Galaxy In Turmoil is a game in development by Frontwire Studios that heavily uses Star Wars assets owned by Disney. They have received a fair amount of media attention lately after their claim that Valve agreed to distribute GiT on Steam. Additionally, despite explicitly calling the game “the next installment in the Battlefront series” without a license to do so, they claim that what they’re doing is legal—allegedly according to their legal team. However, it would be perilous for other game studios to follow their example. Here’s why:
First off, some of the legal statements they make (again, supposedly coming from their legal team) are so inaccurate that I’m inclined to suspect it’s all a publicity stunt and/or trolling job. I’m also extremely skeptical that Valve reps would deal directly with them given how early in development the game is, as well as how young the studio is—blatant, unauthorized use of Disney’s IP notwithstanding. Their Florida LLC was registered just this past April, and their Youtube channel’s uploads date back to January.
My legal commentary below is not directed against the developers themselves, nor is it to be taken as legal advice. The purpose of this article is to educate game developers and any other interested readers on a business decision by Frontwire, as well as on comments the studio has made about the legality of GiT. The danger arising from those comments is that others might follow Frontwire’s example and give their assertions actual legal credence–possibly incurring consequences. Frontwire frequently misstates copyright law, as I will demonstrate below. Further, every studio’s situation is different—especially when dealing with the heavily fact-dependent area of law that is copyright infringement/fair use. Frontwire’s FAQ page and public comments should NOT be taken as legal advice, legal research, or a model for your own development or business practices.
A. The Relationship Between Copyright Infringement and Fair Use
First, Frontwire incorrectly assures its audience on its FAQ page that GiT is legal. They write:
“By not accepting donations and/or charging for the game, we’re not infringing on Lucas Arts/Disney’s rights…”
This is not true. Monetary gain is only one of many factors that are used by courts to determine whether an infringement of a copyrighted work is a Fair Use (see below), and therefore allowed. Since Fair Use is a defense to a copyright infringement claim, Frontwire’s invocation of it necessarily admits that they have infringed on Disney’s Star Wars IP. Even if Frontwire never sees a cent from the sale of GiT, the game uses assets that actually copy those seen in Star Wars films and licensed games. As seen in their trailers and gameplay footage, these assets include stormtroopers, tie fighters, jedis wielding lightsabers, the planet Hoth, and myriad others. (The use of Star Wars music on the game’s website is separate, but still telling.) Despite their claims of being 100% compliant with copyright law, infringement has certainly taken place.
B. The Fair Use Analysis
Frontwire falsely states:
“There are 4 fair use defenses that one can use. We fall under 3 of the 4 defenses.”
There are not “4 defenses” in Fair Use. While there are certain categories of Fair Use that are fairly common and widely cited such as a teacher showing a film to their class for educational purposes, the true analysis of a Fair Use defense involves four factors that are weighed differently by courts on a very situation-dependent basis. These factors are:
1. The Purpose and Character of the Use
This factor largely features the distinction between for-profit and nonprofit uses of a copyrighted work. While it is true that the game being free-to-play might “help” their defense, it is only one factor against many others that would weigh against them. The profit/nonprofit distinction is not about whether money is being collected, but about what the infringer stands to gain. This can include the publicity and notoriety that Frontwire is, in my opinion, actively seeking.
2. The Nature of the Original Work
The exceedingly fact-specific nature of a Fair Use defense also touches on the work that is being copied. Generally, works that are original and creative have received a greater level of protection than works which are more informational. Star Wars is undoubtedly the former. Even if it wasn’t owned by a media titan such as Disney, it will forever be a recognized and lauded cultural icon the world over.
3. The Amount and Substantiality of the Portion Used
Rather than having a character who bears a vague resemblance to Han Solo as an easter egg which would be a minimal use, their website claims that you will:
“Battle across some of your favorite planets from the Star Wars saga ranging from Hoth to Coruscant…Fight across Multiple Eras ranging from the Clone Wars to the Galactic Civil War.”
Frontwire is not only taking large portions of copyrighted material from Star Wars for use in the game, they are by their own admission trying to create Battlefront III. This would include iconic battles from the films, settings, vehicles, character likenesses, weapons, etc.
4. The Effect of the Use on the Potential Market for the Work, or Its Value.
This factor would be much harder to predict since the game is so early in development—even assuming Disney does not act. But that is definitely not a fair assumption. Considering that Frontwire is telling its audience it to “Prepare to experience Battlefront like never before”, it certainly appears that they want to supplant EA’s series.
Claims by infringers that their work is legal because it is parody are commonly made, but also commonly inaccurate. Frontwire makes one such claim:
“We’re also considered a Parody. It’s not any different than how Weird Al and/or Saturday Night Live are able to use the Star Wars IP to make money.”
GiT is not parody. There are hundreds of court cases that give us very deep and nuanced examples to follow when determining whether an infringing work is a parody or not. But generally, the Supreme Court has defined it as:
“Use of some elements of a prior author’s composition to create a new one that, at least in part, comments on the author’s works.”
In order to be a parody, GiT would have to make some kind of statement (humorous or otherwise) about Star Wars or the Battlefront series. Rather than a spoof or a critique of either of those, GiT is, by Frontwire’s own admission, a “fan remake” intended to fill the void left by the real unfinished Battlefront III. The only “commentary” aspect of GiT you might be able to reach for is Frontwire’s disapproval of Battlefront III not existing. GiT has no critical bearing on the substance or style of Battlefront or Star Wars. And by the way, Weird Al gets licenses; Saturday Night Live actually makes fun of things.
D. Disney’s Terms of Service
Lastly, Frontwire claims that Disney itself has given them the right to make GiT in their ToS by quoting:
“We do not claim ownership to your User Generated Content; however, you grant us a non-exclusive, sublicensable, irrevocable and royalty-free worldwide license under all copyrights, trademarks, patents, trade secrets, privacy and publicity rights and other intellectual property rights to use, reproduce, transmit, print, publish, publicly display, exhibit, distribute, redistribute, copy, index, comment on, modify, adapt, translate, create derivative works based upon, publicly perform, make available and otherwise exploit such User Generated Content, in whole or in part, in all media formats and channels now known or hereafter devised..”
However, this contract language was taken OUT. OF. CONTEXT. A more comprehensive reading reveals that the clause only applies to very specific situations where the Disney services (like websites, apps, the now-defunct Infinity, etc) directly allow users to create and share content. If that were to be applied to GiT, the closest you would get is if the real Battlefront allowed users to create and upload their own stages via official servers (it doesn’t). “User Generated Content” does not include independent development of a standalone game using unlicensed content.
It’s better for developers to be as original as they can be when creating their content. While Frontwire appears confident in its gamble because Disney has not given them a takedown notice yet, they should not be followed as an example. Just because Disney has not acted yet doesn’t mean they won’t. While a publisher sometimes embraces fan works like Bethesda Softworks did with Fallout film series Nuka Break, other times they do not—as when Square Enix forced the shutdown of Chrono Trigger: Crimson Echoes. And even if Frontwire or any other game studio looking to do something similar doesn’t get outright sued by the copyright owner, they could still be required to stop development and publication—rendering all of their development time and resources spent as futile.
Sometimes it’s a lawyer’s job to tell a client something they don’t want to hear or advise them against something they want to do—but it’s for the client’s own protection. It baffles me that Frontwire received the legal advice they supposedly received. If you think you may have a similar situation or that there might be copyright issues with your game, please consult a licensed attorney—preferably one who focuses on video games and/or IP.