A
game using elements of reality can be more appealing to players, but
licence fees can increase production costs, sometimes greatly.

Buy a licence

Licensing
is the essence of certain games and sometimes accounts for their market
power. The licence usually covers the entire “universe” (objects,
trademarks, characters, story lines). This applies in particular to
productions based on other works, such as films, books or comics, sports
(e.g. FIFA, NBA), racing (F1, Need for Speed), or simulators (Microsoft Flight Simulator).

In
the case of other games, placement of items from the real world is an
extra requiring realism but not essential to the production (e.g. action
or adventure games). Increasingly, the reverse situation occurs, in
which the producer of an item from the real world pays for developers to
place the item in a game.

Under Polish law, items appearing in
games are protected mainly through copyright. Real-world items depicted
in a game (e.g. furniture or clothing) may, but need not be, works
within the meaning of copyright law. A necessary condition is the
existence of originality and individuality. The object must be
innovative and original, not merely the repetition of a commonly
functioning idea, concept or design (see Poznań Court of Appeal judgment
of 31 December 2014, case no. I ACa 989/14.) Thus mundane or typical
items (such as a mug, a chair, a bottle or a window) will typically not
enjoy protection. But this issue should be approached with caution due
to the very liberal interpretation of the notion of a work adopted in
the Polish case law (for example, a marathon route and the design of a
typical graveside candle have been held to be works). Thus, as a rule,
placement of such an item in a game requires the consent of the holder
of the economic copyright.

Works presented in a game may also be
regarded as an elaboration (derivative work) of works existing in real
life, particularly in cases where multimedia conversion, e.g. texturing,
in itself is creative. By including such works in a published game, the
publisher essentially disseminates such works, and for commercial
purposes. Thus, as a rule, such action requires the consent of the
holder of the economic copyright.

Moreover, an item to be used in a
game may be protected based on industrial designs, or trademark if the
product displays a logo or designation of a business.

Public domain, open licence, permitted use

An
interesting solution, particularly in the case of productions set in
historical times, is to use works for which the economic copyright has
expired. Economic copyright generally lasts until 70 years after the
author’s death (or first dissemination of the work, if the author is
unknown), and after that time the work enters the public domain. This
may apply to such elements as weapons (e.g. swords), furniture,
costumes, and paintings. Museums are helpful in this respect, typically
labelling exhibits with notes on copyright (for example, it is possible
to check which exhibits at the National Museum in Warsaw have entered the public domain).

Another
option is to use works under an open licence, such as Creative Commons.
In that situation, however, it is essential to verify the precise terms
of the licences, in particular whether they include consent to
commercial use or to make elaborations.

There is an exception to
the requirement to obtain consent (to purchase a licence) under the
notion of permitted use. In Poland, this is governed by Art. 29²
of the Copyright Act, under which it is permissible to
“unintentionally” include a work in another work if the included work is
not material to the work in which it is included. This has to do
particularly with works “in the background,” or non-essential details.
The work is included only incidentally and is not relevant to the game
as a whole. This provision may thus be applied to incidental depiction
in a game of copyrighted elements of interiors (such as a table, window,
refrigerator or chair) or items of everyday use (toys, cigarettes,
telephone, food, clothing, etc).

This regulation is narrow but
essential. Considering the liberal interpretation of a “work” developed
in the Polish case law, it would be irrational to require creators of
games, films or photographs to obtain licences to show any background
elements. But it should be pointed out that due to erroneous
translation, the word “incidental” in Art. 5(3)(i) of the Copyright
Directive (2001/29/EC) was rendered in the Polish version and the Polish
act as “unintentional.” This term is interpreted in the Polish legal
tradition by reference to the subjective sphere (a person’s knowledge or
purpose). Such an interpretation would recognise permitted use only
when the game producer had no intention of including a depiction of a
copyrighted item in the game. In practice, showing a lack of intention
could be problematic. The original term “incidental” does not refer to a
state of knowledge, but to the nature of the use compared to the work
as a whole. Hopefully the wording of this provision will be corrected.

But
it is clear that applying this exception in the practice of game
development can be quite difficult, as in each instance it is necessary
to make an individual assessment, and any determination of whether a
given item is part of the background is bound to be largely arbitrary.
We may thus wonder whether it would constitute incidental use for
example to depict a certain model of automobile in a cutscene
(a non-interactive narrative sequence in a computer game), or to allow
the player to dress his avatar in a specific outfit or interact with a
designer refrigerator or chair. Thus in most instances reliance on
permitted use will arise only at the stage of defending against claims
and not at the stage of game development.

Humvee and the arms industry: an example from the American market

In a decision issued on 31 March 2020 in AM General LLC v Activision Blizzard, Inc., a federal court in New York held that it was permissible to depict the Humvee, a well-known American military vehicle, in the Call of Duty
video game franchise. Due to the peculiarities of US law, this ruling
cannot be carried over directly to European practice, as the finding of
non-infringement was based on freedom of speech (the First Amendment to
the US Constitution) and the fair-use doctrine. But the issue of
depicting real-world items in games is not new. In 2012 a case was filed by Electronic Arts
with a federal court in California seeking a declaratory judgment that
it was permissible to depict a Bell military helicopter in the game Battlefield 3. The
case was ultimately settled. In 2013, Electronic Arts announced that it
would cease paying royalties to arms manufacturers like McMillan Group,
while continuing to depict authentic models of weapons in its video
games.

Do it yourself: Gnocchi and Nuka Cola

As an
alternative to placement of real-world objects in games, developers
often decide to create their own. This has led to the development of
many products existing only virtually. Some have even gained cult
status, such as the Nuka-Cola beverage and Pip-Boy electronic gadget
from Fallout, the Railgun from Quake, N7 armour in Mass Effect, and the popular Halloween costume of Scorpion from Mortal Kombat. The developers of the Grand Theft Auto franchise displayed a sense of humour by creating an Italian luxury watch brand called “Gnocchi” for inclusion in the game.

But
this option also carries some risk, particularly the risk of crossing
the bounds of permissible inspiration. This could expose the developers
to a charge that the item is an elaboration of an existing work (i.e. a
derivative work). This applies in particular to items differing only
slightly from the original, which will be recognised by the audience.
Evidently, the gaming world includes many traps harder to evade than the
“boss” on the highest levels of the games.

Dawid Sierżant