Video game avatars: Who owns them, game players or developers?

The dilemma of avatar ownership arises from its possible status as a copyrightable 'work of authorship' as well as the degree to which the game creator and user contribute creatively to that authorship.

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LERROY Jenkins, a video game player's online avatar, gained notoriety after a series of events wherein he ditched his companions and led to their slaughter merely to guarantee his triumph. This notoriety was cleverly appropriated by the gaming company by molding the avatar into memes and various game-related products. 

The catch is that Jenkins was not the brainchild of the company, rather he was engendered by Ben Schulz, a player of Blizzard Entertainment's World of Warcraft, using the character-creation engine provided by the company to create or customise avatars. This dependence of an avatar on both the developer and the player raises questions of 'ownership' of the avatar. 

Both users and game creators have significant influence over how avatars materialise in digital world of games via their assembled components. Developers create basic platforms and then build on that infrastructure to create dynamic programming that enables movements, appearances and abilities. 

The players exhaust the potential of these 'game mechanics' and bring avatars to life by clicking on them, customising their bodies and apparel, and controlling their behaviors and interactions.

Copyrightability of an avatar

The definition established in § 102(a) of the Copyright Act of 1976 (United States) provides that "Copyright protection subsists … in original works of authorship fixed in any tangible medium of expression." This notion of copyright specifies two fundamental requirements— originality and fixed form. 

In the case of Feist Publications, Inc. versus Rural Telephone Service Co. the court adopted "minimum level of creativity test" while attempting to define 'original' as "a work [that] is independently created and contains a minimal (even slight) amount of creativity."

It should be further noted that in order for an avatar to qualify as an original, it must differ sufficiently from generic, similar characters, which are considered to be unprotectable ideas, and sufficiently differ from previously existing copyrighted characters, with the exception of a plagiaristic character that was created with prior permission. 

It must be acknowledged that the majority of avatars do not stand out enough from existing characters or from avatar archetypes in a particular game. However, it is highly possible that some user-made avatars have the minimal "creative spark" required for uniqueness. 

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The avatar is limited to what the game's designers and programmers allow it to be, hence from a deterministic perspective, the game creator may assert that they are the author. This perspective, however, ignores the reality that the avatar is more than just the code— the programme only limits, it does not dictate, the avatar's expressive capabilities. 

Modern video games arguably provide a huge variety of artistic options. Players could create potentially trillions of different character forms if they took into account all conceivable combinations of the available elements (such as body type, backstory, weaponry and voices).

One must also determine whether a work is fixed for it to qualify as "work of authorship". A work is considered fixed "when its embodiment in a copy … is sufficiently permanent or stable to permit it to be perceived, reproduced or otherwise communicated for a period of more than a transitory duration." 

The concept of fixation resonates with the dichotomy of idea-expression. Although the discrete, coded visual characteristics and algorithms that underlie an avatar's abilities might be regarded as fixed by virtue of their long-term storage on a physical object like a hard drive (be it a game provider's or a player's), the dynamic features of an avatar (that is the actualisation of those abilities, behaviors and speech) might be too fleeting, transitory, or fluid to be regarded as fixed. 

The engagement and transmission of these potentials may be seen as a public performance because of their fluidity, and the live transmission of such a performance may be fixed if it is permanently preserved by recording (for example, by machinima recordings). Thus, by adopting creative analysis which is at par with contemporary requirements, an avatar can successfully be considered a copyrightable work of authorship. 

Lacunae of licence agreement 

The end-user licence agreement (EULA) or terms of use (ToU), which explains a publisher's or game developer's ownership of copyright-eligible expressions and of the game code that players may create during gaming, is to be analysed first. 

A player licence is a user contract that details all of the user's rights in relation to the product and the rules of the game. It expresses the user's restrictions on how they can use the game. To safeguard the business' interests in relation to original and derivative game content, many developers request that players accept an EULA prior to granting them access to game content. 

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Yet, even with a player's consent, a court may rule that an EULA is immoral or in violation of public policy, rendering it invalid or unenforceable. In addition, depending only on a EULA is illogical, obsolete and intellectually unappealing when it comes to determining ownership of an avatar. Thus, the dilemma still stands intact and we are reverted back to the question, who owns an avatar in the absence of any licence agreement? 

