Indie Revolution Expo

Hello readers! This Sunday I will be participating in a live webcast as part of the Indie Revolution Expo. Organized by Indie Game Riot!, the Expo will feature 3 days of online programming dedicated to sharing the spirit of creativity which supports the indie game community. I will dialing in via Skype with my esteemed colleague Suzanne Jackiw to lend my expertise in the area of video game law.

We will be describing some highly relevant legal basics for game developers and discussing a variety of topics including: copyright protections, trademark, the right of publicity, and a variety of game related contracts.

Check out the Expo’s website and panel schedule here. Tune in here to watch all the panels. Suzanne and I go live on 07/19 at 12pm EST.

 

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Ross Speaks: Indy Pop Con

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Hello readers! Today I will be speaking at Indy Pop Con at the Indianapolis Convention Center. I will be there lending my expertise in the area of video game law, and describing some highly relevant legal basics for game developers. I will be discussing copyright protections, trademark, the right of publicity, Works for Hire, Employment/Independent Contractor Agreements, End User License Agreements, Privacy Agreements, and General Assignments.

Hope to see you there!

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Legal Basics for Game Developers at the IGDA

Legal-Basics-for-Game-Developers

Hello readers! Tonight I will be speaking at DePaul University for the International Game Developers Association  alongside my esteemed colleague Suzanne Jackiw. Suzanne and I will be there lending our expertise in the area of video game law, and describing some highly relevant legal basics for game developers. We will be discussing copyright protections, trademark, the right of publicity, Works for Hire, Employment/Independent Contractor Agreements, End User License Agreements, Privacy Agreements, and General Assignments.

Hope to see you there!

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Trade Secrets in Video Game Industry

IshA trade secret is a piece of information that a company keeps secret. [1] This information is kept a secret because it has important business value to the company. The information has to actually be a secret and not be readily ascertainable by proper means. [2]  Additionally, the information has been generated by the labors of a specific person or persons who take steps to protect this secret. [2]

Essentially I should not be able to find your secret from a mere Google search and the secret must be valuable. What constitutes valuable, is usually ascertained once a secret is revealed and money has been made.
Trade secret issues usually arise when a former employee of Company A goes to work for Company B, and takes with them information that Company A [used exclusively in their business and was unknown outside of the company] tried to keep secret. [1] Protected information can be a formula, pattern, compilation of data, device, method, technique, or process. [3] In the gaming industry, trade secrets are commonly comprised of software: including firmware, encoded file formats, story and character ideas, among other components. [3]

The video game industry is no stranger to claims of trade secret misappropriation. The video game industry remains one of the fastest growing industries in the world, grossing more than $47 billion worldwide. [4] With such a fast growing industry, the need to protect ideas and designs associated with games is crucial. Trade secrets are useful because they help protect a company’s technology. One can stay ahead of competitors by never allowing their product or ideas to leave the confines of their company. This is obtained by restricting what people are allowed to share with other companies.
An example of this is the now infamous Oculus Rift controversy. ZeniMax Media claims that Palmer Luckey used technology and know-how provided to him by John Carmack. ZeniMax claims that since Carmack was an employee of the company at the time, Luckey’s capitalization of technology outside the scope of the company was misappropriation of company trade secrets. [5] If Luckey really did use ZeniMax’s unique technology to make his product, then the future is looking grim.

Trade Secrets are increasingly more important to publishers in the video game industry. In an industry where 53 percent of developers consider themselves to be independent, it is important to know exactly what rights you are signing away. [6] It is in a company’s best interest to find ways to keep control over the ideas that developers produce. If you are a developer and are thinking of working with a publisher, know exactly what is expected of you. If you are simultaneously working on an independent project and work project, it is best to keep them separate. Or at the least, know and understand what work technology you are allowed to use. If you use protected methods, codes, or technology at your place of work on a side project, that publisher could potentially own your work.

Most any software can be deemed a trade secret, as long as it meets the criteria. Companies have higher stakes in protecting their protecting their investments; however, so do developers. To know your rights and understand any contracts that you may sign, it is best to consult an attorney.

 

 

  1. Hey, That’s MY Game! Intellectual Property Protection for Video Games
  2. Trade Secrets Act Summary
  3. TRADE SECRETS IN THE VIDEO GAME INDUSTRY
  4. IP Protection Is a Winning Strategy for Game Developers
  5. Why ZeniMax v. Oculus Matters
  6. Why game developers are flocking to Sony and fleeing from Microsoft
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New Contributor!

