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The Player-Authors Project
by Greg Lastowka on 12/12/13 02:14:00 pm   Expert Blogs   Featured Blogs

The following blog post, unless otherwise noted, was written by a member of Gamasutra’s community.
The thoughts and opinions expressed are those of the writer and not Gamasutra or its parent company.

 

I teach intellectual property law at Rutgers.  Part of my scholarship over the last ten years has focused on the intersection of copyright law and user-generated content.  User-generated content is an ambiguous term, but it is usually defined as popular non-commercial creative production, usually in the context of an online platform.  So, for instance, amateur YouTube videos, tweets, fan fiction, photo sharing, and blog posts (like this one) are all described as forms of UGC. 

As Gamasutra readers know, UGC is a growing trend in the game industry -- here's a talk from GDC Europe 2012 about UGC by Craig Zinkievich from Cryptic Studios.  As Zinkievich points out in his intro, UGC has actually been part of video game design from the early days -- e.g. Pinball Construction Set (and the even earlier days when PC users wrote their own game programs). In the past, I have written about UGC and copyright in the context of virtual worlds and Minecraft, including a feature here on Gamasutra.

However, I have always felt that discussions of UGC and copyright law suffered from a serious flaw.  While there are many excellent popular books on the phenomenon of UGC (see, e.g., Larry Lessig's Remix), legal scholarship on UGC so far has lacked one key feature: data.  Most accounts of UGC tend to lump together 3-D printing, fan fiction, blogging, photo-sharing, and video games into one vast stew of remix creativity, and arguments about UGC and fair use generally proceed by looking at particular lawsuits (e.g. Marvel's lawsuit against City of Heroes, or J.K. Rowling's lawsuit against the Harry Potter Lexicon).  There's nothing wrong with talking about copyright and Girl Talk, but I don't think our legal policies should be based on anecdotes.  We need some better (legal) data.

So, with a generous grant from the National Science Foundation, I put together a team of law students and other researchers to analyze the copyright law implications of user-generated content.  Our work focused on many aspects of UGC and many types of UGC (we did look at 3-D printing and fan fiction), but one major component of the research involved game-based user-generated content. 

Our Report is available here.

The Report weighs in at 160 pages or so, which may be a bit much, so here's a brief summary.  The project had three main components:

  • First, we did an extensive review of legal writing on user-generated content, as well as game studies publications on point, to determine the dominant policy concerns about UGC and the extent to which prior work provided data about UGC practices.  We used this research to frame the next two components.
  • Second, we employed random sampling techniques to obtain snapshots of UGC production on a range of UGC platforms, including photo-sharing sites, a 3-D printing site, sites for sharing visual artwork, and a variety of game-related UGC sites. The team sampled the outputs of thirty content populations on sixteen distinct platforms. The collected samples were then described along several dimensions, including an analysis of the potential copyright implications of each item sampled.
  • Third, the research team conducted two online surveys. One survey was taken of a population of 411 video game players. Another survey was taken of 46 video game industry professionals, including game developers. Both surveys sought information about the nature of participant UGC practices, opinions about UGC, and motivations for creating UGC.

While I can't possibly summarize all the data in the Report, I can offer a few highlights that might be of interest to game developers.

Platform Samples:

Here's a taste of some of the data we collected with respect to avatar UGC on various platforms.  What you see here is that the most popular ModNation Avatars tend to be highly referential to copyright-protected works, whereas fairly few recently uploaded Spore avatars were recognized as referential.  The "Int. Ref." coding indicates that avatars were "internally referential," that is, they were related to the IP of the platform provider.  The "Pub." coding means the avatar was recognized as referential to a celebrity. For a fuller interpretation of what the various fields mean, you'll need to consult the methodology section of the Report.

In short, though, here is what we found:

