Video Games and Copyright Law: Taking the ‘Total Concept and Feel’ Approach to its Logical End

Abstract

Over the past twenty years video games have gone from a niche hobby to an international market worth billions of dollars. Much like in the early days of cinema and computer programming, copyright law is playing a game of catch-up, always adjusting for the next big thing to be released by game development studios. Across the world, countries take different approaches to copyrighting video games. The traditional method is to copyright individual elements within video games that can protect the whole. While this approach was useful in the early days of video games, as the industry develops, it has become increasingly important for video games to be recognized as unified works and for copyright law to adapt towards such an approach. This paper will showcase examples of video games copying elements from other video games, and why more unified copyright laws would help prevent this. The unified approach, known in the US as the ‘total concept and feel’ approach, will become more important as video games develop and begin to have a greater focus on the participation of the player. Different jurisdictions have varying conceptions of who an author is, designating either individual elements or the whole game as a product of the author. However, as more games become user-interactive and user dependent, the idea of authorship will have to change. Virtual reality and augmented reality games will place a never before seen level of control in the hands of the player, allowing them to decide how the game progresses and changes. With time, users may be given the option to control artistic elements and perhaps even code, truly crossing the line between player and author. It is important for copyright law to keep pace with these changes so that development studios and contributors are not left without options when a competitor, or even a user engages in copyrightable behavior. Issues such as ‘modding’ within games, battle royale style games, and games built on source materials illustrate how unprepared the industry is for these changes, specifically when it comes to how video game copyrights are understood and enforced. This paper seeks to examine the application of the content and feel approach as it has progressed through the courts, using the test outlined in Sid & Marty Krofft Television Productions Inc. v. McDonald's Corp. Almost every circuit courtroom has utilized this approach in some form or another, with the approach being applied to video games significantly more often.