So what is the legal status of a mod under copyright law in the US? Well, it's probably a derivative work, though elements of the mod may not be derivatives on their own. This is an instance where mods, because of their nature, are slightly more difficult to apply blanket statements to than, say, sequels or remixes or other more common derivative works. Surprisingly, there is actually some case law that relates directly to mods, in both the Game Genie case and the Nuke It case. The idea presented in Game Genie, where the modification isn't "fixed" isn't really relevant beyond the console conception, but the Nuke It case is closer to on point. The case revolves around a group that collected and packaged add on levels for Duke Nukem 3D, which were then resold as the Nuke It map pack. The court's decision is that because the elements of Duke Nukem 3D "pervade a derivative work and are inseparable" from the map pack, the map pack is purely a derivative.
I can't say I've taken the time to review every mod included in Morrowind 2011, but I would imagine they primarily fall into two categories: mods that are pure derivatives and mods that are derivatives but contain elements that could be copyrighted on their own. The first category is more analogous to the map packs; these are mods which contain no real elements that can be separated from the Morrowind game enough to stand on their own, just like the map files were completely useless without a copy of Duke 3D and all of the assets inherent in that game.
The second is more curious. To the extent there were mods that contained completely original textures, or a series of dialogue that wasn't completely tied to Morrowind, or other elements that could be eligible for copyright on their own, those portions of the mod could be copyrighted by the mod's author as original works of authorship. As far as I can tell, none of the authors of mods in this category have any registered copyrights to their mods, and most of the claims on the various articles addressing the Morrowind 2011 story must be relying on the idea of common law copyright. Of course, free distribution doesn't negate a copyright (common law or registered) in a work, so the idea that because these mods, derivatives or not, are automatically shifted to a fair use because of their free distribution is faulty on its face.
So what does that leave for the elements that are derivatives? This would all come down to whatever rights are granted in the Morrowind EULA or other such agreements, which I unfortunately don't have as I don't own Morrowind for the PC. I would imagine these follow what is par for the course in the industry, and that is that the mod creators have permission to create and distribute the mods, but no rights in their derivative work. So what does this all mean for Tyler Smith of Alberta, the person who put all of his time and effort into creating this Morrowind 2011 package?
First, with respect to the apparently lengthy documentation he put together, presuming it is all his original work (rather than being cut and pasted from other authors), he theoretically has a copyright and the right to distribute it. It's really not that different than any other non-fiction literary work. As I haven't reviewed it since the package is down, however, I am just assuming it's not a series of cut and paste efforts from existing documentation, and if that is the case, then he would only have a claim to any original elements he constructed that could stand on their own. For example, a table of contents to others' works would not be protectable, but an original passage about creating compatibility between two mods that have been installed would be.
Second, with respect to the mods themselves, no one is exactly on perfect ground here. If the mods are pure derivatives, then the contract controls, and it would be Bethesda, if anyone, who could assert a claim in all likelihood. If the mods are both partial derivatives and partial original works, then the creator might be able to assert a claim, but without a registration and because both the original mod and the Morrowind 2011 package were being distributed for free, then no one has any damages to potentially report, and statutory damages are not applicable. And if there's no real suit, it's impossible to assert fair use as a defense to a non-existent claim. While I can't really disagree with the assertion that Tyler should have politely asked the mod authors before including their packages in the project, neither the Morrowind 2011 supporters claims of "fair use" nor the Morrowind 2011 detractors claims of "copyright infringement" go terribly far.
Is there an overall lesson in this? First, I think the biggest concern, as we've mentioned in past LGJ pieces, is for modders (and other derivative creators) to realize that they are limited by the scope of the EULA, and their work is always going to be at least in part considered a derivative. If you really want to create a game and control and distribute that work, you should create a game and not a mod. For those who do function in the mod community and are perfectly fine living with that potential limitation, working on these compilation projects is as much a question of diplomacy as it is one of legal rights. Mod communities around so many games are just like any other community with a passion, online or offline, and a little politeness often goes a long way since these people who share your passion should, by and large, be your friends and colleagues.
Mark Methenitis is the Editor in Chief of the Law of the Game blog, which discusses legal issues in video games. Mr. Methenitis is also a licensed attorney in the state of Texas with The Vernon Law Group, PLLC and a member of the Texas Bar Assoc., American Bar Assoc., and the International Game Developers Assoc., where he is a board member of the Dallas chapter. Opinions expressed in this column are his own.
Reach Mark at: lawofthegame [AAT] gmail [DAWT] com
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