Does WOW Fan Game Guide Violate Publisher's Copyright?

Game Spot News reports about a 24-year old self-publisher filing a law suit CA federal court against video game publishing giant Blizzard Entertainment. 24 year old Brian Kopp sold an unofficial game guide titled, "The Ultimate World of Warcraft Leveling & Gold Guide" on Ebay for $15 a piece. World of Warcraft is Blizzard's epic Massive Multiplayer Online Role Playing Game (MMORPG) that has record sales and membership across the globe. Blizzard and Vivendi repeatedly filed to have the guides stripped from the bidding marketplace, to which Ebay complied. He also has an independent website that sells the guides.

According to Game Spot, "Weeks after his first auction went live, Blizzard, Vivendi, and the ESA began sending repeated takedown notices under the Digital Millennium Copyright Act (DMCA), asking eBay to yank the auctions because of copyright and trademark infringement concerns. The auction giant's general policy is to halt auctions when it receives such complaints and to suspend a user's account after it racks up a certain number of warnings." Kopp filed counter-notices protesting the take downs. In his complaint he alleges that the guide does not violate copyright laws b/c it has a disclaimer notice on the first page stating that it is an unofficial guide and it's use of selected screen shots falls within Fair Use.

Kopp seeks three forms of relief in his suit:

1. Compensatory damages to cover certain expenses including lost profits from halted sales
2. Injunction preventing others from interfering with his right to publish such guides
3. Declaratory judgment that his book is protected by the First Amendment

About this suit, Kopp's lawyer said: "In effect, if the video game industry's actions are upheld, 'then selling a how-to book about Microsoft Word would infringe Microsoft's copyright, especially if the book contained one or more screenshots of Word's user interface,' said Paul Levy of the public-interest advocacy group Public Citizen, which joined in filing the suit on behalf of Kopp. 'We think this cannot be the law.'"

To me the WOW suit smacks of the same kind of questions asked by Ty Inc. v. Publications Int'l Ltd. 292 F.3d 512 (7th Cir. 2002). In TY the defendant published two unauthorized texts on the popular Beanie Babies stuffed toys. One of the books, For the Love of Beanie Babies, was a full colored picture book with "silly" writing to describe the toys. The other one was a Beanie Babies Collectors Guide. The plaintiff had copyrighted each Beanie Baby toy as an individual sculpture subject to protection. It argued that the defendant's books were both unauthorized derivative works which infringed on their sole right to make such works. The defendant responded by citing the Fair Use doctrine.

Judge Posner opined that the defendant could only prevail on the fair use defense if they could show that their work was complimentary to the copyrighted material rather than a substitute for it. This idea is an economic one (surprise!) and Posner illustrated it by saying, "copying that is complementary to the copyrighted work (in the sense that nails are complements of hammers) is fair use, but copying that is a substitute for the copyrighted work (in the sense that nails are substitutes for pegs or screws) or derivative works from the copyrighted work is not fair use." (See Ty Inc. 292 F.3d at 517). He furthered the rationale by citing the distinction between parody and burlesque. A parody is a protected work, for the same reasons that a book review is, it makes an editorial and originally expressive comment on the original work w/o cutting into the demand for it. To do so such parodies must use enough of the original work to conjure up the image of it so the audience can understand the connection (and sometimes the criticism). A burlesque on the other hand, is not protected and seen as a humorous substitute that cuts into the demand for the original.

Therefore book reviews and parodies serve as examples of the types of work that may quote and even copy from copyrighted originals, yet remain a fair use b/c they are compliments of (even if sometimes negative) rather than substitutes for the original work. Even though the complimentary effect may be weak, "they are unlikely to reduce to the demand for the copyrighted work; nor dcould the copyright owner command a license fee" for such use. (See Ty Inc. at 518).

In striking the balance btw derivative works and fair use, Judge Posner made sure to note that a photograph of a Beanie baby is not a substitute for the toy, but they are derivative works. The analytical complication in this case was that both books embedded the photographs in original text. For the Love of Beanie Babies was found to be infringing and distinguished from the collector's guides b/c each picture, although accompanied by a brief commentary, was the main focus of the book, and the commentary "seems distinctly secondary to the [full page] photograph." (Id. at 519). The Beanie Babies Collector's Guide, although printing a photograph of the Beanie Babie on each page, also included "the release date, the retired date, the estimated value of the Beanie Baby, and other information relevant to a collector." (Id.). Judge Posner noted that some of the text was critical of Ty, and that Ty only granted licenses to "official" guides for those books that refrained from making such comments. Finding that the collectors guide did not "recast, transform or adapt" the Beanie Babies, nor did they fall into a categories from 17 U.S.C. 101, it was not a derivative work. Therefore, Judge Posner found the guide to be much like a book review, "which is a guide to a book and which no one supposes is a derivative work. Both the book review and the collectors guide are critical and evaluative as well as purely informational; and ownership of a copyright does not confer a legal right to control public evaluation of the copyrighted work." (Id. at 521).

In the WOW case we are dealing with a fan-created game guide. Game guides typically come in two varieties: commercial (offical) and fan-created. Commercial guides usually come out simulatanously with game releases, are licensed by the game publishers and provide players w/general information about the game, tips and tricks, hidden details, item info and step-by-step walk throughs that are complimented with screen shots of the actual game. Fan-guides are similar to commercial guides in the information provided, but differ in content, presentation and distribution (and often contain criticisms). Commercial guides usually retail for anywhere between $15 and $20, whereas fan-guides are typically posted on the internet for free.

I think that in looking at the fair use issue in the WOW case, a court would find the parallel to the fan-guide at issue to be the collectors guide in Ty. Both serve the function of being a compliment to the enjoyment of the original property, contain commentary that is independent and analytical of the original and do not recast, transform or adapt the original. Therefore, the fan-guide will likely be protected under fair use. However, the twist in this case is that the plaintiff is citing fair use as his justification for being allowed to market the guides on Ebay, rather than as a defense to an infringement claim by publisher Blizzard. Blizzard is defending (and hoping to dismiss and likely counter sue) based on the DMCA. As this unfurls and further actions are filed, we will approach these issues in further posts.