The Lawbringer: WoW in fiction and the GameStop debacle
by Mathew McCurley 
Sep 9th 2011 at 1:00PM
Greetings, Lawbringer readers. We've got two very interesting emails this week from readers that are about as diverse as they come. First, we'll be looking at using World of Warcraft in fiction and whether or not that's a good idea, despite its potential fair use classification. Second, a reader wants to know what happened with GameStop over the past few weeks concerning Deus Ex: Human Revolution and whether it could happen in relation to Blizzard.
Your emails are awesome, and you should send me more of them. "But how?" cries the inquisitive reader. Send your emails to mat@wowinsider.com with something Lawbringer in the title, and I will try my best to answer the question in the column. If you've got a question about the legal nature of the video game industry, MMOs, etc., ask away.
Fiction and WoW
Our first email comes from Colleen, who asks about using World of Warcraft in fiction.
Morning Mat,Thanks for the email, Colleen. There are a few factors to think about when you want to use copyrighted material within your own copyrightable material, and most of those fall into the overall nature of what are you actually doing with the work you're working with. Let's first get fair use out of the way.
I'm a fiction writer, and I just had a great idea for a mystery/thriller anthology I'm trying to submit to. I'd love to use a concept that involved a very different type of gold farmer in WoW. However, I know that several books that have dealt with MMORPGs over the years have presented WoW-like games with the serial numbers filed off, so to speak. (Particularly For the Win, by Cory Doctorow, and the Otherland series by Tad Williams).
My question is whether I can actually use "Warcraft," "Azeroth," etc in a work of fiction. Mind you, this is not fan fiction - I don't want to use WoW's characters, or even intimate that WoW is more than just a game out here in the real world. On the other hand, it's not covered under fair use as parody, either.
Basically, can I write a story about a person who plays WoW, with criminal intent, or do I have to say that my protagonist plays "Ye Olde Fantasy MMO?"
Thanks!
Fair use is the accepted use of copyrighted material without permission from the copyright holder. People most often cite parody, using copyrighted material to make a statement about the work or make fun of it, as being an accepted form of fair use. The problem is that fair use isn't a bright-line defense, meaning there really isn't a line in the sand that you can cross or not cross. Every defense of fair use is decided on its own merits based on the four factors of fair use. Extremely truncated, those four factors are:
- The purpose and character of the work
- The nature of the copyrighted work
- The amount of copyrighted work used in relation to the whole
- The effect on the market for value
Why would you want to use World of Warcraft in fiction like that? The same reason you would want to use a Sony television, a can of Coke, or a bottle of Jameson -- they lend realism to a story fabricated in fiction. Grounding a fictitious story in reality gives it credibility and credence, engaging the audience through hooks in the real world. Do you ever get pulled out of a movie because someone starts a phone number with "555"? It's the same feeling.
Other authors make up their own settings and MMOs for these stories because it guarantees ownership of the entire novel and story from cover to cover, litigation-proof and entirely theirs. Why would you risk an amazing story that could have been perfectly acceptable without one of the main characters actually being World of Warcraft? Blizzard has to protect its copyrights, no matter how important they are, and you don't want to have your work the target of litigation and more overhead than books already have.
At the end of the day, you can do whatever you want, really. It's the copyright holder's prerogative to enforce their copyright and sue. So, in other words, Blizzard can sue for any use of its copyrighted material, since fair use is a defense and not an exoneration. You have to defend your fair use in court. That's not a burden people want to have, especially when you could have just came up with your own stuff and made it believable, like Cory Doctorow.
Our next email comes from reader Jonah, who asked about the GameStop debacle with Deus Ex: Human Revolution.
Hey Lawbringer
I know you have probably read about GameStop taking out coupons for a digital copy of Deus Ex on the OnLive service right from the game box. They said that the coupons were for a competing service and opened up boxes of the game and took out the coupons and then sold the game as new. Do you think GameStop could do this with WoW expansion collector's editions for codes like the pets or all of those coupons for free months of StarCraft II and stuff that come in the boxes?At this point, Jonah, I wouldn't put anything past GameStop. Instead of removing coupons from boxed copies of Deus Ex, GameStop should have just refused to sell the game. You don't alter the product and then call it new. It's shoddy business, but really, what have we come to expect from GameStop over the years, right?
