Pocket Castles and Custom Skin: Championing Transparency in the Monetization of User-Generated Content in Video Games

Cybaris® Cybaris®

Volume 15 Issue 1 Article 5

2024

Pocket Castles and Custom Skin: Championing Transparency in Pocket Castles and Custom Skin: Championing Transparency in

the Monetization of User-Generated Content in Video Games the Monetization of User-Generated Content in Video Games

Jakob Stokes

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POCKET CASTLES AND CUSTOM SKIN:

CHAMPIONING TRANSPARENCY IN THE

MONETIZATION OF USER-GENERATED CONTENT IN

VIDEO GAMES

Jakob Stokes

I. INTRODUCTION/CAMPAIGN MODE ................................ 108

II. NUANCE IN THE COPYRIGHT OF USER-GENERATED CONTENT

(UGC) ....................................................................... 109

A. A. Apps and Mobile Gaming ..............................

110

B. B. A Dive in Livestreaming ................................

112

C. C. LAN+: Tournaments and Conventions ...........

115

III. REWARDING LOYAL CONTENT GENERATORS .................... 116

A. Minecraft .........................................................

118

B. Fortnite ...........................................................

120

C. Roblox ............................................................

122

D. Grand Theft Auto .............................................

124

E. Battle Royale Wrap-Up on Royalties ..................

125

IV. QUALITY CONTROL, BRAND DILUTION, AND TRAGEDIES OF

VIRTUAL COMMONSES ..................................................... 126

A. Free-to-Play Free Riders ...................................

126

1. Pokémon Go: unintended antisemitism and

desecration ..................................................

126

2. Grand Theft Auto and other gamer crimes ......

128

3. Fortnite, custom skins gone wrong, and reviving

the dead ......................................................

130

B. Weaponizing Creative Freedom to Harm Others .

131

1. Aimbotting Anticompetition ...........................

131

2. Reputational Harm and Lost Social XP ............

133

3. Toxicity, Hate Speech, and Worse Reactions to

Losing ..........................................................

134

V. AUTOSAVE OUR PROGRESS . . . AND BUILD ON IT ............ 135

VI. CONCLUSION .......................................................... 139

The author is a 3L at Pepperdine’s Caruso School of Law. He thanks his family

for instilling a lifelong appreciation for the potential of video games: maybe a

science, definitely an art.

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I. INTRODUCTION/CAMPAIGN MODE

Video game enthusiasts gravitate towards different

titles for different reasons. Some gamers prefer insulated

universes, explorable and exhaustible as a trial of

fastidiousness and rigor. Others prefer pure competition:

online lobbies, trending sports, cheeky messages, or LAN

parties with good company and comfortable seating.

Still others contribute to games that enable and reward

those contributions, whether through explicit copyright, direct

royalties, or licensed ownership. These titles provide

opportunities to infuse user creative expression onto the

landscape of an existing virtual backdrop. Experts familiar

with the industry attest that empowering creativity leads to

greater association with a title, which can engender both

social and economic incentives for developers.

In rewarding

these contributions, the initial cost of a title, any subscription

costs, other developer revenue streams, and the existence of

barriers to entry to content integration can all affect the levels

of royalties that creators might expect for making their

contributions.

Conflicts arise in the derivation and attribution of

ownership, the precision of ongoing royalties, and the

reputational harm posed to companies and developers by

tragedies of the creative internet commons. This paper seeks

to address the ensuing static-gray backdrop of in-game

content monetization and licensing, clustering games as

appropriate into categories to derive trends and drive narrow

recommendations for future attorneys and legislators working

to regulate the gaming landscape. Accessibility and vivid

imagery are prioritized where possible to cater to the paper’s

lay audience.

See

e.g.

, Selen Turkay & Charles Kinzer,

The Effects of Customization on

Game Experiences of a Massively Multiplayer Online Game’s Players

, CARNEGIE

MELLON UNIVERSITY ETC PRESS, 330–36 (2022),

https://press.etc.cmu.edu/articles/effects-customization-game-experiences-

massively-multiplayer-online-games-players [https://perma.cc/T87Q-2ZPX].

2024] POCKET CASTLES AND CUSTOM SKIN 109

109

II. NUANCE IN THE COPYRIGHT OF

USER-GENERATED CONTENT (UGC)

The copyright of user-generated content (UGC) in

video games begins with a brief explanation of copyright in

video games themselves. All video games and correlative UGC

are software at their most basic component, and software

code has been acknowledged in precedent as protectable due

to its classification as a copyrightable literary work under 17

U.S.C. § 101 of the Copyright Act.

Within each game, many

individual components are protectable as unique expressions

of the game’s creator, including sound effects, music,

characters, and the gameplay itself.

As such, the developer

of a video game may claim protection over many of its unique

and distinctive assets.

A creator of in-game user-generated content in an

eligible title can often follow some monetization path to

Apple v. Franklin, 714 F.2d 1240 (3d Cir. 1983) (seeking copyright protection

over the BIOS of Apple’s computers, which had been cloned directly by a

competitor)

The

Franklin

court established a precedent for software

protectability, leading to a rise in shrink-wrap licensure vesting questionably legal

protection against subsequent reproduction by purchasers upon the breakage of

the shrink wrap containing the product. M

ICHAEL A. EPSTEIN, Epstein on

Intellectual Property 11–75 (5th ed. 2023). There is some academic debate as to

whether the narrative of video games (rather than their underlying code) should

be protectible, but presently protectability stems from an underlying code

perspective of a game’s “literary work” and not an external product basis.

See

e.g.

, Ashawnta Jackson,

Are Video Games Like Novels?

, JSTOR DAILY (Mar. 5,

2022), https://daily.jstor.org/are-video-games-like-novels/

[https://perma.cc/ZK2X-2B6S] (attributing to literature scholar Eric Hayot the

quote that “any understanding of video games that does not include the novel . .

. will necessarily be incomplete”).

EPSTEIN,

supra

note 2, at 11–15.

Id.

Games

themselves

are nearly always ineligible for independent copyright for

a variety of reasons, most notably pursuant to the idea-expression dichotomy

(

see also

rationale for livestreaming protectability,

infra

Subsection B of this

section) and issues with applying copyright principles on authorship and joint

work to an industry whose supply chain of IP is less centralized or consolidated

than, say, blockbuster films or popular music.

See also

Zachary Strebeck,

Idea

vs. Expression – What is Protected Under Copyright Law?

, STREBECKLAW.COM,

https://strebecklaw.com/idea-expression/ [https://perma.cc/528M-YKJB]

(explaining interplay between traditional copyright doctrines, including

idea/expression, merger, and scènes à faire, which help circumscribe

unprotectible video game elements).

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revenue-sharing from the overall game’s creator.

This

monetization may come in the form of a direct, fixed royalty

rate tied to a tangible developer revenue stream from the

game,

a divestiture of in-game currency purchased on

developed UGC,

or a fixed licensing fee to list the UGC item

through official developer pipelines, among others.

Some

wrinkles in this general path may develop due to a variety of

factors including international jurisdiction, commercial

livestreaming, and group gaming.

Apps and Mobile Gaming

The rise of Apple’s App Store in the 2010s was a

revolution in that it created a new platform of gaming,

but

It’s significant to note that a creator must be at least 13 years of age for a

variety of reasons.

See generally

Federal Trade Commission,

Children's Online

Privacy Protection Act of 1998

, 15 U.S.C. 6501–05 (“COPA”). COPA remains the

governing law on minority in the digital frontier, and it dictates in relevant part

that no user can monetize content (or create social media accounts categorically)

until the age of 13.

Id.

This prevents minors from streaming, building a

following, or monetizing created content.

Id.

There have been calls to revamp

COPA to address the intervening decades of technological advancements since its

enactment, but they have not yet led to fruition.

See

AUTOSAVE OUR PROGRESS,

infra

Section V.

In simple terms, a user creating and offering UGC for sale in a game’s

marketplace might get 20% or 40% of the direct $5 that another user spends

purchasing the first user’s resource or texture pack online, and this split can vary

based on everything from the size or popularity of the forum game, the

complexity of the user’s contribution, the developer’s attitude towards

modification, and any prior or existing relationship between the creating user and

the developer. The primary aim of this paper is to categorically dissuade against

such variability and advocate for more transparent royalties and content

marketplaces.

Jupiter

Hadley,

Roblox Robux - What Do They Do in Roblox?

, POCKET GAMER

(Jun. 29, 2022), https://www.pocketgamer.com/roblox/robux/

[https://perma.cc/66MT-F3PH]. A game like Roblox, where a larger share of UGC

is experiential than aesthetic relative to peer titles, often involves the purchase of

in-game currency (e.g., Robux) whereby users must exchange local fiat currency

for otherwise useless in-game currency.

See id.

Creators then must cash out

their in-game currency for real money at the end, and existing fiat concerns such

as inflation, transparency in exchange, and the ancillary developer gains by

having a thriving virtual fiat can all affect bargaining power with UGC creators

and compensation to the same.

See generally id.

See generally

Fortnite, Roblox, or certain UGC offered in so-called item shops.

See infra

Sections II.A, II.B, II.C.

See

Brian Crecente,

iPhone App Store at 10: How it Changed Gaming, Mobile,

Tech Forever (EXCLUSIVE)

, VARIETY (Jul. 10, 2018),

https://variety.com/2018/gaming/features/app-store-10-year-anniversary-

2024] POCKET CASTLES AND CUSTOM SKIN 111

111

it also led to considerable issues for the few early-adopter

gaming attorneys relative to cloning,

monopolism,

regulatory concerns,

and consumer protection with

microtransactions and potentially offensive content.

It has

also led to jurisdictional challenges, as mobile game apps are

often developed and released internationally despite creating

an aggregate effect on the domestic market.

interviews-1202869662/ [https://perma.cc/V88X-6AHR] (notes Xavier Carrillo,

CEO of developer Digital Legends: “[the App Store] has redefined the games

industry and game development ecosystem” and was responsible for the

advancement of “smartphones as the most-played gaming platform in the world,

outnumbering consoles or portable gaming devices by a factor of 100”).

See

Simon Parkin,

Clone Wars: Is Plagiarism Killing Creativity in the Games

Industry?

, THE GUARDIAN (Dec. 23, 2011),

https://www.theguardian.com/technology/gamesblog/2011/dec/21/clone-wars-

games-industry-plagiarism [https://perma.cc/LS49-KUSF].

See generally

EPSTEIN,

supra

note 2. 103

Scott Reismanis,

UGC is the Next Big Trend in Mobile Gaming

, MOD.IO (Apr. 28,

2021), https://blog.mod.io/ugc-is-the-next-big-trend-in-mobile-gaming-

7811e4131c23 [https://perma.cc/HJH3-YR9F]

(predicting a rise in UGC and suggesting that cross-platform compatible games

embracing UGC will challenge current perceptions of non-developer content in

games).

