Liam Haeburn-Little is an associate at Harbottle and Lewis, there he advises clients in the interactive entertainment and technology industries on a range of commercial and non-contentious intellectual property matters.
Mods and modding communities have been altering and adding to our favourite games for many years; in some cases with, but oftentimes without, the blessing of studios. From creating brand new game modes to introducing original quests and characters, mods have extended the shelf-life of numerous games and have even birthed highly popular titles that now exist entirely separately to their parent games, such as DOTA 2 or Counter-Strike.
Despite the best intentions and efforts of developers to restrict mods, it is clear from recent headlines that the practice of modding is here to stay for the foreseeable future – the continued appearance of Thomas the Tank Engine in AAA titles is evidence enough of that. It is no surprise then that many developers are now considering whether to simply enable mods and include mod support as standard in their new releases. However, modding can present some thorny legal issues which developers heading down this path should bear in mind.
A number of popular and well-publicised mods are based on adding characters, items and locations from other media, be it games, films or TV series, to the game in question. While innocent enough in nature, in almost all cases these mods can amount to the unauthorised use of third-party IP rights. Many IP owners are understandably keen to prevent unlicensed use of their rights and may seek to take action to prevent the distribution of mods that they consider to be infringing. Such action may be taken against the modder directly, but the IP owners could also look to the developer as a much easier (and bigger) target. This will be particularly relevant if the infringing mods are hosted or made available by the developer, either through a platform or the game itself, as rights holders could try to allege that the developer is participating in the distribution of these mods (albeit unwittingly).
Aside from the infringement of third party rights, modding can also give rise to content that developers find objectionable, for example content that is not appropriate for the age rating of the game. In the most serious of cases, mods may also include content that is outright illegal, for instance mods that perpetuate hate speech or promote terrorism. Simply having rules in place that prohibit inappropriate content is unlikely to be enough to prevent its creation entirely, and therefore developers should consider how they will enforce these rules. At the very least, reporting tools would help to alert the developer about this kind of content, but they may also need to perform active monitoring, particularly where there is a risk that the developer could be held responsible by virtue of making such content available to users directly (as opposed to these mods being distributed through a third party site or platform).
“Modding can present some thorny legal issues which developers heading down this path should bear in mind”
Ownership of mods can also cause headaches for developers. More often than not, the IP in the game will belong to the developer, but mods (to the extent they are original) will be owned by the modder. Disputes can arise between modders themselves, for example where one user alleges that a particular mod has plagiarised or made unauthorised use of that user’s own creation. While less likely to result in formal legal action, modders may well look to the developer to resolve disputes of this kind, and so giving thought to how these scenarios can be resolved at the outset will be a worthwhile exercise. Similarly, there is the possibility that modders will want to remove any mods they have created from the game, in which case developers should consider if this is achievable, and who is responsible for doing so (the modder or the developer).
Although not insurmountable by any means, these issues highlight some important points for developers to consider. However, given that the question for most studios these days is not whether to allow mods, but what to do about them when they inevitably surface, it is understandable that studios may prefer to exert a degree of control over their modding community, rather than banning it altogether. Developers that choose the former approach should be thinking about what content they are comfortable with appearing in-game, what controls and restrictions they need to have in place to limit the creation of prohibited content, and ultimately what can be done when mods and modders breach those rules.