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World of Warcraft and Work Made For Hire

From 2005 to 2006, Amanda Lewis worked as a “game master” for Blizzard Entertainment Inc. (later becoming Activision Blizzard, Inc.), which developed the World of Warcraft role-playing computer game.  In that capacity, she worked as a customer service specialist who participated in the game to resolve a customer’s issues with other players or game functionality.

At some point during her tenure with the company, Lewis was invited to perform voiceover work related to the game.  Her recording was ultimately selected for use with a new character in the game.  At the time, she was told that the voice would be used to promote the game at an upcoming gaming conference.  She was later surprised to find out that the voice was used as part of the actual game.

Several years after being terminated by Blizzard, Lewis sued the company for copyright infringement for using her voiceover recording in the game without her permission.  Blizzard sought to dismiss the lawsuit claiming that the voiceover recording constituted a “work made for hire.”  Under the Copyright Act, a “work made for hire” is generally defined as “a work prepared by an employee within the scope of his or her employment.”  When that occurs, the employer, not the employee, is considered the author of the work and would, in turn, own all of the rights in the work, unless the parties agreed otherwise in a written document.

Because Lewis was an employee of Blizzard when she recorded the voiceover, the question was whether she recorded it within the scope of her employment.  The Copyright Act does not define what constitutes an employee’s “scope of employment,” so courts often refer to general principles of agency law to resolve this issue.  One common test, which the court used in this case, provides that an employee’s conduct is within the scope of her employment when: (1) it is the kind of conduct the employee was hired to perform; (2) it occurred substantially within the authorized time and space limits of the job; and (3) the conduct was actuated, at least in part, by a purpose to serve the employer.

In other words, to answer this question, one must determine how, when, and why a worked was created.  This case turned on whether the voiceover work was the kind of work Lewis was hired to perform.  Blizzard’s training manual for game masters provided the answer.  Among the various other customer service duties they regularly performed, game masters were responsible for “assist[ing] with the creation of content during the ever ongoing development of the game.”  The court decided that, when recording a voiceover, Lewis was assisting with the creation of game content, which was part of her job description.  This was so even though Lewis did not create game content on a routine basis.  For that reason, Blizzard’s motion for summary judgment was granted, and Lewis’ copyright infringement claim failed.

This case should serve as a reminder for all businesses, but especially small and closely-held companies.  If an employee is preparing written documents, artwork, computer code, photographs, music or video content, promotional materials, or other copyrightable works for the company, and the company wants to own those works, then the company’s safest play is to enter into a written agreement with the employee explaining that the company owns such works. 

If a written agreement is impractical, then the Copyright Act provides a backstop for employers with its “work made for hire” provisions.  However, these provisions are less than clear and can lead to costly legal battles over the company’s important intellectual property assets.  Moreover, they only apply to employees, and not independent contractors and other specially-hired skilled workers.  As a matter of policy, companies should create training manuals and job descriptions that outline a specific employee’s or position’s responsibilities.  Additionally, documenting in email communications and performance evaluations that an employee’s particular copyrightable contributions are within the scope of his or her employment with the company can be helpful should the question arise.



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