Dictator’s Objections Overruled

Sam sprite forwardThis is a follow-up to my earlier post “Dictator Objects to Black Ops II.”  A state court in California has ruled against former Panamanian dictator Manuel Noriega in his lawsuit against Activision Blizzard for appearing in Call of Duty: Black Ops II.  If you recall, Noriega objected to appearing as a character in Black Ops II and sued to enforce his likeness rights.  The court evidently objected to his objections and dismissed the case with prejudice.

The law in California on violations of a person’s right of publicity involves a “transformative use” test.  Essentially, the court looks to see “whether the celebrity likeness is one of the ‘raw materials’ from which an original work is synthesized, or whether the depiction or imitation of the celebrity is the very sum and substance of the work in question.”  If the use of the likeness is just one of many raw materials used to create a game, then the defendant is generally in the clear.  However, if the game can basically be summarized as “Hey look!  It’s Manuel Noriega!  And we didn’t even pay him for this!” then there will be trouble.

In this case, the court noted Noriega’s notoriety as a military dictator and as an important figure in the drug and arms trades, stating that he was “perhaps one of the most notable historical figures of the 1980’s[sic].”  The court also noted that Noriega gave no evidence of harm to his reputation.  “Indeed, […] it is hard to imagine that any such evidence exists.”  Noriega merely stated that he did not consent to his image and likeness appearing in Black Ops II.

With this in mind, the court then turned to the game itself.  The judge pointed to several important facts, including:  The game is a fictional game, but set in the context of the Cold War, and incorporates CIA operations.  Noriega appears in only 2 of the 11 missions in the game, and “for only a matter of minutes.”  He (that is, the in-game character of Noriega) speaks fewer than 30 lines in the entire game.  He is one of over 45 characters in the game, some of whom are also real-life historical figures.  Players never get the chance to play as Noriega, to “experience gameplay though his eyes.”  Noriega did not appear in any advertisements for the game. Based on these and other considerations, the judge held that such a “complex and multi-faceted game is a product of [Activision’s] own expression,” with minimal use of Noriega’s image and likeness.  Therefore, Black Ops II was transformative, and Activision is allowed to use Noriega as a character without his consent.  However, the court did not indicate whether any of these were more important than any others. Neither did it mention whether the case would have gone the other way if any particular fact were not present.

Okay, fun story, but why is this important?  After all, California law applies only in California, and not in some other state, or in another country (e.g. Panama), right?  True, but probably all it takes is selling a single copy of a game in California to fall under California jurisdiction.  This is even more important with digital downloads or other Internet platforms.  With physical discs, a publisher at least has decent control over where copies of a game end up.  No so much over the Internet, where it is much more likely that anyone in the world can potentially access your game.  Additionally, California law is a focal point for right-of-publicity law in general.  California law has lots of experience dealing with celebrities in Hollywood, and other jurisdictions look to California to help inform their own local laws in this area.  Federal courts expressly looked to California law when deciding the recent NCAA Football games cases.  (Although it is interesting to note that the court in the Noriega case more or less said that the federal courts got it wrong in the NCAA cases.)

So, be careful when using real people in your games, whether they are still living or even recently deceased (some states allow the right of publicity to endure for years, or even decades, after death).  As I mentioned previously, even if the law is on your side, it won’t always stop you from getting sued.  Especially by someone who needs to feel important.

As always, this is just legal information, not legal advice, and (unless you hired me recently) I am not your lawyer.

© 2014 Sam Castree, III

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Ralph Baer, The Father Of Video Games, Passes Away At 92

ralph baerRalph Baer – Inventor, television engineer, visionary, and the father of video games passed away today at age 92.

Ralph Baer was probably best known for his pioneering work in designing the Magnavox Odyssey. The first commercially available home video game console, it was released in the US in 1972, though Baer was working on its earlier iterations as early as 1969. The console featured controllers, light guns, and changeable cartridges for games – all industry firsts. Though the Odyssey never achieved the popularity of other consoles that came later, it paved the way for everything we know and love about games.

Baer was also the co-creator of Milton Bradley’s popular electronic matching game SimonBaer was honored in 2006 when he was  awarded the National Medal of Technology by President George W Bush for his work in pioneering the video game industry. That same year, Baer donated his video game test units, production models, notes, and schematics to the Smithsonian National Museum of American History. His papers are kept in the Museum’s Archives Center for the benefit of future generations of innovators, visionaries, and dreamers.

He will be sorely missed.


