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The Player Authors Project looked at the intersection of copyright law and user-generated content. The results of the work are now available online.

Greg Lastowka, Blogger

December 12, 2013

8 Min Read

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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Greg Lastowka


Greg Lastowka is a Professor of Law at Rutgers School of Law-Camden and a co-founder of the Terra Nova weblog. His research focuses on the laws of intellectual property and new technology. You can find him on the web at http://lastowka.rutgers.edu/

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