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In recent years there's been an increasing trend of games companies claiming exclusive rights to all user generated content for the game and that the user/modder forfiets all rights of authorship over that content in the EULA. (A high profile example was the EULA for Activision-Blizzard's Warcraft 3 Reforged).

If an end user/modder was to create a mod for a game which infringes on the intellectual property of a 3rd party, and has agreed to the terms of a EULA stating that they forfiet ownership to the game's publisher, and the IP holder were to want to seek action against this infringement, who would be held legally and/or financially responsible for the infringement on the plaintiff's IP?

EDIT: In this case I am referring to mods, as the EULAs often do, as "User Generated Content". I know there are other forms of user generated content (and am also curious about that) but I specifically in this question want answers regarding game mods.

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  • Do you mean that the mod infringes the IP of soem third party, neither the game designer nor the user? That is not as clear as it might be in the way the question is now written.
    – David Siegel
    Feb 25 at 17:16
  • Yes, pretty much I used the term here "user" as it's classified as "user generated content", but yeah, in this case I'm talking about a modder (or content creation tool user) creating something copyright infringing.
    – mattihase
    Feb 25 at 17:41
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    Please be more specific on whose copyright the modder is infringing, or is alleged to have infringed. In particular, it makes a difference if it is the game designer, or an unrelated third party. Please edit the question to clarify this.
    – David Siegel
    Feb 25 at 18:17
  • I have addded this in the edit. I had not considered the fact that a publisher might attempt to send themselves a DMCA notice for infringing on IP that they themselves own, and therefore it seemed evident that the plaintiff would have to be a 3rd party, but now that you bring it up that sounds like exactly the kind of thing that's happened at least twice at some point in history.
    – mattihase
    Feb 25 at 21:46

1 Answer 1

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Both the modder and the games company

The modder for making the infringing content and the games company for distributing it. The game company will own the copyright in the derivative elements but won’t be able to use them without the permission of the original copyright holder.

As between the modder and the games company, the licence will typically include an indemnity clause which means the modder is responsible for all costs and damages the games company incurred as a result of the copyright violation.

The original copyright owner would be well advised to sue the games company because they likely have more money and insurance. The games company would then join the modder as a co-defendant seeking to rely on the indemnity. Or not, because as previously mentioned, the modder likely has no money and is effectively judgement proof.

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