Digital Avatars: Creation of a Copyright In A Game

The growth of technology and computers has led to the establishment of certain eminent industries that would have otherwise been unforeseeable. One of them is the upsurge of the high-flying video games industry. This Industry has effectively established itself and has been growing exponentially since the release of its first commercially viable game, Pong by Atari in the year 1972. The Industry’s development has further soared in the past decade with the popularization of mobile gaming. 

The Industry, consequently, is expecting to see an enormous boost in its growth despite the global fiscal slowdown. Many companies have recognized this and have accordingly invested heavily for its expansion. 

The video game includes various parts that, when incorporated, compose the final product: the game code, the characters, the dialogue, audio/music, the video, and the storyline. All elements are independently copyrightable following the Indian Copyright Act, 1957. With the evolution of open-world and online multiplayer games, concerns about serious intellectual property rights as the vital and perpetual interactive environment need a more intricate mechanism for protection. 

Further, the user-generated content in such interactive games raises questions regarding the authorship of such work, i.e., whether it belongs to the user or the publisher. Players frequently create original content — including items, characters, movies, and maps, — based on their favorite games, often integrating that content back into the same game. 

The most important question is – Can we copyright the player generated content? if yes, who owns it? 

To answer this question, the foremost consideration is, in any given game’s Terms of Use (ToU) or End-User License Agreement (EULA), which explicate a publisher’s or game developer’s ownership of the copyrightable expressions and of the game code that players may fabricate during gameplay. A player license is a user contract, which informs the user about all rights associated with the product and the terms of use of the game. It expresses the limitations of the use of the game by the user. For example, even with a player’s authorization, a EULA may be declared unenforceable or invalid if a court considers it to be unethical or a violation of public policy. In contemplating default ownership of avatars, one has to also decide whether or not an avatar is an independent work of authorship, different from its game. 

A note to Section 17 of Indian Copyright Act 

 “ In certain cases like employment by the proprietor of a newspaper, magazine, or similar periodical under a contract of service or apprenticeship; a painting or portrait drawn, photographs taken, or an engraving or a cinematograph film; or a piece of work made in the course of the author‘s employment under a contract of apprenticeship or service, the person who arranged all the elements to obtain the creation of such a work shall be its author and, thus, the first owner of the copyright in the work.” In this respect, consideration should be given to digital avatar ownership for the creator. 

It should be taken into consideration that if an avatar is original, it must be (a) detailed and peculiar enough to be different from generic, similar characters, which are treated as unprotectable ideas and (b) adequately different from prior copyrighted  characters, exception being the plagiaristic character was created with prior authorization. 

It must be accepted that most avatars are not sufficiently distinctive from preexisting characters and not peculiar from avatar tropes in a given game. However, it is most likely that some user-crafted avatars are inculcated with the nominal “creative spark” necessary for originality. From a deterministic view, a game developer may claim to be the author, because the avatar cannot be anything that the game’s designers and programmers do not allow it to be. This view, nonetheless, fails to notice the fact that the avatar is more than merely the code—the program constrains but does not dictate the avatar’s customizable expressions. About the degree to which players can influence the function and form of on-screen content. 

While the evolution of the gaming industry has seen tremendous growth, the laws are yet to facilitate unambiguous IP protection to the developers. Modern interactive gaming incorporates levels of storyline, gameplay, and characters that are a completely new classification for the author. The definition of an author does not include creative elements of technology utilized for developing video games. Insertion of words such as computer-generated in the definition of an author can not cover this industry and its various elements and components which require meticulous attention. The definitions were included when technology had just started emerging and was not all-pervasive. The lawmakers need to re-visit, agree and implement laws on the legal categorization of video games, developed in India and globally which, thus, will afford the necessary protection to the developers and players.

India lacks any specific gaming laws and behavior is dealt with by the commercial practices in the gaming sector. This only further pronounces the need for copyright laws in gaming.