Thanks for the column!
Jonah
World of Warcraft, its expansions, and the collector's editions of the game come with lots of freebies in the packaging. Thankfully, the pets and other associated in-game benefits of the collector's editions actually are added to your account from the serial CD key number that you add to your Battle.net account, not a piece of paper or coupon that comes in the box. The only way you could "steal" the pets from the collector's edition boxes would be to use the CD keys on a Battle.net account, and I don't think GameStop is even that stupid.
The other freebies, however, are fair game. Mousepads in a box? Hey, we sell mousepads, and this is cutting into our business! Out with the mouse pads! Trading cards?! We could sell trading cards! Removed! I hate being so flippant about the topic, but isn't is just utterly ridiculous that a company whose slogan is "Power to the Players" is happy to give us a product that removes some of the value included in the box? I truly hope we see a class action lawsuit from players and consumers against GameStop over its business practices. If you don't agree with what is in the box, don't sell the box, GameStop.
If I came home to a World of Warcraft expansion missing key elements from the box because GameStop decided I shouldn't have them, I'd be pissed. Which is why I went to Best Buy to get my Cataclysm collector's edition, because GameStop decided to cancel the midnight release at the last minute despite telling its consumers that it would be open at that location all night for Cataclysm's launch. Oh, and they wouldn't let me buy Devil May Cry 4 without a preorder, so I walked a few blocks to J&R, where they had a million copies available to anyone, and got it there.
Questions for the column? mat@wowinsider.com. See you guys next week.
This column is for entertainment only; if you need legal advice, contact a lawyer. For comments or general questions about law or for The Lawbringer, contact Mat at mat@wowinsider.com.
Filed under: Analysis / Opinion, The Lawbringer
Reader Comments (Page 1 of 6)
rapsam2003 Sep 9th 2011 1:15PM
Guess I won't be buying products from GameStop again...
Letharginator Sep 9th 2011 4:36PM
Something I never knew till recently, any used game you buy from GameStop can be returned for a full refund within a week of purchase. Meaning you can try any used game out for a week, no cost, and then go buy it elsewhere if you like it.
I know it probably makes zero difference, but I always feel like I'm getting back at them a little bit when I "rent for free".
Jamie Sep 9th 2011 3:31PM
About 8 years ago, we used that here in the UK with our major game shop, GAME.
However after a while the whole thing got out of hand and instead of a 16 day no quible return policy they started adding a seal to the games if broken you'd not get a 21 day return. The seals were also serrated so that they would break no matter what.
I can't blame GAME as they must have lost a lot of money from it, but it sure was fun to trade out games and used them as a rental service!
Alexran Sep 9th 2011 4:10PM
Don't sweat it. They gave me a free 50$ gift certificate because of that debacle. So I got two games for the price of one because of this debacle. Which salvaged Gamestop, in my opinion. Besides, I personally have no use for an OnLive version of a game I already own on console. For others, this could very well be a dealbreaker.
paulmewis Sep 9th 2011 4:36PM
Back when game started doing preowned games in store they did a large drive to get old stock to sell.
You could trade in any 5 games and get a free new game for the console you'd traded in games for. Unfortunately (for GAME), the local Blockbuster decided to get rid of a large portion of their ex-rental games for a few quid each. Like NFL and NBA from years ago, and some of the worst titles know to the playstation (which I played at the time) so we got like £200-300 of games for about £40-50 quid.
Game got wise and withdrew the offer to anything marked from Blockbuster. And I don't blame them; the condition of the games was appalling.
