MOVA was first developed in the early 2000’s by Rearden. The head of the incubator, Steve Perlman, put his long-time friend Greg LaSalle in charge of the project. LaSalle formed his own company, MO2, and transferred MOVA to it before selling the software to Digital Domain Holdings (DDH), a US visual effects studio. MOVA was transferred to DDH’s Chinese subsidiary, Shenzhenshi Haitiecheng Science and Technology (SHST).

��𲹰�����’s over the ownership of MOVA was with SHST in 2016. SHST initiated the proceedings, but Rearden argued that LaSalle had no right to sell MOVA to SHST in the first place. A federal court in San Francisco issued an injunction against SHST and all of their licencees (including DDH’s US subsidiary, Digital Domain 3.0 or DD3) for distributing and using MOVA.

In August 2017, the that Rearden officially owned MOVA, not DDH. Rearden is now going after the movie studios Disney, Fox, and Paramount for using the copies of MOVA that were illegitimately licensed to DD3. The studios have filed a ��𲹰�����’s suit, which was by Rearden.

One of ��𲹰�����’s arguments is that they own the copyright in the studio’s CG characters because 1) they own the output of their software, and 2) this output was incorporated into the films, thus making the films derivative works.

For output ownership, Rearden relies on two video game cases ( and ) where the courts ruled that the audiovisual output of computer programs is afforded copyright protection, even if the end user contributes to this output.

This is a questionable comparison to the current case because the nature of audiovisual output in a video game is significantly different from the output of a graphics design program. With interactive entertainment, the output is not intended to have any further use. Even when video game footage is used in subsequent works (like s), it is done so under licence. The content creator only owns the copyright in their footage and commentary, not the game. This is unlike the output of MOVA, where the 3D render output is intended to be used in further works.

Rearden also claims that they own MOVA’s output because the software does a “lion’s share” of the work required to produce the output. They rely on a US case, , in which the court ruled that the plaintiff software maker owned the output of their software because the end user only contributed single words or phrases, and this was considered “marginal” input.

Deciding who does the “lion’s share” of the work when producing a CG character is a difficult issue. To briefly explain the process of creating a CG character using MOVA, an actor wearing special makeup is filmed. This 2D recording is passed through MOVA, which synthesizes a 3D rendering of the face and head. This 3D model is then used as a template onto which animators add features like hair, colour, and wrinkles. Once this is complete, the 3D model is removed, leaving just the animated shell that we see in the movies.

So, it becomes a chicken-and-egg problem: without the software, there is no output, but without the acting and direction, there is no input to make the output. The analogy that the movie studios draw to Adobe Photoshop is quite apt because there is a clear distinction between the contribution of the artist and the contribution of the software, and in that case, it can hardly be said that the artist contributes “marginal” input. The software used in Torah was much simpler and may not offer the best comparison to the present case.

It will be interesting to see how the court decides the issue of derivative works. The movie studios argue that their CG characters and movies are not derivative works because they do not “substantially incorporate protected material from [a] pre-existing work” (quoting ). Rearden, on the other hand, argues that the CG characters and movies do incorporate their works (i.e., the output of their software). Even though the 3D template and related coding are taken out during the production process and do not appear in the movie, Rearden argues that because the facial motion is transferred from the 3D template to the CG character with “sub-millimeter precision,” the CG character is similar enough to constitute a derivative work. But how would that weigh against the fact that the CG character is also “substantially similar” to the original actor’s face and performance, which the studio owns?

Another important point is the substantial relief that Rearden is requesting. They want all infringing copies of MOVA output and the movies that contain them to be destroyed. Logistically, it is difficult to imagine what this would entail. There is no a guarantee that every copy of Guardians of the Galaxy can or will be destroyed. There is also the question of what will happen to clips of the movies that are being used by third parties. Would those have to be destroyed as well?

The Rearden case brings up some complex copyright issues, and it will be interesting to see whether the courts decide in favour of Rearden or the movie studios. A ruling for Rearden could have major implications on the way end users manage their copyright when using computer programs.

Alexandria Chun is a JD Candidate at Osgoode Hall Law School and was enrolled in Osgoode’s Intellectual Property Law Intensive Program. As part of the program requirements, students were asked to write a blog on a topic of their choice.

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The ValiantChaos MapHack, sold by the defendants in the suit, changes the gameplay of StarCraft II by allowing the player using the hack to see the whole play area. Under usual gameplay conditions, only a small portion of the play area is visible, with the rest of the map obscured by the��“fog of war”. The user of the ValiantChaos program thus gains an advantage over his opponent, unless that player is also using the hack. Due to the significant��difference in financial resources��available to��the two parties, it is unlikely that the case will ever see the inside of a courtroom. But what if it did?

Blizzard’s compliant consists of several counts, including direct, contributory, and vicarious copyright infringement, and claims that the distribution of the hack has caused irreparable damage to the game experience. Blizzard is seeking statutory damages, as well as a preliminary injunction against the creators of the hack that would prevent them from distributing it further.

