Who Owns What? The Struggle of Authorship, Ownership and Intellectual Property in Videogames

Travis Wall, Jessica Mannucci, David Proulx, Veronica D’Orsa, Adam Honigman

Carolyn Jong

ENGL 255/A

24 March 2017

Who Owns What? The Struggle of Authorship, Ownership and Intellectual Property in Videogames

The term “intellectual property” has come to dominate much of the discourse around video games. The term implies that a game or game series is, first and foremost, a piece of property–not a work of art, just a corporate offering. In a Buzzfeed article, Joseph Bernstein discusses the upset of fans over a Microsoft Studios employee who referred to his projects simply as “IP” (Bernstein). Intellectual property may include patents, copyrights, trademarks, trade secrets, and other forms of corporate protections (Chang and Dannenberg). The topic, which was once the domain of lawyers and business people, has become mainstream among gamers. Even the gaming site Destructoid called its 2015 best-of list the “Best New IPs of 2015” (Dale). Traditionally, the needs of the developer and the desires of the audience have clashed. This conflict has received much attention in the wake of recent titles such as The Beginner’s Guide (Everything Unlimited Ltd., 2015). This game, along with The Writer Will Do Something (Bissell 2015), Flappy Doge (2014), and other titles, demonstrates the prevailing issues that arises when games are considered property to be owned, specifically, who truly owns intellectual property and who is the “real” creator of a game/story. This issue, in turn, causes friction/conflict between the user and developers of videogames.

When it comes to videogames, copyrighting and intellectual property laws have become complicated.  The line between collaboration and what Sarah Coleman and Nick Dyer-Witheford call “criminal commodification” is thin (936). This begs the question of whether or not the users benefit from these IP laws, or whether the creative abilities of both users and developers are being hindered by keeping certain aspects under lock and key.

To better understand the discourse between user and developer in relation to ownership and IP, it is important to note that, originally, videogames were not invented by a big business; they were hacked (Coleman and Dyer-Witheford 936). Programmers at MIT used their downtime on unauthorized experimentation on mainframe computer devices that led to the creation of videogames (Coleman, Dyer-Witheford 936). Within this origin it is not too difficult to comprehend how people, such as Davey Wreden or Dong Nguyen, would view games as being commons (resources that a whole community can use but not own) rather than commodities.

However, most games are viewed as property to be owned, sold, and distributed instead of being perceived as common goods for a community. In fact, the distribution of a video game without purchasing it from the owner is considered theft. With recorded losses of over $3 billion a year to piracy in the video and computer game industry, it is relatively easy to see it as such too (Coleman, Dyer-Witheford 938). The commercialization of the gaming industry has especially intensified the confusion surrounding intellectual property and the modification of games. On the one hand, it “criminalized the ‘unofficial’ copying and circulation intrinsic to hacker culture” while also opening the door to the ability to make money from stealing games (Coleman, Dyer-Witheford 937). This has led to developments within the industry in relation to how it has dealt with mods and machinima. While ‘mods’ are generally circulated for free regardless of approval or cooperation of the developer, “some companies ‘buy back’ successful mods, hiring the teams that created them” (Coleman, Dyer Witheford 940). This has not eased the tension between modders and developers though, as we learn in studying some of the debate surrounding games like The Beginner’s Guide, The Writer Will Do Something, and Flappy Doge.

The Beginner’s Guide (Everything Unlimited Ltd., 2015) is a particularly unsettling game because of how it handles the notion of intellectual property.  Presented by creator Davey Wreden as a series of short games created by his “friend” Coda, Wreden narrates each section and guides the player through Coda’s strange creations. In effect, it is as though the player is wandering through the developer’s subconscious; experiencing his depression, isolation, and anxiety as represented in various prisons, incomplete game maps, desperate messages, and puzzles to which there are no solutions. Wreden’s narration becomes a kind of games criticism as he tries to interpret them in hopes of finding insight into Coda himself. While the game is assumed by most to be a complete work of fiction, Wreden has refused to officially state whether this is the case (Klepek). This is further complicated by the fact that, according to Wrenden’s narration, he has compiled and distributed Coda’s games without permission. Wreden admits to stealing Coda’s intellectual property and selling it, in hopes that the attention will inspire Coda to start creating new content again.

As the game progresses, it becomes clear that Wreden has not only stolen Coda’s work, he has modified it, perhaps in an effort to add depth and generate more interest on the part of the player. The modification of games like The Beginner’s Guide stems from “a fan culture that regards games not as fixed properties, but rather as raw material for continuous collective authorship” (Coleman, Dyer-Witheford 943). However, these modifications can sometimes complicate our understanding of authorship and what the original purpose or content of the game was. An example of this is found when Wreden notes the metaphorical significance of a lamp post that appears in several of Coda’s games; this lamp post, it turns out, was added by Wreden himself while modding the game. This complicates the dynamic of creator and player, placing Davey in a position of authorship in game that was not originally made by him.

lamppost

Having intentionally blurred the line between fact and fiction, Wreden has become the subject of controversy due to players who believe he has stolen another developer’s intellectual property. One reviewer, after praising the game, suggested that players complete it before their refund window expired, should they not wish to support what they may assume is theft (Dale). This statement only heightened the controversy surrounding the game, as such action would financially impact Wreden, who it is generally assumed is an unreliable narrator and has merely created a work of fiction.

