By: Matt Williamson

One of the most interesting, and sometimes annoying, parts of being a law student is that legal analysis starts to seep into even the most mundane aspects of your life. Recently, as part of my workout routine, I stumbled across something odd in a virtual world which led me down a rabbit hole of legal considerations that video game developers must navigate when including real locations and buildings in their games.

Biking Up a Bagel

Anyone who knows me can attest that I absolutely love riding my bike. In fact, I love it so much that last October, staring down Seattle’s 3:30pm sunsets and months-long drizzle, I invested in an indoor bike trainer. To make the experience of indoor riding slightly less monotonous, I got a subscription to the popular fitness app, Zwift. Zwift is a video game-style program that allows users to bike (via a trainer or stationary bike) through an animated world, complete workouts, and compete with one another. 

One evening, I noticed a new route available in New York City, specifically around the internal Central Park Perimeter Loop. I was intrigued as I have personally spent lots of time running this exact loop while training for a marathon a few years ago.

Excited to pedal around the familiar loop, I started my ride. It was almost surreal to watch my avatar pedal around a digitally animated version of a mixed-use path I knew essentially by heart. I was especially struck by how accurate the twists and turns were and how many of the roadside landmarks were faithfully rendered. However, as I made my way up to the Northeast corner of the park, I noticed a feature that I had never seen in the real Central Park: a giant glass tube opened up before me, stretching into the sky. Myself and a pack of other riders dutifully climbed up its glossy surface. That’s right – Zwift designers added a giant bagel-like glass causeway to the iconic New York skyline.

As I sweated up the absurd glass-bagel climb, I couldn’t help but wonder: Why the hell is this here? 

Too Close to Reality

As it turns out, the answer may be as complicated as the relationship between video games and the real location and buildings they portray virtually.

Back in 2022, the perennially popular video game franchise Call of Duty released the newest installment in its Modern Warfare series: Modern Warfare II (“MWII”). Even before the full launch of MWII, fans noticed something intriguing about several of the maps featured in the game – they were remarkably similar to real world locations. Three maps in particular stood out: Crown Raceway, Breenbergh Hotel, and Valderas Museum. Each bore a striking resemblance to a real place: the Marina Bay Street Circuit in Singapore, the Conservatorium Hotel in Amsterdam, and the Getty Museum in Los Angeles, respectively. 

At first, little attention was paid to these maps beyond their expected gameplay characteristics, but things quickly started to take a turn. Valderas Museum was featured heavily in the game’s open Beta, a limited release that allows developers a chance to mass test a game before it is fully released, yet it suddenly and without explanation dropped out of the game’s map-pool at launch. Though neither Activision, the game developer behind MWII, nor the Getty, commented, widespread speculation arose that the developer had been forced to remove the map from the game over concerns about possible copyright infringement claims raised by the museum.

New rumors arose when early marketing for MWII featured a map called Marina Bay Grand Prix – a faithful depiction of the Marina Bay Street Circuit in Singapore complete with both signage and car models that directly evoked both the real life racetrack and the immensely popular motorsport series Formula One. Yet, the map never appeared in the Beta and, by the time the game was released, these assets had been altered to reflect a more generally branded race track called Crown Raceway.

The final act in this string of mishaps came when the game was released with the third of these controversial maps as a part of its core gameplay rotation. Breenbergh Hotel is easily recognizable as the Conservatorium Hotel, a 5-star establishment located in Amsterdam. The owners of the Conservatorium were incensed by the use of their building in a game that depicts intense and realistic violence. The hotel’s manager, Roy Tomassen, was quoted by Dutch newspaper de Volkskrant as saying: “The game in no way reflects our core values ​​and we regret our apparent and unwanted involvement.” Though de Volkskrant also reported that the Conservatorium was considering legal action, the map is still playable in MWII, and is even a common battleground in the game’s eSport championship series the Call of Duty League. 

Toeing the Line

MWII clearly ran afoul of a number of parties with its map design, but, perhaps as Breenbergh Hotel illustrates, the legal options available to these parties are a bit murky, and even more ephemeral than one might expect.

One type of legal cause of action these parties might try to employ is copyright infringement. Copyright infringement occurs when copyrighted works are used by parties other than the owner of the copyright without the owner’s consent. 

However, unlike many kinds of intellectual property, a great deal of architecture is no longer protected by copyright law and is therefore freely available for use in art. Most famous buildings like the Empire State Building are considered part of the public domain, as are all private buildings constructed before 1990. Thus, this seems like a legal avenue that is unlikely to provide actual relief to parties that may try to utilize it.

What if video game developers included trademarks in their games? Trademarks are symbols or words that have been legally registered or established by use as representing a company or product (think McDonald’s Golden Arches logo or Nike’s “Just Do It” slogan). One fundamental aim of trademark law is giving trademark owners the ability to prevent other parties from copying or closely mimicking a trademark in such a way that might trick consumers into believing that what they are seeing is somehow sponsored, produced, or endorsed by the trademark owner. At first glance, this cause of action seems like it might present a more viable recourse for someone like the owners of the Conservatorium Hotel. However, previous lawsuits show us that developers often need to take only minor steps to effectively head off these sorts of trademark infringement challenges.

For example, in 2008, the owners of a Los Angeles strip club called the Play Pen, sued Rockstar Games, the developers of the Grand Theft Auto series, when they discovered that Rockstar’s GTA – San Andreas game featured a knock-off version of their club called the “Pig Pen.” In deciding the case, the Ninth Circuit assessed Rock Star’s assertion that the inclusion of the Pig Pen was protected by the First Amendment. Notably, the First Amendment protects the use of trademarked images or words in art unless the use has no artistic relevance to the work in which it has been included, or the use “explicitly misleads as to the source or content of the work,” (i.e., makes it seem like the trademark owner has signed off on the inclusion or is behind the game).

In applying this test, the court ultimately ruled in favor of Rockstar. The court’s decision (which I assure you is as hilarious a read as you would imagine) articulates the panel of judges’ belief that the depiction of the strip club had some artistic relevance to the game and was not explicitly misleading. The judges pointed to subtle changes that had been made to the appearance of the club that differentiated it from the real thing, and noted that no one would reasonably believe that the strip club owners had produced the game. 

These and other similar cases show that, while it is theoretically possible for a video game developer to be sued for incorporating a real location or business into the virtual world it creates, it seems as though developers need only take small precautionary measures like subtly changing the look of a building or location, to effectively shield themselves from serious danger. In the end, as much as I might like to believe in some sort of Zwift legal team conspiracy, it seems pretty unlikely that their developers added the glass bagel to the Central Park course as anything other than an extra challenge for cyclists and runners. However, you can be sure that if they ever make a Burke-Gilman trail expansion pack, my eyes will be peeled.