By Zachary Nichols
Law school has a way of making you look at the world a little differently. You examine and analyze things that you wouldn’t have before. Everyday things that you once may have noticed, and then laughed off, now become nagging questions, and you can’t help but dig a little deeper. I believe the saying goes, “if all you have is a hammer, everything looks like a nail.” Each class in law school gives you a new hammer to use. In this article, I am going to use one of my newly acquired hammers, copyright infringement, to look at something that I would normally use as an escape from law school—a videogame, Destiny 2, to be precise. This type of exercise is something that any law student can do to practice. When I see something from the classroom in the real world, I use it as a practice issue spotter, similar to those found on law school exams.
Destiny 2 came out fairly recently, and in my play through of the campaign, I noticed a few peculiarities. Two of these I discuss in this post. The first has to do with the game’s main villain, Dominus Ghaul. He is referred to in the game simply as “Ghaul” and has a familiar likeness—that of Bane from the movie “The Dark Knight Rises.” Like Bane, Ghaul has a respirator mask that covers his nose and mouth with a strap that goes around the back of his bald head. And the mask makes him speak in a deep and distorted voice.
The second peculiarity that I would like to examine has to do with one of the game’s three main playable classes, the Titan. One of the Titan’s subclasses, the Sentinel subclass, and its special ability is eerily reminiscent of the Marvel character, Captain America. Triggering the Sentinel special ability will cause your character to summon a circular shield. Your character can throw that shield, and it will ricochet around the room and off of enemies for a while. And you can charge toward enemies and bash them with the shield, much like Captain America does.
So, the question that I couldn’t help but ask while playing was, do these similarities constitute copyright infringement? For practice, I decided to argue against copyright infringement, and this post will explore that point of view. There are other doctrines that you would want to address on an exam, but this post will only explore an infringement analysis.
If this were to constitute copyright infringement, it would be the copyright holder’s right to the reproduction of original material that Destiny 2 would be infringing. The test for infringement of a reproduction right consists of two parts. The first prong of the test is “Probative Similarity.” We look at the alleged infringers access to the copyrighted work as well as the two works’ similarity. Remember that only expressions, not ideas, can be copyrighted. The second is “Improper Appropriation.” Here we use the Levels of Extraction test and break down the similarities into two categories, the elements that are copyrightable and the elements that are not. We then see if the copied elements were elements that were originally eligible for copyright protection.
Under Probative Similarity we ask, has the work actually been copied? To make that determination, we first look at access and similarity.
The creators of Destiny 2 likely had plenty of access to the character Bane. The Dark Knight Rises was a very popular movie, and Bane has been a villain in the Batman comics for quite some time. The next piece is assessing the similarity of Ghaul and Bane. This is first a question for an expert, before it is presented to the lay observer, but because I am not an expert, I will only examine it as a lay observer. To me, the two seem similar, given their appearance and voice.
Likewise, when applying the access and similarity analyses to the Sentinel subclass and Captain America, it is likely that the creators of Destiny 2 had plenty of access to Captain America. Captain America has appeared in multiple movies and comics. When looking at the similarities between the two characters, the round shield coupled the various ways it is used to attack enemies, does lend itself to the belief that a lay observer could find that the two characters were similar enough.
After assessing probative similarity, we turn to the Improper Appropriation test. There, we are asking if too much of the original work has been copied and used. So, we really have to see if the creators of Destiny 2 copied the heart and expression of Bane and Captain America. We break down the similarities into elements that are copyrightable and elements that are not. Here, we have a similarity in appearance and voice—the ideas behind Bane, but the expression of Bane is not infringed. The mask and distorted voice are not copyrightable elements. They are aspects of Bane, but not Bane himself. Ghaul is an alien from another world with an entirely different backstory. The Sentinel is just a hero with a shield that ricochets around when thrown. A shield that can be used as a weapon is again just an idea included in Captain America, but is not the expression of him. So, it looks like the elements that are similar are not the copyrightable elements of the original work. The similarities are in the ideas, not the expressions of the characters, and that is why they do not infringe.
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