Furthermore, Wreden’s works highlight the strengths and limitations of the relationship between indie developers, their audience, and intellectual property. On Wreden’s site Galactic Café, he mentions allowing  people to record and monetize gameplay videos from his games, encouraging these individuals to “go forth and cultivate revenue. Sow the seeds of your own financial viability. Monetize, and all is right with the world” (Wreden). Wreden, in this case, allows others to use his intellectual property for their own benefit, effectively creating a community with players and streamers of his games. In this sense, the game then belongs to the community. Conversely, The Beginner’s Guide highlights the tensions that can come with communities feeling as though these games belong to them. Chang and Danneberg remark that “Without copyright protection, there is little incentive for authors and artists to create new creative works, because they naturally would be hesitant to create works that others could copy willy nilly without compensation to the artist” (Chang and Dannenberg). At the root of this statement is a concern on the developer’s behalf that the work will no longer be theirs. This is exemplified in Chapter 16 of The Beginner’s Guide, “Tower”, where Coda accuses Davey of taking his work to make it his own. Coda is distressed by Davey’s actions and accuses him of “Violating the one boundary that keeps [him] safe”, even remarking that he becomes physically ill around him. As such, the boundary of intellectual property is crossed in ways that are intrusive to the developer, thus illustrating the limitations of the relationship between developer and audience.

Screen Shot 2017-03-24 at 12.43.52 AM

Bearing this in mind, the question of intellectual property also has implications insofar as profit, which is something especially exemplified in AAA companies’ relationship to pirating. Ian Bogost remarks that “In the AAA sector, everything is completely driven by corporate concerns, and you can see how this style of thinking and speaking would trickle down into the rank-and-file. …[G]ames are treated more like products than they are like creative efforts that happen also to be products” (Bogost in Bernstein). By transforming videogames into an industry, games themselves become a products built for profit instead of an artistic endeavour. As such, this capitalistic orientation of the industry creates space for individuals to pirate games in the spirit that they are defying “a greedy corporate order” (Coleman and Dyer-Witheford 938). Coleman and Dyer-Witheford use Thomas’ explanation of the ethos behind “warez” to explain that people pirate games because the content is already paid for; if the individual has purchased a computer and internet, there is no need to pay for anything else (939). While this is not the only reason or factor behind piracy and intellectual property infringement, the example of piracy highlights that IP laws play and sometimes cause the disjunctions between developers and the players of their game.

Another game that has demonstrated the struggle of intellectual property versus creative commons is Flappy Bird. In 2013, Vietnamese developer Dong Nguyen released the game for iOS and Android mobile devices. As the success of the game inflated over the course of the year, Nguyen became the sole face of it, being directly targeted with praise, criticism, and threats alike. One such criticism was one harboured by a small yet loud minority of fans, all who begrudged Nguyen for having large success off of a game that used graphics very similar or entirely plagiarized from Nintendo’s Super Mario Bros. (1985) and its various sequels. This backlash was further by a Kotaku article originally titled “Flappy Bird Is Making $50,000 A Day Off Ripped Art”, wherein the author accuses Flappy Bird of being unoriginal, and stating “But this game goes beyond inspiration. We’re in ripoff territory here” (Schreier, 2014). The article’s title was later changed and a follow up, apology article was written, stating that upon further thought, the developer was not doing anything unethical. Nintendo themselves even publicly stated that the game was doing nothing to infringe on their intellectual property. Despite this, many fans still maintained their distaste towards the lone indie author. The green pipes that drew fans’ ire are not owned or copyrighted by Nintendo, but are synonymous with the franchise to the extent that they simultaneously are a product of the Super Mario Bros. franchise, and an iconic symbol in their own right. Nguyen’s art was not a case of plagiarism, but rather an act of paying homage to something simple and iconic.

Pipes

Flappy Bird and Super Mario Bros. pipes 

 

Flappy Bird’s success spawned numerous copycats and ripoffs, incorporating recognizable characters and the word “Flappy” into all their titles. One of the most famous of these was Flappy Doge, released in 2014. Flappy Doge is a combination of two pre-existing properties: Flappy Bird, and the popular Internet meme Doge. In contrast to Flappy Bird which has a very public and outspoken single author, Flappy Doge is not credited with a creator, with the application being published by the generic “Flappy.me”. Flappy Doge also pulls its graphics and imagery directly from the other two properties; it sports simple recolours of Flappy Bird’s offending green pipes (now blue) and a large image of the Shiba Inu “Kabosu” who popularized the Doge meme. By ripping off these other two into one single entity however, the game becomes its very own intellectual property. If another creator were to incorporate the original Doge/Flappy Bird sprite created for the Flappy Doge game into their own “Flappy” spin-off, it would then be a rip-off of that singular property instead of all the ones that preceded it.

flappydoge

Another matter to consider is that of monetization, as both Flappy Bird and Flappy Doge are free games with in-game ads to support their creators. Many who download either game would not consider that the creators are receiving an income from their usage, as the money is not coming straight from the consumer’s’ pocket. A more direct purchase, such as a $0.99 price tag, may prompt more harsh critiques in response to the perceived or blatant plagiarism of other intellectual properties.

