As the Games Industry grows ever larger and as game engines’ modding tools become increasingly accessible to the average player, game modding is not just more common, but practically ubiquitous. This presents a problem for both developers and the players who mod their games. In this article, we will be exploring whether video game mods qualify as copyright infringement (they do), and what exceptions exist (very few).

What are Video Game Mods? Who are Modders?

A “mod” is any program, asset, or other piece of software—not produced and distributed by the video game’s developer and/or publisher—which alters the mechanics, look and feel, or other content of a video game. This description tells us both too much, and not enough. Let’s get a little more specific.

When you hear about a video game mod, the mod was likely a player-made mechanical or cosmetic alteration to an existing game. A popular mod emerged for “The Elder Scrolls V: Skyrim” shortly after its release which caused dragons to instead appear as a positively horrifying image of the Macho Man Randy Savage. Star Wars Battlefront II mods allow players to alter the appearance of certain heroes to resemble other characters in the storied franchise.

Some make mods to gain an unfair edge in competitive multiplayer titles—typically referred to as “hacks”, but their use are as much video game mods as those discussed above in the sense that they are third party software which alters a game’s mechanics. A common example of this is the “money drop” phenomenon in “Grand Theft Auto V”. Other examples are when a player in a MOBA (a so-called multiplayer online battle arena) uses a third-party software to make their character invulnerable. Effectively, this kind of modding/hacking amounts to cheating, and is generally opposed by gamers for creating an unfair multiplayer community, and by developers for throwing a wrench in whatever monetization plan they have set for their multiplayer game.

Rarer, dedicated amateur game developers will attempt to remake a classic or retro game in a newer engine, or with updated visuals. The well-known examples of this concept which this blog article will discuss include:

• “Skywind”—a total conversion of “The Elder Scrolls III: Morrowind” into “Skyrim’s”engine.
• “Another Metroid II Remake or ‘AM2R’”—a remake of “Metroid II: Return of Samus” in the visual style of “Metroid: Zero Mission”.
• “Black Mesa”—the now-released remake of the original “Half-Life” game in Valve’s Source 2 Engine.

Of these three mods, Skywind is still in active development and apparently condoned by the copyright holder (Bethesda Softworks), Another Metroid II Remake (AM2R) disappeared following a DMCA strike from the copyright holder (Nintendo Co., Ltd), and Black Mesa has been released to general acclaim and, amazingly, all profits go to the developers of the mod (Crowbar Collective), not the copyright holder (Valve, Inc.). Amazing, because this occurs in the overwhelming minority of mods and should never be assumed as a given.

Who decides which mods live and which mods die? Do developers and publishers have the power to condone modding, or to prevent it? To answer these questions, we need to understand when copyright infringement occurs, who is protected, and who is liable.

Making a Mod infringes on the Exclusive Right of the Copyright Holder to make Derivative Works

Let’s get the bad news (or good news depending on who you are) out of the way: Modding is copyright infringement as a matter of course. On its face. Period.

Let’s start, then, at the beginning. Copyright is a constitutional right, granted through the U.S. Copyright Act, and which gives the holder of the copyright a set of exclusive rights, meaning the holder can exclude anyone from using her/his rights in their work. These include the right to reproduce a work, the right to distribute a work through traditional channels of commerce, and the right to produce derivative works of whatever work is in question. And modding is exercising your (or infringing on one’s) right to make a derivative work.

So, what is a derivative work? Generally, a derivative work is a new work, but includes elements or evidence of the copyrightable aspects of previous works. To this end, we will use AM2R as an example. DoctorM64, amateur developer of AM2R, was creating a remake (or, in copyright terms, a derivative work) of “Metroid II”(with Nintendo’s assets, no less). But what if Nintendo wanted to remake “Metroid II”themselves? Without copyright law, DoctorM64, an individual who holds no rights to the Metroidintellectual property, would have beaten them to release and cornered the market. It’s easy to call Nintendo’s DMCA strike of AM2R an act of corporate greed, but Nintendo’s actions could just as easily be construed as a good faith attempt to protect their rights to the Metroid IP and the marketability of the “Metroid II” remake, which they did end up releasing one year after striking down AM2R.

