Grand Theft Architecture: Architectural Works in Video Games after E.S.S. Entertainment v. Rockstar Games

Abstract

The video game industry has grown to become one of the, if not the, largest entertainment industries in the United States. Part of this growth can be attributed to advances in the technology that powers the games industry, which allows games to become increasingly realistic and immersive. In the roughly three decades since the start of the mainstream games industry, the virtual worlds that users can explore and interact with have evolved from simple two-dimensional experiences to massive three-dimensional worlds. This increased realism allows game developers to create immersive worlds that sometimes mirror their real life counterparts. One of the ways that game developers can create a more engrossing world is to utilize representations of actual buildings to evoke the feel of the cities and environments represented in their games. This technique, however, bears the risk of infringing a copyright or trademark of the real world counterpart. The Ninth Circuit addressed this situation in E.S.S. Entertainment v. Rockstar Games and concluded that the virtual building created by the game developers did not infringe the trademark of the real world counterpart. Rockstar Games dealt only with the issue of trademarks in buildings; however, protections for buildings exist under both trademark and copyright law. Uncertainty with whether a developer can use a building in a virtual world could cause them to avoid accurate representations of buildings in recognizable areas to avoid litigation. This tactic hurts both the game developer’s creative freedom and, as a result of decreased immersion, the user experience. This Note will argue that developers can utilize architectural works in games free from the risk of copyright or trademark infringement. It will start with an exploration of trademark and copyright law and cases dealing with protecting architectural works. The Note will then explore Rockstar Games and the impact that decision will have on game developers’ freedom to utilize easily recognizable architectural works in their games. The Ninth Circuit’s decision should allow game developers to freely utilize architecture without fear of resulting liability. The Note further argues that the test for trademark infringement should allow developers to use the actual trademarks of the businesses associated with the buildings in addition to the architecture. The legal protection of buildings must be explained completely to empower game developers to fully utilize recognizable locations, enhancing the immersion of their users, without fear of liability.