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Lewis v. Activision Blizzard

District court grants summary judgment against former employee “game master” of defendant videogame company, finding that sound recordings of employee later incorporated into video game were “works made for hire.”

Activision Blizzard, Inc., and Blizzard Entertainment, Inc. (together, Blizzard), develop, market, and distribute computer games, including the very popular World of Warcraft. Plaintiff, a former Blizzard employee, worked as a “game master” for World of Warcraft, a position that involved providing customer service, managing the online gamer community, and, according to her formal job description, “assisting with the creation of content during the ever ongoing development of the game.” While serving in that role, plaintiff was invited to participate in “open auditions” for voiceover work related to the game. Plaintiff auditioned and was invited to record a voice for a character called the “baby murloc.”

Plaintiff participated in two recording sessions in Blizzard’s offices (on her days off) and was compensated for her participation in both recording sessions at her usual hourly rate. She never sought additional compensation for her work on either recording. Although she was not explicitly told that the voice work would be incorporated into a new version of the game itself, she understood that it would be used in connection with the game and its marketing. Later, she discovered that the recordings were used to create a new baby murloc character. After being terminated by Blizzard, plaintiff brought suit against Blizzard for copyright infringement, along with state law claims that were later dismissed.

Blizzard moved for summary judgment, contending that plaintiff did not own a copyright in the baby murloc recordings because the recordings constituted a “work made for hire” under the Copyright Act. In the alternative, Blizzard argued that it was a joint author of the recordings and could not be held liable for copyright infringement.

Analyzing whether the recordings were a “work made for hire,” the court noted that the Copyright Act defines that term as “work prepared by an employee within the scope of his or her employment.” Looking to general common law understandings of “scope of employment,” the court found that the undisputed facts demonstrated that plaintiff was an employee of Blizzard and that her contributions to the baby murloc recordings fell squarely within the scope of her employment. Although plaintiff’s role primarily entailed customer service, her job description specifically covered contributions to game content, and plaintiff admitted that game masters, in fact, made these contributions from time to time. Plaintiff also conceded that her supervisor praised her work on the recordings during a performance review, suggesting that the recordings were viewed as part of her overall job duties. Moreover, the recording sessions were conducted at Blizzard’s offices, using Blizzard’s equipment, and under the supervision of Blizzard’s sound engineer. Even if the particular voice were plaintiff’s own “idea,” as she contended, the court noted that such mere ideas are not copyrightable. Finally, the court found clear evidence that plaintiff was motivated by a desire to serve Blizzard’s interests when she made the recordings. Having found that plaintiff’s contributions to the recordings were made in the scope of her employment, the court concluded that they constituted a “work made for hire” under the Copyright Act and granted summary judgment in Blizzard’s favor.

For more information, please contact Jonathan ZavinW. Allan Edmiston, David Grossman, Tal Dickstein or Meg Charendoff.

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