Video games present a legal problem that may be more difficult for courts to solve than the games themselves. In Japan, each court took a somewhat different approach. In its opinion, the Tokyo District Court tried to differentiate between movies and video games by focusing on the role of the audience. That court emphasized the fact that while movie audiences are passive and have no effect on the course of the movie, video game audiences actively affect the progression of the storyline. To illustrate the difference that the Tokyo Court emphasized, consider the Pokemon cast. They were originally characters in a Nintendo video game, but have since also become the stars of a motion picture (and sequels). The movie is the same whenever and wherever it is seen by juvenile aficionados and their parents. Pokemon the game, however, will differ depending on the player's skill and luck.
While this is an enticing theory, it does not entirely hold true. Contrary to the Court's conclusion that video game audiences have some real control over the storyline, the very notion of a game involves matters that are not within the player's complete control. The creator of the game, like that of a movie, has determined the narratives and sequences. Indeed, the game creator has determined what the results of the player's actions will be. Relying on this distinction could have severe consequences for the video game industry. For if authorship is denied completely, then the game producers would seem to have no claim to copyright in any form, meaning that the authors would not even be able to assert copyright rights over the first sale of the game, much less any subsequent sales. If an analogy is to be drawn from traditional copyright at all, the more apt one would seem to be derivative works, in which a subsequent author makes use of an existing copyrighted work: a musical play based on a novel, for example. In that situation, the underlying copyright is not extinguished. To the contrary, the subsequent author must obtain the right to use it in order to exploit what he has separately created.
New Video Game: Japan's Video Game Producers Lose at the Litigation Game,
6 Vanderbilt Journal of Entertainment and Technology Law
Available at: https://scholarship.law.vanderbilt.edu/jetlaw/vol6/iss1/5