Rachel Stonehouse,

Roblox: 'I Thought He Was Playing an Innocent Game

BBC NEWS (May 30, 2019), https://www.bbc.com/news/technology-48450604

[https://perma.cc/566Z-PPM6] (discussing sexual assault and grooming in

Roblox); Addison Whitmer,

Are In-Game ‘Loot Boxes’ A Gambling Gateway for

Children?

, DESERET NEWS (Dec. 6, 2022),

https://www.deseret.com/entertainment/2022/12/6/23467178/are-in-game-loot-

boxes-a-gambling-gateway-for-children [https://perma.cc/LN82-X2UA]

(“[l]egislators from different countries question the legality of loot boxes as

research has claimed ties to gambling problems, but bans are hard to enact”).

Games should monitor their user bases to appropriately tailor content standards

when games begin to trend toward younger demographics of users. James Ash,

Rachel Gordon, & Sarah Mills,

Between Gaming and Gambling: Children, Young

People, and Paid Reward Systems in Digital Games

6–28, NEWCASTLE UNIVERSITY &

OUGHBOROUGH UNIVERSITY (2022),

https://www.gaminggamblingresearch.org.uk/wp-

content/uploads/2022/10/ESRC-BGG-Final-Report-2022.pdf

[https://perma.cc/K2HS-NMWK] (advocating for independent regulation of the

gaming industry and specific regulations on paid rewards systems).

See, e.g.,

Advisory Committee on Enforcement,

Video Game Industry

, WORLD INTELLECTUAL PROPERTY ORGANIZATION (Aug. 30, 2022),

https://www.wipo.int/edocs/mdocs/enforcement/en/wipo_ace_15/wipo_ace_15_

4.pdf, [https://perma.cc/WL9D-BT5H] (“[a] 2013 WIPO-commissioned study

found that different jurisdictions had adopted different approaches [to

copyrightability of video games as a complex subject matter]”). This can lead to

disputes over the proper treatment of arguably copyrighted assets or those

protected abroad, which has a cumulative effect on mobile games due to the

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Mobile games have had fewer issues with user-

generated content than most other platforms, presumably

because a high barrier to entry for integration exists in that

modifying code on phones is viewed as more difficult than on

consoles or computers.

UGC-adjacent issues still arise with

the extreme monetization of mobile gaming and in-app

purchases,

but most of these issues deal with predatory

developers and not UGC, so they will likewise be omitted.

A Dive in Livestreaming

Streaming has revolutionized the monetization of video

gameplay.

In 2021, over 250 million game-related videos

ease of mobile users’ ability to game in different jurisdictions and the wider reach

of domestic app marketplaces.

See also

John Koetsier,

There Are Now 8.9 Million

Mobile Apps, And China Is 40% Of Mobile App Spending

, FORBES (Feb. 28, 2020),

https://www.forbes.com/sites/johnkoetsier/2020/02/28/there-are-now-89-

million-mobile-apps-and-china-is-40-of-mobile-app-spending/?sh=6b99892121dd

[https://perma.cc/UH4Y-QD8K] (indicating that in 2019, 3.4 million apps were

developed in China to add to a “global supply” of apps rising 18% Y2Y to 8.9

million and noting that “[m]ost of the hundreds of thousands of new apps are

low-quality cookie-cutter apps that are generated via no-code or low-code mobile

development platforms”). While many of these apps are less accessible due to

their non-inclusion on the App Store or Google Play Marketplace, they can be

emulated with the proper apps or users may have other app marketplaces on

their devices within the United States.

Id.

Regulators struggle to exercise

jurisdiction over foreign games, often finding that their only recourse is a game’s

removal from domestic app stores.

Contra

Reismanis,

supra

note 13 (CEO of company specializing in cross-

platform compatible mods suggests that large game titles and franchises

incorporating UGC into cross-platform compatible games draw mobile users into

the nexus of broader UGC discourse). When cross-platform titles develop mobile

versions, they often either enable users to link UGC purchases on other

platforms, such as consoles or computers, elect to forgo UGC categorically, or

more rarely develop new marketplaces for mobile-specific UGC; this decision can

impact whether rolling out a mobile version of a game may impact the title’s

overarching stance towards UGC.

See generally id.

See, e.g.,

Will Bedingfield,

It’s Not Just Loot Boxes: Predatory Monetization Is

Everywhere

, WIRED (Jul. 20, 2022),

https://webcache.googleusercontent.com/search?q=cache:ySW_P4SpaPkJ:https:

//www.wired.com/story/loot-boxes-predatory-monetization-

games/&cd=1&hl=en&ct=clnk&gl=us [https://perma.cc/Y3CW-8NBR] (ongoing

Wired paywalls accessible via cached view).

See

Keith Stuart,

Fights, Camera, Action: The Beginner's Guide to Streaming

Video Games

, THE GUARDIAN (Aug. 17, 2020),

https://www.theguardian.com/games/2020/aug/17/beginners-guide-to-

streaming-video-games [https://perma.cc/9DZE-EAEP] (“[s]treaming a game

means broadcasting yourself via the internet while you play, so that other people

2024] POCKET CASTLES AND CUSTOM SKIN 113

113

and 90 million hours of livestreams were uploaded to YouTube

alone.

A game developer’s stance towards the user-

generated content within their game varies by title, as does

their stance toward streaming gameplay of their titles.

Some

developers, including Microsoft and Sony, seem to treat

streamed gameplay or user-generated content as being

expressions of public goodwill towards their games: it can

both drive new interest in their titles and strengthen existing

interest among purchasers.

Others seek, for purposes of

exclusivity or secrecy, to prohibit users from releasing

can watch you”);

see also

Dylan Horetski,

Twitch Reaches New Agreement to

Protect Streamers From DMCA Strikes

, DEXERTO (Sep. 27, 2021),

https://www.dexerto.com/entertainment/twitch-reaches-new-agreement-to-

protect-streamers-from-dmca-strikes-1658617/ [https://perma.cc/N5JL-HRG5]

(explaining a 2021 agreement between streaming platform Twitch and its

streamers, enabling an inroads around a prior foe: a strike of the streamer’s

account for streaming gameplay and correlative copyright infringement under the

Digital Millennium Copyright Act).

Amy Thomas,

Merit and Monetisation: A Study of Video Game User-Generated

Content Policies

, UNIVERSITY OF GLASGOW (Mar. 3, 2023),

https://policyreview.info/articles/analysis/merit-and-monetisation-video-game-

user-generated-content-policies [https://perma.cc/T4TH-M8GE]. While streaming

can be a direct revenue stream for users, streaming payouts are lower and its

chief boons are more likely the ancillary gains to general notoriety and social

media followers that can follow success in streaming, although in some cases it

might derive the majority of a user’s revenue.

Id.

Streaming is the subset of UGC that most directly intersects with the Digital

Millennium Copyright Act, a 1998 law that effectively codified the rules of

Intellectual Property Association (WIPO).

See, e.g.,

Horetski,

supra

note 18;

Stacey Henley,

Twitch Has Found A DMCA Solution - But Is It Sustainable?

, THE

GAMER (Jul. 20, 2021), https://www.thegamer.com/twitch-dmca-solution-

of a Spotify plug-in on Twitch enabling music without correlative DMCA

infringement). Efforts to carve out DMCA protection for streamers of video

games have steadily gained footing.

See id.

;

see also

Horetski,

supra

note 18.

Thomas,

supra

note 19. To exculpate their own liability, streaming platforms

rely on safe harbor provisions that enable users to post their streaming content

and clips of streams without engendering platform liability for any infringing

content that might be uploaded.

Id.

When the platforms are notified of infringing

content (whether from gameplay of those games not enabling streaming or more

often from musicians whose music was not permitted for use in a given stream),

they must follow a “notice and strike” process, whereby they notice the user of

the infringement and strike their content by removing the infringing video.

Id.

There is occasionally an appeals process, and repeat punishers often face stricter

penalties, including exclusion from the platform.

Id.

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gameplay into the public domain or modifying the universe

existing within a title’s software.

A nominal fair use defense exists for streaming against

infringement in the United States where an otherwise-

protected title is streamed for noncommercial review or

criticism.

Courts struggle to apply fair use principles to user-

generated content on streaming platforms, as the lines

between fair use and infringement can be blurry.

Ultimately,

the legal status of user-generated content on streaming

platforms depends on a number of factors common to

infringement categorically, including the content’s nature and

Id.

It’s significant to note that “gameplay” extends to virtually all aspects of a

user’s interaction with the copyrighted software of a video game.

See

NUANCE IN

THE

supra

Section II. Neither games

themselves nor the plots of the same are copyrightable, but the unique

expressions of the game (including specific details of the plot or theme) are

protectable, and some companies use this protection (and restrictions in their

See generally id.

Users should understand that foregoing these wishes can result in punishments

more extreme than playing music over a stream.

Office of the General Counsel,

, HARVARD UNIVERSITY,

https://ogc.harvard.edu/pages/copyright-and-fair-use [https://perma.cc/5PTR-

4ZAK]. Streaming games most often raises copyright issues, as the secondary

use is considered an unlicensed derivative (especially if streaming occurs on a

commercial platform), but trademark concerns may also arise when trademarked

images or terms are consistently reproduced.

Id.

;

see also

Tyler Esguerra,

Worlds Woes:

League Fans Face Issues Securing Tickets to 2022 World Championship, Sell Out

in Minutes

, DOT ESPORTS (Sep. 8, 2022), https://dotesports.com/league-of-

legends/news/league-fans-face-issues-securing-worlds-2022-tickets

[https://perma.cc/VD3H-E8ZG] (“[e]very year, League of Legends fans scramble

to buy tickets to the esports’ biggest event of the year, the World Championship

. . . [t]ickets usually sell out in minutes”). As these competitive gaming leagues

grow in size, they bring revenues to the game’s developer from new game sales,

promotional skin and item sales, and ticket sales from live and pay-per-view

events.

See generally

WIPO,

supra

note 15.

An infamous and controversial example is League of Legends’ “Galaxy Slayer

Zed” skin, created to honor the “Faker Outplay,” a pivotal move made during the

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not address the unique challenges in negotiating the copyright

of common game assets or framework game engines, except

those created and implemented by end users.

III. REWARDING LOYAL CONTENT GENERATORS

Developers now largely acknowledge that when users

add value to an existing game, they should be, and often are,

rewarded for these contributions, most typically through

royalties.

