A New Hope? The Future of Star Wars Video Games

09.29.2013 | Law

            Unless you’ve been living under a rock for the better part of a year, you’ve probably heard the news about Disney acquiring the rights to Star Wars. Disney acquired the rights to Star Wars when Disney purchased Lucasfilm Limited and its subsidiaries for $4.05 billion in October of 2013. You have probably noticed many people speculating about what the future holds for Star Wars and most of that concern is justifiably focused on the upcoming Star Wars films and the future of the cinematic universe. But what about LucasArts, the Lucasfilm Limited subsidiary video game studio? When Disney bought Lucasfilm, Disney acquired all of Lucasfilm’s subsidiaries including the special effects studio Industrial Light and Magic as well as LucasArts. LucasArts has been responsible for developing and publishing many highly acclaimed video games since its creation, including more recent titles as Star Wars: Knights of the Old Republic and Star Wars: The Force Unleashed. For some, such as this humble author, the future of Star Wars games is almost as concerning as the future of the cinematic universe. The question that comes to mind is “what happens now?”

            In order to look ahead at the future of Star Wars games, we need to look back in time to the turn of the century: the year 2000. LucasArts had entered into an agreement to work with Bioware, a video game developer, to produce Star Wars: Knights of the Old Republic, which was released in 2003. A sequel followed in 2004, developed by Obsidian Entertainment with Bioware’s approval. In 2008, Bioware was acquired by the massive publishing juggernaut known as Electronic Arts. Recently, EA published Bioware’s Star Wars-based Massively Multiplayer Online Role Playing Game, The Old Republic. These are just some examples of LucasArts collaborating with game developers and publishers to create video games out of its most famous intellectual property. Up until and including the release of The Old Republic there was little question that LucasArts was still calling the shots, as the Star Wars brand was still in the hands of George Lucas.

            While the Internet is filled to the brim with speculation and press releases, there is little focus on the technical legal questions that learned scholars of law would ask about this specific situation. For example, how was Bioware allowed to use the Star Wars intellectual property to create Star Wars games in the first place? How was Obsidian allowed to use it to create their game, which reused many of the same characters and locations as Bioware’s game? How does Electronic Arts figure into this puzzle?

            These questions can be answered through copyright law, specifically regarding the transference of such copyrights and derivative works. First and foremost, in order for any of these laws to apply, a work must be copyrightable pursuant to the enumerated categories found in Title 17 of the United States Code, and video games happen to fit this bill as “audiovisual works”. 17 U.S.C. §102(a)(6). In order for anyone to create anything relating to an original copyright, the second party must obtain permission from the original copyright holder. This is typically done in one of two ways – assignment or license. An author relinquishes their control of the work by assignment, while a license only grants the second party limited use and leaves complete control in the original owner’s hands. Common sense suggests that the work performed by Bioware, Obsidian, and eventually EA was accomplished through a series of licensing agreements, considering that Lucasfilm and LucasArts still retained control over the Star Wars intellectual property.

            With the initial license in hand, Bioware set out creating the original Knights of the Old Republic. While some of the familiar concepts, like the Force and lightsabers, appeared in their game, there was no real connection to any of the films. Bioware had created a derivative work. The statutory definition of a derivative work is one that is based upon a preexisting work. 17 U.S.C. §101. Copyright protection for derivative works only extends to the new and original ideas that have been created upon the foundation of the original work. Id. Obsidian Entertainment would have had to acquire a license from both Bioware and from LucasArts in order to produce their sequel to Bioware’s game. Bioware developed and EA published The Old Republic, which was released in 2012, meaning that both the developer and the publisher would have needed to have a licensing agreement with LucasArts.

            It is useful to have a legal understanding of LucasArts’s prior dealings with Bioware and EA when returning to the initial question: what happens to Star Wars games now? After Disney acquired Lucasfilm Limited and its subsidiaries, LucasArts was shuttered and absorbed by Disney. Disney is now the owner of the Star Wars brand, including rights to the intellectual property, and decisions regarding future licensing of those properties to video game developers and publishers rest in their hands. However, unlike LucasArts itself, Star Wars games are not destined to become one with the Force – with one important and rather disappointing exception. An up and coming title, Star Wars: 1313, a game which would have followed the infamous bounty hunter Boba Fett and his adventures through locations such as the planet Coruscant, was in production when Disney acquired and shuttered LucasArts. While there has been speculation that the title might be revived at an undisclosed future date, the game has been cancelled indefinitely. This news was met with unease. If Disney was going to cancel 1313, what was to become of the future of Star Wars video games? This question would be answered in a big way during the 2013 Electronic Entertainment Expo.

            In May 2013, it was announced that Disney had entered into a licensing agreement with EA to produce new Star Wars titles. All Star Wars games in the foreseeable future will be published through EA; whether this is good news or bad largely depends on the eye of the beholder. Star Wars gaming enthusiasts might be put off by this news when considering EA’s SimCity, which was released by EA in March of 2013, but was not well received. Complaints were geared towards server connectivity issues, bugs, and the Digital Rights Management (DRM) policies that forced players to maintain an Internet connection at all times in order to play the game, even in the single-player mode. Despite these shortcomings, which EA has pledged to correct, the publisher has released some critically acclaimed titles in the Mass Effect and Battlefield series and maintains a massive fan base.

            At the end of the day, we won’t know the fate of this new era of Star Wars gaming until we can actually play one. There are plenty of concerns, but there is no shortage of hope in these uncertain times. Perhaps what matters more to gamers is not who is producing the new Star Wars games, but rather the fact that the up and coming generation of video game consoles will feature new Star Wars games at all. Speaking subjectively, this author was relieved to discover that Star Wars video games were getting the next-gen treatment.  For better or worse, the future of Star Wars gaming rests in EA’s hands, and eager fans of Star Wars titles will have to wait to pass their initial judgment until 2015 when EA publishes its first addition to a long history of Star Wars video games – Star Wars: Battlefront.

By David Laton