Some snags this week for users of Guitar Hero World Tour’s Creation mode.
User-created versions of existing, copyrighted songs are disappearing. This comes as no surprise, as Blactivizzion warned that content would be monitored for infringement. That being said, I think there is a significant legal argument to be made that what people are creating in World Tour is not copyright infringement per se.
A little law first, from the U.S. Copyright Office:
One of the rights accorded to the owner of copyright is the right to reproduce or to authorize others to reproduce the work in copies or phonorecords. This right is subject to certain limitations found in sections 107 through 118 of the Copyright Act (title 17, U. S. Code). One of the more important limitations is the doctrine of “fair use.” Although fair use was not mentioned in the previous copyright law, the doctrine has developed through a substantial number of court decisions over the years. This doctrine has been codified in section 107 of the copyright law.
Section 107 contains a list of the various purposes for which the reproduction of a particular work may be considered “fair,” such as criticism, comment, news reporting, teaching, scholarship, and research. Section 107 also sets out four factors to be considered in determining whether or not a particular use is fair:
1.) the purpose and character of the use, including whether such use is of commercial nature or is for nonprofit educational purposes;
2.) the nature of the copyrighted work;
3.) amount and substantiality of the portion used in relation to the copyrighted work as a whole; and
4.) the effect of the use upon the potential market for or value of the copyrighted work.
Making your own version of the Green Hills Zone available for free download in GHWT is not “commercial”, at least for users. You don’t expect to realize a dime on it. Blactivizzion, however, may.
Kotaku is reporting that the company is considering a fee-for-service model for user-created content. That sounds like foul play, as users were not warned about this possibility before buying the game. Why should we create content for the company to sell and not realize a dividend? And what, then, is the effect of the use of these tunes on the potential market for the copyrighted work? I would think it would encourage people to enjoy the original, whether that be playing Sonic or picking up a song on iTunes. These three “instrument” versions of songs are NOT the original. The nature is substantially different. No one is going to mistake your lyrics-free version of Bohemian Rhapsody with Queen’s magnum opus. And no one who wants to sing along with Freddie is going to miss their chance to do so with the actual song.
The implications for your own creations of original material are different, and possibly worse. If Blactivizzion does what they are proposing, you will be creating new music and handling them the licensing fees. Moreover, it is unclear how this structure would affect your own copyrights in the future. All in all, this seems bad bad bad bad and bad. Fun, fairly used tunes are being taken out of play and it seems that they are to be replaced by play-for-play wholesale acquisition of your music. It’s enough to make me want to stick to Rock Band.
Excuse me now, I’m going to exercise my right to reproduce this piece over at GamesLaw.net.