This was not always the case, as the earliest

efforts to infuse games with the creative expression of users

amounted to cloning: the reverse engineering of a game for

commercial rerelease.

Cloning is now generally regarded as

have come in varying contexts, including character

2013 LCK summer finals, early in the career of perhaps the greatest to play the

game competitively.

See

Joe O’Brien,

Riot Pay Homage to Faker with New

League of Legends Zed Skin

, DEXERTO (Apr. 4, 2019),

https://www.dexerto.com/league-of-legends/riot-pay-homage-faker-new-league-

legends-zed-skin-516167/ [https://perma.cc/N3CA-XE87]. The controversy arose

because the aspect that directly paid homage to the moment was a voice-line

commemorating the

commentary

of the play, and the caster who delivered the

line had unresolved animosity with Riot over being overlooked for prior

tournament casting opportunities.

Id.

This speaks to additional difficulties in

creating commemorative content for sale to users.

In some games, copyright (and correlative ownership) over a novel concept

within a game can be more coveted than outright royalties, and in these

situations, developers often end up negotiating the purchase of the asset(s)

rather than attempting to license their ongoing use.

See generally

David

Nathaniel Tan,

Owning the World’s Biggest eSport: Intellectual Property and

DotA

, 31 HARV. J.L. & TECH., 965 (2018). The cited authority discusses “Defense

of the Ancients,” a game that began as a custom map on Warcraft III in the mid-

2000s.

Id.

Essentially, a user created his version, then Blizzard (Warcraft’s

developer) acquired the rights to use the “DotA” name and released a standalone

version in consultation with player-developers familiar with the user’s version in

2009.

Id.

A developer named Valve hired the user, IceFrog, to develop a

standalone version, which eventually became “DotA 2,” one of the most popular

Esports in existence.

Id.

In the litigation that would follow, Valve prevailed over

Blizzard to establish that a user’s creation is not superseded by the developer’s

desire to commercially exploit it after the viability of the same is independently

established.

Id.

Other games to evolve from UGC mods include Team Fortress

(built on “Quake”) and Counter-Strike (built on “Half-Life”).

See generally id.

Parkin,

supra

note 11. Atari’s infamous arcade classic Pong was the defendant

in what might be the first video game law case, in which the designer of the first

commercial game console (the Magnavox Odyssey) brought suit alleging Atari

had cloned Pong from its tennis game Ping-Pong.

Id.

2024] POCKET CASTLES AND CUSTOM SKIN 117

117

modifications (avatars and skins),

resource modifications

(sprays and items),

or game modifications (new modes,

maps, or variants),

all of which can be monetized in a

number of titles on a quasi-relative basis of popularity and

difficulty of creation.

To provide nuance to royalties, which can vary

dramatically across games as a basis of initial cost,

subscription cost, and modification accessibility, a few titles

prominent for user-generated content have been selected for

examination.

See

e.g.

, Christian Böffel et al.,

Character Customization with Cosmetic

Microtransactions in Games: Subjective Experience and Objective Performance

FRONTIERS IN PSYCHOLOGY (2021), vol. 12,

https://doi.org/10.3389/fpsyg.2021.770139 [https://perma.cc/5N56-MYPE]. For

reference, “avatar” generally refers to a user’s character within a game.

See id.

In single-player games, avatars are often identical; in multiplayer games, they

are typically distinguished by skins, or cosmetic alterations to the base model of

a game’s character or avatar.

See id.

These skins may be single-color

adjustments (

see, e.g.

Fortnite’s Boundless controversy,

infra

Section IV.A.3) or

might change the avatar to look like a distinctive character from another oeuvre,

which is where intellectual property rights and infringement return as a concern.

See generally

Böffel et al.,

supra

this note.

Josh Taylor,

Fortnite Players Tired of “Pointless” Items Like Emoticons &

Sprays Filling Up Battle Pass

, DEXERTO (Aug. 16, 2023),

https://www.dexerto.com/gaming/fortnite-players-tired-of-pointless-items-like-

emoticons-sprays-filling-up-battle-pass-2252283/ [https://perma.cc/Z3YB-YVLS].

Controversial for their negligibility and less relevant to this paper due to their

lower desirability and pecuniary value, sprays are small art pieces that a user

may graft onto the environment of a video game: think of them as small pieces

of cartoon graffiti that a user gets to unlock or activate for a given game.

See

generally id.

Other items range from emoticons or character dialogue to the

addition-by-mod of a new vehicle or weapon.

See id.

See generally

Tan,

supra

note 30, or S.E. Doster,

Fortnite Players Are

Recreating Classic Call of Duty Levels

, KOTAKU (Dec. 11, 2018),

https://kotaku.com/fortnite-players-are-recreating-classic-call-of-duty-le-

1831016631 [https://perma.cc/4PXE-GQU6].

The biggest difficulty to UGC monetization is that a number of prominent

games exist in a gray area between “endorsed content creation marketplaces”

and “zealous restriction on modification,” where developers have not explicitly

condoned or permitted the modification of their underlying protectable code, so

users generate content that drives popularity and revenue to developers often

without receiving any royalties or receiving them while existing under the

constant looming threat of marketplace removal.

See generally

discussion of

various games and franchises,

infra

this section.

When examining a title’s response to UGC, recognize as a threshold that a

user can only monetize content if two things are true: the content must be

capable of integration into the game (in a technical sense) and there must be a

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Minecraft

Minecraft is infamous as perhaps the world’s most

premier virtual universe for user-generated content: the

combination of its relatively low initial cost and lack of a

subscription helped produce an extensive and flourishing

modding community who create and generate their own

content using the game's tools and application programming

interfaces (APIs).

Low cost is a component in its appeal to

UGC creators, but equally significant is its relative ease of

content integration.

Creators of popular modifications can monetize their

creations through donations or by listing their own paid mods

for direct sale.

Minecraft’s Partner Marketplace also provides

its creators a percentage of the revenue generated by sales

willingness to pay for the UGC. In a perfect platform, users might have a direct

marketplace to view and monetize UGC offerings with real-time valuation, but

the two necessities are technical integration and willingness to pay. Considering

that developers may regulate integration, the question in UGC disputes is not

ownership of content but its permissibility within the platform’s dominion.

Because there is no right vested by the DMCA or otherwise for a platform to

host

your UGC, there is no risk of platform infringement, so a great deal of UGC

monetization is predicated on developer goodwill towards content hosting.

Zachary Roberts,

How Much Does Minecraft Cost on Each Platform?

PORTSKEEDA (Jul. 29, 2022), https://www.sportskeeda.com/minecraft/how-much-

minecraft-cost-every-platform-2022 [https://perma.cc/KC2T-JPUA]. The game’s

cost varies as a basis of the platform purchased on, ranging from $6.99 for

mobile (with high barriers to user content integration) to $19.99 for consoles

(intermediate) and $29.99 for Windows/Mac (with correlative ease of

integration), all of which are low-cost relative to its competitors.

Id.

Ease of

streaming also increases linearly with price, with mobile difficult, console easier,

and computer easiest. Creators can apply for entrance into the Minecraft Partner

Program, where they may make an account to monetize the creation of add-ons,

maps, skins, texture packs, and more. Minecraft Partner Program, M

INECRAFT,

https://www.minecraft.net/en-us/partner [https://perma.cc/QG6Y-AR6R].

See

e.g.

, Om Tandon,

Move Over Minecraft: Monetising New Wave of User

Generated Content!

, UX REVIEWER (Mar. 7, 2019),

https://www.uxreviewer.com/home/2019/3/7/move-over-minecraft-monetising-

new-wave-of-user-generated-content [https://perma.cc/9XJF-PEC4] (crediting

Minecraft with sparking “the UGC revolution online in 2009”).

Minecraft Partner Program,

supra

note 37. Users with particularly popular

mods or servers might make additional accounts on Patreon or GoFundMe to

generate income, and streamers almost always have some form of lay

fundraising in addition to the monetization provided by streaming on Twitch,

TikTok, Periscope, or their competitors. Andy Hoo,

New Minecraft Guidelines

Affects Streamers and Content Creators

, GOLD PENGUIN (Aug. 6, 2023),

https://goldpenguin.org/blog/new-minecraft-guidelines-affects-streamers-and-

content-creators/ [https://perma.cc/2RZ6-897W].

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119

of their content.

Minecraft’s Partnership Program has higher

barriers to entry than creating non-branded UGC, as potential

applicants submit extensive portfolios of prior content to

qualify for partnership status.

Minecraft’s monetization structure and promotion of its

user-creators was particularly lauded during the pandemic,

where the game saw a renaissance amid new brands of UGC,

such as the universities who recreated their campuses

virtually to conduct tours and replacement graduations for

those affected by Covid-19.

This shows an example of an

instance where UGC may be harnessed during unorthodox

As of 2022, the Minecraft Marketplace has resulted in the download of 1.7

billion pieces of content, generating more than $500 million that has been paid

out to 295 partners and partner organizations, 43 of which have earned more

than $1 million from Microsoft and Mojang. Brendan Sinclair,

Lessons from

Minecraft Marketplace

, GAMESINDUSTRY.BIZ (Jun. 6, 2022),

https://www.gamesindustry.biz/lessons-from-minecraft-marketplace

[https://perma.cc/9K3T-FTXP]. Microsoft maintains a seven-person team to vet

partnerships, and while exact specifics of payouts vary, creators reportedly

receive “more than half” of the remainder after the platform holder takes a cut

on content revenue.

Id.

There exist a number of avenues to listing UGC on Minecraft for sale short

of being a Partner: streaming, listing mods and skins for sale, and offering paid

multiplayer servers are all viable UGC revenue streams, but the Partner Program

is among the purest forms of UGC employment.

See generally id.

Another rarer

avenue is the creation of brand-sponsored events and content within games,

which can be conducted by Partner-equivalent quasi-employees of the game

title, brand employees, or third parties, depending on the prominence and

desires of both game and brand. David Taylor & Nicolas,

Why Minecraft Won’t

Reach Its Full Potential

, NAAVIK (Jan. 26, 2023), https://naavik.co/digest/why-

minecraft-wont-reach-its-full-potential/ [https://perma.cc/79PA-S3QQ]. As a title,

Minecraft launches fewer “brand activations” than peers like Roblox or Fortnite,

which is reportedly a choice on the title’s behalf.

See also

Alexander Lee,

How a

Minecraft influencer is Bringing Advertisers to the Platform

, DIGIDAY (Nov. 23,

2022), https://digiday.com/marketing/how-a-minecraft-influencer-is-bringing-

advertisers-to-the-platform/ [https://perma.cc/SA3D-MES6] (adding that on the

brand side, Minecraft partnerships can suffer from “not just policy limitations, but

technical limitations” on any naïve importation of brand-modeled content

creations, as compared to peer titles).

