Video Game Modifications between IP Theft and Promotion: Recent Developments

Mark Kretzschmar
Visiting Lecturer, University of Wyoming Honors College

Mel Stanfill
Assistant Professor, University of Central Florida

If we were asked what we would like our readers to take away from our article, it would be that the Skyrim modification (mod) that turns dragons into wrestler Macho Man Randy Savage is still hilarious. Joking aside, the current modding landscape both bears out the model we developed in ‘Mods as Lightning Rods: A Typology of Video Game Mods, Intellectual Property, and Social Benefit/Harm’ and suggests new research directions.

Video game mods—noncommercial labors of love created by amateur video game designers who wish to alter, build from, or remix games that are other people’s intellectual property—comprise a broad spectrum of changes to games. They can enhance perceptions of user agency and enjoyment by providing more options than the base game, for example. Some successful mods have even become their own video games, as was the case with Counter-Strike (1999), which was a mod of the 1998 game Half-Life (which modified the underlying game engine of 1996’s Quake). Although it is rare, some successful mods are even entry points for talented amateur designers to enter the video game industry as they are hired by the company whose game they have modded. Mods also bolster the sense of community for online groups around games.

However, because modding uses intellectual property to which modders do not hold the rights, it could be argued that it is copyright infringement. Others might argue that mods transform the original text for the purposes of commentary or criticism, are noncommercial, and do not impact the market for the copyrighted work, and therefore constitute fair use under US law. This tension begins to suggest how modding can also be a legal (and cultural) tinderbox, prompting legal action if the IP rights-holder feels threatened.

In ‘Mods as Lightning Rods’, we attempt to taxonomize video game modifications based on their value and/or harmful impact. Our aim is to classify mods by when they are positive for modders, video game corporations, both, or neither. In the time since our article went into production, the modding landscape has already shifted. Here we discuss some of these updates, and how they bear out our model.

Our model considering benefit and harm to both video game corporations and consumers helps make sense of contemporary video game news that is variously encouraging, disturbing, and bizarre. In our article, we discussed the fan game Streets of Rage Remake (2011), based on the hit beat-’em-up series Streets of Rage for the Sega Genesis (1991-1994), as an example of user-generated content that can enhance user experience and potentially revive a dormant franchise despite not receiving permission from the IP rights-holder. While the game was praised by fans, this positive reception was short lived, as Sega issued a cease-and-desist notice to the developer shortly after the game was released, declaring it infringement of their copyright. However, Sega announced Streets of Rage 4 shortly after our article was accepted for publication. Although we have no way of knowing if the buzz surrounding Streets of Rage Remake in 2011 factored into this decision several years later, it is encouraging that some video game corporations will revive dormant products if there is a demand for such products, which mods can help to demonstrate—legally or not.

Another recent development was the trailer release for the Elder Scrolls mod “Skyblivion”, which is a reimagined take on the series’ fourth installment, Oblivion, using the game engine of the following game, Skyrim. For its part, the games’ maker, Bethesda, has usually been quite supportive of its modding community, not pursuing lawsuits. Although a cynic might argue that since these video games are often released with bugs which modders patch more quickly than official releases, the company offloads some of its work onto modders. Nevertheless, as The Elder Scrolls VI, while announced in 2018, is still in the early, secretive stages of development, modding projects like “Skyblivion” provide Bethesda an opportunity for their games to remain in the public consciousness while also granting fans of the series incentive to try something new, benefiting both parties.

Unfortunately, there are also recent trends in mods that are more disturbing than anything we analyzed in our article. As neo-Nazi subcultures rise on the Internet, thanks in large part to xenophobic, white nationalist, and alt-right movements, it was perhaps inevitable that there would eventually be Nazi mods. Fortunately, no video game corporation to date has embraced this community.  Neo-Nazis even complain that games like Wolfenstein: The New Colossus are anti-white, despite the fact that the series has always centered on overthrowing an oppressive Nazi regime in an alternate universe. However, modding games so that they include such content is currently fair game, especially in revisionist history simulators.

