The Fallout over Bethesda’s Use of “The Wanderer”

What's the deal with this copyright court case against Bethesda's use of "The Wanderer" in 'Fallout 4'?
Chad H.
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Gaming sites were ablaze late last week with news that the artist who provided what is perhaps the iconic song for Fallout 4 – “The Wanderer ” – was suing ZeniMax Media (the parent company of Bethesda Softworks) for copyright infringement over the use of the song in ads for the game.

The suit has caused a lot of head-scratching in the fan community, so let’s unpack a few of the issues involved. As we go to press, only Dion has submitted their side of the case – Zenimax will in due course post their response.

Before we go any further, check out the ad here:

Okay, So What’s Copyright?

Copyright is protection for certain types of creations, including songs, pictures, and text. In most of the world (including the US since 1989) you don’t need to do anything special to protect a work through copyright – that book report you wrote in 5th grade? You own the copyright on that. The picture you doodled when you got bored in class? You have a copyright on that too. That selfie you took on your last trip? Copyright you.

boy cheating on test
This is what copyright infringement looks like.

Having a copyright in something is generally a good thing to have – it means you can control who reproduces it or create sub-works from it, broadcast it, recite it publicly, or turn it into a movie. When your classmate cheated off your book report, he wasn’t just cheating on his work, he was breaching your copyright, and theoretically, you could sue them for doing so.

Your rights are respected almost worldwide – 172 countries have signed on to treaty called the “Berne Convention”; as long as you’re in one of those countries, then in all of those countries, your work is guaranteed to be protected for a certain amount of time. In the case of your book report, it’s protected until at least 50 years after your death.

Let’s Make a Deal

So let’s say that I was making a video game where I wanted one of the characters to read your book report. Okay, its a strange game, but work with me here. I could negotiate with you directly for rights to use your book report in the game. I might agree to give you some money (or if you were generous you might let me do it for free). We’d agree what rules apply to me using it, and as long as I keep to that agreement, everyone’s happy.

In the media industry, it’s a bit impractical for everyone who might want to use a piece of music to phone the artist or artists responsible. So, major artists work with some other company that looks after this for them. They might sell them the copyright completely or just let them “license” the work to others, perhaps for a share of the profit.

In the case of Dion DiMucci, he had a deal with Universal for them to make a deal with Bethesda. Bethesda pays the fee and gets to put the song in the game, DiMucci gets paid, and maybe a new generation of fans get to enjoy his work, everyone’s happy, right? A deal’s a deal, right?

Well, it depends what the deal is.

All Rise

The Wanderer Single
The Wanderer Single

DiMucci doesn’t dispute there’s a deal to have his song in the game, he’s not suing about that. He’s suing because his song was used in the video ads for the game, which he says his license doesn’t cover. Looking at his suit, the section he quotes of the contract seems to agree with him and gives him the option to either get a pre-set amount or take the case to court (DiMucci’s choice). Absent of that agreement, this would be a simple breach of contract and copyright violation.

What happens if someone violates your copyright? If we go back to your book report that your friend cheated off, not much. You’d have to show the court that this cheating damaged you somehow, and the court could them compensate you for that damage. Given that you’re not going to be selling your book report, this would probably be hard for you to do

DiMucci, however, as a professional artist can expect to be paid for his work. In fact, Bethesda already did to get the song in the game. Clearly, he’s been harmed in what he could expect to get for that song in an ad.

How Much Does Your Reputation Cost?

DiMucci’s contract apparently sets an amount as a preset penalty for doing this; however, this is where this case gets interesting because he’s not claiming this amount. Instead, he’s making a different argument – he’s not just been harmed by the song being used without payment, but that the way the song has been used has, in turn, hurt his reputation. He claims that the use of violent imagery has hurt his reputation due to his song being linked to it. Had he known about the plan, he could have vetoed the use or asked Bethesda to change the ad’s content.

fallout 4 hockey stick bashing
Hockey stick beatings are not part of Dion's image, apparently

These sorts of damages can be hard to calculate. If someone runs into your car, for example, damages are relatively easy – there’s the cost of your car, your medical expenses, the rental car you need in the meantime, etc. There might be a lot of these, but these have hard dollar figures and invoices can be shown in court that detail exactly how much you’re out of pocket. On the other hand, if I post on the internet that you’re a meany-meany-poopy-pants, how do you come up with a figure for the damage I did to your reputation?

DiMucci seems to have no such problem; perhaps he channeled Dr. Evil when filing the claim, but he puts his damages at a cool one million dollars, as well as demanding Bethesda pull down every online video of the ad.

Is it Just About the Money?

Monty Python's dead Parrot Sketch
Sometimes its not about the money - its the principle.

We’re going to change track a bit here and talk about something called “moral rights”. These are different to what we’ve looked at so far (which we call “economic” rights). Moral rights encompass how your work is used, so it covers things like an author’s right to be known as the author of the work or using a work in a way that respects the work. These tend to be more important in European countries rather than English/American-style systems.

That said, in 1979, Monty Python sued the ABC network when they objected to cuts ABC made to Monty Python’s Flying Circus shows to fit normal network broadcast slots with ads. The courts recognised that the Python’s had a right to be protected against misrepresentation and that the cuts did damage the integrity of their work.

However, the crux of the decision turned more on the “economic” rights. The Python’s allowed the BBC to license their work to ABC but never allowed for the BBC to the rights to cut the show. So, since the BBC didn’t have that permission, they couldn’t pass it on to ABC. The Pythons used their “economic” rights to protect their “moral” rights in the work.

Why do I bring up the Pythons? Because DiMucci’s process might not that different. Let’s presume that this isn’t about money, but that he wants the ads with his song removed from YouTube. DiMucci is using his economic rights to achieve this goal; if Bethesda doesn’t have the right to make this ad, then Bethesda might just have to pull them down.

However, the ads were first shown in October 2015. If you were trying to protect your reputation, would you wait almost 2 years to file suit?

What Happens Next

fallout 4 money

Court cases tend to take a lot of time, so we can expect a lot of waiting. When Bethesda and Interplay had their court battle over ownership of the Fallout IP, this took over two years, but still ended up in a settlement.

If there is a settlement, then this could answer the question for us about whether the case was about the money or not. Although settlements aren’t always public, if the videos disappeared from the internet, this would suggest DiMucci has stuck to his principles rather than just looking for his payday.

Chad H.