SuzanneReaders!

First, I’d like to apologize for my lack of posting. I’m currently preparing for the bar exam and doing very little else. I haven’t forgotten you though. If there’s any topics you feel need to be covered reach out.

Second, we have a new contributor – Aisha. She’s a student at Chicago-Kent and a generally fabulous person.  I’m excited about her contributions to this blog. To learn more about her, head over to our About Us page.

Ish

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Loading Law and GameDevLaw Speak at EPXCon 2015

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Hello readers! This weekend I will be speaking at EPXCon 2015 alongside my esteemed colleague Suzanne Jackiw. The goal of EPXCon is to engage and enhance the animation and game design community at Iowa. Suzanne and I will be there lending our expertise in the area of video game law. We will be discussing copyright protections, as well as a contracts common in games and animation like: Works for Hire, Employment/Independent Contractor Agreements, End User License Agreements, Privacy Agreements, and General Assignments.

Hope to see you there!

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CVGLS Wrap Up

cvgls

The Chicago Video Game Law Summit was approximately one month ago. For the uninitiated, CVGLS was the first video game law event of its kind in Chicago. Organized by myself and my colleague Suzanne Jackiw, with help from the John Marshall Law School’s Video Game Law Society and the Chicago Bar Association, attendees experienced a full day of panels devoted to legal protections for video games. The following words are by no means an exhaustive summary of the full day’s events, but serve merely as a preservation of my experiences, impressions, and reflections for posterity. The official agenda of CVGLS, its speaker list, photos, and eventually video, are/will be available at www.cvgls.com

The day kicked off strong with opening remarks given by yours truly and then went straight for the jugular with a panel devoted to the Video Game Violence Debate. Our discussion focused on the history of legal regulations of violent media, public misconceptions of social science, and the public policy of media regulation and censorship. Professors Ford and Monahan tag teamed the history of game regulation, and Dr. Wright explained misconceptions of video game related social science. Doc Mac contributed his unique perspective of being an arcade owner to the mix, and we all speculated on how games are regulated for their content now, and how they should or shouldn’t be regulated in the future.

Continue reading at Loading Law

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Someone Owns That

Sam sprite forwardIn December, 2014, a game called “Meme Run” was put up in the Nintendo eShop.  The game incorporates a panoply of infamous icons from the Internet.  For example, the main character sports the well-known Internet “troll face” and runs and jumps while earning “swag points,” while psychedelic images of the Something Awful “Get Out Frog” flash in the background.  Then, last month, it was suddenly removed from the eShop.  No, not for reasons of taste or quality, but for copyright infringement.

You see, the trollface image is a copyrighted design.  That may come as a shock to some of you, but it’s true.  Trollface was originally drawn by one Carlos Ramirez.  According to a recent Kotaku article, Mr. Ramirez has earned over $100,000 from trollface.

In fact, pretty much everything that you find on the Internet is copyrighted.  Songs, videos, photographs, drawings, blog posts, and more can be copyrighted.  And as soon as you write it down, type it up, record it, etc., voilà, you have a copyright.  No need to register or anything.  (Of course, there are some things on the Internet that are in the public domain (for example, an early Buster Keaton film or a Beethoven symphony (but not someone’s recent sound recording of them playing a Beethoven symphony (have we nested enough parentheses yet? (Now we have.)))))

Those copyrights entitle the creator to several rights, including the right to make copies.  If you start making copies of something without getting permission from the copyright owner, then you are infringing.  But wait, you might say: Doesn’t trollface pop up all over the place?  Isn’t that image almost ubiquitous on the Internet?  We can get into fair use (but you shouldn’t), but it also isn’t a valid defense to say that other people are also copying.  First, a copyright owner does not need to sue everyone who is infringing his copyright, or need not do so right away. (For the record, this is entirely unlike trademarks.)  Copyright infringement has a 3-year statute of limitations per infringing act.  Second, your use is always going to be different from what someone else is doing, no matter how similar the two may seem.  The copyright owner might be fine with what someone else is doing, but vehemently object to your use of his work.  For example, you are making money off of his copyrighted work, while someone else is not.  Or, maybe that someone else is a friend of the copyright owner, but you aren’t.