Bobby Earl Sep 12th 2011 11:19AM
What the hell is a quid anyway? I've often heard of this monetary unit but have no frame of reference as to it's actual value, or that of most British denominations actually.
shotiechan Sep 9th 2011 1:16PM
Gamestop is freakin' terrible. They try to create false demand for preorders, and recently it came to light that they basically are told by corporate that if someone "accidentally" preorders a game multiple times, not to tell the customer, because a TON of people forget they've preordered a game (or just don't care anymore) and that $5 adds up over and over again. They will ALWAYS feed people a line about how they can't sell you a copy of some hot new game unless you preorder it, despite the fact that, almost all the time without fail, you can go right down the road to another business and get the game right off the shelf easily. If you actually DO go in because you can't find the game elsewhere, you'll frequently get scoffed and and told, "Well, I guess you shoulda preordered it, huh?"
They're basically stealing from people at this point, between the "we'll keep your $5 preorder" and stealing the vouchers from games.
It's disgusting how much they think nothing of screwing their customers in the name of profit. I get they're a company, and they're out to profit above all, but you shouldn't crap all over the people you are providing business to. It's just really terrible, and I refuse to every patronize them again unless they revamp their policies and the way they treat customers.
allison.lins Sep 9th 2011 1:35PM
You know you can get that $5 back at any time right? Like months after the fact. I moved last year and left a $10 preorder at the gamestop 3 states away. I completely forgot until I got a check in the mail from them for the $10 I'd forgotten about.
Como Sep 9th 2011 1:43PM
First, you can get the money back. Second, it's not gs's fault you forgot you preordered a game. Third, if they are constantly telling you to pre-order and you don't want to don't get pissed when they tell you that you should have pre-ordered. They are not gods who know which games will fly off the market and which will sit there. GS gets tons of shit but you know what they are a great store. I can go there, find games and accessories quickly, have a chat with other gamers and even try shit out. Don't like their resale prices? Don't buy or sell, no one is forcing you.
shotiechan Sep 9th 2011 2:00PM
@allison.lins
Yes, and no. I am aware you can take steps to get the money back. However, they won't refund you the $5 unless you keep your receipt. They also specifically have a policy in place NOT TO REMIND CUSTOMERS they have a preorder out so that people will A) be more prone to preorder an item twice by mistake and they can pocket the extra money, and B) so that people will basically just forget and never come back to claim their money. I have never heard of people getting refund checks from Gamestop before in the mail. This is the first time I've ever seen mention of it anywhere before.
Even with the ability to get a refund, they are still implementing shady practices to try and steal from customers for their own profit. That's not cool.
shotiechan Sep 9th 2011 2:01PM
@Como
"Second, it's not gs's fault you forgot you preordered a game"
Actually, to a degree, it is. No, it's not their fault a customer forgets they already preordered a game. However, they DO have the preorder on file in their computer, and they could tell you that you have it already on preorder. Gamestop actually tells employees NOT to tell customers this is the case when they order a second copy of the game. They are told to keep quiet about it, so that basically the company can make an extra $5 of you. No, $5 isn't a lot, but it does add up very quickly.
This is my point; the company could very easily tell it's customers, "Hey, you already have a preorder in our system...do you want to preorder a second copy?" but they don't do this. There is NOTHING upstanding about that at all.
As someone mentions below, Gamestop's policies just one after another about scamming people and mistreating customers in the name of profit. They are a shady terrible company and not worth patronizing. I am actually kind of boggled people are defending them. If you want to keep handing your hard-earned money over to them and encourage them to keep scamming people and actually outright stealing from them, then more power to you, I guess, that's your right as a consumer.
I'll just shop elsewhere though.
furrama Sep 9th 2011 2:57PM
Remember this guy? http://www.dailymotion.com/video/x6wnow_zero-originality-episode-1_videogames
(Say goodbye to an hour or two whilst you watch that.) This has been going on for yeeeeears. Just don't shop there, not even for a "little" thing. Go to Sears or something, games be cheap and plentiful there.