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Chicago Video Game Law Summit Coming This Spring


RossThis coming March the John Marshall Law School in Chicago, Illinois will be hosting the first annual Chicago Video Game Law Summit. Sponsored and organized by John Marshall’s Video Game Law Society (founded by yours truly) the Summit will feature academic panels devoted to everything hot and happening in video game law. We’ll be discussing video game violence related legislation, intellectual property concerns, recent litigation –  the whole nine yards. Check out the event’s webpage below and check in frequently for updates on speakers and other information.


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EFF Petitions to Let Gamers Keep Running Online Games

Sam sprite forwardThe Electronic Frontier Foundation has submitted a petition to allow for an exemption to the Digital Millennium Copyright Act (DMCA) so that players can restore access to video games that the developers have stopped supporting.  So, what is this all about?

The DMCA has two very distinct parts.  The first are the safe harbors that help to prevent people who run websites from getting sued.  The other part essentially makes it illegal to circumvent digital rights management (known commonly as “DRM”) measures. It’s this second part, the anti-circumvention section, that we’re concerned with today.  Every three years, the law allows the Librarian of Congress to set forth certain specific exemptions to the anti-circumvention law.  This exemption process is the same that allows you to jail-break your smart phone.  These exemptions are usually narrow, and based on concerns such as use for non-profit archival and educational purposes; impact on criticism, commentary, and scholarship; and impacts on the financial value of the DRM-protected works.

EFF has filed a petition to allow an exemption for “Literary works in the form of computer programs, where circumvention is undertaken for the purpose of restoring access to single-player or multiplayer video gaming on consoles, personal computers or personal handheld gaming devices when the developer and its agents have ceased to support such gaming.”  So, for example, when Nintendo shut down online services for Wii and DS games, the proposed exemption would let players set up their own servers to keep the online matches up and running.  In fact, the petition specifically mentions Mario Kart Wii.  It would also for continued play single-player games that require an Internet connection (e.g. anything on Steam).  It would not apply at all to MMOs like World of Warcraft.

It is important to note, first of all, that this is merely a proposed exemption.  It has not happened yet, so be careful about hacking DRM to set up your own servers.  But, it seems likely that the petition should go through.  As the petition states, the exemption would only apply to lawfully-obtained copies of a game, and it would only apply after developer support has ended, so there would be no concern of the developer losing money or having to deal with unauthorized competition.  It benefits gamers, who could continue to enjoy their games even after the requisite Internet support has ceased.  It would also allow for preservation and archiving of games that might otherwise vanish.  And, as EFF argues, all four of the fair-use factors of copyright law point in favor of fair use.

Additionally, please note these exemptions are made every three years, and they last only that long.  If adopted, the exemption would begin in 2015 and last until 2018. At that point, it might get picked up again for the next three years (2018-2021), or it might not.

For the curious, the full petition is not very long, and it’s available on EFF’s website.

As always, this is just legal information, not legal advice, and (unless you hired me recently) I am not your lawyer.

© 2014 Sam Castree, III

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Where Game Devs Can Find Affordable Legal Assistance–And No, I Don’t Mean Legal Zoom

frontAs a developer, newbie or otherwise, you’ll eventually get to the point where you realize you want to release your game in some way or another. At that point in time, if not much–MUCH–sooner, you’re hopefully going to consider whether you need some sort of legal documents or protections in place before you go full out for the release. But, if you’re like me (although for different reasons) and barely capable of affording ramen noodles, your budget for legal stuff is going to be really limited. That’s okay. I mean it, really—there are actually attorneys out there who get their professional satisfaction from helping cases (and wallets) just like yours. As such, it’s no excuse to ignore legal issues because you think you can’t afford lawyers. The only thing is that you have to know where to find them.

So, what kinds of options are there for legal assistance when you’re on a budget? Let me list them! There are pros and cons to all of these options, and I’m going to walk through them as well as discuss how you find and access them.

         (1) Law School Clinics
         (2) Incubator Programs (not as creepy as it sounds)
         (3) Non Law School-Related Non Profit Orgs
         (4) New Hires to Large Law Firms (potentially)
         (5) Game-Specific Law Firms (or game-specific attorneys in law firms)


Note that Legal Zoom and other websites like that are not included in the list. The reason is because going to a website like that for your legal needs is like going into a tuxedo shop with a blindfold on and picking out a suit. There’s a chance that it’ll fit your needs well, but it’s more than likely that without tailoring, your suit (read: contract/document) won’t do what you need it to do. The fix? Real lawyers. Read on!


 1. Law School Clinics

Law schools generally will have at least 2-3 clinics at or connected with their school (usually more) which have licensed attorneys in charge of 2-20 law school interns who answer questions from people like you.