VB Staff,

How User-Generated Content is Changing the Industry for Good

VENTURE BEAT (Oct. 27, 2022), https://venturebeat.com/games/how-user-

generated-content-is-changing-the-game-industry-for-good/

[https://perma.cc/S7FW-Z4VU]; Pearse Anderson,

Campus is Closed, So College

Students are Rebuilding Their Schools in Minecraft

, THE VERGE (Mar. 31, 2020),

https://www.theverge.com/2020/3/31/21200972/college-students-graduation-

minecraft-coronavirus-school-closures [https://perma.cc/R22R-STEM].

120 CYBARIS

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times to create monetizable content for a greater public

purpose.

Fortnite

Fortnite had achieved considerable popularity

before

it released its Unreal Engine for Fortnite (“UEFN”) in March

2023—alongside an accompanied revamp to in-game

creativity called “Fortnite: Creative 2.0”—to enable fan

creators to directly implement their creations for third party

use.

The release of this software revolutionized, to some

extent, content creation in the title, as its graphics engine and

accompanying freedom of creative expression resulted in

innumerable masterpieces of user generation.

Also relevant

is that users may play and create content within Fortnite for

free, as the game lacks subscription costs.

Shabana Arif,

Fortnite Made the Most Annual Revenue of Any Game in History

Last Year

, IGN (Jan. 16, 2019),

https://www.ign.com/articles/2019/01/16/fortnite-made-the-most-annual-

revenue-of-any-game-in-history-last-year [https://perma.cc/4BVD-NNAW].

Eric Francisco,

'Fortnite' Creative Mode: The Definitive History of Video Game

Modding

, INVERSE (Dec. 14, 2018), https://www.inverse.com/article/51793-

fortnite-creative-mode-video-game-mod-history-wolfenstein-doom-halo-super-

mario-maker [https://perma.cc/Y2YG-TKWB]. Epic had previously released

Fortnite: Creative

in December of 2018, enabling users to create their own

private islands for friends and strangers alike to meet in battle.

Id.

This almost

immediately resulted in controversy when users recreated existing IP—most

prominently famous Call of Duty maps—onto the blank canvases of their private

islands, providing a backdoor to essentially facilitate licensing of the assets into

Fortnite, something that certainly has a quantifiable pecuniary value invalidating

fair use, which likewise runs afoul of the aforementioned DMCA safe harbors

permitting users to create and list private islands.

See

Doster,

supra

note 34.

Patricia Hernandez,

We Aren't Ready For What's About To Happen With

Fortnite

, KOTAKU (Mar 22, 2023), https://kotaku.com/fortnite-creative-2-unreal-

engine-console-release-time-1850254186 [https://perma.cc/NVJ6-WKMC ] (“You

can wear Nikes in Fortnite . . . [y]ou can listen to an Ariana Grande concert in

Fortnite”).

Jordan Ashley,

Is Fortnite Free? Everything You Need to Know!

, ESPORTS.NET

(Feb. 15, 2023), https://www.esports.net/news/fortnite/is-fortnite-free/

[https://perma.cc/269E-RD8C]. Fortnite is unlike games like Minecraft or Grand

Theft Auto in that it is entirely free, both the game itself and the ability to play

online and integrate your own content for sale.

See id.

The entire monetization

of the game is through in-game purchases of items, skins, or other custom

content.

But see

Matthew Pryor,

How Fortnite Battle Pass Works

, ESPORTS.GG

(Jun. 12, 2023), https://esports.gg/guides/fortnite/how-fortnite-battle-pass-

works/ [https://perma.cc/5FCF-8H8B] (explaining the concept of Fortnite’s Battle

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121

Fortnite’s robust community of custom content

creators can monetize their contributions in a variety of ways,

ranging from the game-level (maps, modes) to the character-

level (skins, item packs).

At the onset of writing, creators

were able to earn money through the game's Support-a-

Creator program, which allowed players to support their

favorite creators by using their creator code when making in-

game purchases.

The newly revamped monetization

encourages creativity and creation, and like Minecraft, is often

supported as a user revenue stream by fundraising on

monetized live streaming platforms like Twitch.

Pass, where users may pay a monthly subscription to unlock an additional

progression of cosmetic items as they level up). Battle Pass costs $11.99/month

and reflects a shift from fixed costs to subscriptions, which provide ongoing

royalties to game developers.

Id.

Lawrence Serafico,

The Best Ways to Make Money in Fortnite

, REPEAT.GG (May

22, 2023), https://www.repeat.gg/content/the-best-ways-to-make-money-in-

fortnite/ [https://perma.cc/66HU-L9X6];

Andy Chalk,

Epic Will Share 40% of

Item Shop Revenues with Fortnite Island Creators: ‘There's No Need to Design

Cunning Monetization Loops' Anymore

, PC GAMER (Mar. 22, 2023),

https://www.pcgamer.com/epic-will-share-40-of-item-shop-revenues-with-

fortnite-island-creators-theres-no-need-to-design-cunning-monetization-loops-

anymore/ [https://perma.cc/MD2D-EKCR].

Asmir P.,

Fortnite Removes Support a Creator Code from the Item Shop

SPORTSKEEDA (Mar. 22, 2023), https://www.sportskeeda.com/fortnite/news-

fortnite-removes-support-creator-code-item-shop [https://perma.cc/3SDN-

M454]. The Support-a-Creator feature was removed on March 22, 2023.

Id.

This

function vested 5% of item shop purchases to creators but was replaced during

Creative 2.0 as the new edition pledged 40% of item shop revenues to creators

as a basis of custom island popularity, which seems to provide more income

viability to creators.

Id.

Given that the new system is more driven by popularity

than specific loyalty, it provides equal incentives to create a market and promote

the content on social media.

Id.

Jay Peters,

Fortnite’s Generous New Creator Economy Has an Epic Catch

, THE

VERGE (Mar. 28, 2023), https://www.theverge.com/2023/3/28/23659492/fortnite-

creator-economy-2-0-epic-games-catch [https://perma.cc/H7RA-HX7A]. The

previous Support-a-Creator program drove a fair deal of Fortnite revenue but

vested only 5% of revenues from items (after a certain threshold earned) to its

creators.

See also

Andy Brown,

’Fortnite’ Sets Aside 40 Percent of Item Shop

Revenue to Pay Creators

, NME (Mar. 23, 2023)

https://www.nme.com/news/gaming-news/fortnite-sets-aside-40-per-cent-of-

item-shop-revenue-to-pay-creators-3418990 [https://perma.cc/8F68-NQ2Q].

the 40% of new item shop payments, creators are paid on the basis of both

popularity and retention of users within the game.

Id.

Critics have noted that

under the new model, Fortnite’s developer Epic will compete over this new 40%

share with its own developer-created maps and variants, which have the benefit

of developer amplification and promotion.

See

Peters,

supra

this note.

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Roblox

Roblox is perhaps the most direct example of a game

created specifically to facilitate the generation of user gaming

content,

as it allows its users to create their own games

using the Lua scripting language.

Creators can earn money

through the game's Developer Exchange (“DevEx”) program,

which allows them to monetize after reaching a threshold of

earned Robux—the game's virtual currency—at a fixed

exchange rate for real money.

Creators earn these Robux

by charging a customizable fee in the same currency for

access to their “experiences,” the platform’s name for a game-

within-a-game.

Taylor Lyles, O

ver Half of US Kids are Playing Roblox, and it’s About to Host

Fortnite-esque Virtual Parties Too

, THE VERGE (Jul. 21, 2020),

https://www.theverge.com/2020/7/21/21333431/roblox-over-half-of-us-kids-

playing-virtual-parties-fortnite [https://perma.cc/QK9V-XC5P]. The free game

intermediates users in a multi-player setting to play other users’ in-game

“experiences,” and like Fortnite maintains monetization only for in-game

purchases.

Id.

It is a very direct avenue to UGC, but during the pandemic

reportedly over half of all children under the age of 16 were among the game’s

120 million monthly users.

Id.

Shreya,

What is Lua Programming in Roblox?

, CODINGAL (Aug. 4, 2023),

https://www.codingal.com/coding-for-kids/blog/what-is-lua-programming-in-

roblox/ [https://perma.cc/M3P7-47LJ]. Roblox’s use of Lua is unorthodox in-

game modification scripting: Minecraft uses Java, and both Fortnite’s Unreal

Engine and GTA are written in a C++ engine, while the latter can embed Lua

over the C. Fewer colleges maintain courses offering Lua as a language, but its

syntax is more humanlike and some modders have indicated that it can be easier

to learn than a more traditional coding language, which may help explain the

boom in younger users.

Id.

; Alexandra Grosu,

Lua Scripting in Roblox Studio:

Game Development Made Easy

, MEDIUM (Sep. 12, 2023),

https://medium.com/@alexandragrosu03/lua-scripting-in-roblox-studio-game-

development-made-easy-9df43c65fc93 [https://perma.cc/83NE-L8XT].

Cecilia D’Anastasio,

On Roblox, Kids Learn It’s Hard to Earn Money Making

Games

, WIRED (Aug. 19, 2021), https://www.wired.com/story/on-roblox-kids-

learn-its-hard-to-earn-money-making-games/ [https://perma.cc/J7XS-NDU3].

The payment exchange of Robux has been criticized as exploitative of young

users in a game skewing precariously so, with extreme cynics comparing the

currency to an online company script.

Id.

Developers should likely either err on

complete transparency with respect to inflation when tying monetization to an in-

game economy or elect to pay directly based on equivalent spending.

Id.

Selling Experience Access (Paid Access)

, ROBLOX,

https://en.help.roblox.com/hc/en-us/articles/203314090-Selling-Experience-

Access-Paid-

Access#:~:text=Paid%20Access%20allows%20you%2C%20the,be%20public%

20to%20all%20users. [https://perma.cc/VAV5-SMGP]. There are a few

2024] POCKET CASTLES AND CUSTOM SKIN 123

123

As the most direct title providing a platform for

monetization of user-generated content, Roblox has invested

considerable effort to serve as a paragon model for the means

of user content monetization: it maintains a transparent

(although sporadically-updated) exchange rate for its

currency,

it promotes integration of third-party branding for

licensed and expressive non-infringing capacities,

and it

mandates that its users must register creator accounts to

enable them to cash out and to preemptively confirm tax

eligibility.

restrictions on selling experience access, notably that an account must be 30

days old, which can be important to note for larger advertisers looking to

monetize experiences for one-time events.

Id.

As of April 2023, the latest

exchange rate is roughly $105 USD for 30,000 Robux, and users may receive

these Robux by paying for them, creating their own experiences, or purchasing a

subscription to Roblox similar to Fortnite or more traditional MMOs.

