent problem in this kind of analysis?
If you were thinking, "Where's the line between an idea and an expression?", congratulations! You're smart enough to be a lawyer. That's the problem of this analysis. To return to our previous examples, what if the stories in question both involve Irish parents on the man's side, Jewish parents on the woman's side, and the reconciliation takes place after the lovers marry and have a child? Are the similarities of these two works expressions that are close enough to infringe, or are they just unprotectable ideas? (Just unprotectable ideas -- Nichols v. Universal Pictures Corp.)
So let's move back towards Azeroth. Is a computer program an expression or an idea? After all, computer programs are fundamentally just complex mathematical statements. If e=Mc^2 is a noncopyrightable idea, why would a million lines of code be copyrightable? Well, the answer is the somewhat unsatisfying, "because Congress and the courts say so." The amendments made to the Copyright Act in 1980 added definitions for computer programs to the code, and then a series of court cases firmly established that a computer program's code, even the object code unreadable by normal people, is a copyrightable "literary work." While yes, computer code does consist of many noncopyrightable ideas, the "modicum of creativity" in the arrangement, file structure etc. is sufficient to justify a copyright.
Let's tackle that other question. Clearly each mob, each character, each background and each piece of music is protected on its own merit, but what about the combinations? Each of those things is dynamic, constantly changing. In fact, this dynamism is part of the appeal of video game, particularly multiplayer games. No moment is exactly like any other, between the positions of the sun, the moons, the clouds, the weather, the mobs, the fellow players ... How is this "fixed in a tangible medium"? Again, the answer comes down to, "because the court says so." Atari Games Corp. v. Oman ruled that even though a game is constantly changing, because the code it is based on is in a "fixed medium," the game qualifies for copyright protection.
So where does this leave us? The beginning of any copyright analysis needs to be the copyright status of the work in question. World of Warcraft clearly passes this test. Its code, its story, its objects, its whole world qualifies for copyright protection, and Blizzard has taken the steps necessary to maintain that protection. Having established that WoW is protectable and protected, next week, we'll look at the nature of that protection.
P.S. Some of you may have wondered what happened to the promised column on filing taxes as a gold farmer. The good editors here at WoW.com ruled it was too much law geekery and not enough WoW geekery, a charge to which I had to plea no contest. You can read it here if you're interested in the technicalities of self-employment taxes for unethical, improper and possibly illegal businesses.
P.P.S. It has been "requested" I make a statement on my supposed "conflicts of interest." So I have.
This column is for your entertainment and should not be considered legal advice. If you have a real legal question, contact a real lawyer. If you have questions about law school or suggestions for topics, you can email me at lawbringerjd at aol.com or tweet me @wowlawbringer.
Filed under: The Lawbringer
Reader Comments (Page 1 of 2)
Moonkinmaniac Apr 26th 2010 6:06PM
So these perfect world guys are screwed if Blizz finds out they took that griffin model?
http://www.perfectworld.com/news/?p=27801
Tokkar Apr 26th 2010 6:39PM
Actually, that model looks quite different from Blizzard's version, and considering that both are a replica of an ancient mythological creature (http://www.istockphoto.com/file_thumbview_approve/6499488/2/istockphoto_6499488-mythology-griffin.jpg) they can't really touch it unless it is quite apparent that it is the same model design.
dannyv5 Apr 26th 2010 6:28PM
Great article. I'm currently in my 2nd last year of law in spain and thinking about taking a master in information technology and intellectual property so this pretty much combines both :P
I do wonder though if at some point in time the first person to think of elves or trolls or whatever had some sort of exclusive right to that before everyone could use them. If i had to guess I'd say no because of your irish and jewish family ideas stating they're unprotectable ideas....just like the gryphon the previous poster mentioned I guess
Good stuff, I'll be checking out your other articles :P
kingoflemurs Apr 26th 2010 7:53PM
Actually, elves and trolls (and dwarves and much else in wow) is based in norse mythology. Much of modern fantasy is. Beginning, I believe, with lord of the rings. Wow is mainly based on dungeons and dragons which in turn is based on lotr. there would almost definitely be no grounds for suing over using these ideas.
Hoggersbud Apr 27th 2010 1:06AM
An interesting examples is that ents and hobbits were once used in D&D books, but they changed the names (though so much not the concepts) after the Tolkien estate made some legal noise.
Zanathos Apr 27th 2010 2:11AM
The term "hobbit" was originated by Tolkien and thus was a problem for early D&D. They simply switched to the more generic halfling, and all was well. Elves and dwarves are not names he devised, so there was no action there. However, if early editions of D&D had called elves Quendi (a name tolkien devised for them), they've have had to rename them as well.
Hoggersbud Apr 27th 2010 2:21AM
Yes, they changed the names, but as I said, not the concepts.
Tortious Apr 26th 2010 6:36PM
I do have a very long response to your article. It is a very good article for someone who knows nothing about law, but as a lawyer I cannot help but add some academic debate to your article.
Though, before I post my response, i do have a quit nit-pick though. Einstein's theory of special relativity (E=MC^2) is actually copyrighted through his publication of his article (Einstein, A. (1905), "Ist die Trägheit eines Körpers von seinem Energieinhalt abhängig?", Annalen der Physik 18: 639)
Rajah Apr 26th 2010 7:24PM
Surely you must mean that Einstein's paper itself, as an expression of his theory, was copyrighted. Or are you asserting that the abstract ideas comprising the theory and in particular the equation "E = m c^2" (energy is equivalent to rest mass multiplied by the square of the speed of light) is somehow subject to copyright law?