Falstad Sep 9th 2011 4:02PM
Actually, there is no written policy or guideline that says not to tell people they have a game already reserved. There might be some pockets where this is considered accepted practice due to lower management but, as a former employee, I can state that it does not exist. Gamestop gets a lot of crap for some of their actions...some justified, others not. Hating Gamestop has become such a hobby for the internet that any reason to do so is welcomed with arms wide open like a lost brother. What's worse though is that the actions of a corporate office are held against the local employees. Cut them some slack, maybe even ask THEM how they felt about the Deus Ex thing because I know the people that I know that still work there didn't like the idea at all. On the subject of false demand to create preorders, I know the game companies watch the preorders closely to determine how many to send to Gamestop, Best Buy, Target, Blockbuster etc since they all take preorders now. If little hole in the wall Gamestop in the middle of nowhere takes 2 reserves on Madden 12 for ps2, why would they waste allocation to send them 30 copies when it appears there's little interest in the title? It just happened with Dead Island, I went it to grab that and all of my local Gamestop's were out, as was Wal-Mart, K-Mart, and Toys R Us. Did it make me want to grab my torch and pitchfork? Nope, just waited an extra couple of days and went back and grabbed it. All I ask is that next time you're ready to take down "the man" to take a breath, and think about the people your anger gets focused on when you're in the store and how much power they actually have over the situation.
Kylenne Sep 9th 2011 4:48PM
@furrama: I was with you until you suggested Sears. As someone who worked there in college, they're no better than Gamestop, and in many cases they're actually worse.
furrama Sep 9th 2011 5:26PM
@Kylenne It was just a suggestion. My grandfather worked for Sears for years and he never had a problem with management, though he mostly sold large appliances and it has been a few years since then. I can find some pretty good deals there, sealed cases, and some pretty good deals but only because no one thinks to shop there for videogames. But I'll shop anywhere, there are plenty of places online with even better deals. I just know I'm never using Amazon again because we preordered Cata months in advance with guaranteed delivery on launch and we didn't see it till two weeks later.
Every franchise has it's own closet of bile, and most places have horror stories, but I'll contend that Gamestop's is notoriously worse than most.
furrama Sep 9th 2011 5:29PM
I'm sorry, Best Buy not Amazon. Brain fart. Amazon is amazing.
I wish for this fabled edit button.
Ilmyrn Sep 9th 2011 1:21PM
At the risk of sounding like a fanboy or whatever, I have to cut Gamestop a little bit of slack here: By the admission of everyone involved, SquEnix included, Gamestop didn't know about the OnLive things being in the boxes until they had them in stores. It's hard to fault them for not wanting to advertise a competing service.
Should they have taken things out of the boxes without telling buyers? Absolutely, one hundred percent not. But Square-Enix shouldn't have blindsided them over it either. Everyone came out looking bad in this situation.
shotiechan Sep 9th 2011 1:28PM
@Ilmyrn
I agree, SE shouldn't have blindsided Gamestop over it, and that was unfair.
However, it's also grossly unfair that people decided to patronize Gamestop and got rewarded for that loyalty by having the coupons effectively stolen from them, since the coupons WERE in the boxes and Gamestop employees were instructed to take them out and throw them away. I understand they don't want people using a competitor's service, but is literally robbing customers a better idea in their mind? It's really not, because all it's done is get them seriously bad press and cost them some customers as a result.
People don't go to a store to buy a "new" game and then get a pre-opened copy and a $50 coupon chucked in the trash. That's just....disgusting business, even if SE was pretty much to blame for it to a degree. It was ultimately Gamestop that chose the option of screwing their customers, and that's where they dropped the ball.
Narayana Sep 9th 2011 1:40PM
I'd tend to agree with you if this was an isolated incident, but for many people who have shopped at GameStop over the years this is just another skeevy move in a history of skeevy moves. This is a company known for losing pre-orders, over-selling products, under-stocking stores and so on. As such, it's very hard to simply write this incident off as an honest mistake.
Ilmyrn Sep 9th 2011 1:45PM
@Shotiechan: Like I said, Gamestop should not have acted the way they did. One hundred percent that was wrong.
For what it's worth, the last time I was in a Gamestop when Deus Ex hit, the employees there were telling a shopper about it the whole debacle and suggesting they either get a console version or go to a different store for the PC version.