Voluntary Work Held to be Work for Hire in World of Warcraft Suit

October 22, 2013

by Ali Shalchi

In Lewis v. Activision Blizzard, Inc., No. 4:12-cv-01096-CW (N.D. Cal. Oct. 17, 2013), an employee of Blizzard brought suit against the company for copyright infringement, alleging ownership of voiceover work used in the popular World of Warcraft online video game. The key issue on Blizzard's motion for summary judgment of non-infringement was whether an employee's voiceover work was within the scope of employment and thus a work made for hire. In granting summary judgment, the court applied a three-part test for scope of employment pursuant to the Restatement of Agency.

Defendant Lewis was a Blizzard employee in the role of "game master," which involves the resolution of technical and customer services issues associated with the online gameplay. Blizzard developers invited the game masters to audition for voiceover work for various game characters. Lewis participated in the audition and developed a voice and song for the game's aquatic character known as a "baby murloc." According to Lewis, her belief was that the recording was only to be used for promotional videos. However, upon learning that her voice recording was used in the game itself, she sued Blizzard for copyright infringement. Blizzard argued that the recordings were works made for hire under 17 U.S.C. §201(b) and that, alternatively, it was a joint author of the recordings and was therefore its use was permitted.

At issue was whether the voiceover work was indeed within the scope of Lewis' employment. Under §228 of the Restatement (2nd) of Agency, an employee's conduct falls within the scope of employment only if: "(a) it is of the kind he is employed to perform; (b) it occurs substantially within the authorized time and space limits; [and] (c) it is actuated, at least in part, by a purpose to serve the [employer]."

Lewis' theory was that the scope of her employment was limited to customer service and did not include control of game content. Based on this premise, Lewis argued that the voiceover recordings, which constituted the creation of game content, were done voluntarily and not within the scope of her employment. However, the court found plenty of reasons to reject Lewis' argument that the work was outside the scope of employment because it was voluntary rather than mandatory:

This argument fails for several reasons. First, as noted above, the training manual Plaintiff received specifically identified content-creation as one of her official responsibilities. Even if she only performed this responsibility on occasion, it was still expressly listed in her job description and therefore fell within the scope of her stated duties. What's more, producing content is very similar to the other duties that game masters were routinely expected to perform. Although Plaintiff seeks to cast game masters as customer service representatives who lacked any influence over game content, she acknowledged in her declaration that game masters frequently exercise direct control over elements of the game world.

Thus, the court was able to rely on Lewis' job description as well as the actual course of conduct of the parties. Additional facts cited by the court as favoring its finding were that the voiceover recordings occurred during regular business hours at Blizzard's facilities using Blizzard's equipment and personnel, Lewis was paid her normal hourly rate for the work, and the voiceover work was part of Lewis' performance evaluation.

Having found that the scope of employment test was satisfied and Blizzard was the rightful copyright holder under the work for hire doctrine, the court granted summary judgment in favor of Blizzard without reaching the issue of joint authorship.