I had the luck to intern with a nonprofit legal organization (that’s right—NON profit) that specialized in media-related law. We helped clients with everything from drafting contracts like license agreements, copyright assignments, letters to big companies requesting permission to use trademarks in games, assessing the level of risk involved in the use of another’s content in the client’s game, and how to reduce that risk. On a few occasions, I had to look up clinics like ours in other states for clients because sometimes we couldn’t help them with the work they needed done due to state law conflicts (like contracts or business formation).


  • Experienced attorneys on staff. Usually very experienced attorneys are attached to these clinics, so you know that the work done by the interns is reviewed and analyzed by an experienced eye. Often times the attorneys in the clinic are still practicing and also have access to other attorneys with similar experience levels, just in case.
  • Generally pro bono (free) or low bono (nominal fee + any fees your request requires, such as registration fees to the trademark office if you’re registering a trademark).
  • Often, you’ll get more bang for your buck, so to speak. Students working at these clinics are seriously motivated to please their bosses and make a good impression, as well as to gain expertise in the field in which they are working. As such, while the efficiency of their work may be reduced a bit by a learning curve or classes, they will often times do twice the research and work required for your issue just to make sure they didn’t miss anything before handing off their answers to the supervising attorney. As such, you can feel confident that if there was an unknown issue related to your query, they probably found it and analyzed it. Who wouldn’t want their attorneys to have that kind of dedication, especially when you don’t have to pay for it?


  • Potentially longer wait time. The thing with law school clinics is that they run on the schedule of their host school, which means that if you catch them near the end of a semester, your case may be put on hold for the next semester so that the next set of students will have cases to work on. Thus, if you’re on a tight schedule, a clinic might not be for you, especially if your issue is complex. However, it never hurts to contact them and ask what their case load is like.
  • Interns. This really isn’t that much of a con because although interns do the majority of the work submitted to the clinic, it’s not like these are high schoolers researching your issue. Law school clinics are highly specialized in a particular area of law, and students have to apply to get into them—their background and experience in that area of law is key to getting accepted, which means that they already had an interest in the area of law at issue for you, and likely have taken several classes (if not a previous career in it) about the subject. Plus, licensed attorneys are required to review their work before sending it to you. Really, you get at least two sets of eyes on your problem, not to mention the other interns with whom the intern assigned to your case likely consulted in writing their answer (or other document).
  • Some clinics have income caps to qualify for their assistance. This means that, depending on how much you make a year, you may not qualify for certain clinics (e.g. Thomas Jefferson, below, is 200% of poverty level). Other clinics have much higher caps, such as two million a year (for small businesses). If you’re unsure whether you qualify, just call and ask them what their income cap is for assistance.

Where to Find Law Clinics:

It’s pretty obvious that law school clinics can be found on law school websites, so we’ll move past that to some specifics. San Diego alone has 3 law schools with business/entertainment-related clinics that offer free or low cost legal assistance. They also often help out-of-state (and perhaps country) clients, depending on your issue.

For those of you OUTSIDE of San Diego (or California), Entrepreneurship.org has created a list of all the U.S. law school clinics related to business & entertainment law, organized by state.

General Types of Clinics For Game Devs:

Business Clinics typically provide business-related services such as LLC formation, documents related to employees, and probably anything else you might need when setting up a business entity for your game (highly recommended to avoid the risk of losing your big assets like your house or car in the event you get sued for something related to your game).

Trademark and Patent clinics usually focus on registration and prosecution (communication with the USPTO about questions/issues related to your trademark/patent in getting it registered).

Entertainment/Media Law Clinics tend to pick up the slack from the above types of clinics, such as drafting other kinds of intellectual property-related contracts and documents (copyright assignments, licenses, talent releases, dealing with content takedowns, etc.). They don’t typically do registration other than copyright (because it’s super easy and rarely contested), but they typically won’t draft contracts for you if you don’t live in their state—they’ll recommend you find a clinic in your home state for that, because contract law is state law, whereas trademark and copyright/trademark/patent is federal/national law.

San Diego’s Law Schools Are:

California Western School of Law (CWSL) (my school!)

University of San Diego School of Law (USD)

  • Entrepreneurship Clinic (their income cap is just above $29,000/year for a household of 1, but can be negotiated with the supervising attorney. You just call and leave a message with the clinic to see about moving forward with your case–they don’t have an online app.)

Thomas Jefferson School of LAW (TJSL)

NOTE: Thomas Jefferson’s clinics have a relatively low income bar to be accepted into their program, although that can be negotiated with the supervising attorney. Generally you have to be 200% below the poverty line (for 1 person, that’s $23,340 a year).

