Copyright in video games

Question

I noticed in Assassin's Creed : Odyssey that they implemented a feature very similar to Shadow of Mordor's nemesis with mercenaries . By that I mean automatically and randomly generated ennemies with weakness and complex features.

This IGN article seems to confirm this hypothesis :

Game Director at Ubisoft Quebec, Scott Phillips, says the team “Wanted to have a system where the world was constantly living and constantly challenging” players, so they created a dynamic system of mercenaries within the world of Assassin’s Creed Odyssey, somewhat similar to that of Shadow of Mordor’s Nemesis system.Each mercenary has strengths and weaknesses and unique attributes ranging from animal companions and gear to high skill with a specific weapon, and while there are many hand-crafted mercenaries that can be found around Greece,they’re also randomly generated from a pool of modular fight moves and stories as a way to offer a more elite enemy for players to fight.

I was surprised to hear someone from Ubisoft admitting that the feature was similar to what someone else did in a previous game.

I found this American Bar Association article which explains that game rules are not copyrightable :

Section 102(b) of the Copyright Act states: “In no case does copyright protection for an original work of authorship extend to any idea, procedure, process, system, method of operation, concept, principle, or discovery, regardless of the form in which it is described, explained, illustrated, or embodied in such work.”1 In using the word “or,” the statute lists these exclusions—ideas, procedures, processes, systems, methods of operation, concepts, principles, or discoveries—disjunctively. Thus, each has independent force and effect. This means that neither ideas nor functional elements—such as procedures, processes, systems, or methods of operation—are copyrightable.

I won't lie, it is not clear to me even after reading the whole article what is copyrightable and what is not. I decided to look up one of the very best rip-off in history with Instagram's story system and I learnt that since IG's and Snapchat's story system were visually different, it was legally OK for IG to use it.

Could someone shed some light on the differences between software and video game copyrights, or globally anything that could help me understand how copyright works in the video game industry? Specifically whether it is "features" or "code" or something else that is usually copyrighted?

Answer 1

Video game copyrights are really not significantly different from book or movie copyrights. One of the most basic principles of copyright is that one cannot copyright an idea only the words and images used to express an idea. The question quotes 17 USC 102(b) which is the US law establishing this distinction. A Similar plot point or device is not a copyright infringement. Such common tropes as "budding romance obstructed by differing values" is not protected by copyright. Neither, I would think is this device of auto-generated characters in a video game.

One cannot lawfully copy or closely imitate the actual words or images or sounds in someone else's protected work (without permission). That is the essence of copyright. (There are limited exceptions such as fair use / fair dealing.)

What complicates this and confuses many is the concept of a derivative work. When a character or setting is described in significant detail, a detailed, point-by-point imitation of that setting may be enough to make the newer work "based on" the older work, and thus a derivative work. Unauthorized sequels are often held to be derivative works, for example, or unauthorized "guest appearances" in which a well-know or clearly established character from one work is used in another. If a modern detective goes into partnership with Sam Spade, say, or if Spiderman should be an important supporting character in a newly written novel. Similarly a new fantasy set in Tolkien's Middle-Earth or a new comic in Gotham City would probably be derivative.

One of the things protected by copyright is the right to create or authorize derivative works, and courts have held that use of a distinctive character an make a work derivative. But for this to apply the character must be distinctive and recognizable. A general type, such as a detective or superhero (or a large city) is not enough; there must be sufficient imitation to make it clearly the use of a character or setting from a copyrighted work, with a detailed, point-by-point similarity would be needed.

A game feature such as this "mercenaries" concept would not make another work using it a derivative work, or at least I don't think it would. But ultimately such decisions are made by a court when and if a copyright holder sues an alleged infringer. Whether a work is derivative or not is a very fact-based decision, and so the exact specifics of the case may well matter.

If one is considering imitating some general feature of a previous work, it may be wise to consult a lawyer with IP expertise. I am confident that a major game developer or book publisher would have a staff lawyer to review such questions.