  • As the chart above shows, the copyright implications of UGC populations vary significantly from platform to platform. While almost all UGC practices raise some copyright issues, referential practices on popular platforms vary widely, even within specific genres of UGC (e.g. avatars).
  • The majority of UGC on most platforms we surveyed appeared to be wholly original and non-infringing. You can see this in the data on the avatar populations above. Very little “piracy” (copying of original works wholesale) was noted. If the populations we surveyed are representative of UGC generally, UGC practices should be understood as primarily generative of original works of authorship rather than primarily a form piracy or the creation of derivative works. 
  • In populations where we examined recent UGC production, referential practices did not generally correlate with increased popularity of the items sampled. However, our samples of UGC with the highest levels of popularity tended to exhibit significantly higher levels of referential practice. In other words, the works that were the most popular were more likely to be fan (derivative) works.  (Again, that's pretty clear above -- the bolded and italicized populations are the "popular" subsets.)
  • A surprisingly small fraction of the UGC surveyed constituted “remix” creativity of the sort that criticized or parodied a referenced work. Scholarship on UGC often celebrates parodies, but the majority of fan works did not criticize the referenced original.  (This is not good for fair use analysis, but I don't think it is dispositive of the issue.)
  • Simple and less flexible UGC tool sets seem to correlate with a decrease in copyright issues. Conversely, more flexible tools and “denser” forms of authorial production correlated with higher levels of copyright issues.  Machinima and "map" content, for instance, tended to exhibit higher levels of referential activity.

Player and Game Industry Surveys:

There were a couple things about the surveys that I thought might be particularly interesting to Gamasutra readers. 

First, in one of our questions, we asked our 411 player respondents to rate, on a 1-5 scale, how important creative tools were to their enjoyment of a game.  We also asked our 46 industry respondents a mirroring question, basically having them predict how the players would respond.  Our results are displayed in the chart below.  Our industry respondents  underestimated how much players valued access to creative tools.  (I'm sort of curious as to why this is the case and would be interested in any thoughts you might have.)

Second, the narrative responses on pages 140-149 of the Report were really interesting. There is, apparently, not very much "groupthink" among our industry respondents about questions of IP, fair use, and user-generated content.  For almost every question, we seemed to have an equal level of conviction on the pro and con sides of the UGC debate. 

To take just one example, we asked respondents the following (optional) question: “As a creator of game content, how would you feel about people using your creative content in other games?”  Of those that responded, 18% were unequivocally enthusiastic about the reuse of their work in other games:

  • “I would actively encourage this.”
  • “I would openly encourage it.”
  • “Bring it on! Cross promotion FTW.”
  • “I think it would be flattering…”
  • “I would have no issue.”

However, 18% were a lot less enthusiastic:

  • “If it worked better in other games and I lost sales because of it, I'd be pissed.”
  • “[C]ompletely unacceptable. Game development is not some form of free art done solely as a hobby, but a profession people pursue to earn money. The generated content for games is exclusive to these games - re-using them for other game projects is the digitally creative counterpart to theft.”
  • “This would be a little frustrating... If somebody wants to modify my work because they love it and want to go further, great. If they want to use my work to make money, less great.”
  • “This I think is a problem. If the content was greatly modified then that may be acceptable, but taking content wholesale and placing it into another game is not appropriate. Companies cannot do this, and so players shouldn't be able to do this.”

On related issues, there seemed to be similar sharp divides among respondents.  Practices that were seen as desirable by some respondents were seen as completely unacceptable by others.  Given that most of our industry respondents believed that UGC is a growing trend in game development, it seems we may be in for some interesting times ahead.

Other highlights of the survey data:

  • A large number of video game players create and enjoy UGC, though only about half of players have shared their creativity with other players online.
  • Players engage in a wide range of creative practices with respect to video games and have a wide range of motivations for doing so. UGC practices and motivations differ substantially according to variables such as age, education, and gender.
  • Players who prefer to use personal computers, as opposed to gaming consoles, generally have a higher level of engagement with UGC.

We'd be happy to receive feedback on the Report if you have it, as well as suggestions for further analytical work that we might do with the data we have gathered.  Contact info is available on the last page of the report, or you can comment below.

Again, Report is available here.

p.s. And thanks to all the readers who participated in the surveys!

p.p.s. Also I want to thank RIT's MAGIC for inviting me to present this reseach last week.  My Prezi slides from that talk are here.


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Comments


Michael Eilers
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What an excellent (if massive!) resource, really an exhaustive view. I pitched a book about LittleBigPlanet as a level design teaching tool to Cengage just before the game was released, and after the first few controversies with LBP content (everyone duplicating Metroid, World 1:1 from Super Mario, Contra, etc.) suddenly Sony legal went very quiet and eventually refused to allow us to use screen shots from the game in the book, which scuttled the entire project. The ambivalence about imitation being theft vs. being flattery extends beyond the game creators to the publishers and fans of a given IP.

Greg Lastowka
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Thanks! Yeah, LBP is really incredible, especially with the new affordances in LBP2. I wish you had written that book! I looked around for some good data on how/what Sony deleted during their early purges of LBP levels, but everything I found was anecdotal. I thought it was interesting that in our sample set, many of the popular LBP fan levels referenced games available o the PS3 platform.

