Is loading assets from another game's install folder copyright infringement?

Question

Suppose I make a video game which uses assets from another game. The assets are however not included, but rather obtained by loading them from the other game's install folder (the player needs to have bought and installed the other game too). My game is a fan-made sequel to the old game, which was discontinued.

No assets or code from the original game are included in mine. Can this still be considered copyright infringement?

Answer 1

Yes. Being a sequel or using the other assets, in either case, you are making a derivative work. Without a license, you infringe on the right holder's exclusive right to make or license derivative works:

• A sequel is usually a classic case of "how the story unfolds further". See Anderson v. Stallone, where the author of an unlicensed sequel script was struck down.
• A modification of the original game - aka Mod - uses the assets or parts of them. Modding is often contentious, sometimes it is encouraged.

Usually, when you install a game, you agree to a EULA that dictates what you can or can't do - so there is the real possibility you violate a contract if you step out of that contract. Some game smithies are modder-friendly and encourage it, as a mod community keeps a game relevant longer. Bethesda for example hands out a modification package for Skyrim and other titles, but it also provides a separate EULA what you can and can't do with these modification-tools.

Many games however don't provide a modding pack and have a EULA that explicitly bans users from making modifications or derivative works. As a result, there have been cases against modders, and there are a lot of C&D letters sent out to modders that use assets of games. So there is a high chance that litigation for violation of the contract or copyright infringement can be started.

A rather high-profile case that ended somewhat recently was the "Red Dead Redemption Visual Enhancement Mod". Take-Two sent a modder a C&D, filed suit, and then the parties had arbitration. The arbitration result contains a clause that forbids the author of the mod to ever create any derivative work (aka: mod) for a Take-Two or Rockstar game again. The C&D (as well as the case and leverage in arbitration) hinged on a violation of the Rockstar EULA License Condition i, which bans any modifications wholesale:

You agree not to, and not to provide guidance or instruction to any other individual or entity on how to:

i [...] display, perform, prepare derivative works based on, or otherwise modify the Software, in whole or in part;)

Answer 2

Even though there's quite a few ways for this to infringe copyright, absent any specific licensing provisions imposed by the original video game, I'm thinking this is actually legal by UK copyright law (which doesn't prevent you from being sued to find out for sure). Since there's a lot of areas to go through, I'm just providing a high-level overview.

Brexit note: To an approximation, after the Brexit transition period, EU case-law will be treated similarly to domestic case-law. Basically it's valid precedent, though UK courts could in theory overturn.

1. Communication to the public: Referencing and displaying source art makes them available and could be considered a communication to the public. The scenario of game code referencing but not copying source art is very similar to the scenario of webpage code embedding external art/images/video, for which case law exists. Embedding is not considered infringement when the embedded object is hosted with permission of the copyright holder (C-348/13 BestWater). If the webpage is for-profit, the owner must take reasonable steps to verify the object is in fact hosted with permission (C-160/15 GS Media). Bringing that back to your scenario, if you're developing this for-profit, I would imagine that distributing with a license where the user confirms they have a valid non-infringing source game would cover this. The scenarios aren't exactly identical of course, so I turn to C‑466/12 Svensson paragraph 24 for further support. The reason linking/embedding is generally legal is that the court determined that the communication must be to a new public. Since you're loading assets to those who already have access to them, this is not a new public and thus not an infringement.
2. Temporary copy: Again making a parallel to websites, browsers make temporary copies of webpages and display them on screen. This falls within a temporary copy exception to infringement (C‑360/13 Meltwater), which would be similar to your program presumably making temporary technical copies (eg. in RAM) and displaying on screen.
3. Adaptation: In the UK, the protections granted against unauthorized adaptations are narrower than its US counterpart of derivatives and are defined by CDPA s. 21. Notably, only literary, dramatic and musical works are protected against unauthorized adaptation. Video games can fall in multiple categories. In Nova Productions Ltd. v. Mazooma Games Ltd. and Others [2007] EWCA Civ 219, four categories were deemed possible: film, artistic work, literary work and dramatic work. The first two aren't within adaptation rights, so we can ignore those. Computer programs are a literary work, however, that's referring to the source code which you've stated you are not copying. That leaves dramatic work. The plaintiff chose not to re-argue this category in the appeal I cited. However, in the lower court the judge had ruled that video games do not fall within the dramatic work category, reasoning that dramatic works must be capable of being performed (the game itself isn't the performance, though perhaps individual playthroughs may be).
4. Moral Rights: Author's have the moral right to object to derogatory treatment of their work (CDPA s. 80), so just make sure your sequel & use of assets aren't in poor taste.