When Employees Become Ogres: The IP Rights Of Employees Who Voice Video Game Characters.

wowpicA video game developer sends out a company-wide e-mail advising of an “open audition” for voice work in a new video game.   An employee responds to the call, appears for an audition, and later lends her voice talents to a new video game character.  The game character is prominently featured in certain advertising for the video game, and is later included in the video game itself.  The employee then files a lawsuit alleging that the video game developer’s use of her voice infringes her intellectual property rights.  What are the respective rights of the video game company and the employee?

A federal district court in Northern California has found, upon the facts of the particular case before it, that the video game company alone holds the copyrights.  As set forth below, however, the facts are atypical in the video game industry.

The “Baby Murloc” Lawsuit—Lewis v. Activision Blizzard, Inc., Case No. 12-cv-01096 (N.D. Cal. Mar. 5, 2012).  

Activision Blizzard, Inc. and Blizzard Entertainment, Inc. develop and publish the popular “massively multiplayer” online role-playing game “World of Warcraft”—a game which boasts over nine million subscribers and features a myriad of computer-controlled characters and monsters.  Blizzard maintains a body of employees to oversee and maintain World of Warcraft and its dynamic virtual world.  These include “Game Masters” – customer service specialists who have expert knowledge of the game, present as characters within the game, and assist players with difficulties in game play.

In 2005, the Plaintiff—a World of Warcraft “Game Master”—responded to a company-wide “casting call” for voice work for the game.  She was later selected to voice the “baby murloc” game character.  Plaintiff reportedly regarded the opportunity as “fun,” and was enthusiastic about being cast.  She thereafter appeared for several studio vocal sessions at Blizzard’s recording studio during normal work hours, and was compensated for her time at her normal hourly rate.

Seven years later Plaintiff sued Blizzard, claiming that Blizzard’s use of her voice recordings in World of Warcraft and several subsequent “expansions” of the game violated her copyrights and state law publicity rights.  Recently, on October 17, 2013, the Court found against Plaintiff as a matter of law, finding that her voice work for World of Warcraft was a “work made for hire.”  Blizzard therefore owns the copyrights in the disputed recordings, and there was therefore no copyright infringement.

What Is A “Work Made For Hire?”

In general, copyright ownership vests with the author or authors of a creative work.  However, an exception exists where a copyrightable work is a “work made for hire.”

A work is made “for hire” if it is “prepared by [an] employee in the scope of his or her employment.”   In that instance, “the employer or other person for whom the work was prepared is considered the author . . . and, unless the parties have expressly agreed otherwise in a written instrument signed by them, owns all of the rights comprised in copyright. “ 17 U.S.C. §201.  Applying common law agency principles, a task is generally considered “within the scope” of an employee’s employment if (1) it is the kind the employee is employed to perform; (2) it occurs substantially within authorized time and space limits; and (3) it is actuated, at least in part, for the purpose of serving the employer.

“Employed To Perform”—the Pivotal Inquiry In The “Baby Murloc” Case. 

In finding against Plaintiff, the Court focused primarily on whether Plaintiff was “employed to perform” the voice work at issue in the lawsuit.  The Court found that she was, directing substantial attention to the “Game Master Job Description” in Blizzard’s training manual, which Plaintiff admitted she received:

“Game Masters are customer service specialists with expert knowledge of the game who are [] present as characters within World of Warcraft’s epic fantasy setting to provide assistance and guidance to players while also coordinating world functionality.  In this capacity, GM’s serve as the direct link between Blizzard and its customers.  Additionally, GM’s are responsible for in-game customer support, helping manage our online community, and assisting with the creation of content during the ever ongoing development of the game.”

Plaintiff argued that the Court should afford little weight to the language of Blizzard’s training manual regarding the creation of content, because Plaintiff was not actually required to produce original content for the game on a regular basis.  The Court disagreed:  “Even if [Plaintiff] only performed this responsibility on occasion, it was still expressly listed in her job description and therefore fell within the scope of her stated duties.”   The Court also regarded the creation of new content as “very similar” to Plaintiff’s other duties as a WOW Game Master.   Specifically (and in the Court’s view), Game Masters routinely engaged and contributed directly to game content by interacting with the game world, albeit for the primary purpose of assisting customers with game play.

The Reach Of The Court’s Ruling.

The Court’s ruling against Plaintiff reflects an inclination to broadly construe an employee’s job responsibilities in applying the “work made for hire” doctrine.  However, the Court’s ruling is also conspicuously fact-specific.  Many of the facts regarded by the “Baby Murloc” Court as most important to its finding against Plaintiff—i.e., the language of Blizzard’s training manual and Plaintiff’s unique function as a WOW “Game Master”—would not be present in the case of non-MMOG video games, or employees who do not contribute to game content on an ongoing basis (presumably, the vast majority).  Game developers and publishers should be mindful of these distinctions, and take all necessary steps to ensure their undisputed ownership of their video game content.