And this brings me to the third point, and perhaps most important one to impress upon you: you don’t know what sort of deal has been worked out behind the scenes between the copyright owner and some third party.  Sure, maybe the third party is a dirty dirty infringer and the copyright owner just hasn’t gotten around to suing him yet.  Maybe the third party is a co-author of the work in question, and has unlimited rights to use it.  Or maybe he properly licensed the copyrighted work, and has made copies in a completely legal manner.  Unless you were a party to those negotiations, you might not know about them at all.  And, obviously, you can’t use someone else’s contract to defend yourself when problems arise.

The Internet may be a strange and magical place, but just about everything there is owned by someone. Be careful how you use its contents.

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

© 2015 Sam Castree, III
NeonOrangeKnight [at] gmail [dot] com

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On the Trail to Parody

SuzanneThe video game industry is full of products that seek to imitate, or in some cases explicitly copy, nostalgic games from the past or the of-the-moment trend. Imitations and clones[1] inundate the market after any game that has achieved some degree of success. These range from those merely playing off the clever concept behind the game to the occasional humorous jab. The original creations are not left defenseless. A mix of legal challenges, with a heavy dose of copyright protection, allows developers to discourage, or at least challenge, most of these imitations; but some may be immune to these objections.

One game and its humorous corollary are Oregon Trail and Organ Trail. Oregon Trail was developed in 1971 by an eighth grade history teacher, and later acquired by MECC and The Learning Company, as an educational game to both teach students about the difficulties inherent in historical westward expansion and to encourage the development of resource management and planning skills. It presented a 2D traveling wagon superimposed over various backgrounds, intended to represent the various terrains of the westward journey. These scenes were interspersed with pop-up dialogues displaying choices or random events.

The game was a resounding success, popular in many schools, and remains in production today, with more modern graphics and interface. In addition to the original 2D scenes, players interacted with lists of goods, acting as shops, and top-down hunting games. As was typical for the time, due to the graphical limitations of early computers, the images were blocky and flat. Perhaps the most well-known features of the game were its general visual and audio style. These features included: the mechanics of selecting resources, such as food, ammunition, and water from a list of options presented to the player at the beginning of the game. Additionally, aspects like collecting additional resources throughout the scenario to ensure a positive outcome, and the inevitability of randomly generated negative events, such as attacks and diseases, resulting in the deaths of team members, were iconic.

Organ Trail was developed in 2010 by The Men Who Wear Many Hats (“The Hats”), a small indie development team out of Chicago, nostalgic about the game they had played as children. Organ Trail followed the formula of westward movement and resource allocation, but set the migration in a more modern United States overrun by zombies. With a disregard for the ability of modern computers to create fluid 3D animations, the team behind Organ Trail chose to pay homage to the flat, blocky animations found in its predecessor. It copied those most recognizable elements, using the same visual style and reproducing the audio effects by recording sounds from a vintage computer. Organ Trail let users select resources and skills at the beginning of, and throughout, their westward trek. The player’s goal of escaping the zombie hordes is often thwarted by randomly generated negative events, such as a blown tire or zombie bite.

Based on this overview, it would seem that Organ Trail is stepping on Oregon Trail’s intellectual property rights, at the very least, if not completely taking advantage of the situation; and they certainly aren’t the only ones doing so. Given the fame of Oregon Trail, it is inevitable that other game developers will be inspired by it. In 2011, The Learning Company, owners of the Oregon Trail intellectual property, sued Zynga, developers focused on creating online and mobile games, for their upcoming release of Frontierville’s Oregon Trail.  The suit was primarily about Trademark infringement, but also raised concerns about the overall similarities between the games, including the theme, look and feel, and use of randomly generated negative events. The suit was settled out of court, but clearly indicates the Learning Company’s proclivity toward protecting their intellectual property.

The Hats created Organ Trail to poke fun at an experience of childhood so many share by introducing aspects of a modern and popular genre. The Hats have created a parody of Oregon Trail. While no litigation has yet been filed nor cease and desists sent in this situation, the foregoing represents a common practice in the video game industry.  Without immediate action on the part of copyright holders, these parodies will continue being made, but such action could stifle the creative urge to repeat those experiences that brought game developers joy, and in some cases derision, in the past. Litigation looms over the heads of those looking to poke fun, and the parody defense for video games needs to be clarified before these cases reach the courtroom door.

