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Video Game Law 101  Dena G

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Video Game Law 101  Dena G Your Survival Guide for Your First (or Next) Game Developer Client Video Game Law 101 Dena G. Weaver 817 460 5900 [email protected] . Weaver Robinson Law Firm, PLLC, Partner . Novel Trailers, LLC, Member – producing short videos for use in promotions . Currently represents authors, talent, film producers . Past Chair, Entertainment and Sports Law Section of the Texas Bar . Past Chair, Entertainment, Arts and Sports Law Section of the Dallas Bar Association . Secretary, Entertainment, Art and Sports Law Section of the Dallas Bar Association (present) Tristan C. Robinson 817 460 5900 [email protected] . Weaver Robinson Law Firm, PLLC, Partner . Appeared in the Documentary Video Game Film Mother to Earth: The Untold Story of Earthbound Beginnings . 5 Years in the Trenches as Video Game Developer (Producer/Legal/Artist/Animator/Programmer/Co- Founder of GoblinWare, LLC). The horror game SOPHIE released by GoblinWare has been downloaded across Mac, PC, and Linux builds in excess of 6000 times. Exposed to over 4 million folks via YouTube streamers like Markiplier (https://www.youtube.com/watch?v=wrg9J3uf1rg) . Chair, Entertainment and Sports Law Section of the Texas Bar (Present) . Knows Japanese 1. The Big Picture 2. Copyrights 3. Trademarks 4. Patents Overview 5. The Most Common 10 Mistakes and How to Avoid 6. Negotiating the Publishing Contract 7. Crowdfunding Issues 8. Speaking "Dev" 9. Noteworthy Cases The Big Picture: Answering: “Why Should I Care About IP?” “Why should they care?” The Big Picture: Answering: “Why Should I Care About IP?” “Why should they care?” The Big Picture: Answering: “Why Should I Care About IP?” “Why should they care?” The Big Picture: Answering: “Why Should I Care About IP?” “Why should they care?” The Big Picture: Answering: “Why Should I Care About IP?” The Answer: -IP is the Foundation of the Client’s Business! They at least need a working understanding. Copyright . 1. What is Copyright? . 2. What is Copyrightable in a Game? . 3. Five Things to Know about Copyright . 4. Infringement. 5. Limits. . 1. What is Copyright? Copyright law protects the rights of anyone who creates or owns a piece of work (artistic). Books, films, databases, computer programs. Copyright For our purposes (games), Copyright law is the “main branch” of IP law which protects creativity. By contrast, Trademarks are generally more concerned with marketing the product and Patents are concerned with industrial innovation. Copyright . 2. What’s Copyrightable in a Game? . 2. What’s Copyrightable in a Game? -Sound (Music and SFX!) -Text -Computer Code Copyright -Film (“Cut Scenes” / AudioVisual Works) -Artwork/images Copyright Abdin v. CBS Broad. Inc., 971 F.3d 57 (2nd Cir. 2020) Copyright . 3. Five Things to Know for the Dev Client: 1. Only rights over the actual work created. No monopoly for the underlying idea! (Use an NDA for this). 2. Specific rights over the copyright(ed) work as a whole and individual assets. 3. A game contains lots of different copyright elements at the same time. 4. Different countries have different copyright systems. 5. Different copyright works last for different periods! . 4. Infringement. -If a dev takes an existing copyright work and Copyright copies “ALL” or “A SUBSTANTIAL PART” of it, and -That copying can be established FACTUALLY -Then: Developer may in principle be liable for copyright infringement to the owner of the work. Copyright . 4. Infringement: It’s MORE OF A PROBLEM THAN EVER! It’s more of a problem than ever! Copyright 5. Limits. -Expressions, not ideas. -Gameplay/look and feel? -Practical enforcement issues (costly) -Piracy -Business models. 1. WHAT IS A TM? 2. KEY POINTS Trademarks 3. INFRINGEMENT 4. PASSING OFF/FALSE ASSOCIATION Trademarks . 1. What’s a Trademark? A word, name, symbol, design, or slogan, used so that customers can recognize your goods or services and distinguish them from the goods and services of your competitors. Important to a business because they prevent competitors from confusing customers into thinking Trademarks that they are buying products and services from a trusted, known source when in fact they are not. In other words, they can be used to stop your rivals stealing your customers. . 2. Key Points for your Client -To be fully effective, the mark should be registered. (Good for attorneys) -Many devs (or games) operate in international markets. This means you may need to Trademarks get foreign trademark protection as well! -Can last indefinitely (pursuant to maintenance—maintain between the 5th and 6th year, renew every 10 years). -Practically, two things: You can sell, assign, and leverage a mark. You can stop competitors from ripping you off. . 