Creators vs IP Holders: Who’s Right?

When IP Holders defend their products, Creators can get crushed.

Fans show their enthusiasm for their favorite video games in a variety of ways. From cosplay to art to Nintendo-themed rooms, the countless ways to demonstrate your gaming pride is limited only by your imagination.

Or is it?

What happens when fans cross the line and endanger the intellectual rights of companies? How much freedom should fans have when it comes to their creativity and how far should companies go to protecting what’s rightfully theirs?

The GTA Incident

PHOTO CREDIT Venture Beat

Earlier this month, Open IV was shut down for creating mods for the GTA series on PC. After nearly ten years in operation, gaming publisher Take-Two Interactive slapped the modding company with a cease and desist, claiming the program allows “…third parties to defeat security features of its software and modify that software in violation Take-Two’s rights.”

Open IV creator GooD-NTS fired back, stating, “Yes, we can go to court and yet again prove that modding is fair use and our actions are legal… but we decided not to. Going to court will take at least few months of our time and huge amount of efforts, and, at best, we’ll get absolutely nothing.”

Companies need to protect their intellectual property. They also have deep pockets, meaning they can drag “the little guy” through legal hell and essentially bankrupt them before they even get a chance to prove their case in court. However, in modern times, Creators now have a powerful ally on their side: Social media.

When Take-Two took action against Open IV, the internet exploded. Thousands of comments appeared on Twitter and message forums alike, all attacking Take Two for their actions.

PHOTO CREDIT Kotaku

Since then, Take Two seems to be backpedaling from the incident. Late last week, Rockstar Games posted some clarification on their stance on mods on their website:

“Rockstar Games believes in reasonable fan creativity, and, in particular, wants creators to showcase their passion for our games. After discussions with Take-Two, Take-Two has agreed that it generally will not take legal action against third-party projects involving Rockstar’s PC games that are single-player, non-commercial, and respect the intellectual property (IP) rights of third parties.”

Since the announcement, Open IV appears to be coming back online.

But a second look at Rockstar’s statement, Take-Two has agreed that it generally will not take legal action against third-party projects, may imply that Take-Two is still legally pursuing Open IV.

And they may have to.

PHOTO CREDIT GTA Forums

According to BetaLaw, “…the failure to take action in the face of widespread infringement could significantly impact a mark owner’s rights.” Meaning, if Take-Two does not legally pursue those who infringe greatly on their products, then the trademark can be considering “abandoned” and ceases to be their property.

All this brings about a bigger question, however. Where does intellectual property end and creative freedom begin?

Creators vs. IP Holders

The Michigan Telecommunications and Technology Law Review spoke specifically about gaming copyright and modding, stating, “The law, as it currently stands, is not well-equipped to deal with community-generated media based on existing copyright.”

Some claim that modding is transformative art, allowing Creators fair use of existing copyrighted material. But what is the legal definition of transformative art when it comes to video games?

Should Capcom go after everyone who writes fan fiction of Resident Evil? Or what about this guy, who crafts video game inspired coffee tables? Should he be shut down for licensing issues?

My neighbor makes these video game coffee tables

What are your thoughts? Comment below.

Featured Image Credit: imgur.com

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