Parodies are protected under copyright law. The court has differentiated parodies, which poke fun at the original work, from satires, which comment on something outside the work, and offered greater protection to parodies. In either case, a court ruling will rely heavily on the fair use factors: the purpose and character of your use, the nature of the copyrighted work, the amount and substantiality of the portion taken, and the effect of the use upon the potential market.

Campbell v. Acuff-Rose Music Inc[2] was a Supreme Court case that found a fair use protection for a profitable parody. The dispute was over a rap song which mocked Roy Orbison’s “Oh, Pretty Woman” through sampling and modified lyrics. The court found that the new lyrics offered a ridiculing commentary on the earlier work and that the rap group’s contributions were the product, rather than the sampled sections of the original. It was this analysis that distinguished parody from satire. Although the rap lyrics satirized culture, they did so through a parody intrinsically ridiculing a particular work’s concepts about women and romance. A satire can be expressed without reliance on a particular work, whereas a parody’s commentary is inextricably linked to the original work.

Without a parody game going before a judge, it is impossible to know exactly what factors will be most heavily considered when determining whether or not the creation is protected by fair use. Organ Trail is inextricably linked to the experience of Oregon Trail. The game has taken far more than mechanics or sounds, but enough to evoke the entire look and feel, and transported that expression to a modern game genre – modern survival. The game is a parody of the original while offering wider commentary. In this case, parody is a loving homage to a shared childhood experience.

[1] Direct copies of games aimed at siphoning some portion of the original game’s market

[2] 510 U.S. 569

 

You can play Organ Trail right now at: http://hatsproductions.com/organtrail.html

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Why Register a Trademark When You Just Offer Services And/Or You’re Just a Nobody?

front I was recently talking with a friend about a situation that is likely all too common: a small-time development company picked a name for themselves and received a cease & desist letter for the use of their company name once they started getting some publicity. This post explores a hypothetical situation and options you could have if you find yourself in this kind of position.

What if you just offer services?

If you’re offering a service, it’s exactly the same issue as if you’re offering a product for sale: trademarks. In this case, I’ll be talking about game development as a service, so you’d be filing for a service mark, if you were so inclined. If you offer any kind of service, be it web hosting, coding, art for hire, etc., you can likely register your brand name as a service mark. Ask a lawyer if you’re not sure.

What if you’re just a nobody right now?

Well, isn’t the point of your efforts to get into the big time? What, you think that no one would bother trying to get rich off your brand name in the event you rise to fame just because you’re a nobody right now? Remember those things called knock-offs? Clones? Fake-ity-fake-fakes? Yeah. Don’t let someone tarnish your name with sub par goods or services just because you didn’t think you were famous enough to bother with a trademark. Becoming famous isn’t exactly a cookie cutter endeavor–it usually happens when you’re not looking, and frequently before you’re set, legally speaking.

Situation:

  1. Developer A picks a name for themselves. They’re just a small-time development team that provides development services.
  2. Developer A Google’s their name and sees that another group (Developer B) has the same name, but Developer B is in a different state and only does personal projects for friends, like wedding invite games.
  3. Developer A asks Developer B, who has been around for 10+ years, if it’s okay that Developer A uses the name for their development company. Surprisingly (and this is why you should ALWAYS THINK ABOUT ASKING), Developer B is totally fine with it and gives their blessing. We’ll say that understanding was in writing for extra awesomeness. Woot!
  4. Developer A gets some publicity for games they’ve developed. Yay!
  5. Developer A immediately gets a cease & desist letter (telling them to stop using the name in conjunction with their game development services) from Developer C, who has been around only a couple of years more than Developer A, is in yet another state. Somehow, Developer C didn’t come up in the prior Google search.
  6. No one has a registered trademark on the Game Development Company Name.

Even though none of the developers in this situation were really big names, you should be able to see that doesn’t matter. It’s generally always a good idea to get registrations in early so that you don’t run into this exact problem (e.g. if you were Developer C). That way, you don’t have to waste money on lawyers trying to sort out this kind of problem after the fact, but rather just pay them to send cease and desist letters.

WHAT COULD YOU DO IF YOU’RE IN DEVELOPER A’S POSITION? 

