Remixing and Sexism: An Opportunity for Moral Rights Claims?

In class two weeks ago we discussed the systemic problem of sexism in video games. Two examples of this were the “hot coffee” mod in Grand Theft Auto: San Andreas, and the recent “shower screenshots” from Beyond Two Souls.

The Beyond Two Souls example involved a scene in the game that involved the female lead character taking a shower. As produced, the scene was censored by careful placement of the “camera. Of course, some gamer then allegedly accessed the code of the game and “changed” the camera angle—leading to in-game nudity.

This appeared to be inconsistent with the intent of the creators, as Sony has moved to try to prevent such access from becoming widespread.

Ignoring for the moment that the “model” for the game character was Ellen Page, the creators themselves may have been offended by this “alteration” of their game.

A similar recent example occurred with the game Bioshock Infinite.

While I won’t hurt everyone’s brain by attempting to explain the plot of Infinite, the game itself takes place in a fantasy version of 19th century America (a floating-city version of 19th century America… with time travel and inter-dimensional portals). As one would expect from 19th century America, the characters in the game dress quite conservatively. One of the main characters is a teenage girl named Elizabeth

Fans of the game, like fans of many games, have expressed their enthusiasm for the property through their own creations. Some of these creations are drawings inspired by the game. Some of these drawings are posted on internet websites like deviantart. Some of these deviantart postings are borderline pornographic.

At a recent conference, Ken Levine, the creator of Infinite, took the opportunity to speak out against this “sexualization” of the character of Elizabeth.

Referring to the deviantart depictions, Levine half jokingly commented “I die a little inside with every page view”. To him, “it’s like coming across a picture of your daughter”.

These unauthorized attempts to sexualize female characters in games can be said to damage the integrity of the work—a breach of the creator’s “moral rights”. Such integrity is protected in Canada through section 14.1 of the Copyright Act.

Admittedly, only one plaintiff ever successfully argued a claim for “moral rights” protection. In Snow v The Eaton Centre Ltd, Snow, an artist, successfully obtained an interlocutory injunction against The Eaton Centre to prevent them from placing ribbons on a sculpture of Geese he had sold them. Apparently, many well-respected artists testified in support of Snow’s claim that the ribbons “looked ridiculous”.

The sexualization of these games would seem to go beyond the “be-ribboning” that occurred in Snow. While the fact that there remains no other example of a successful claim for moral rights in Canada does not instil confidence in the power of the provision, it is interesting to consider the availability of such claims in cases of overt, and unauthorized, sexualization.

For further discussion of moral rights and video-games, see Michela Fiorido “Moral Rights and Mods: Protecting Integrity Rights in Video Games” (2013) 46:3 UBC L Rev 739.