Although such mods present a clear potential for social harm, and we would like to say that they threaten the industry’s reputation, some corporations have taken a “wait and see” approach to decide if the mods are offensive—and should use their legal remedies—or creative outlets of expression–and they should let them continue. The “Millennium Dawn” mod for Paradox Studios’ Hearts of Iron IV falls into this category. While the base game allows gamers to revisit the politically unstable years leading up to World War II, this mod allows gamers to play the game using more contemporary issues (Islamic extremism, the rise of the Green Party, etc.), which has produced a festering breeding ground for Nazi content. Even if this turn of events was not the original modder’s intent, many subsequent users have appropriated the mod for nefarious purposes. To their credit, the modder continues to try to stamp out this racist content, but it remains a problem that would require assistance from Paradox to fully remove—and thus far they have not taken action.

Last but not least, other recent modding developments are in such gray areas of social and legal analysis that gamers do not know who to root for. For example, there are now Grand Theft Auto 5 mods that feature the Avengers from Marvel Comics, which, although certainly creative, raise the question of whether or when either Rockstar or Disney might step in to reclaim their intellectual property. The situation is even murkier given that some of these mods are hidden behind pay walls on crowdfunding site Patreon, and thus are no longer noncommercial, removing one of the key arguments for why mods should be seen as legal under the fair use doctrine in United States copyright law.

Nevertheless, it should also be noted that, for better or for worse, some corporations encourage the practice of modding. In our article, we considered the way Bethesda has encouraged mods through providing support in the form of its Creation Club, which pays modders if their proposals are accepted, financed by charging users to access these mods. Fallout 4 still gets occasional official patches, but Skyrim’s last official patch was released in 2018 for the VR port, indicating that there is less of a need to funnel valuable resources to improve the quality of the game since the base game was released eight years ago. It is worth noting that the Creation Club does not allow already-existing mods to be retrofitted into their business model, as Bethesda has called for only original content. However, as the Creation Club becomes more integrated with series like Fallout and Elder Scrolls, the new strategy seems to be to no longer call these user-generated creations “mods”, and instead refer to some of them as official content. By doing this, fans are asked to pay for products that modding websites would provide for free. Additionally, there is some confusion as fans can access the Creation Club on the game distribution platform Steam, but Steam also has its own free mod service called Workshop. Is this the new normal, or will more backlash force these companies to return to the earlier unpaid model? At present, the outlook is unclear.

We concluded our article by suggesting three possible outcomes: that nothing will change with mods, that publishers will find more ways to commodify mods, or that savvy programmers will find ways to wrestle some control away from powerful video game companies. We have seen examples of all three possible paths, but it is still far too early to suggest who will control mods. Having said that, it is nevertheless the case that in January 2019, Japan made console modding punishable by prison and fines, a much harsher penalty than the Digital Millennium Copyright Act imposes in the US context we studied. This development could have significant consequences going forward given the globally interconnected nature of video game fan communities.

Ultimately, our model of considering benefit and harm in assessing when rightsholders will choose to take action over mods continues to be a productive way to explain these more recent developments, even as the shifting contours of the modding landscape show that there is much more work to do on social, cultural, and legal studies in mods.

This blog follows the publication of M Kretzschmar and M Stanfill ‘Mods as Lightning Rods: A Typology of Video Game Mods, Intellectual Property, and Social Benefit/Harm’ (2019) 28(4) Social & Legal Studies 517-536.  The paper is free-to-read for a limited time at the link below (correct as at 09 October 2019).

https://doi.org/10.1177%2F0964663918787221

Mark Kretzschmar is a Visiting Lecturer at the University of Wyoming Honors College. Kretzschmar holds a PhD in Texts & Technology from the University of Central Florida. Kretzschmar’s current research emphasizes games studies, particularly the intersections exploring the symbiotic relationship between gamers and designers. He studies perceptions of agency and control in video games, the commodification of video game mods, and the roles video game genres play in discussions about gamer culture, gamer perceptions of control, philosophy, and marketability.

Mel Stanfill is an Assistant Professor with a joint appointment in Texts & Technology and Games and Interactive Media at the University of Central Florida. Stanfill holds a PhD in Communications and Media from the University of Illinois, Urbana-Champaign. Stanfill’s research on media industries and their fans has appeared in venues such as New Media and Society, Critical Studies in Media Communication, and Cinema Journal.

 

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