MDY Industries v Blizzard Entertainment

This is not the first time that Blizzard has gone after programmers for modifying the game experience in one of its online multiplayer titles. In , Blizzard sued the developers of a World of Warcraft “botting” program, which allowed a user to automate the actions of her in-game character. She could thus reap the rewards of playing the game, such as in-game items or experience, without actually having to play. Blizzard was successful in obtaining a summary judgment against MDY for tortious interference with contract, contributory and vicarious copyright infringement, and violation of the (DMCA) provision prohibiting circumvention of technological protection measures (TPMs), which the Glider bot program did. On to the Court of Appeals for the Ninth Circuit, the court reversed the district court’s finding of liability for secondary (contributory) copyright infringement and part of its finding of liability under the DMCA. However, it upheld the judgment against MDY for trafficking in technologies that circumvent a TPM that “effectively controls access”��to a copyright-protected work [1].��Finally, the appeals court found that the tortious interference with contract count was inappropriate for summary judgment, and remanded it to the district court for reconsideration.

Will the results of the ValiantChaos MapHack case mirror those of MDY?

In MDY, Blizzard argued that because the users of the Glider program acted contrary to the terms of use and license agreement that they had agreed to upon installing the game, they exceeded the scope of the license they had been granted to reproduce the code of World of Warcraft and therefore infringed Blizzard’s copyright in the code. In its complaint in the current suit, Blizzard chose not to employ the same approach. Instead, it focused on direct infringement, arguing that the creators of the hack created an unauthorized derivative work of StarCraft II in the process of reverse engineering it in order to create a new program. Further, Blizzard contends that the hybrid program created by installing the ValiantChaos hack on top of the original StarCraft II code also creates an unauthorized derivative work.

Focusing solely on the counts of direct, contributory, and vicarious copyright infringement, the key consideration for the court will likely be whether the ValiantChaos hack is a derivative work under the Copyright Act. One of the more relevant cases on video game “mods” is , which involved a hardware modification called the Game Genie that allowed players to modify the gameplay of games played on the Nintendo Entertainment System. The district court in Galoob ruled in��the��"mod" developer's��favour, finding that the Game Genie did not create derivative works of games published by Nintendo. This judgment was by the Ninth Circuit. Crucial to the reasoning of both courts was the fact that the Game Genie “is useless by itself, it can only enhance, and cannot duplicate or recaste, a Nintendo game’s output. It does not contain or produce a Nintendo game’s output in some concrete or permanent form, nor does it supplant demand for Nintendo game cartridges.”

The ValiantChaos hack shares these characteristics: it exists only to be used to supplement the StarCraft II experience and has no independent utility. Furthermore, use of the hack requires a copy of StarCraft II – the creators of the hack do not seek to supplant demand for Blizzard’s game. Indeed, if demand for StarCraft II did diminish, so would demand for their product. Moreover, the effect of the Game Genie is similar to that of the ValiantChaos hack in that it allows a player to make the game easier for herself. The fact that, as Blizzard mentions multiple times in its filing, the ValiantChaos hack is used in a multiplayer context, potentially harming the game experience for another player, is likely to be irrelevant in considering whether it is a derivative work.

However, in the Ninth Circuit qualified the conclusions it reached in Galoob. At issue in this case was whether MAP files – player-made files containing arrangements of pre-existing art and characters for the game Duke Nukem – were unauthorized derivative works. In the end, the Ninth Circuit distinguished the MAP files from the Game Genie by stating that they described the audiovisual displays of the game, and therefore were permanent and fixed, unlike the displays produced by the Game Genie. Because the MAP files used the art assets of the game, the Ninth Circuit held that they were derivative works in the same way sheet music of a copyright-protected melody would be.

There is certainly room for the creators of the ValiantChaos hack to argue that their program is closer in operation to the Game Genie than it is to a MAP file. Its operation is limited to revealing the in-game map for a player, a small change that does not provide a wholly different gameplay experience. Moreover, though the Micro Star court did not say so, the MAP files had the potential to supplant demand for the original game. New player-created MAP files, representing new gameplay experiences, may have decreased demand for a potential official expansion to Duke Nukem. The MAP files differ from the Game Genie in this small, but important, aspect. The ValiantChaos hack has no potential to supplant demand, though it alters the game by making it easier – it is somewhat akin to the ability to skip obstacles granted by the Game Genie.

In the end, the game may be over before it begins

However, this prognosticating over the legal arguments that might be made by either side in a potential court case is likely to be all sound and fury, signifying nothing. The creators of the ValiantChaos hack are just that, hackers. They do not have the resources for a drawn-out court case against one of the largest video game companies in the world. The overwhelming likelihood is that they fold in the face of the legal threat, which is probably just what Blizzard expects them to do.

[1] 17 USC §1201(a)(2).

Adam Chan is an IPilogue Editor and graduate of the University of British Columbia Faculty of Law.

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