Plagiarism, Destiny 2 and NERF Guns
Last week, video game developer Bungie was celebrating a significant milestone: 10 years of Destiny 2.
However, the celebration didn’t go as hoped. Reviewers panned the meager offerings for the celebration, and others said recent layoffs overshadowed the event.
One of the highlights of that celebration was Bungie and Hasbro’s collaboration to create a NERF version of the Ace of Spades Blaster in the game. The toy gun, which costs $50, is available for preorder to anyone who achieves the Legend Title before September 24.
However, not long after the page went live, X (formerly Twitter) user Tofu_Rabbit claimed that the gun was a direct copy of a commission they did in 2015.
As of this writing, more than 2.1 million people have viewed the post.
Bungie, for their part, acted quickly. After a quick investigation, they released a statement saying they were in contact with the artist and working to ensure “they are compensated and credited for their incredible artwork.”
Tofu_Bunny also posted that the situation was being handled professionally and gracefully.
The replica gun remains on sale to those who have reached the required level.
Though Bungie has resolved the issue, this is still a fascinating case. It hits an intersection between copyright, plagiarism and fan art that raises a simple question: What would have happened if Bungie hadn’t resolved the issue?
Fan Art Gone Wrong
This isn’t the first time a large company has been accused of plagiarizing fan art. It’s not Bungie’s first time, either.
In September 2021, Bungie apologized to X user Relay314 for using their fan art in a Trailer for The Witch Queen campaign. In June 2023, the company found itself in a similar position when fan art was used in a cutscene for the Season of the Deep campaign.
However, Bungie isn’t the only one having this problem. Over the past four years, Wizards of the Coast (WotC), the makers of Dungeons & Dragons and Magic: The Gathering, have had multiple scandals involving plagiarism of fan art.
Both companies have in common a strong fan art community that they nurture. WotC routinely hires popular fan artists to create content for them. Bungie has a weekly fan art contest and a policy that “strongly supports the efforts of our community to produce non-commercial content.”
These policies have helped both companies keep their fan communities engaged. However, they also make a large amount of fan content readily available online. Couple that with large companies that hire countless artists, and it’s easy to see why this keeps happening.
But what would have happened if Bungie hadn’t been so gracious? The answer is complicated.
A Legal Mess
From a purely legal standpoint, this story has a significant wrinkle: Bungie owns the rights to the original Ace of Spades model. In fact, Tofu_Rabbit’s version of the gun is likely an infringement.
Not only is it a clear derivative of the original model, but it was created as a commission. Bungie’s Intellectual Property and Trademarks guidelines strictly forbid any physical or digital sale of any of their creations.
While it’s possible that Tofu_Rabbit got permission to create and sell their version, Bungie’s blanket policy only protects non-commercial works.
However, that doesn’t mean Bungie is out of the woods either. Though Bungie owns the rights to the original model, Tofu_Rabbit would still own all the elements they added on top of it.
As Tofu_Rabbit highlighted in their post, NERF copied many of those elements, including fake scratches, added stripes and additional brush strokes.
The question then becomes whether those elements qualify for copyright protection and, if they do, whether their copying amounts to copyright infringement.
A 2017 Supreme Court looks promising for Tofu_Rabbit. That case dealt with cheerleader uniforms and found that decorative elements such as chevrons, lines and so forth can be protected. We saw this principle in action in November 2023 in the copyright battle over “transparent” phone cases.
However, this latest case would still be complex, especially given the nature of the work.
However, these issues are largely moot. There’s no reason for either Tofu_Rabbit or Bungie to go to war.
The Bigger Issue
To be clear, all the above legal discussions are pure speculation. There was and is little chance of this case becoming a legal dispute.
The reason is simple: Both sides have far too much to lose.
If Bungie were to take action against Tofu_Rabbit, they would immediately draw backlash from their community. The goodwill they’ve built up from their fan art community would likely evaporate overnight.
Going to war with your fans is rarely advisable, and companies go to great lengths to avoid it. While there are times companies have been pushed too far, such as the Axanar fan film and the Harry Potter Lexicon, those cases are outliers. They required fans to go far beyond ordinary and tolerated fan behavior.
Though Bungie is not scared of going to the courtroom, they save the lawsuits for cheat makers and others they see as threats to their community.
Likewise, if Tofu_Rabbit took any action, they would be in a bad position. They would first have to address their original infringement. Then they would have to prove that their elements can be copyright protected.
It would be an uphill battle with lots to lose and little to gain.
In short, it’s in everyone’s best interest to resolve this quickly and amicably. If this story somehow made it to court, it would likely be to everyone’s detriment.
Bottom Line
In the end, this isn’t a legal story. Regarding copyright, fan art and fan fiction have a long history of being a “no man’s land.”
It’s a space where companies ignore technical or mild infringements. Very few creators or rightsholders take an aggressive stance against non-profit fan creations, and as this case shows, that also holds true for smaller commercial ones.
Creators typically only step in against fans when there is no other option. These are not fights they seek. In Bungie’s case, pirates, cheaters and counterfeit vendors are doing far more harm than fans selling commissioned works. Fighting with fans is both undesirable and not a priority.
When it’s all said and done, Bungie handled this case more or less perfectly. When they became aware of the problem, they investigated quickly. After that investigation found issues, they reached out to resolve them amicably.
While I would like to see Bungie be more transparent and explain how this happened, they resolved the bigger issue. The original artist and fans are happy, and the matter seems closed.
That is a win for pretty much everyone.
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