Video game designers often place the narrative of their games in contemporary or historical times. This requires them to base elements in the game on items familiar from the real world, such as vehicles, clothing, jewellery, weapons, foods and electronics. Can such depictions be freely used in games, or is consent required?
This is a crucial business question, and a mistake can generate significant legal risks for a game’s producer and publisher. It includes the risk of claims by owners of rights to depicted items, as well as contractual risks arising out agreements between producer and publisher, or distributor and console manufacturer (in various configurations, depending on the business model). The risk grows for AAA titles generating high sales all around the world. This situation is not helped by the major differences between the legal systems in the largest video game markets (the US, China, Japan, South Korea, Western Europe).
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.