Author: Tomáš Havelka; Michal Kandráč
Published: 10. 11. 2022
The use of real buildings in video games is a common practice. However, it is not always welcomed by the owners or architects of the building. One of the most recent cases is the famous Conservatorium Hotel in Amsterdam, which is featured in the Call of Duty reboot: Modern Warfare II. In this post, we are considering the limits of architectural work copyright protection and impacts the case will have on the future of the video game design.
Amsterdam’s luxurious Conservatorium Hotel[1] is featured in the latest edition of the hit game Call of Duty: Modern Warfare II. It is one of the locations where the Task Force 141 combat missions led by the legendary Capt. Price take place, not only in its environs, but also in its interior.[2] The Conservatorium Hotel is one of the most famous buildings in the centre of Amsterdam. Although the creators of the game have changed its name, it is quite clear which building it is.
Unlike the gamers, the hotel management is not happy about this visualisation. They claim they do not want to be associated with activities that promote or present violence. Needless to say, the interior gets “redecorated” during the in-game mission by bullets and explosions, which significantly damage the outer shell of the hotel. According to reports, the hotel management is also considering legal action against the game developers.
It may be interesting to see what steps the hotel management eventually decides to take. Globally, disputes between owners of significant objects and game developers are not rare. Just like in the case of Sony, which released Resistance: the Fall of Man in 2007, a game featuring battles with alien invaders inside the Manchester Cathedral. The Church of England demanded a formal apology and a financial donation ("indulgence") for associating their sanctuary with violence. In the end, Sony apologised, explaining that their sci-fi game was not intended to offend the believers.
However, featuring buildings in video games has its advantages. This is evidenced by Ubisoft's Assassins Creed series, which faithfully portrays historic locations (Rome, Paris, London, etc.), making them attractive for many gamer-tourists. The virtual model of Notre-Dame, to which Ubisoft developers devoted an incredible five thousand hours, could even help to restore the burnt-out wonder of medieval architecture.
Since the game realistically depicts the Conservatorium Hotel building as an architectural work, what can be challenged is the protection against copyright infringements, especially personal copyright, which allows the author to prevent third parties from altering or modifying the work, etc., which is probably what is happening in the case of the walls demolished or destroyed with bullets. The developers would likely invoke a statutory exception (the freedom of panorama), claiming they could have used the image of the hotel that is on permanent public display, but this exception does not cover the interiors of buildings or alterations to existing structures, so this defence might not stand in a potential litigation.[3]
However, if the architect of the hotel building was Daniël Knuttel, it needs to be emphasised that his copyright already expired upon his death. In the Czech Republic, the use of the building in question could be challenged by Knuttel’s descendants or other persons close to him, or an association of architects[4] that could argue that riddling the building with bullets leads to the use of the copyrighted work in a way that diminishes its value.[5] These rights could only be exercised directly by the owner or the management of the hotel if it had obtained the necessary authorisations from these rights holders (i.e. not by themselves but e.g. on the basis of a power of attorney).
According to information available, the hotel allegedly underwent refurbishing and modernisation, so its authors may still be ‘in the game’ if the refurbished parts were affected by this game in any way. Again, however, the hotel would have to acquire the necessary rights from the authors of the refurbishing works or agree on a joint procedure with them, e.g., the architects would have to directly take part in the dispute with the creators of the game.
Protection against unfair competition may also be at stake. It could be argued that the game developers deliberately set the game’s story and multiplayer missions in the hotel scene in order to increase the attractiveness of their production to gamers, who can race through real objects and possibly even devastate them. However, proving unfair competition with all the requirements imposed by the law and the established case law of the courts would be very difficult and costly, especially in the case of a fictitious video game.
This case may thus be another step to help game developers within the EU to set boundaries for in-game portrayal of real-world locations. It will be interesting to see how the whole situation is evolving, also taking into account the fact that the Dutch legislation is very close to the Czech one. We will be happy to follow this case for you since legal protection of architectural works is our dedicated legal expertise.
[1] The Conservatorium Hotel website are located at: https://www.conservatoriumhotel.com/ .
[2] Some of the footage can be viewed at: https://www.youtube.com/watch?v=2TZ-W_XkDiw.
[3] According to Section 33 of the Copyright Act.
[4] Pursuant to Section 11(5) of the Copyright Act.
[5] Pursuant to Section 11(5) of the Copyright Act.
