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The Lawbringer: WoW in fiction and the GameStop debacle

Pop law abounds in The Lawbringer, your weekly dose of WoW, the law, video games and the MMO genre. Mathew McCurley takes you through the world running parallel to the games we love and enjoy, full of rules, regulations, pitfalls and traps. How about you hang out with us as we discuss some of the more esoteric aspects of the games we love to play?

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,

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!
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.

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
Using World of Warcraft in a story about gold farming, where most of the story takes place in the game world and ultimately utilizes many in-game characters, classifications, nomenclature, and WoW trademarks/copyrights, would be a huge use of Blizzard's IP. When using the defense of fair use, you would have to explain why you used World of Warcraft to the extent that you did as well as the commercial nature of the work, which doesn't lend itself in your favor. Is it worth having to defend fair use in court when it is easier to make a passing reference to World of Warcraft and then make the majority of the game action exist in your own creation? There is a difference between mentioning World of Warcraft as a game where gold farming is done in a particular way versus setting the novel in Azeroth.

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.

GameStop -- seriously?

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?

Thanks for the column!
Jonah
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?

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

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