Developer

Exchange – Help and Information Page

, ROBLOX,

https://en.help.roblox.com/hc/en-us/articles/13061189551124-Developer-

Exchange-Help-and-Information-Page [https://perma.cc/WRA9-YJQZ].

A better system might be tied to inflation of the in-game Robux currency as a

relation of users and revenue generated, but efforts towards transparency are

appreciated.

DevEx was rolled out in 2013, during one of the lower points in Roblox’s

history: after a release in 2006, it grew a loyal userbase while content was

propelled by goodwill before riding DevEx’s wave of newly monetizable content

to a meteoric rise to the peak of gaming in 2016.

See

Roblox Wiki,

Number of

Users Joining Roblox Each Year

, ROBLOX FANDOM,

https://roblox.fandom.com/wiki/Number_of_users_joining_Roblox_each_year

[https://perma.cc/BH92-VN4R]. The program often sees teams of users or third-

party developers collaborating to realize the vision of an experience within the

Roblox “platform,” and ultimately users can thank DevEx for the influx of third-

party content to the community.

See, e.g.,

Roblox Wiki,

NFL Tycoon

, ROBLOX

FANDOM, https://roblox.fandom.com/wiki/NFL_Tycoon, [https://perma.cc/3U28-

ND2T] (broadcasting live Super Bowl advertisements); Roblox Wiki,

David Guetta

DJ Party

, ROBLOX FANDOM,

https://roblox.fandom.com/wiki/David_Guetta_DJ_Party,

[https://perma.cc/C6G4-9JQQ] (David Guetta DJ set in partnership with Warner

Music Group); Roblox Wiki,

McLaren F1 Racing Experience

, ROBLOX FANDOM,

https://roblox.fandom.com/wiki/McLaren_F1_Racing_Experience

[https://perma.cc/7K4A-U63P] (driving simulator to receive McLaren-branded in-

game items). All three listed events were conducted in 2022 and are truly a

narrow selection of the many brand partnerships and prominent experiences

developed on the platform, often with third-party support or licensure.

See

three

Roblox Fandom links,

supra

this note.

Developer Exchange

supra

note 53. 5353Roblox navigates well the difficult

countervailing interests of ensuring proper user records to prevent creators

below the age of 13 from creating and monetizing content while also not

encroaching upon privacy rights in a landscape dominated by zealous anonymity

relative to traditional avenues of commercial exploitation.

Id.

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Grand Theft Auto

Grand Theft Auto V has a thriving modding

community,

which is responsible for a wide range of custom

content available for implementation within the game,

including new vehicles, weapons, and game modes.

Creators of these mods find themselves at occasional arms

with the game’s developer, Rockstar Games, whose

inconsistency in prior content moderation lent a reputation for

arbitrariness in their removal of popular mods that might

arguably infringe on the company’s intellectual property

rights.

Creators of mods that are permitted to remain

through ongoing rounds of strikes may earn money through

donations or by creating their own paid mods.

Grand Theft Auto V

, ROCKSTAR GAMES,

https://store.rockstargames.com/game/buy-gta-v [https://perma.cc/H9AP-

PVK7]. For reference, the latest edition of Grand Theft Auto (released in 2013)

costs $39.99 to purchase, and online play—required for most significant mods

and modes—costs an additional $19.99 per month.

Id.

A Fortnite-equivalent

Battle Pass, essentially a subscription for periodic in-game currency to apply

towards purchases of cosmetic modifications, in-game vehicles, and other items

Compare

GTA+

, ROCK STAR GAMES, https://www.rockstargames.com/gta-plus

[https://perma.cc/TXW3-HZ7W],

with

Pryor,

supra

note 46 (Fortnite’s system

began by giving access to a separate ladder of enumerated acquirable items,

while GTA+ largely grants in-game currency and access to in-game perks; in a

sense, GTA+ launched a subscription that functions primarily as a monthly

stipend to purchase goods at their marketplace).

See generally id.

GTA is unlike Minecraft or Fortnite in that its content

generation is somewhat constrained by the physics of the game’s engine which

does not lend itself to open-world sandbox construction in quite the same way as

its UGC peers.

Id.

This provides a barrier to entry in that users are given a

smaller canvas to create upon, but users still very much find a way to modify

their gameplay experience.

Liana Ruppert,

Massively Beloved GTA Mod Taken Down, Modders Claim

"Increasing Hostility" From Take-Two

, GAME INFORMER (Sep. 7, 2021, 12:11 PM),

https://www.gameinformer.com/mod-corner/2021/09/07/massively-beloved-gta-

mod-taken-down-modders-claim-increasing-hostility-from

[https://perma.cc/YU4H-4WH3]; Ash_735,

Take-Two Changes the Agreement,

Modding Take Downs

, GTA FORUMS, https://gtaforums.com/topic/973749-take-

two-changes-the-agreement-modding-take-downs/ [https://perma.cc/5FBK-

AGNW].

See also

discussion

infra

Section IV.A.2).

This creates the sort of dynamic seeking to be avoided by the policy

recommendations to follow.

See infra

Section V. Users should know whether

their contributions to a game will endure, and an opt-in policy for transparency is

a good means to accomplish the same, provided that developers are able to

enumerate offensive content to enable them to accomplish their reputational and

relational aims.

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125

Grand Theft Auto bears inclusion because it represents

one of the largest platforms for UGC with one of the field’s

most controversial enforcement policies.

Take-Two’s efforts

to restrict mods dates back to a user agreement on content

in 2017 and a subsequent update in 2019 with questionable

transparency.

The ensuing effect on creator uncertainty sets

a bad precedent for many reasons: it can incentivize

developers to issue strikes under the Digital Millenium

versions, it can suppress free creative expression while

enabling more problematic expression arbitrarily, and it can

result in financial subterfuge absent some regulation to

remedy power disparities.

Battle Royale Wrap-Up on Royalties

There are many lessons to be learned from these

various systems of revenue-sharing to creators of user-

generated content within the selected titles. For one, users

seek to generate content in games where popularity and

creative accessibility are both high, driven by some

combination of the users, their revenue, the degree to which

the game’s developer enables or permits content integration,

and the viability of monetizing the share they are afforded of

any ensuing revenue.

Another takeaway is that when revenue sharing and

content moderation standards are transparent, users tend to

view their contributions as dependable. This can be beneficial

in two means: it demonstrates to other users the efficacy of

See

e.g.

Ruppert,

supra

note 59. The creators of one of GTA’s most popular

mods, GTA Underground, voluntarily pulled the mod due to their being embroiled

in an ongoing effort by Rockstar’s parent company, Take-Two, to crack down on

mods.

Id.

In their announcement, they stated that the decision was “[d]ue to the

increasing hostility towards the modding community and imminent danger to our

mental and financial well-being . . ..”

Id.

Ash_735,

supra

note 59. This authority of questionable legitimacy provides

excellent links and commentary on the summer 2021 heatwave of DMCA strikes,

explaining how Take-Two via Rockstar curtailed GTA mods through flexibly-

worded and retrospectively-applied provisions for content removal.

Id.

It’s also problematic for developers in that it can chill creative expression,

which is almost always a boon for publicity and user retention, and in that a

thriving mod community tends to result in associated bumps in in-game

spending.

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content monetization, which drives further creation, and it

provides peace of mind to existing creators, who may be

encouraged themselves to create additional content by the

safety fostered by encouraged and facilitated monetization of

past creation.

IV. QUALITY CONTROL, BRAND DILUTION, AND

TRAGEDIES OF VIRTUAL COMMONSES

These concepts are largely intertwined, as they deal

predominantly with the risk to third parties posed by the

unfiltered creation of content in video games. They have been

bifurcated to distinguish situations where authority to remove

content flows directly from the developer for content directly

offensive to the same from those where removal authority

remains with the developer but is exercised to remedy a UGC

wrong against another.

Free-to-Play Free Riders

The simpler situations are those where a user’s

offensive content harms only the game’s developer, as these

are situations redressable by promoting more transparent and

stringent prohibitions on UGC. This also creates a situation

where the most direct and appropriate action (censure from

the developer and transparent exclusionary remedies) can be

endorsed without competing concerns between the

developer/platform and harmed third parties. Some examples

of times where a game developer has taken action to combat

free riders setting fire to a game’s virtual commons include:

Pokémon Go: Unintended Antisemitism and

Desecration

When Pokémon Go hit the scene in early 2016, it felt

like world peace had been achieved, if only for a summertime.

The game encouraged users to visit historical markers and

unique local businesses, rewarding them with a few in-game

items to enable their continued quest to collect all of the

game’s virtual monsters. Encouraged to explore, teenagers

2024] POCKET CASTLES AND CUSTOM SKIN 127

127

renewed their zeal for hometown tranquility in a Hands Across

America for the virtual times.

Pokémon Go’s locational markers date back to a

progenitor, Ingress.

In that game, there was a similar

reward system but lower barriers for acceptance of local

markers.

What complicates the situation is that Ingress was

created as a game aimed at a different audience than

Pokémon Go. By using the library of existing Ingress

references, the Go creators were unintentionally suggesting

that the reference markers created by a group of users

playing a game about controlling territory for factions in

competition over our modern world was

directly

applicable to

one where the control was effectuated by pocket monsters

sold predominately to kids as trading cards or plushies.

The largest controversies circled around Pokéstops

created in cemeteries, the National Holocaust Museum, and

Kotaku International,

Pokémon Go Saved My Life

, KOTAKU (May 27, 2021, 5:00

PM), https://www.kotaku.com.au/2021/05/pokemon-go-saved-my-life/

[https://perma.cc/R5ED-54FF] (narrative of an agoraphobiac who credits the

game for helping alleviate his panic attacks).

Tom Vogt,

Pokemon Go vs. Ingress

, MEDIUM (Jul. 28, 2016),

https://medium.com/@Lemuria/pokemon-go-vs-ingress-870c3f508011

[https://perma.cc/6Z79-7P9J]. To answer why Go succeeded where Ingress

failed, Ingress most likely saw lessened adoption due to not being associated

with a major franchise that had considerable public goodwill.

See id.

It was

launched in late 2013 on Android and summer 2014 for iOS devices and featured

a narrative incorporating real life elements (like the CERN Large Hadron Collider)

with objective points generated by user submissions that were then capturable

by any of three teams who competed for control, whose names definitely evoke

V for Vendetta: the Enlightened, the Resistance, and the Machina.

See id.

