The Law of the Playful [Un]Dead

Copyright law influences creative expressions in numerous ways. It provides incentives for creators and dictates when previously existing material may be used for new creative endeavors. When prior material may be used, it provides building blocks for future creativity. But when material cannot be used due to intellectual property concerns, that can spawn new creativity as the creator makes a version which avoids infringement. All of this can be seen in zombie based video games.

Resident Evil, one of the first survival horror games featuring zombies, was largely inspired by Night of the Living Dead, which had entered the public domain due to an error in complying with the copyright formalities which were required then. Night of the Living Dead helped to establish and cement many of the modern zombie tropes, many of which were directly used by Resident Evil. Shinki Mikami, one of the primary creators of the Resident Evil series has stated directly that he was inspired by Romero’s Night of the Living Dead. Had Night of the Living Dead not fallen into the public domain and been readily available as a building block for further creativity, many of the now infamous tropes used in Resident Evil and many other movies, books, and games may not have earned their place in popular culture.

Resident Evil also acquired the name it uses due to intellectual property concerns. The Japanese version of the game was named Bio Hazard, but due to other related trademarks of similar terms, it would have been nearly impossible to acquire and enforce a trademark on that name in the United States. Capcom thus held a contest amoung their employees and the name Resident Evil was chosen.

In addition to intellectual property laws influencing zombie video games, they have in turn influenced copyright law in at least small ways. MKR Group held the copyright in Dawn of the Dead, a sequel to George A. Romero’s class Night of the Living Dead. In Dawn of the Dead, a group of survivors from the zombie apocalypse takes shelter in a small town’s shopping mall. In the Capcom video game, Dead Rising, much of the action takes place in a shopping mall during the zombie apocalypse. When MKR Group threatened to sue for copyright and other intellectual property claims, Capcom filed suit first seeking declaratory judgment. Capcom won this suit on a motion to dismiss. The court devoted most of its reasoning to the question of whether the two works were substantially similar in a legal sense. It found that they were not, and clarified the way that test was used in its analysis of the matter. The court stated that in comparing works to determine if they were substantially similar, all elements which were not protectable by copyright had to be filtered out and only the elements that remained could be considered. The court stated that ideas, facts, elements taken from works in the public domain, times when the idea and expression merged, and scenes a fair were all elements that were unprotectable and had to be filtered out. What was left was not infringing.

The Court Decision in Capcom Co. v. MKR Group has been cited as precedent in more than a dozen other court opinions as well as several legal briefs and motions. It has been referenced in news reports about games and law and academic treatises. Because of a dispute over a game filled with zombies, and undying precedent has been created. The history of zombies in video games has both been influenced by and influenced the scope of intellectual property law.