2. Incubator Programs

 Incubator programs are basically group homes for newbie lawyers, hosted/subsidized by a law school. For example, California Western and Thomas Jefferson have incubator programs in which the schools offer to recently licensed attorneys (under 5 years of being licensed) seriously discounted, shared office space (and all the needed office equipment), seminars on marketing and business management, and other kinds of support for those attorneys (from their respective schools) who are aiming to hang their own shingle (e.g. be a solo practitioner). You can visit the sites below and search through their listed attorneys.

California Western: Access to Law Initiative
Thomas Jefferson: Incubator Brochure


  • Typically fast response times. These lawyers are building their client lists, and, especially in the first year of the program (they usually last 18 months before the attorneys have to go it on their own, to make room for other, new attorneys), they may be desperate for clients. As such, they usually have the time to deal with whatever issue you may have, and then ask if there is anything else you can possibly think of for them to do for you.
  • They aim to please. Believe it or not, the most common reason lawyers even go into the profession is to learn how to help solve people’s problems. Sure, the lure of large amounts of money is great, but know that law school is SO NOT WORTH IT for anyone just in it for the money. Those people don’t make it because the amount of work, tedium, rule following, and stress isn’t something people can deal with if their heart’s not in it. Sure, there are lawyers out there who are douche-knockers, but the majority of us are OCD-type people who get our rocks off knowing that we helped someone resolve an issue in an area of law that we absolutely love. We live for that sense of satisfaction in knowing we did a good job. Honestly, it’s a little pathetic how much we want to please everyone, so it’s probably a good thing that fact is often obscured by fancy office wear and hideous doctorates on the wall that no one can read. Seriously, NO ONE CAN READ THAT FONT!
  • They’re licensed attorneys. This means there’s no other oversight required (as with a clinic) before you can get a response. Also, the area of law in which they go into is generally what they’ve focused on for the previous 3-4 years, exclusively, with internships and class work, so they’re pretty darn knowledgeable about the law (and are current with the law because they just got out of school).


  • Typically you’ll have to pay them. However, both you and they know that they are not very experienced (in the real world), so their fees are going to be a lot cheaper than your typical firm.
  • They’re not as experienced. True, but that doesn’t meant they have no clue what they’re doing. They also have access to other attorneys in the incubator program who specialize in other areas of the law with whom they can consult or refer, so that’s a plus.

My final thought on this point is that even if they’re not experienced in doing specifically what you need done, a lot of skills and theory transfer, and newbie attorneys are more than capable of figuring out how to do something new. Plus, with their reputation on the line, they’ll make every effort to get you the best quality stuff you can possibly get, even possibly rivaling that which you might receive from a bigger law firm.

3. Non Law School Clinics/Organizations

There are a number of clinics and organizations which do pro bono work, but are not attached to law schools. The EFF (Electronic Frontier Foundation), for example, takes on certain lawsuits related to digital/data privacy and first amendment rights. They take on what they want, however, so your case might not be what they’re looking for, but they do have a ton of great guides related to legal issues with regard to online and first amendment issues.

Another example is the California Lawyers for the Arts. They are an organization of lawyers who give their time on arts (digital, film, games, etc.) –related cases, although they may charge you a fee for their services–call and ask.

CLA Lawyer Request

4. New Hires At Large Law Firms (potentially)

This was news to me, mostly because until I interned with a big firm, I had no reason to know this was even a possibility as a policy.

So, when large firms, such as DLA Piper, hire new attorneys (read: likely only newly licensed, not all their recent hires), they may require their new hires to do a significant number of hours of pro bono work (e.g. 50-100 a year). This benefits the firm’s image in offering pro bono services, and it eases the new hires into the firm’s culture by giving them somewhat low-stress cases to start with, so they can get their feet wet. These new hires are also often former interns with the firm, so they have a great experience background.

What this means is that, depending on the parameters of the firm’s policies, these new hires might be able to take your case on, pro bono. But, it may also be that the firm has a list of pro bono cases already waiting for the newbies to deal with. Either way, it can’t hurt to ask.

I know for a fact that DLA Piper does this, and they have offices in entertainment law hubs, such as L.A. and New York, in which case there might be a stronger possibility of them helping you. Much like with the interns or incubator attorneys, these new hires have access to highly experienced attorneys (usually appointed a mentor, in the beginning), as well as the huge resources available to the firm with which to resolve your issue.

I’d recommend looking up big firms, such as DLA Piper, Pillsbury Winthrop Shaw PittmanPerkins CoieJones Day, etc. and see about their pro bono programs, and whether you qualify (and whether they can get back to you within your needed timeframe).