It had

tens of millions of users, so it was by no means a failure, but it was eclipsed by

the unprecedented success of Go. Stephany Nunneley-Jackson,

Ingress Players

Were Major Contributors to Pokémon Go Spawn Locations

, VG247 (Jul. 12,

2016), https://www.vg247.com/ingress-players-were-major-contributors-to-

pokemon-go-spawn-locations [https://perma.cc/2GXU-549S].

Id.

Of 15 million worldwide submissions predating Pokémon Go, 5 million were

approved.

Id.

Comparing submission rates directly is unproductive, as Pokémon

Go had the benefit of starting with Ingress’s base of locations, so they were

essentially sifting through for notable omissions warranting treatment and now

had a presumably larger team that could review existing locations to determine

appropriate thresholds for inclusion. In addition, both Niantic and Pokémon as a

franchise tend to be fairly mum with regard to specifics on data, so exact

ongoing specifics of marker acceptance rates are difficult to gauge.

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the 9/11 Memorial Fountain in New York City.

These

locations would be questionably more appropriate in Ingress,

where the markers serve primarily a boundary and territory

purpose; however, a combination of the younger game’s

audience and the semi-intentional promotion of loitering

created by Pokémon Go’s gym-control system demonstrated

that certain private places of remembrance and worship were

among locations that pragmatically should not be among the

two games’ shared universes.

This illustrates to some

degree the conflict in branding that can result from importing

a database from an existing licensed game: often, it can

jumpstart development of a game, but a developer must

strictly consider the effects—both intentional and ancillary—

that come with applying the former game’s framework to your

own.

Grand Theft Auto and Other Gamer Crimes

Grand Theft Auto has been a controversial game since

initial release.

The game enables users to perform sex acts

Christian Hoffer,

Pokémon Go Allegedly Removing Controversial Pokéstop

Locations

, COMICBOOK.COM (Jul. 27, 2016, 10:32 AM),

https://comicbook.com/news/pokemon-go-allegedly-removing-controversial-

pokestop-locations/ [https://perma.cc/8PYS-PHF7]; Megan Peters,

The Holocaust

Museum Asks Visitors To Please Stop Catching Pokémon At Its Location

, POP

CULTURE (Jul. 12, 2016, 7:00 PM), https://popculture.com/culture/news/the-

holocaust-museum-asks-visitors-to-please-stop-catching-pokem/

[https://perma.cc/FNJ7-9ZQ6]. It might be worth noting that the ability to catch

a Pokémon at a particular marker was the specific utility weaponized by

Pokémon Go free riders: the Peters authority notes that social media memes of

users catching specific Pokémon at the solemn locations fueled backlash, and

this is a mechanic unavailable in the same form within Ingress. Peters,

supra

this

note.

Arguably, the markers in question perhaps should not have been included in

Ingress either, but the controversy was amplified by free riders among

Pokémon’s larger audience and certain differing game mechanics.

Another paper entirely could discuss this issue in the context of game engines,

which provide an initial framework to develop a game based on open source

and/or public domain code. There are issues of transformative effect, of proper

attribution and licensing, and ultimately it results in both more games (especially

mobile ones) but also less uniqueness in the pool of the video gaming market.

GUINNESS WORLD RECORDS 2009 GAMER'S EDITION

, GUINNESS WORLD RECORDS 108–09

(2009). According to the 2008 and 2009 editions of Guinness World Records,

GTA is the most controversial video game series in history, with over 4,000

articles published about it.

Id.

The first game was condemned in Britain,

Germany, and France for extreme violence and was banned outright in Brazil.

2024] POCKET CASTLES AND CUSTOM SKIN 129

129

with prostitutes and has been criticized for implicitly

rewarding murder to recoup money in these situations.

GTA

Vice City, specifically, was embroiled in controversy over a

mission tasking players to incite a gang war between Haitian

and Cuban gangs, which was condemned by the Haitian

Centers Council and Haitian Americans for Human Rights.

The organizations staged a protest in New York publicly

criticizing the game, contending that it invited the player to

harm Haitian immigrants and claiming that it depicted Haitians

as "thugs, thieves and drug dealers."

Many successor titles

have also been criticized for various reasons.

A lesson for mature games categorically can be learned

from Grand Theft Auto: that in a virtual city built on vice, bad

actors will weaponize the blank canvas to act out fantasies of

Rus McLaughlin & Lucas M. Thomas,

IGN Presents the History of Grand Theft

Auto

, IGN (Sep. 6, 2020), https://www.ign.com/articles/2013/05/06/ign-

presents-the-history-of-grand-theft-auto-2 [https://perma.cc/B3F3-P6P9].

McLaughlin & Thomas,

supra

note 70. The video game Second Life also dealt

with litigation regarding user-generated sex.

See

Phil Davis,

'Second Life' Avatar

Sued over Virtual Sex Device

, ABC NEWS (Aug. 10, 2017, 7:15 PM),

https://abcnews.go.com/Technology/story?id=3468709 [https://perma.cc/DU77-

UAYC]; Regina Lynn,

Stroker Serpentine, Second Life's Porn Mogul, Speaks

WIRED (Mar. 30, 2007), https://www.wired.com/2007/03/sex-drive0330/

[https://perma.cc/E3YF-2QWN]. Both authorities deal with Kevin Alterman or

Stroker Serpentine, who sold virtual beds in Second Life providing an in-game

pornography outlet and later brought suit for copyright infringement against a

user creating a similar item.

See

Lynn,

supra

this note. The allegedly infringing

user employed the “that’s not my avatar” defense until litigation, where avatar

control was admitted, and the action settled.

Id.

The case provides limited

support for the notion that pornography UGC in select titles can be protectable

and that while an avatar itself cannot be sued, an avatar may also not be used to

shield liability for virtual infringement.

Tor Thorsen,

Haitian-Americans Protest Vice City

, GAMESPOT (Nov. 25, 2003),

https://www.gamespot.com/articles/haitian-americans-protest-vice-city/1100-

6084645/ [https://perma.cc/3LAY-6FSN].

Id.

See

Mark Langshaw,

Feature: Video Game Controversy

, DIGITAL SPY (Apr. 24,

2011), https://www.digitalspy.com/videogames/a315957/feature-video-game-

controversy/ [https://perma.cc/CD3H-VDGJ] (compiling GTA controversies,

including GTA Chinatown Wars catching flak for a drug-dealing minigame, and

GTA IV being criticized for its depiction of drunk driving); Earnest Cavalli,

Parents

Group Warns Against Lost and Damned Nudity

, WIRED (Feb. 21, 2009),

https://www.wired.com/2009/02/parents-group-w/ [https://perma.cc/3SSQ-

QFY7] (full frontal male nudity in a content expansion pack for GTA IV: The Lost

and Damned).

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violence and harm.

The mod community in GTA is stronger

than nearly any, and predictably it has caused a tremendous

amount of controversy of its own.

Fortnite, Custom Skins Gone Wrong, and Reviving

the Dead

Fortnite’s first controversy in 2021 dealt with user

skins.

A developer-sponsored, customizable “Boundless”

skin pack gave users the ability to select from a number of

possible color combinations, which caused a UGC-adjacent

issue when users overwhelmingly selected white/white and

black/black color combinations to the extent that they were

temporarily removed from use.

The takeaway from the

Boundless controversy is that customization in official

developer content offerings must be scrutinized for the ways

weaponized free riders might exploit a node for creativity in

bad faith.

One might argue that precisely

because

Grand Theft Auto is a self-stylized

frontier of vice, more stringent efforts to snuff out infringing or offensive content

and a firmer exercise of removal authority might be required. I will not disagree

with this point, except to say that the same effect could likely be accomplished

by adopting more transparency in removal criteria.

Alexandra Sakellariou,

Grand Theft Auto's Hot Coffee Mod Controversy

Explained

, SCREEN RANT (Jul. 7, 2020), https://screenrant.com/gta-hot-coffee-san-

andreas-controversy-cj-girlfriend/ [https://perma.cc/7VSW-TNAX]. Most

infamous among GTA mod controversies was the minigame “Hot Coffee,”

originally developed as an inaccessible minigame—an inside joke between

developers—for the console release of GTA San Andreas in 2014.

Id.

When the

game was released for Windows the next year, players found ways to unlock the

minigame.

Id.

The minigame simulated sexual intercourse between the main

character and a girlfriend, and Rockstar was quick to claim that "[h]ackers

created the 'Hot Coffee' modification by disassembling and then combining,

recompiling and altering the game's source code.”

Id.

After it was proven that

the mod could be accessed with preexisting code, the ESRB investigated the

game and made it the only GTA to receive a rating of “Adults Only.”

Id.

The

incident was also responsible for the introduction of the Family Entertainment

Protection Act.

Id.

Rory Young,

Fortnite Reportedly Changing Controversial Superhero Skin

, GAME

RANT (Jan. 30, 2021), https://gamerant.com/fortnite-boundless-skin-broken/

[https://perma.cc/7DBX-6WX9].

Id.

The black/black combination resulted in a character that problematically

blended into shadows, and the white/white combination likewise blended into

bright textures.

Id.

Developers seeking to incorporate customizable content

offerings should exercise care to ensure that all combinations are tested for

potential competitive abuse and that reports are monitored for those games with

too many permutations to practicably test.

2024] POCKET CASTLES AND CUSTOM SKIN 131

131

Another UGC issue Fortnite encountered stemmed

from their aforementioned Creative mode,

where users were

creating legacy editions of old Fortnite maps in their UEFN.

Shortly after the Creative 2.0/UEFN launch, Fortnite’s

developer Epic Games released a blog post updating users of

new publishing terms to restrict infringement of third-party

assets

and Epic’s own intellectual property.

Weaponizing Creative Freedom to Harm Others

Situations grow more complicated when UGC causes

harm to users or brands who are themselves not the game’s

developer. There are many situations where this may occur,

and three have been selected for focus: anticompetitive

effects engendered by UGC, reputational harm to third party

brands, and use for the promotion of hate speech or violence.

Aimbotting Anticompetition

UGC offerings occasionally flirt with anticompetition

within competitive games, both intentionally and

unintentionally.

When an item brought by a user into a game

is done for the sole purpose of providing an advantage

contingent on purchase, it does not create competition over

Hernandez,

supra

note 45.

The notion of abandonment or closure of multiplayer games is a fascinating

issue I seek to address in a future paper: some developers treat abandonment

like a ghost ship, allowing their assets to continue but removing their control to

allow it to drift to a final destination, while others treat it like a whalefall,

licensing proper IP to a trusted group or dedicated group of former users to

enable a renaissance of nostalgia for what the game used to be.

Doster,

supra note

34 (Call of Duty).

