Ask a Lawyer – Virtual Reality in Gaming and the Murky Waters of Derivative Works

Posted in Blog, Digital Media
Apr 8, 2015

Guest blog by Gustavo Gil, Lawyer, Edwards PC, Creative Law.

Invest Ottawa’s “Ask a Lawyer” series is a series of blogs answering your entertainment law questions with the help of Mark Edwards and Byron Pascoe of Edwards PC, Creative Law.

Do you have a question for Mark and Byron? Send it to us with “Ask a Lawyer” in the subject line.

It’s a time of rapid technological change. As a gamer, I am very excited to see the game industry move to Virtual Reality (VR) and its much more immersive gaming experience. While technology might be changing, copyright law is not. If your VR project involves creating a virtual environment “inspired by” a TV show, movie, book, or even another video game, your virtual work may expose you to real world copyright infringement, as a “derivative work” of the original.

The exclusive rights of the copyright owner are set out in subsection 3(1) of the Copyright Act (the “Act”) in which copyright is defined as the sole right to produce or reproduce the work or any substantial part thereof in any material form whatever, to perform the work or any substantial part thereof in public; or if the work is unpublished, to publish the work or any substantial part thereof.

Only copyright owners have the exclusive right to produce derivative works but, unfortunately, the Act doesn’t define what that means. Let’s say you read Harry Potter and it inspires you to create a world of wizards united to fight against the ultimate evil. Or, you love The Walking Dead and decide to create a post-apocalyptic world full of zombies where human beings fight for survival. Where does the expression of the existing work end and your new work begin? Let’s assume that in both cases you didn’t include any unique references to Harry Potter or Rick Grimes or any other pre-existing characters, you added unique elements and you created a unique story. Your VR world might still be considered to be a derivative – a transformed or adapted version of the original work – regardless of your best efforts to make it your own. You may be liable for copyright infringement.

Is there a solution, if you want your new VR project to have a similar look and feel as the Walking Dead or Harry Potter, for example? The best general advice is to ask for permission. Because the Act doesn’t define derivative works and because the only judicial guidance is a vague ruling of the Supreme Court of Canada in the case of Théberge v. Galerie d’Art du Petit Champlain Inc., getting others to agree on where you drew the line, between originality and copyright infringement, could depend on how well your case is argued (and whether the judge had a good night’s sleep). Most claims of infringement start and end with a demand letter, long before reaching a courtroom. A scary letter from J.K. Rowling’s legal team will likely convince you to abort mission even if they don’t have a strong case, merely because it would be too expensive to defend against her claim.

So, without knowing the specifics of your situation, I repeat these words of wisdom: get permission from the copyright owner if your work is inspired by someone else’s.

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