5. Game-Specific Law Firms/Attorneys

There are law firms out there that specialize in video game law (interactive entertainment law). Note: this is different than ‘gaming law,’ as that pertains to gambling law. Depending on their experience level, their fees will vary, but it probably wouldn’t hurt to hit them up and see if they can take you on, or at least refer you to an affordable alternative. Googling ‘interactive entertainment’ + ‘attorney’ will get you in the ballpark. Much like the comment on this post, “Many of us will give free advice to those with humble beginnings in the hope that when they grow, we can grow with them, and when they can pay, they will.”

Here are just a few:

Frankfurt Kurnit – Sean Kane & Greg Boyd

Side note: Greg Boyd co-authored a book, Business & Legal Primer for Game Development (2007) —it’s an easy read and well worth it if you have zero background in running a games business or with intellectual property law.

Interactive Entertainment Law Group (IE) – Patrick Sweeney

The Game Attorney– Tom Buscaglia  (he has a game dev kit: for $295–I haven’t seen it, but it might be worth checking out!)

Johnson & Moo – I don’t know their work, personally, but I met Mr. Johnson at a game tech law conference.

Dan Rogers

Ryan Morrison – he does a Reddit AMA (ask me anything) once a month for an hour, answering all general questions about intellectual property law as it pertains to games (and other questions people ask).

Sam Castree III

Brandon Huffman



Some attorneys say that if you can’t afford legal assistance to protect your fledgling game business, then you shouldn’t be going into business. I disagree, to an extent.

There are a lot of options out there for you to find affordable legal assistance. Don’t EVER make the excuse to not get your legal issues resolved just because you think you can’t afford it.

Technology makes it so much easier these days to get a game together and make it publically available—it’s not just the AAA studios, not for a long time, now, doing this. As such, business noobs like you and me are capable of actually making a product for public consumption just from a hobby, but may not have the background yet (it’s an immediate and steep learning curve) to run a business. That’s why lawyers like the ones I’ve listed above exist—they love helping startups get on their feet by taking away the stress of the complicated legal issues attached to going into a business.

Lawyers like that are the geeky parents wanting their children to succeed in their ventures. They’re there to make sure you don’t face-plant on the concrete, and they come in to make things better when all seems lost.

Let them be your heroes, they could use the self esteem boost.

Disclaimer: I am not a licensed attorney, and none of the information in this post should be considered legal advice.
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OGDE Wrap Up

RossThis past weekend Suzanne Jackiw and I participated in a video game law panel at the Ohio Game Developers Expo. We were joined by Andrew Trafford, of Porter Wright LLP, and Chris Volpe, of Multivarious Games. Together we discussed a wide spectrum of legal issues in games. Business planning, capital raising, trademark, trade dress, patent, copyright, constitutional law, and the right of publicity were all covered in brief and at the speed of 100mph.

Talking fast left a lot of time for audience questions and that was probably the best part of our presentation. We were truly blessed to have an engaged and enthusiastic audience. They put our knowledge to the test and let us know what legal issues are most important to people making and playing games. It was amazing how many people from diverse disciplines and backgrounds were at OGDE. Artists, musicians, programmers, and even engineers traveled to Columbus to share their appreciation of video games and play a game of “stump the law students” with us.

OGDE was a very unique experience. I’ve been to many conventions and expos but I’ve never experienced the same sense of belonging and community I felt this weekend in Columbus. Speakers and attendees stuck around to hang out after hours and get to know each other rather than bolting for their hotel beds. There was a midnight screening of The King of Arcades at Studio 35 hosted by Walter Day. There were games to be played (and many things to drink) at the local barcade 16 Bit. There was even a late night shindig at (secret) Arcade Super Awesome.

Whatever the venue, the scene was the same. Men and women from different backgrounds, home towns, and life paths were embracing their similarities and transcending their differences. It was no small feat to be sure and it brought a smile to my face. With all the dissent and controversy that has permeated gamer culture lately it’s reassuring to know that those differences could be trumped by what created this community in the first place: a devout shared love for games.

Special thanks to Chris Volpe, Andrew Trafford, Mike Geig, Walter Day, and of course my esteemed colleague Suzanne Jackiw.


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Ross & Zed Talk Games: Releasing Unfinished Games

Suzanne Readers!

We’re back from the Ohio Game Developers Summit and we had a blast. It was fantastic meeting and speaking to so many of you and I’m hoping those of you I didn’t get to speak to will reach out. You all seemed like an amazing group.

In other news, Ross from Loading Law and I got together again to talk about law and games. This time we chatted about what impact releasing unfinished games has on consumers and major publishers. Let us know what you think in the comments!!

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