Today's massively multi-player online role-playing games (MMORPGs) offer their users the ability to create or customize their own avatars with distinctive visual appearances. This Article contends that users who take advantage of that ability are exercising significant creative choices, such that they should be considered the "authors" and copyright owners of their own avatars. The Copyright Act envisions several types of collaborative authorship, including joint authorship, works made for hire, and collective works. None of these models provides a good fit for user-created avatars, because avatars meet some, but not all, of the elements for each model. Here, the two theories underlying copyright law diverge: the incentive theory suggests that game providers are best situated to license games (including avatars) for other uses, while the natural right theory suggests that players deserve to be compensated for their original contributions to the game in creating their own avatars. This Article proposes that each avatar should be considered a joint work between the game provider and the user, and that each avatar should also be considered a contribution to a collective work (the game as a whole).
14 Vand. J. Ent. & Tech. L. 959 (2011-2012)