The path to be pursued

The endeavour to resolve the dilemma drives us to a bifurcated path, with fundamental conceptions of copyright law, one standing on each path. The two main ideas are utilitarian (prevalent in common law nations) and natural rights (predominant in civil law countries). The utilitarian theory demands the ownership to be given to the developer. On the contrary, the natural rights theory favours the user. 

According to the utilitarian point of view, copyright exists primarily for the public's benefit, promoting the production and dissemination of fresh literary and creative works. As per this model, the owner of user-created avatars should be the game provider. The form of labour for which the financial incentive provided by copyright is most necessary is the capital-intensive process of creating and maintaining Massively Multiplayer Online Role-Playing Games (MMORPGs). 

When players seek a powerful character-creation engine, the game provider satisfies their demand since doing so will benefit their bottom line. The possibility to profit from their investment by producing derivative works based on the game, such as comic books and movies, is perhaps another key factor for game developers. Gamers claiming copyright ownership over their avatars might restrict game developers' capacity to make derivative works, which could lead to a perverse incentive for them to provide less possibilities for avatar personalisation. On the other hand, gamers do not require monetary rewards in order to personalise their avatars; they do so for the sole purpose of enjoyment.

According to the natural rights perspective, the author or creator of a fresh literary or creative work has a natural right to enjoy the rewards of their effort. The works of John Locke, who asserted that property emerges from the combination of a person's labour and anything taken from the general condition of nature, provide the required support for this perspective. 

The Universal Declaration of Human Rights (UDHR), which states that "Everyone has the right to the protection of the moral and material interests emanating from any scientific, literary, or creative achievement of which he [or she] is the author," is another source of support for this viewpoint. 

This model suggests that gamers should own their own avatars. Players who customise and spend time designing their avatars for video games should be compensated if their avatars are used inappropriately. According to this perspective, it would simply be unjust for the game provider to profit off the players' effort and ingenuity without providing them with any sort of recompense in return.

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Fortunately, we are not compelled to choose either route. We can go forward by combining the two. A win-win solution may be offered by labelling an avatar as a work of joint ownership that is, "a work produced by the collaboration of two or more authors in which the contribution of one author is not distinct from the contribution of the other author or authors." Each avatar should be viewed as a collaborative work that is an addition to a collective production (the game) and is jointly owned by the player and the game developer. 

With this approach, the player is guaranteed some recompense for the use of his or her avatar, while the developer is given the freedom to continue creating derivative works without violating copyright. This solution, though the best possible one, is not perfect or flawless as a split of ownership in equal parts would not represent the unequal contributions that each party has made to the work. This emphasises how difficult it is to cleanly and simply link the theoretical and practical aspects of interactive media content ownership.

Despite the game industry's rapid expansion, the rules have not yet provided creators with clear Intellectual Property (IP) protection. Interactive video games of today have levels of plot, gameplay and characters that have never been classified before. 

It is likely that issues of authorship and ownership will become more complicated with an increase in the complexity of video game play and other interactive media use due to technological advancements like virtual reality, social evolutions like user literacies, and industry shifts toward particular content and sales models. 

The joint authorship issues that are anticipated to develop from the interactive entertainment of the century cannot be satisfactorily resolved by the current copyright laws. For instance, in Section 2(d) of the Copyright Act, 1957 the Indian legislation made an attempt to modernise the law by adding the term "computer-generated" to the definition of an author, but this update is insufficient to cover the industry and its different elements and components that call for meticulous attention.  

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The present definitions were included at a time when technology was still developing and not widely used and thus failed to take into account the creative elements of technology used to create modern video games. Unexpected joint authorship and ownership quandaries will definitely occur given the current trajectory of technological development; as a result, it will be necessary to evaluate these dynamics theoretically and practically in order to safeguard the interests of avatars, developers and players alike. To give the necessary protection to all the stakeholders, lawmakers must revisit, reaffirm, and implement laws on video games.