Joey2250 Apr 26th 2010 7:59PM
Maybe I am wrong, but I don't see how it could be copyrighted. The paper maybe copyrighted but that e=mc^2 is a fact of the natural world. That would be like copyrighting 2+2 or ax + by = c just because I stated definitions of them in a paper.
Amy Schley Apr 26th 2010 8:23PM
@Tortious (great name BTW)
I would argue that while the paper as a whole was and maybe is still subject to copyright law*, the merger doctrine from Morrissey v. Proctor & Gamble Co, 379 F.2d 675, applies. When only a small number of ways exists to express an idea, such as sweepstakes rule language or say a mathematical equation of the relationship between matter and energy, the idea and the expression have merged to the point where granting a copyright in that expression would be functionally equivalent to granting a copyright on the idea. In that case, no copyright can apply.
The equation also lacks the "modicum of creativity" statutorily required for copyright, which is why facts as a rule are not subject to copyright.
*I'm in finals week, so the question of whether the paper is still covered by copyright law in any country will have to wait.
Arrowsmith Apr 26th 2010 6:38PM
At the risk of derailing the comments, this article reminds me of the controversy surrounding Todd Goldman. Anyone else?
Tokkar Apr 26th 2010 6:41PM
I'm curious about place names. I can well imagine that certain of these are the intellectual property of Blizzard, but I'm also wondering about things like "The Crossroads" - this has been used in many other ways, but if you are referring to it as a specific village that is inhabited by orcs and trolls, I'm wondering if Blizzard has a leg to stand on with a C&D or worse?
Tortious Apr 26th 2010 6:49PM
It seems that something as common as "The Crossroads" wouldn't be protected by copyright (on the same coin as if 'Elm Street' was used), and any other game can feel free to use it. However, if another game used Orgrimmar, then they may be in trouble.
Hoggersbud Apr 27th 2010 12:49AM
If you want to name a town the Crossroads...fair enough. Populating it with Orcs and Trolls while surrounding it with dinosaurs in a savannah...
I'd suggest you try a new name. And maybe fewer orcs and trolls. At least some differences.
Would they be able to prove anything? Kinda hard to argue without an actual example.
bruce Apr 26th 2010 6:52PM
What about the portions of story that are obviously borrowed? I'm not talking about the little homages. But in WotLK the main villain and his mentor are thinly veiled evil versions ,with their names barely changed, of a very old legend. How does copyright law protect Blizzard on these elements. I know you went over idea vs. expression but this seems to possibly tread a grey area of how Blizz is protected.
MusedMoose Apr 26th 2010 7:25PM
I think the "very old legend" you're talking about would qualify as an idea, and Blizzard's story of Ner'zuhl and Arthas as the expression of that idea, to use the descriptions Ms. Schley used.
I'm not sure where the line's drawn when it comes to myths and legends, though. I know the characters of myth aren't copyrightable themselves - I could publish a story about Thor, for example, despite Thor also being a Marvel Comics character. However, if my Thor was also blonde, flew by throwing his hammer and catching it, wore a winged helmet and armor with metal circles across the front, and fought evil with other non-Norse heroes of that world, Marvel might have a case against me. *grin*
Iano Apr 26th 2010 7:28PM
Good question, Bruce! The answer lies in the article, to a certain extent. Very old legends are not copyrighted. Not only not copyrighted, but at this point, uncopyrightable- Anyone can make a movie or a game based on a story like "The Little Mermaid," in fact, you'll often see knockoff animations movies at your local grocery store come out in tandem with Disney's offerings based on folklore or fairy tales- even down to the exact same titles. however, the actual names of the characters are generally changed (unless present in the original fairy tale). From Little Mermaid to Thumbelina, people have been seeking to copy Disney's copies of folklore for ages, and profit by people taking the cheaper path for the knockoff, or wanting more, etc.
In other words, if you use the original names- Sjonnir, Jormungar, Hrothgar, Beowulf, etc. you're okay. However, there's some worry as to whether you'd get hammered if you perfectly copied Blizzard's corruptions of those words- Ymiron, Ymirjar, Val'kyr instead of Valkyrie, etc. And then, of course, if you lifted their art whole, you'd be in trouble- but your Jormungar could look reasonbly like Blizzard's without setting off any especial warnings. Or so I understand.
*Like the column's author, Iano is not authorized to dispense legal advice. Nothing in this post should be taken as advice or counsel, it is provided purely for entertainment value.
How'd I do on the disclaimer? :)
MusedMoose Apr 26th 2010 7:21PM
As someone who's had work plagiarized, I found this article very interesting. It's always good to know I've got the law behind me if it happens to something I've written that actually makes me money. *grin*
And as for the people who think you're a "Blizzard stooge"... oh, please. It's really sad how some people come up with some wild conspiracy based on either their own suspicions or some tiny detail and not only blow it ridiculously out of proportion, but end up taking up your time refuting it. I mean, your connection to Blizzard is so distant that, when I read about it, I was looking for Kevin Bacon to make an appearance. Sheesh.
Theodus Apr 26th 2010 8:10PM
So if I were to, say, draw a picture of illidan or of a player character and then sell my artwork, would I be crossing a line?