Earlier this year, alongside the release of Warcraft 3 Reforged, Blizzard changed the language used in its custom games policy for its community of modders; that is, the people who use the company’s games to create their own spinoff games.
The company’s freshly painted legalese is much the same as it has been for years, in that it insists that modded versions of its games cannot be sold by third parties, but only released freely to the public. But the company added some distinctive new restrictions, giving it almost total control over custom games.
We asked a lawyer with experience of video game law to take a look at the changes and additions in the terms of service, and what they might mean for video game modders. Caroline Womack is an associate at Morrison Rothman, a Los Angeles-based law firm that specializes in the field of digital entertainment, intellectual property, and brand protection, with a particular focus on video games.
She specializes in the Digital Millennium Copyright Act, most especially as it impacts usage in video games, as well as “the intricacies of the video game industry … with matters related to copyright, trademarks, brand protection, and more,” according to her online bio.
“Blizzard wants to be sure that it’s getting as many rights to the content in custom games as possible,” said Womack in an email interview.
Blizzard’s determination to lock down its legal rights has its historical roots in the modded game known as DOTA, or Defense of the Ancients, a mod built on Warcraft 3’s World Editor and released in 2003.
A group of modders took the original real-time strategy game, stripped out its resource-gathering and building mechanics, leaving an exciting combat game. It spawned a genre, called MOBA, or multiplayer online battle arena, which is now a staple of esports, with such hits as Riot’s League of Legends and Blizzard’s own Heroes of the Storm. Blizzard’s take on the MOBA genre went through multiple iterations, starting as Blizzard DOTA for StarCraft 2. before becoming Blizzard All-Stars and ultimately Heroes of the Storm. Blizzard scaled back development of its MOBA in 2018.
As a free mod, DOTA enjoyed immense success, attracting a community of supporters who helped maintain and publicize the game. And although Blizzard had certain rights over the game’s assets, it did not have ownership of the name or the game’s central design.
And so, its rival Valve snapped up the rights to the name and hired its most active modder (known as IceFrog) and began work on a new game called Dota 2, which did not use any of Blizzard’s technology, characters or intellectual copyrights, but followed its essential gameplay template.
A legal fight ensued between Blizzard and Valve, based on which company owned the DOTA trademark. Blizzard argued that its end-user licensing agreement stipulated that it owned DOTA’s assets, but did not make the argument that it owned the mod’s concept or design. The company said that DOTA was heavily associated with its copyrights, after years of public use. The matter was ultimately resolved, with Valve retaining rights to the Dota 2 name, even though it had been born from a game made by Blizzard. Dota 2, released in 2013, went on to enjoy immense financial success.
“Blizzard may have made many of these changes [to its user agreement] in light of what happened with DOTA,” says Womack.
The main difference between the old user agreement and the new one, is a passage at the very start of the document:
Custom Games are and shall remain the sole and exclusive property of Blizzard. Without limiting the foregoing, you hereby assign to Blizzard all of your rights, title, and interest in and to all Custom Games, including but not limited to any copyrights in the content of any Custom Games.
“Blizzard is making it extra clear that its ownership of custom games includes ownership of all of the copyrightable, creative elements contained in those custom games,” said Womack. “Hypothetically, Blizzard could have the ability to take legal action against stand-alone games that are heavily inspired by, or derivative of, custom games on the grounds that those stand-alone games are infringing upon Blizzard’s copyright.”
This means that if a modder makes a game that is later used as a template by a rival game company, as was the case with Dota 2, Blizzard will be in a stronger position to unleash its lawyers. It’s a startling addition, because it argues that any commercial game that looks or plays like a Blizzard-derived mod could be targeted. In the uncertain world of video game copyright protection, every little bit of legal armor is helpful.
“Determining the extent of copyright protection afforded to video games can be a little tricky,” says Womack. “Courts have historically had a difficult time categorizing the original and creative elements of games, such as characters, from other aspects that tend to be more functional, such as certain gameplay mechanics.”
Another section in the user agreement follows, that reads like legal boilerplate, but was not part of the previous document.
To the extent you are prohibited from transferring or assigning your moral rights to Blizzard by applicable laws, to the utmost extent legally permitted, you waive any moral rights or similar rights you may have in all such Custom Games, without any remuneration.
Moral rights are more about respecting the integrity and personality of the author than determining ownership. They include the right to be credited as well as the right to protect work from being changed by others.
“This provision essentially means that you’re giving moral rights up,” says Womack. “It enables Blizzard to take creative, original content from custom games and change it around however it wants without crediting the custom game creator. Overall, this provision forwards Blizzard’s evident goal: not only does Blizzard own the copyrighted content included in your custom game, but it can also modify, use, and exploit it without crediting you in any way.”
In other words, if you put your heart and soul into creating a mod, and if it turns out to be successful, Blizzard can take it, sell it, and never even mention your name. The company’s lawyers have made certain that another DOTA will never happen again.
It looks certain that the environment that produced DOTA, and by extension the launch of one of gaming’s most popular genres, is gone forever. More stringent terms of service are likely to become a template across gaming, according to Womack. “We will almost certainly continue to see more stringent terms imposed by developers whose games rely on user-generated content as these games become more and more popular,” she said.