Cover Songs and Donkey Kong: The Rationale Behind Compulsory Licensing of Musical Compositions Can Inform a Fairer Treatment of User-Modified Videogames

June 16, 2012

The formative jurisprudence on the modification of video games came when copyright recognition of computer software was itself quite recent, when the level of creative “expression” in the altered videogame was meager. Consequently, modded games are currently held to be derivative works and infringement of the copyright of the originals. A determination of fair use shouldn’t be determined by the existence of any potential market for a license; rather it should be determined by the existence of a fair license that actually meets the market and expression needs of the particular group of individuals whose use of copyrighted material is being challenged. This paper argues that the rationale behind the music industry’s compulsory licensing system can better guide courts in evaluating whether the creations of modders should qualify as a fair use of a game’s underlying copyrighted software.
Analogous to cover musicians, videogame modders are amateur programmers who modify (or “mod”) commercially released videogames, ultimately creating entirely different experiences for the player. Just as music publishers sign artists based on their demo tapes, game development companies often hire these amateur programmers based on the success of their mods. Because of these and other similarities, a compulsory licensing scheme would theoretically be a perfect match for videogame mods because it gives digital artists the freedom to produce the new creative works that the copyright system was intended to promote, and because the two groups of artists share analogous creative incentives, lack of negotiating power, and had their copyright ownership rights determined amid the chaos of applying copyright law to a new medium.
This scheme brings ex ante predictability to the fair use doctrine in the eyes of the courts and modders by treating the absence of a fair license for videogame mods as a market failure.