This Week in Law: January 16

SuzanneHey all,

A while ago, I was on This Week in Law and talked about video game law. Now, it’s time for part 2. I’ll be on this Friday, January 16, with Mona Ibrahim and Patrick Sweeney from IE Law Group (where I’m currently an intern) to discuss legal issues in the video game industry from a transnational perspective.


Tune in:

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See Sam at the Music And Gaming Education Symposium

Sam sprite forwardI will be leading a presentation and discussion at MAGFest again this year, this time as part of MAGES: the Music And Gaming Education Symposium.  This one is entitled “Infringing the Right to Clone? Reflections on Recent Legal Decisions.”  They’ve slotted me for 4:30 p.m. on Sunday, January 25th.  I’ll be the penultimate presenter of the Symposium, which is a good excuse to use the word “penultimate” a lot.  Here’s the official description:

“Traditional doctrines in copyright law have protected artistic expression, but not underlying ideas or functional aspects of creative works.  This, in turn, gives competitors the right to draw from those works.  At best, this allows for new and better artistry; at worst, it promotes thinly-veiled rip-offs of existing creative works.  However, recent federal court cases (such as Tetris Holding v. Xio Interactive, and DaVinci Editrice v. Ziko Games) have begun to clamp down on cloned games, pushing the boundaries of copyright and allowing for protection of games in ways that seem to run counter to well-established precedent.  Come learn about these cases and more, and join in discussing whether such a shift in the law is a welcome blessing or an unwelcome burden (or both!) to game developers.”

I hope to see you there!

© 2014 Sam Castree, III

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Nintendo Wins (Another) Patent Suit

Sam sprite forwardJust yesterday, Nintendo came out on top in a patent infringement lawsuit filed by a company called Creative Kingdoms.  In 2011, Creative Kingdoms alleged that the Big N violated multiple patents held by Creative Kingdoms covering motion-sensing devices used for interactive play.  Creative Kingdoms filed a complaint with the International Trade Commission, trying to ban the importation of Wii consoles and Wiimotes, which allegedly infringed those patents.  The ITC sided with Nintendo and invalidated the asserted claims of the patents in question, and Creative Kingdoms appealed.

The appellate court just upheld the ITC’s ruling, stating that the patents in question are invalid for “lack of enablement.”  One of the requirements for getting a patent is that the patent must spell out how to make use of the claimed invention.  Part of the trade off for getting a 20-year monopoly on your invention is that you have to tell the world how you did it, as well as how to use it.  That way, a person “of skill in the art” (i.e. Joe Blow Research Chemist, John Q. Computer Engineer, etc.) understands how to make and use the invention after the patent expires.  Evidently, Creative Kingdoms failed to spell out how to use the various sensors mentioned in the patent to detect motion.  Since that was apparently the very thing at issue in this case, that failure rendered those parts of the patents invalid.

I’ve seen a couple of articles state that the patents were invalid because Creative Kingdoms tried to claim something that they did not invent.  As far as I can tell, that is untrue.  First, having read the incredibly short court opinion, the issue of who invented the thing covered by the patents is never addressed.  Neither is who filed for the patent initially.  Second, even if Creative Kingdoms didn’t invent it, that would really matter.  For example, they could have bought the patents from someone; then, as the legal owner, they would have the right to sue people for infringement.  For all I know, Creative Kingdoms was ready to mass-produce its “toy wand” and “motion-sensing device,” but they didn’t sufficiently explain how other people could produce them, so they get no patent protection.

There are two lessons to draw from this.  First, be very careful when drafting patent claims.  There is a real art to drafting an application that is specific enough to warrant a patent yet broad enough to cover what you need to protect.  Normally, that should be left to a skilled patent lawyer (although that may not have helped Creative Kingdoms here, admittedly).  The second lesson is that suing Nintendo is usually a bad idea. Nintendo tends to have a strong track record (although not a perfect one) of winning in court.  Sizing up a prospective opponent before a lawsuit starts, and understanding how they deal with legal issues, is very important before you potentially sink years of your life and possibly millions of dollars into litigation.

But, 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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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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