In a time long long ago, fans of certain fictional worlds portrayed in games or on television were relegated to relative obscurity. User generated content was generally confined to a well-crafted Klingon warrior outfit, the occasional love sonnet written in elvish, or a meticulously crafted sculpture of a twenty-sided die; however, the internet and the relative affordability of production software, including sophisticated movie editing platforms, has given these fans the ability to burst from their shadowy meeting places and into the World Wide Web’s limelight.
A recent article published by the BBC News, details one game studio’s difficulty in addressing the modern fan’s ability to create new content. Games Workshop, which owns the intellectual property rights to the popular Warhammer 40,000 universe, was recently confronted with a fan contribution that did not just supplement the universe, but usurped it. Huan Vu, along with a group of other fans, directed and produced a full length film based upon Warhammer 40,000 at a cost of 10,000 euros.
The movie potentially infringes upon Game Workshop’s right to create derivative works as a copyright holder of the Warhammer 40,000 universe. In the United States, a work may be considered derivative if it is based upon a preexisting work, such as a motion picture based upon a novel or any other form in which a work can be recast, transformed or adapted. Literal infringement is not an infringement of the right of adaptation. In order to avoid a copyright infringement, the creator of the derivative work must obtain the permission of the underlying work’s author or other copyright claimant. As a result, the underlying work’s author may elect to grant the derivative work’s author licensee status or acquire the entirety of the rights to the work.
Games Workshop’s attempts to acquire the right to the film may have been stymied by a wrinkle in German copyright law, which makes certain rights impossible to divest from the creator of the work. This doctrine is generally known as le droit moral or "moral rights." Moral rights enjoy substantially greater recognition in Europe than in the United States, and generally include the right of attribution, the right to prevent others from making deforming changes to the work, the right to publish or withhold from publishing a work, or even the right to withdraw a work when it no longer represents the views of the author. Moral rights in the United States are substantially more limited in scope, generally only offering protection to the visual arts, and are subject to the vagaries of a patchwork of conflicting legal decisions and state statutes.
The intricacies of moral rights might have complicated Games Workshop’s attempts to acquire the user created movie, particularly the potential ramifications stemming from the release of a movie making use of their copyrighted material that they do not possess full rights to. While Game Workshop’s reasons are unclear, the impossibility of acquiring all rights to the film, including certain inalienable moral rights, may have played a roll in their decision to ban its release. The idiosyncrasies of this particular dispute does raise broader questions for the appropriate role for works created by devoted fans.
User generated content has burgeoned into a massive empire of blogs, podcasts and movie clips. This content supplements and refines the visions of the games and movies these fans adore. Often, the producers of the original content support these efforts by attending conventions, holding contests, or even going so far as to assist in the production of the fan’s content. For example, Halo 3, a video game which was recently released for the Xbox 360 gaming system, contains a film option that allows players to capture their favorite clips from the game and share them with friends. Blizzard Entertainment recently held a contest rewarding the best pumpkin carving detailing a scene from one of their well–regarded Warcraft, Diablo, or Starcraft games. These fan contributions have been generally viewed as innocuous or even beneficial to the development and advancement of the original provider’s intellectual property, but new concerns are being raised as the contributions grow in scope and sophistication.
While the German copyright framework involved in the Games Workshop matter differs from the copyright laws in other parts of the globe, the issues confronting Games Workshop illustrate potential problems for all owners of popular entertainment brands. At what point does a work of fan fiction pose a threat to the intellectual property rights of the owner? There are currently over 1,000 clips relating to the Warhammer 40000 universe on youtube.com, are any of these threats to Game Workshop’s rights? Does Game Workshop’s failure to force the removal of these clips amount to tacit acceptance of clips and their usage of protected intellectual property? Clearly a feature length film is most likely an unacceptable violation, but where should the line be drawn?