Developer A has a couple of choices: (a) ignore the C&D (not generally a good choice–but talk to a lawyer), (b) race to the USPTO and file a trademark on the name, (c) negotiate with Developer C, or (d) change their name after all that marketing and press for the original company name.

(a) ignore the C&D

This will always depend on your situation, because C&Ds can be either  totally valid, totally baseless, or (often times) somewhere in between. Always talk to a lawyer if you’re ever concerned about what to do if you receive a C&D letter.

(b) race to the USPTO and file a trademark on the name

Because Developer A was the last one to use the Game Development Company Name as a source identifier for their game-making services (service mark), they are likely to be considered ‘junior users’, which means that anyone with prior use of the mark will have priority/seniority over them and could win in a trademark (it’s a service mark, but we’re going to say trademark from now on because it’s easier to understand) registration battle. This is why option ‘b’ wouldn’t necessarily work out in Developer A’s favor, without more, because while Developer B gave their blessing on the use (essentially a waiver), Developer C hasn’t, and Developer C was using it first in the same industry. Remember, trademarks and service marks are there to prevent consumer confusion between brands. The Government doesn’t want someone to hire Developer A’s services thinking it was Developer C, and vice versa.

If the game was being offered online, such as on the App Store, then it’s readily arguable that the geography of use would be per country (rather than city or state) that game reaches. This means that even if common law trademark law applied (basically you get trademark protection only in the places where you’ve sold goods or services), it would mean national protection despite not having a federal registration (which is usually the only way you can get national protection from other users of the mark).

As such, Developer A is in a tricky spot because if they tried to register the name, and either Developer C or the Trademark Office notices, either one could oppose the registration and make it really difficult for Developer A to get their application through.

On the other hand, if Developer C doesn’t oppose it, and if the USPTO doesn’t decline registration of the mark, then Developer A would be in a much stronger position to move forward with their use. This doesn’t mean they get a golden ticket, it just means that the evidence is far more in Developer A’s favor than Developer C’s.

(c) negotiate with Developer C

Good luck with that. Then again, it worked out with Developer B, so you should never rule out this option. You just never know how they’ll react.

(d) change their name after all that marketing and press for the original company name

Obviously this would be less than ideal, given that changing the name would mean losing all that press and identification listeners have with the company– do you see now how trademarks and service marks work? They are the method in which people identify goods or services with their creators!

WHAT COULD YOU DO IF YOU’RE IN DEVELOPER C’S POSITION? 

If you created a service you’re selling, or an app/game/etc., and you haven’t obtained a trademark registration for that service, not all is lost. As I mentioned above, there are some backup plans allowed in common law, and while they’re less than ideal compared to the level of protection you’re provided with a federal registration, it’s better than a poke in the eye with a sharp stick. That’s because even if someone registers your name after you’ve been using it in commerce (e.g. you’ve sold your services to legitimate customers at a legitimate price), you are at least protected in the states/locations where you’ve previously sold those goods or services, and if you’re online, then that potentially means nation-wide (not necessarily worldwide, as the rules for federal trademark registration is a bit different than US law).

Thus, if you were Developer C, and sent a C&D letter to Developer A, then you’re in a pretty good position to argue your case before the USPTO, at least if you can prove earlier use in commerce (e.g. sales receipts).

But what if Developer A raced in and filed that application for the service mark before you?

You could oppose it.

While the USPTO also does their own search when registration applications like that come in, it’s not foolproof. Trademark owners are responsible for policing their own mark (like you did with the C&D telling them to stop). But, you could watch for the registration (if you haven’t already filed your own) and when it’s published for opposition in the official Gazette, you send in your notice of opposition saying ‘hey, we had that first!’ (obviously not in that phrasing)

Summary

Always consider trademarks in the back of your mind when you create a product or service. Think like a grown-up business person and actually consider the marketability of your product and do at least a knock-out search (Google) of your chosen name to see if there will be any potential conflicts down the road.

But, just because another company is using your name, remember that Pandora is a trademark for both jewelry and internet radio–there are different classes of goods and services out there, and if there isn’t likely to be any confusion for consumers, you might be okay. Talk to a lawyer if you’re at all concerned, curious, or confused.

Strapped for cash? Check out my article on finding affordable legal assistance.

 

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