In AM2R, we see how modding is, on its face, infringement. Whether you use original assets or not, a modder is still adapting a previously created copyrighted work in a way the rights-holder may enforce against—whether it’s a remake like AM2R, a hack, or a cosmetic mod. Further, United States courts will generally side with the rights-holder over the modder when issues over modding are litigated. Often, as in Blizzard Entertainment, Inc. v. Reeves, the modder will default in appearing before a court, or settle litigation before it gets too far. Why is this? It’s our favorite refrain: litigation is expensive and, if you are a single modder, it would be unwise and inefficient for you to attempt to out-maneuver a monolith like Blizzard in court.

What about Fair Use?

It is certainly possible but unlikely that a mod (whether free, only shared with your friends, or a parody) may be found to be a fair use under the so-named Fair Use Doctrine. Fair Use is used to argue that certain infringement is OK because it is, say, educational, satirical, or non-commercial. A mod, free or not, would still involve a modder’s use of copyrighted material to create a derivative work, and would most likely be outside of Fair Use’s scope. Furthermore, most modders will never even get a true Fair Use analysis from a court, as it is a litigation defense and (say it with me) litigation is really expensive.

Why do Skywind and Black Mesa get a pass?

A copyright-holder has the right to enforce the rights in their work, but they also have the right not to enforce as well. Therefore, a mod is “legal” only for as long as a rights-holder chooses to let it exist. There are good reasons to do this depending on a developer’s goals.

On one hand, Valve Inc, gave Crowbar Collective an unusually generous license for their remake of “Half-Life”, likely because Valve had been seeing such success with their digital storefront, Steam, and had not foreseeable plans to remake their game themselves. Again, this is exceedingly rare. If you are a modder, relying on this example to acquire a deal at a later point is negligent, to say the least, as you will most likely have created a mod in vain and may fall victim to litigation if you try to profit from it without a license.

Bethesda Softworks on the other hand encourages modding in an apparent strategy to foster and keep a community around their games beyond the games’ typical market lifespan. They even release dedicated modding tools for players to use with their single-player games. Many think that Skyrim owes its continued 9-year success at least partially to its vibrant modding scene. Given Skyrim’s success with modding, condoning Skywind (but which requires proof of purchase of both Morrowind and Skyrim) could be a no-brainer.

I’m a modder! What does this mean for me?

Well, the harsh answer is: either don’t mod at all, mod only for works where the rights-holder has condoned the practice, or keep your mod private instead of releasing it to the public (which is still infringement, but without anyone noticing it). If a rights-holder does not like your mod, then they can and will strike your mod down (via a cease and desist letter and a DMCA Take Down Notice most likely). Once that happens, there is not really anything you can do. If you want to release a mod of a game you do not own any copyright in, your best bet is to ask the rights-holder for permission.

What does this mean for developers?

It is largely up to you as rights-holder. If you want to prevent players from modding your game, then good news! The law is on your side and you have powerful legal tools like DMCA takedowns as a mechanism of defending your works. Or, you could be like Bethesda and foster a modding community around your games to extend their lifespan.

Note, however, that if you do release modding tools for your game, you will need to make sure you craft your End User License Agreement (EULA) with very clear restrictions and permissions to ensure that a modder (or, more importantly, a court of law) will know exactly what scope you intend for your modding community to occupy. For example, Bethesda’s EULA for “Skyrim” explicitly forbids the creation of mods for their game using any other software than the creation kit they provide on their website, using the license they specify. The EULA for “Skyrim’s” modding tools explicitly states clear restrictions for what mods may be made, and how they may be used (for example: no mods sold commercially, no mods which disparage Bethesda or its products). Rockstar’s general EULA which they use for all of their games disallows any kind of modification for their games whatsoever by anybody but Rockstar. A clear EULA and legal notices are grounds for effective and transparent community management as well even outside the intellectual property sphere. As rights-holder, you get to decide how you want your intellectual property to be used but keeping what you own safe starts with a good EULA. So, get planning, and get typing!

First posted on July 29, 2020