3. Infringement Standard: Likelihood of Confusion If you use an identical/similar trademark to sell identical or similar goods and services to a trademark which has already been registered… Trademarks …You may be infringing… … If it creates a likelihood of confusion (whether or not the confusion is mistaken) Note: DOESN’T mean that if your mark is similar to another’s mark that you are automatically infringing. We need that element of LOC. Can a game dev get away with making a game like Tetris if it’s not called Tetris®? Trademarks Universal Studios, Inc. v. Nintendo Co., Ltd. 746 F.2d 112 (S.D.N.Y. 1984) Trademarks Trademarks Universal v. Nintendo . In 1981, Nintendo released Donkey Kong in arcades across Japan and America. Huge hit! . In 1982, Universal Studios (owners of “King Kong”) sued Nintendo for Trademark Infringement. “The character and plot were part of their brand!” . Problematically, prior to bringing the lawsuit Universal had previously established that King Kong’s plot and characters were in the public domain. (Universal v. RKO) . Universal couldn’t have it both ways – hence, Nintendo won. Universal appealed. Nintendo countersued. Trademarks Universal v. Nintendo . Result, boiled down: Universal did not have any trademark in King Kong, because King Kong did not designate a single source, and even if King Kong was a Universal trademark, the possibility that anyone would confuse Donkey Kong and King Kong was unlikely. In his opinion, Donkey Kong was "comical" and the ape character "farcical, childlike and nonsexual." The King Kong character, on the other hand, was "a ferocious gorilla in quest of a beautiful woman." Sweet declared that "At best, Donkey Kong is a parody of King Kong.” (Upheld). Donkey Kong loosely evoked but hardly confused potential consumers. In common: A gorilla, a captive woman, a male rescuer, and a building scenario. Trademarks Universal v. Nintendo John Kirby, Nintendo’s Lawyer – Immortalized as a Video Game Character Interestingly, fast forward to 2021, and Super Nintendo World, Nintendo’s Nintendo- themed amusement park, is located at Universal Studios in Japan (with plans to open an Orlando, FL location soon). If they add a Donkey Kong expansion, technically one could see King Kong and Donkey Kong at the same spot. Patents 1. Brief Overview of Patent 2. Practical Examples Law and Considerations Patents . 1. Overview. -Utility Patents: IP to protect inventions (i.e., deals with how things work, what they do, how they do it, how they are made). -A limited monopoly (20 years) before entering the public domain. -Must be new, useful, nonobvious (note: originality for the particular inventor != enough!) From left to right, Dr(s). Light and Wily, Mega Man . 1. Overview Cont’d… -Design Patents: IP to protect ornamental design, aesthetic appearance of manufactured goods, computer icons, art, so on. (Not to be confused Patents with a Copyright). Patents Dance Based Rhythm Game (“DDR”) US Patent No. 6,410835 B2 - June 25, 2002 Can be the machine.. SCORING BASED UPON GOALS ACHIEVED AND SUBJECTIVE ELEMENTS US Patent No. 6,604,008 Patents B2 – Aug 5., 2003 Can be a process and or Method for doing things. SANITY SYSTEM FOR VIDEO GAME US Patent No. 6,935,954 B2 – Aug 30, 2005 Patents Can even be a sanity system… Patents Matchmaking that Encourages Players to Buy Microtransactions US Patent No. 9,789,406 B2 – Oct. 17, 2017 -Activision A computer algorithm that matches players together in order to increase the likelihood of microtransaction purchases. (Although when asked for comment the response was ‘It’s exploratory… it has not been implemented in-game’). The Most Common 10 Mistakes (and how to avoid them) 1. “Contracts are a waste of time.” Why devs may think so: • Complicated. Full of things only lawyers understand. The Most Common Why it’s a mistake: 10 Mistakes • K is just a document explaining what both (and how to avoid sides get. • Best chance to make sure you get what your them) studio needs but doesn’t give too much away. Tip: • Use whenever possible. 2. “IP Law is EVIL”. Why dev may think so: • IP law is for big evil publishers to stomp on little studios. The Most Common Why it’s a mistake: 10 Mistakes (and how to avoid • Legally a game is made of IP rights • Sure it can be abused but it’s your them) best shot at protecting your business in all sorts of ways. Tip: • Get a working understanding of IP. 3. “Terms and Conditions are Pointless” Why devs may think so: • “Everyone just ticks the box and ignores it” The Most Common Why that’s a mistake: 10 Mistakes • This is your way to tell your users what’s OK what’s (and how to avoid not. • Helps protect your business and communicate with them) your users. • Still legally effective if not fully read! Tip: • No earthly reason not to have T&Cs. They don’t have to be stuffed full of legalese, but they should exist. 4. ”Data privacy: not a dev’s problem." Why devs may think so: • Our games don’t collect on any data.
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