While games like Flappy Doge and The Beginner’s Guides are games that consider IP laws in regards to an individual developer interacting with their community, The Writer Will Do Something (Bissel 2015) highlights this issue from the perspective of larger game companies. The game is a text-based choose-your-own-adventure style game that puts the player into the position of a lead writer of a AAA videogame franchise. Although the release date is looming, consultants have recommended that the developers go back to the drawing board. Over the course of a futile creative meeting, it becomes clear that no one has any real authorship over the game. It is the product of corporate synergy, conflicting interests, and market forces more than any creative individual. It gives the player a peek into the life of creative professionals, struggling to put forth ideas during the development of new intellectual property.

Although The Writer Will Do Something is produced independently and removed from AAA studios, the game itself is intellectual property. The game is so sparse in its presentation that one might initially assume the creators have given it freely to the public domain. The game is free to play and was designed using the free Twine software. It contains no EULA or other legal jargon. Upon completing the game, however, the player is met with the game’s sole piece of legal information: © 2015. Evidently, creators Tom Bissell and Matthew Burns chose to share their story freely with the masses, but did not choose to relinquish control of that story. There is no creative commons license allowing for adaptation, remix, or redistribution. Thomas Bissell and Matthew Burns themselves are the intellectual property as their names hold weight for certain people. With that being said, even though this is a game that is made in the context outside of an AAA studio, intellectual property laws still loom over it. Like The Beginner’s Guide, there is still an underlying anxiety that the game’s developer will not be credited for their work.

Screen Shot 2017-03-23 at 12.46.34 PM

From these titles, one can see there are a slew of prevailing issues regarding ownership and intellectual property, especially in regards to who “owns” the intellectual property of a game. While intellectual property is a complex issue, there remains an ever growing disconnect between the needs of the developers and the desires of the players. As game makers develop more elaborate means of controlling their property, players find new and innovative ways of using those properties for their own ends. Ideally, a mutually beneficial agreement can be achieved between the creator who wishes to retain a form of control over his work and support an economic industry and the users and artists who will be inspired and play with the creative works that are shared between them. The question now remains of where does the right to ownership stop and the right to creative use begin?

Works Cited

The Beginner’s Guide. Everything Unlimited Ltd. 2015. Videogame.

Bernstein, Joseph. “Let’s Stop Calling Games “IP”.” BuzzFeed. 7 May 2013. Web.

Brice, Mattie. “Our Flappy Dystopia.” Alternate Ending. 10 February 2014. Web.

Chang, Steve, and Ross Dannenberg. “Hey, That’s MY Game! Intellectual Property Protection for Video Games.” Gamasutra. Web.

Coleman, Sarah, and Nick Dyer-Witheford. “Playing on the digital commons: collectivities, capital and contestation in videogame culture.” Media, Culture & Society 29.6 (2007):   934-53.

Dale, Laura Kate. “The best new IPs of 2015.” Destructoid. 18 December 2015. Web.

Flappy Bird. Nguyen Hà Đông (Dong Nguyen). 2013. Videogame.

Flappy Doge. 2014. Videogame.

Hudson, Laura. “The Beginner’s Guide is a game that doesn’t want to be written about.” BoingBoing. 2 October 2015. Web.

Klepek, Patrick. “The Controversy Over A Video Game’s Suggestion Of A Crime.” Kotaku. 23  December 2015. Web.

Schreier, Jason. “Flappy Bird Is Making $50,000 A Day Off Ripped Art” Kotaku. 6 February 2014. Web.

Wreden, Davey. “Video Monetization.” Galactic Cafe. 21 October 2013. Web.

The Writer Will Do Something. Tom Bissell & Matthew Burns. 2015. Videogame.

Further Reading

Dannenberg, Ross A. Computer Games and Virtual Worlds: A New Frontier in Intellectual Property Law. American Bar Association, 2010.

Hahn, Robert W. Intellectual Property Rights in Frontier Industries: Software and Biotechnology. AEI Press, 2005.

Miller, Arthur Raphael, and Michael H. Davis. Intellectual Property: Patents, Trademarks, and Copyright. 3rd ed. New York: West/Wadsworth, 2000.

Discussion Questions

  • Do you think the creative abilities of both users and developers are being hindered by intellectual property laws? Is that a problem to be addressed or a natural consequence of ownership?
  • Looking at the narrative of The Beginner’s Guide, would you consider what Davey’s (in the story) actions of taking Coda’s work and compiling it as theft?
  • To what extent is an image or a symbol the intellectual property of a company? For example, would you consider the use of green pipes in Flappy Doge plagiarism? If so, why? If not, at what point does it become plagiarism, if at all?
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Who Owns What? The Struggle of Authorship, Ownership and Intellectual Property in Videogames

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