Zackerie Fairfax,

Epic Games Barring Fortnite Players from Remaking Past

Chapter Maps in Creative 2.0

, DEXERTO (Mar. 25, 2023),

https://www.dexerto.com/fortnite/epic-games-barring-fortnite-players-from-

remaking-past-chapter-maps-in-creative-2-0-2096525/ [https://perma.cc/J2YT-

VK9V].

When content creates an advantage that was not intended by the creator, as

in the Boundless controversy,

supra

note 78, this should likely not impact a

creator’s right to revenue sharing, but when a piece of UGC is created for the

sole purpose of providing purchasers an advantage over nonpurchasers, this

impinges a developer’s ability to balance their game and arguably should result

in disgorgement of any UGC proceeds. Eric S. Raymond,

The Case of the Quake

Cheats

, CATHEDRAL AND THE BAZAAR (Dec. 27, 1999),

http://www.catb.org/~esr/writings/quake-cheats.html [https://perma.cc/T57D-

SUZT].

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content but rather stymies a developer’s ability to continue to

balance their game as it evolves, which is a different and

overriding intellectual property consideration often warranting

removal of the offensive UGC.

The most infamous form of anticompetitive UGC is the

aimbot, which has a long and storied history.

The aimbot

dominates discussion of anticompetitive effect in first-person

shooters and casts an ill reputation upon game modifications

categorically, as it exists strictly to benefit a user at the

expense of another.

From a regulatory standpoint, the

concern with anticompetitive modifications is exactly this: that

they provide a scapegoat for broader restriction of

modification creation or use through the acknowledgement

that no user will outwardly espouse support for their use.

For the obligatory note from Grand Theft Auto, a recent controversy saw a

mod removed on the basis of curbing online cheating, an anticompetitive

concern. Joab Gilroy,

The War on Mods - How Esports and Mods are Linked

, RED

BULL (Jun. 21, 2017), https://www.redbull.com/au-en/the-war-on-mods-how-

esports-and-mods-are-linked [https://perma.cc/FS9U-NBUX]. Cynics like the

previous authority at Red Bull note that a more likely rationale for the restriction

was the fact that it gave users access to game files that could enable single-

player users to unlock vehicles and other items intended for

GTA: Online

that

were hidden behind microtransaction paywalls, as the mod in question did not

affect or interact with online play.

Id.

Raymond,

supra

note 83. To begin, an aimbot is a mod for an accuracy-based

shooter game like Call of Duty or Fortnite that enables a user to have perfect aim

due to essentially computer-overridden controls.

See id.

The first reported

aimbots affected the 1990s game title Quake and code written allowing the users

to see around walls.

Id.

Tom Warren,

Cheaters are Ruining Call of Duty: Warzone

, THE VERGE (Feb. 2,

2021), https://www.theverge.com/2021/2/2/22261947/call-of-duty-warzone-

cheaters-hackers-aimbots-wallhacks-problem [https://perma.cc/G8CK-7PB4].

Audiences unfamiliar with the experience of encountering an aimbotter would be

encouraged to read the preceding authority, which deals with a spate of UGC-

fueled cheating that resulted in 60,000 bans to Call of Duty: Warzone.

See id.

The authority notes that many aimbot cheats are paired with “wall hacks,”

enabling users to see enemies from far away or through walls to facilitate ease

of access for their automatic anticompetitive killing machines.

Id.

See

discussion

infra

Section V. Accordingly, restrictions for “cheating” in opt-

out provisions should be narrowly tailored to only encompass these cheats that

are uniformly reviled, rather than a slippery slope of gray that might grow to

subsume a pillar of expression.

Id.

These considerations are especially significant

amid the nascent boom of Esports and scrutiny over the artistic and athletic

merit of video games, particularly competitive ones.

See id.

;

see also

Esguerra,

supra

note 28.

2024] POCKET CASTLES AND CUSTOM SKIN 133

133

Reputational Harm and Lost Social XP

Reputational harm to third parties is a concern that can

dwarf all others in the eyes of select developers.

From a

pragmatic standpoint, the first step to curtailing reputational

harm is to tailor specific policies to restrict the inclusion of

infringing third-party IP.

A next step for games with

considerable latitude for UGC creativity would be to monitor

situations and communities presenting a heightened risk of

reputational harm to preempt action in the event of a

controversy.

Another aspect of reputational harm that merits

mention is the integration of quasi-protectable third-party IP

as developer-sanctioned purchasable content.

Developers

See generally

Erez Reuveni,

On Virtual Worlds: Copyright and Contract Law at

the Dawn of the Virtual Age

82 INDIANA L.J. 261, 269–70 (2007) (discussing

Marvel’s infringement action for inclusion of IP assets in UGC of “City of

Heroes”). Some developers are notoriously litigious or averse to litigation and

knowing the precedential history of a title can be an important threshold for a

user when considering the inclusion of quasi-protectable or outright licensable

third-party assets in UGC for a game.

See id.

These policies should address direct third-party infringement,

infringement of the developer’s assets, disparagement or brand dilution to both

presented by in-game UGC offerings, and the appropriate licensure of third-party

publicity rights when marketing in-game assets based upon iconic moments.

See

also

additional concerns in mature games,

infra

Section IV.B.3.

See

e.g.

Hoffer,

supra

note 67, or Young,

supra

notes 77–78.

See, e.g.,

O’Brien,

supra

note 29 (League of Legends broadcaster voice line).

Fortnite also grappled with a rash of these suits in 2018 regarding unprotected

dance moves used as character emotes.

See, e.g.,

Austen Goslin,

Epic Games

Sued for Swiping ‘Milly Rock’ Dance for Fortnite

, POLYGON (Dec. 27, 2018),

https://www.polygon.com/fortnite/2018/12/6/18129089/fortnite-dance-2-milly-

rock-lawsuit-epic-games [https://perma.cc/ELK6-546Z ] (“Milly Rock”); Austen

Goslin,

Fresh Prince’s Alfonso Ribeiro Suing Epic Games over Fortnite Carlton

Dance Use

, POLYGON (Dec. 27, 2018),

https://www.polygon.com/fortnite/2018/12/17/18145166/fortnite-carlton-dance-

lawsuit-alfonso-ribeiro [https://perma.cc/H3CQ-5RZK] (“Carlton Dance”). These

suits were largely dismissed after the decision rendered by the Supreme Court in

Fourth Estate Public Benefit Corp. v. Wall-Street.com, 139 S.Ct. 881 (2019),

which shifted standing for infringement from “having applied for protection from

the Copyright Office” to the point after a decision is rendered, stalling most

emote lawsuits for lack of standing while awaiting action on their registration.

See

Austen Goslin,

Fortnite Dance Lawsuits Dismissed After New Supreme Court

Ruling

, POLYGON (Mar. 11, 2019),

https://www.polygon.com/fortnite/2019/3/11/18260142/fortnite-dance-lawsuits-

dismissed [https://perma.cc/H5UN-KV3Z]. A 2022 ruling regarding a YouTuber’s

application noted that “[t]he Copyright Act's legislative history specifically states

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134

must exercise heightened caution in ensuring that content

offered for sale directly from the game avoids infringement,

reviewing the inclusion of any assets—even those arguably

within the developer’s own IP umbrella—carefully to ensure

proper legal inclusion and sale.

Toxicity, Hate Speech, and Worse Reactions to

Losing

The inevitability of user toxicity, a mix of bad attitude,

rage, and harassment, follows competitive video games like a

toxic effect in a game: it lingers.

Alone, it can disrupt the

enjoyment of a game’s experience that is necessary to foster

the necessary nurturing environment for UGC, but

unfortunately many toxic free riders truly are the worst and

revel in extreme demonstrations of antipathy.

As a seminal title, Minecraft can provide most sections

with an example, owing to the extreme breadth and truly

limitless variations of UGC integrated on an everyday basis

within the game—some of it, arguably, a bad idea.

Equally

concerning is the regular spate of UGC created explicitly to

promote political discourse or other inappropriate subject

that 'choreographic works do not include social dance steps and simple

routines.’" Danielle Partis,

Lawsuit Over Fortnite Dance Dismissed by Court

AMESINDUSTRY.BIZ (Aug. 30, 2022), https://www.gamesindustry.biz/lawsuit-over-

fortnite-dance-dismissed-by-court [https://perma.cc/R7XN-7FLZ].

Hate is No Game: Harassment and Positive Social Experiences in Online

Games

, ANTI-DEFAMATION LEAGUE (2021),

https://www.adl.org/resources/report/hate-no-game-harassment-and-positive-

social-experiences-online-games-2021 [https://perma.cc/ENS7-6GAX]. A report

from the Anti-Defamation League in 2021 suggests that in the preceding year

2020, three in five teenagers (60%) and five of six adult players (83%)

experienced harassment while playing online multiplayer games.

Id.

Evita March,

Psychology of Internet Trolls: They Understand What Hurts

People But Simply Don't Care

, ABC NEWS (Jul. 12, 2017),

https://www.abc.net.au/news/2017-07-13/trolls-understand-what-hurts-people-

but-they-simply-dont-care/8701424 [https://perma.cc/R9GP-EBQS] (discussing

the harms engendered by and psychology of internet “trolls,” to whom toxicity

and harassment in video games is often attributed).

Ewan Palmer,

Three Teenagers Accused of Terrorism Over Plot to Blow Up

Building They Made in Minecraft

, NEWSWEEK (Nov. 23, 2020),

https://www.newsweek.com/russia-minecraft-terrorism-building-1549548

[https://perma.cc/QEU8-C4RV] (concerning a Russian federal building built in

Minecraft by three Siberian teenagers to blow up with their friends: “Two of the

boys are said to have pleaded guilty, but only [after] investigators obtained their

admission under duress . . ..”).

2024] POCKET CASTLES AND CUSTOM SKIN 135

135

matters to users of games skewing impressionably young.

In mature titles, the graver concern is the

exclusion

expressive yet controversial UGC, so long as it does not meet

a categorical exception to warrant lowered standards for

exclusion.

In adopting a stance on these categorical exclusions

for UGC, a regulatory caution would again be to exercise

prudence in narrowing offensiveness carve-outs.

Too broad,

and the policy could be used as a developer catch-all to

suppress divisive expression; too narrow, and the world’s

worst sandbox player gets another day to monetize their UGC

recreation of a recent bombing or act of objective depravity.

V. AUTOSAVE OUR PROGRESS . . . AND BUILD ON IT

Gamers have made considerable strides to carve out a

niche, and even a profession, in the generation of content

within the boundless frontier of virtual copyright-protectable

skies, but to ensure it is viewed as dependable, the video

game landlord-tenant relationship of publisher to user must

enact some provisions to promote the ongoing tenancy of a

user’s content. Some ultimate non-developer oversight of

consistency in UGC moderation and profit-sharing would help

transform historically uncertain revenue predicated on

developer goodwill into a more viable and transparent avenue

for future enthusiasts to monetize the success of their

Cyrus Farivar,

Extremists Creep into Roblox, An Online Game Popular with

Children

, NBC NEWS (Aug. 21, 2019), https://www.nbcnews.com/tech/tech-

news/extremists-creep-roblox-online-game-popular-children-n1045056

[https://perma.cc/7ACM-JY7G].