Also, I think you probably could use LBP screenshots in a book without Sony's permission. An RA of mine actually wrote up a memo on point:

https://www.academia.edu/4971794/MEMORANDUM_TO_FILE_Re_The_Use_of_ Video_Game_Screenshots_in_Scholarly_Publications

The problem, though, is that book publishers tend to be sort of skittish about relying on fair use -- part of my hope is that the memorandum might help educate them about the case law that is on point.

Michael Eilers
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Yes, in this case it was the publisher who did not want to go forward without an explicit writ of permission - I was perfectly willing to proceed and claim fair use, especially since this was a textbook by design.

Kaitlyn Kaid
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"What players do with user generated content, and why"

Usually what I see them do is make giant... "body parts".

Greg Lastowka
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That's what I heard from developers before we started this work, but in our sample sets, it turned out that this sort of UGC (we coded it as "indecent") turned up only in Second Life content, pretty much. It's possible that it was present on the platforms but at a very low frequency -- maybe 1 in a 1000 items, if that. It's also possible that all the platforms were screening incoming content for indecency before posting, but I doubt that was the case with *all* the platforms. Some didn't seem to have that sort of monitoring apparatus in place for incoming content.

Of course, as I noted in the Report, it could also be that concerns about this sort of UGC are so high because the intuition is that just one giant body part (distributed to thousands of subscribers) could tank the reputation of a whole game platform...

Ursula Brand
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From my experience I can say that usually the modder community is really fast in reporting indecent content, especially in games with an E or T rating.

As Community Manager you are quite often confronted with giant body parts and are responsible for hiding/removing them. ;-)

Nick Harris
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I tried asking New Media Rights this question, but they could only advise on US copyright law. Sony must have felt that they were at risk for hosting potentially copyright infringing Little Big Planets on their servers, but I thought I may have devised a workaround where I just introduced players to each other's websites which they had later put whatever content they felt like sharing with the community as a modification to a procedurally generated planet whose location they then published with a url pointing back to their website containing all their detailed changes.

As I wouldn't be hosting potentially infringing content, or even maintaining a catalogue of 'pirate' planets, I hoped it would decentralize any overzealous IP holder's legal attack as they would have no grounds to shut me down, or sue me for infringements I was not responsible for even communicating, as well as making it not worth their while to persecute what would probably only amount to not for profit pastiches of popular sci-fi series.

Unfortunately, I still have no idea where I stand on this vexing question, undermining a collaborative endeavour.

Greg Lastowka
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Nick, our report also focuses on U.S. copyright law. Linking to infringing content is a gray area in most jurisdictions. There are some U.S. cases that prohibit linking to infringing content, but most of those require some heightened intent requirement:
Here's a brief overview:
http://www.chillingeffects.org/linking/faq.cgi#QID152

Kyle Redd
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When reading the negative responses from game developers when they were asked “As a creator of game content, how would you feel about people using your creative content in other games?” - I felt that question could have been worded a bit better.

I believe these two responses you highlighted indicate that the person answering the question may have misunderstood what you were asking:

“[C]ompletely unacceptable... Game development is not some form of free art done solely as a hobby, but a profession people pursue to earn money. The generated content for games is exclusive to these games - re-using them for other game projects is the digitally creative counterpart to theft.”

and:

“This would be a little frustrating... If somebody wants to modify my work because they love it and want to go further, great. If they want to use my work to make money, less great.”

As I understand it, your study was solely regarding UGC that is created entirely by players and distributed 100% for free. But those two survey takers seem to have thought that you were asking if it would be ok for other *developers* to use copyrighted content in their own commercial projects (in the first response), or that you were asking if players should be allowed to seek money for UGC they had created using another game's assets (in the second response).

Am I mistaken on what elements of UGC you were investigating with this project?

Greg Lastowka
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Hi Kyle,

That's right -- many if not most developers would like to draw the line at commercial exploitation. In other words, as long as people are not making money from remix works, they're at least not inclined to bring a lawsuit. What is interesting is that copyright law's "fair use" doctrine does not currently make such a clean distinction between commercial and non-commercial uses of content. What's also interesting is that uses that are "non-commercial" from the perspective of the player can be "commercial" from the perspective of the platform owner, in that the platform owner can retain subscribers and improve its product by virtue of the non-commercial work of UGC authors. Several of the industry respondents pointed this out.
The industry survey bit is pretty short and it's toward the end of the report if you want a fuller sense of what we were asking and the nature of the replies.


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