Tuesday, June 12, 2007

The Sony vs. Church of England Legal Battle, Architectural Copyright

There has been quite the hullabaloo over the Church of England's response to the use of Manchester Cathedral in Resistance: Fall of Man.

As I don't yet own a PS3, haven't played Resistance, and am certainly not an expert in the laws of the United Kingdom, I will direct you to this account of the case. The Wardman Wire does a quite thorough job of explaining the UK legal issues involved.

Interestingly enough, the architectural copyright issue is becoming quite widespread in the US. Since the passage of the Architectural Works Copyright Protection Act of 1990, architects have been granted protection both for the plans and "the design of a building as embodied in any tangible medium of expression."

What does this mean for game developers? Well, if you put an exact replica of a real building in your game, the architect could come after you for infringement. Remember, a video game, like a photo or a film, is a tangible medium of expression, even if the building in it isn't a physical building.


William Ford said...

The scope of a copyright owner's rights in an architectural work includes an important limitation. Under 17 U.S.C. 120(a), "The copyright in an architectural work that has been constructed does not include the right to prevent the making, distributing, or public display of pictures, paintings, photographs, or other pictorial representations of the work, if the building in which the work is embodied is located in or ordinarily visible from a public place."

The depiction of a building in a video game is a pictorial representation. Thus, the owner of the building’s copyright should not prevail against a video game publisher who includes the building in a game without permission. No permission is needed. Nor is there a need to rely on the Copyright Act’s fair use provisions.

A relevant example is Project Gotham 3 for the Xbox 360. Many casinos apparently blessed their appearance in the Las Vegas portion of the game -- they are thanked in the credits -- and these buildings appear in the game with the relevant trademarked names on them. The Wynn, however, is identified only with the generic name “Casino” on the building rather than “Wynn” (if I recall correctly). Presumably, the Wynn people didn’t give their blessing. Maybe Steve Wynn doesn’t care for video games. In any event, if the Wynn sued Microsoft over the building’s appearance in PGR3, then section 120(a) should protect Microsoft. (Incidentally, I don’t agree that the Wynn has a clear right under the Lanham Act to keep the trademarked name out of the game, but this is another matter.)

The harder issue for the appearance of buildings in video games is what to do if a building incorporates a pictorial, graphic, or sculptural work, such as a stained glass window or a gargoyle (the standard examples), and the building, with the PGS work, is included in a game without permission. Stained glass windows and gargoyles are copyrightable under 17 U.S.C. 102(a)(5), but when such works are part of a building, the consequence of 120(a)’s limitation on the copyright owner’s rights is less clear. Unfortunately, there is little caselaw on this question. The most significant discussion is contained in the Ninth Circuit’s decision in Leicester v. Warner Bros., 232 F.3d 1212 (9th Cir. 2000) (the Batman Forever/Zanja Madre case).

Mark Methenitis said...

William, the PGR3 example is a good one for that particular limitation. However, I was thinking more along the lines of Resistance, where the work is incorporated as more than a background, but a three dimensional entity the game flows through. To me, there has to be a point at which it ceases being a 120(a) exception as an object the player can move through.

Take an office building. The lobby is open to the public, and that would arguably be fair game under 120(a). The maintenance corridors, however, are not. If a developer snuck down there, or reproduced them from the blueprint, I think there may be a case that it has crossed the line to infringement.

A slightly more complex matter is if a public area's blueprint is included as an in-game map. The blueprint is copywritten, and arguably the map would be a derivative of it. I think this is another arguable case for infringement.

Mark N. Barker said...

Enter the uphill battle the Church might have. The Church as a whole is readily open to public presentation, as a 3d structure.

Gamesindustry.biz has a good story that describes another attorney's perspective.

Copyrights also expire (and this applies to architecture as well) 70 years after the creators death, bringing the material in question to the public domain. Now the church owns this structure and the church (arguerably) created it, and the church never dies. So does that mean we have a case of a perpetual copyright? Would that work? Corporations can maintain trademarks and copyrights and what have you and they don't "die"...

I wonder? Insights at all for me?

William Ford said...

Mark M., I’m not sure why the outcome of a case involving a copyrighted architectural work in a video game should turn on whether the work is in the background, like the Wynn in PGR3, or in the foreground, like the Manchester Cathedral in Resistance. The relevant work in Batman Forever was apparently in the background (not that I really want to see it again to check), so that case may be factually distinguishable from a Resistance-type case, but I don’t think a background/foreground distinction for copyright purposes is supported by anything said in that case or anything contained in section 120(a).

Additionally, the limitation on a copyright owner’s rights in 120(a) is not confined to only the outside of a building. The limitation applies to an “architectural work that has been constructed” and an architectural work is defined in section 101 as “the design of a building as embodied in any tangible medium of expression, including a building, architectural plans, or drawings. The work includes the overall form as well as the arrangement and composition of spaces and elements in the design, but does not include individual standard features.” The work is the whole building, inside and out. Section 120 should protect the maker of pictorial representations whether the pictorial representations of the building are of the inside or of the outside and whether the representations are in the background or in the foreground.

The in-game map may be trickier. Assuming the maps are based on the building or pictures of the building taken by the video game maker, the in-game maps should also be pictorial representations of the building covered by section 120(a). Maybe I’m missing something, but this seems to work.

We could make the in-game map question more difficult if the map is based, say, on the copyrighted architectural drawings of the building. Suppose Microsoft decided to let players drive through the first floor of the Wynn in PGR3 and leave some tire tracks on the carpet, a small way of saying “thanks” for not wanting to be named in the game. Assume Microsoft sent people into the Wynn, and they took pictures of the public areas (without getting kicked out). Based on these pictures, Microsoft created the in-game graphics. If I’m right above, these images of the structural layout should be covered by section 120(a), despite being of the interior of the casino. (There are likely many PGS issues inside the casino, however.)

But further assume Microsoft added an in-game map of the Wynn's first floor based not on the pictures of the Wynn but on a set of architectural drawings available at Las Vegas City Hall. (I don’t know if these drawings are really available to the public.) Since the in-game map is copied not from the building but from the plans, the exemption in section 120(a) probably doesn’t apply. Microsoft needs some other argument.

While there are no doubt exceptions, in-game maps are often very simple outlines of the walls of the accessible portions of the buildings. I’m thinking of maps like the one in Rainbow Six: Las Vegas. I’m not sure what the map in Resistance looks like or even if there is one. But assuming a simple in-game map of the Rainbow Six type, what result? A resolution in favor of Microsoft might be based on the lack of substantial similarity between the very simple in-game map and the very detailed architectural drawings. See, e.g., Lifetime Homes, Inc. v. Walker Homes, Inc., 2007 U.S. Dist. LEXIS 30888 (M.D. Fla. April 18, 2007) (“If copying is proved, however, whether by direct or indirect evidence, ‘the plaintiff also must establish specifically that the allegedly infringing work is substantially similar to the plaintiff's work with regard to its protected elements.’”).

Of course, if you get judges who think any copying whatsoever of a copyrighted work is infringing, then this argument won’t work. See, e.g., M. Kramer Mfg. Co. v. Andrews, 783 F.2d 421, 455 (4th Cir. 1986) (“If there was clear proof of actual copying by the defendants, that is the end of the case.”). Cf. Johnson v. Automotive Ventures, 890 F. Supp. 507, 513 n.5 (W.D. Va. 1995) (trying to salvage the Kramer court’s (mis)statement of the law).

Sorry -- long response. Just kept adding more.