Hoffer,

supra

note 67. These exceptions might include disparagement of the

recently dead, inappropriate treatment of recent acts of terror or mass violence,

and certain aforementioned enumerated infringement concerns.

See id.

;

see also

Gilroy,

supra

note 84.

An exclusion for “recent acts of mass violence” may be more tailored than

“acts of terror,” for instance, and something akin to “infringement of third-party

or developer IP assets” may certainly be more appropriate than “any content

deemed to violate the developer’s code of community ethics.”

Nicky Harley,

Extremists use Minecraft and Roblox to Recreate Christchurch

Attack

, THE NATIONAL NEWS (Jun. 30, 2021),

https://www.thenationalnews.com/world/uk-news/2021/06/30/extremists-use-

minecraft-and-roblox-to-recreate-christchurch-attack/ [https://perma.cc/7DQY-

5LXV]; Stonehouse,

supra

note 14 (discussing sexual assault and grooming in

Roblox).

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creativity, which would likely contribute to user loyalty. To do

so most effectively would require lawmakers to regulate the

stratified stances of different publishers towards user

modification and create a system by which transparency

governs royalties for those titles seeking to share in

modification as a revenue stream.

This paper’s recommendation is nuanced but boils

down to a few core tenets.

Most significantly, developers should receive a choice

when releasing games: to create a transparent mechanism for

the provision of royalties and thus share in them or to restrict

modification zealously and receive correlative protection.

subsequent reapplication to the same authority by games that

discover UGC revenue streams unanticipated at launch

likewise seems appropriate.

100

The former scenario would likely still vest considerable

power in the hands of developers, as they would be able to

control the machine diverting ongoing revenue streams to

creators, but it would only benefit the user end of the game

modification dichotomy if it came with certain corollaries.

101

First, offensive content must be explicitly described and

provided against upon a game’s release, or content should be

considered permissible absent a compelling interest. Some of

the more restrictive titles with UGC presently permit discretion

An opt-in system is vital, as it creates situations amenable to both binaries of

developer mentality: those seeking to maximize the popularity and revenue-

generating content potential of their games and those seeking to maximize their

control over its use and modification for any of a variety of reasons. An opt-out

default would be contrary to traditional copyright convention, and a system

creating any more than two outcomes would likely devolve into an unregulated

landscape somewhat akin to the present one, so an opt-in feels essential.

100

See

e.g.

Entertainment, Tag: Gaming, FEDERAL TRADE COMMISSION,

https://www.ftc.gov/industry/entertainment/gaming [https://perma.cc/8U4T-

Q3KH]. A vestiture by Congress to the FTC for a reauthorization via a

reexamination of past legislation, such as COPA, might empower a proper

authority to curtail some of the ongoing controversies centering on UGC

monetization, such as minority or microtransactions.

101

It would be presumptuous to assert corollaries uniformly as a non-member of

any labor class (since the author does not presently derive income from UGC), so

these corollaries are predicated upon general observations of ongoing disputes

with user-generated content, both those included in preceding sections and

those omitted but prominent in UGC discourse.

2024] POCKET CASTLES AND CUSTOM SKIN 137

137

to remove any content deemed harmful to the publisher, and

this can quickly lead to a restriction on the First Amendment

if any rights to content as a form of creative expression are

acknowledged for games opting-in to this category of revenue

stream.

102

Royalties must also be explicitly described and

provided for and should likely have a higher minimum

threshold of ongoing revenues to the user as a proportion of

those afforded to the publisher. An equitable split would

acknowledge that the user invests considerable energy to

accord additional non-base value to games, and the

publisher’s contribution in the initial landscape should not

overwhelmingly outweigh that effort.

103

Tailoring on a title-

by-title basis to account for start-up costs and the barriers to

entry in integrating generated content should also be

considered, but a greater conversation with practicing

attorneys familiar with licensing would be a significant

threshold.

104

The latter scenario would have to be crafted and

tailored with equal respect to a given developer’s wish for

preservation of original intent as another’s desire to monetize.

As a threshold, developers would need an assurance of their

102

These issues most often arise in titles with more mature audiences, as

removal of offensive subject matter is fairly black-and-white for titles like

Minecraft or Fortnite catering to a family-friendly general audience. Grand Theft

Auto has been widely criticized for its moderation, in addition to most everything

else, as developer Rockstar allegedly removes content arbitrarily and polices its

modification market with more discretion than competing titles.

See

Ruppert,

supra

note 59, or Ash_735,

supra

note 59;

see also

Wes Fenlon,

GTA Online

Makes Half a Billion Dollars a Year Even Though It’s a Hot Mess

, PC GAMER (Sep.

23, 2022), https://www.pcgamer.com/gta-online-makes-half-a-billion-dollars-a-

year-even-though-its-a-hot-mess/ [https://perma.cc/LRL4-AVNV].

103

Many games pride themselves on awarding “more than half” of royalties to

users after console shares are vested, and even this does not

necessarily

reflect

equity of user contribution. Providing fixed and transparent rates tied to revenue

streams appropriate for creator revenue-sharing is essential, and it’s possible

that Congressional action (potentially in conjunction with the FTC or FCC) might

be necessary if a digital Bill of Rights for content creators is ever seriously

contemplated—something that feels more necessary than ever with recent

evolutions in AI. Accounting for all streams of revenue across all platforms for

cross-platform titles is likewise essential, as user revenue sharing should reflect

all of those that might contribute to content purchases in the UGC’s marketplace.

104

Title-by-title tailoring requires either some fixed provisions for future titles or

a regulatory body to accommodate future titles, both of which feel more

logistically challenging than certain limited federal measures to protect rights of

domestic creators of UGC.

138 CYBARIS

, AN INTELLECTUAL PROPERTY LAW REVIEW [Vol. 15:1

138

ability to take action against infringing content, and users

would need to understand that penalties more stringent than

removal could be pursued for creators seeking to disregard a

wish of original preservation. Lastly, a game seeking to opt-

out yet continue to derive revenue from user creative

expression,

105

should not be permitted to “backdoor” a

marketplace for UGC that would exclude or monetize content

at rates lower than any standards imposed upon those games

that elect to “opt in.”

106

Some other lessons learned by successful models

include providing transparency of both content monetization

and offensiveness,

107

ensuring tax eligibility and age

verification, and mandating that accounts seeking to monetize

UGC wait a threshold duration prior to doing so.

108

105

This is the most problematic aspect of this proposal and the one that

warrants the most discussion with relevant practitioners: if a game seeks to sell

skins and other content yet restrict monetized UGC, what pitfalls arise when

users create mock-ups for potential new materials that are then incorporated by

the developer? What if a developer of a particularly nuanced game seeks to

restrict modification, yet users are able to create game variants or modifications

that have viability for independent use? This author would argue that the “opt-

out” provision should be narrowly tailored to encompass largely those standalone

non-multiplayer games where IP preservation might be infringed by uniform UGC

monetization policies.

106

Essentially, the choice to “opt in” should encompass the election to derive

revenue from UGC holistically, rather than any specific and potentially exploitable

form of content monetization within a game that may have several. Provisions to

carve out streaming as a form of revenue-generating content seem appropriate,

as streaming of games seems like an entirely different challenge than UGC, but

developers should likely have an opportunity to restrict streaming if they pursue

“opting out” to preserve mystery and suspense for those games seeking to

maximize the same upon release.

107

See

e.g.

, Creator Hub,

Marketplace Policy

, ROBLOX STUDIO,

https://create.roblox.com/docs/art/marketplace/marketplace-policy

[https://perma.cc/QX4E-KZUY]. Roblox provides against anticompetition (“do not

create items that depend on issues or glitches on the Roblox platform”), third-

party infringement (“[o]nly sell items that you have permission to sell”), and links

to a thorough list of community standards that effectively police against UGC,

minority, and intellectual property concerns.

See Roblox Community Standards

ROBLOX, https://en.help.roblox.com/hc/en-us/articles/203313410-Roblox-

Community-Standards [https://perma.cc/BJF5-UAVQ].

108

This prevents two risks: the virtual traveling circus (whereby users generate a

spike in revenue through fraudulent or nefarious means and then cash out and

start anew with changed usernames) and the unproven potential minor (in

certain games, maintaining a window prior to enabling monetization can provide

a secondary protection to investigate content-generators that trigger minority or

other risk thresholds).

2024] POCKET CASTLES AND CUSTOM SKIN 139

139

VI. CONCLUSION

Monetization of user-generated content is a nuanced

topic that depends on a threshold upon the “platform” game,

its recurring or fixed costs, revenues driven by content

purchases and usage, and the content seeking to be

monetized. Nonetheless, the variance displayed across titles

in expected royalties and income stream reliability result in a

landscape that is both averse to creative expression and

restrictive of users seeking to earn a living in a landscape

beginning to permit the same.

This author argues that an “opt-in” proposal permitting

developers to create a transparent marketplace for user-

generated content at a game’s launch or upon subsequent

petition to relevant authority, contingent on uniform

standards for content removal and for minimum revenue

shares of UGC creators, would create a scenario tailored to

four distinct interests: users,

109

developers seeking to

monetize UGC,

110

developers seeking to guard their IP,

111

and

federal legislators seeking to regulate an industry predisposed

to issues with transparency.

112

By promoting uniform UGC monetization, we pay

respects to every creator predating us, who at one point was

in the same position just learning the controls. Like any

artisan, they’ve developed the skills to leverage their creativity

and had the insight or timeliness to garner popularity. Now,

we just need to show them it can last.

109

In ensuring vitality and viability of a game’s ongoing potential for content

generation as a hobby or profession.

110

In that this varietal of regulation will drive content generation to game

platforms, which will quantifiably drive growth with a very minor ancillary

vestiture of power to users that would almost certainly be eclipsed by revenue.

111

In that a choice to reject UGC at the expense of any associated revenues

should be weighed accordingly in any infringement actions, and that this likely

would

help protect the intellectual property of those companies seeking to

safeguard large assets for additional uses such as television or film adaption.

112

Considerable efforts to safeguard online users are being made, but the

conversation about monetization within relevant titles as a reliable and ongoing

revenue stream (independent of or in conjunction with streaming and other

fundraising) for users proficient in coding is one that should be opened further

by legislators.