Each week Mark Methenitis contributes Law of the Game on Joystiq ("LGJ"), a column on legal issues as they relate to video games:
Well, after the incident with Courtney Love and Kurt, it looks like the whole issue of famous musicians in games is back in the press with No Doubt suing Activision over Band Hero. A one time event is an anomaly, but twice in just a few months suggests something else. Of course, both of these all tie back to the contract, and since I'm a transactional attorney who spends the majority of most days negotiating and drafting agreements like these, I'm hoping I can shed a little light on what might be causing the problems. Since I wasn't involved in these particular negotiations nor have I read these contracts, all of what I'm presenting is speculation.

But before I begin, I suppose I should answer the simple question, "What is a contract?" I assume that most people reading this have at least some idea, but just in case, it's worth describing in detail. A contract is a legally binding agreement between two parties to perform certain promises in the future. In theory, to form a contract there are five elements: Offer and acceptance, consideration, intent, capacity, and formalities. In reality, it's fairly simple. The parties must have a meeting of the minds, that is agree to the same terms, which is often viewed as an offer by one party and acceptance by the other. Each party must put up something of value, called consideration, for the contract to be valid. The parties must intend to enter into a contract, and be of the appropriate mental capacity to enter into the agreement. And then the agreement is generally recorded in writing, as most jurisdictions have rules that require written agreements, which is then signed by the parties. And that is how a contract is born, in theory anyway.

Each week Mark Methenitis contributes Law of the Game on Joystiq ("LGJ"), a column on legal issues as they relate to video games:

There's an old saying by Benjamin Franklin: "The definition of insanity is doing the same thing over and over and expecting different results." By that definition, most of the attempts to regulate video game content are insanity. Most have taken the same approach, with the exception of Jack Thompson's last attempt in Utah, which at least took a new angle. It's for this reason that I'm always interested in new takes on the now tiresome idea of regulating game content, and when GamePolitics posted one such new research paper by Renee Newman Knake, Assistant Professor at Michigan State University College of Law, earlier this week, I took the time to read it. But when you boil down this "new approach," is it really something novel, or just more "insanity?" Well, that's what we're going to explore today. I do want to say, before I get started, that much of the legal analysis is relatively sound, and as many problems as I have with this paper, the author does deserve some credit for those parts of the analysis.

The paper's main focus is a discussion of "ecogenerism," and thus my discussion will largely be a dissection of the notable flaws in this approach. However, it is worth noting outright that this entire paper either makes its agenda quite clear from the outset or frames the debate in a less than accurate way to make the discussion seem greater than it is, as it starts from the basic flawed premise that we have "proven" a "causal" link between media violence, specifically video game violence, and real world violence. Even a cursory read over sites like VG Researcher and GamePolitics indicate the contrary. The supposition further ignores any benefits games may provide. Most importantly, it still ignores many of the fundamental flaws in video game research that have been pointed out in great detail. And the paper even ignores the more recent FTC data on the sale of violent games to children in favor of outdated metrics in order to cast a more negative light. But even ignoring this, the ecogenerism argument still has some substantial shortcomings.

Each week Mark Methenitis contributes Law of the Game on Joystiq ("LGJ"), a column on legal issues as they relate to video games: If you're like me, then you've likely been following Joystiq's coverage of 3D Dot Game Heroes and thinking "I really, really hope this gets translated and released in the US." After all, if you're a gamer like me then you love the idea of a 3D homage to the 2D games you grew up with. Of course, it's less likely that you're a lawyer like me, and so it's also less likely that you read through the comments and had an immediate reaction to the countless cries of copyright infringement in the game. Those repetitive, vocal cries have brought me to this column, which aims to answer the big question: is 3D Dot Game Heroes copyright infringement?

Let me start off by saying the analysis here is just my opinion, and a court could always find otherwise. Where this discussion really needs to start is what elements seem to be infringing. Now would be a good time to view the trailer or some screenshots, if you haven't yet. The main complaints I've heard, and can see from the trailer, are the environments (both overworld and dungeon) bear a striking resemblance to the Zelda universe (The Legend of Zelda and Link to the Past, specifically), while the hero characters bear a striking resemblance to those from the Final Fantasy and Dragon Warrior past. Some of the monsters also bear quite a resemblance to Zelda baddies. And, of course, the music is certainly inspired by classic Zelda music. So, case closed, right? Well, no, that's not how copyright infringement works.

Each week Mark Methenitis contributes Law of the Game on Joystiq ("LGJ"), a column on legal issues as they relate to video games:

Something that comes up from time to time in the gaming world is faulty products. Or potentially faulty products. Most recently, it seems to be Halo 3: ODST at the center of the issue (which, for the record, I've had no trouble with thus far), but the issue has touched numerous games, including Guitar Hero III, and consoles. While most people might lump all this together into 'stuff that's broken,' the reality is it touches two legal topics: warranty and products liability.

To make the distinction between the two simple, a warranty makes sure you get a working product, and products liability makes the manufacturer liable for damages the product may cause because of defects. Both concepts are ones that arise from state law, and thus the exact provisions do vary among the US states, and of course they vary between countries. But there are once again some general rules that can be applied to the ideas, as well as some complexities that enter specific to the gaming world.

Each week Mark Methenitis contributes Law of the Game on Joystiq ("LGJ"), a column on legal issues as they relate to video games:

The well publicized dispute over the use of an avatar of Kurt Cobain in Guitar Hero 5 has provided a good backdrop to discuss the 'right of publicity.' For anyone who doesn't want to take time to read the stories, here's a summary. Guitar Hero 5 includes Kurt Cobain as an unlockable playable avatar, much like previous titles in the series have done with other rock stars. Shortly after release, Courtney Love expressed her distaste at the use of Kurt, and Activision has stated Love signed an agreement allowing the use. Since then, other former Nirvana members have stated they think the avatar should be limited to performances of Nirvana songs.

Kurt's in-game likeness is governed by the part of the law called the 'right of publicity,' also called the 'right of personality' or 'personality rights.' In the US, that is unfortunately a complicated subject. Unlike other intellectual property rights, the right of publicity is governed by the states, not federal laws. So, unlike copyright or trademark, the exact rules of the right of publicity game change in every state. This, of course, makes the topic difficult to discuss and analyze, but there are some general theories about the right that can be discussed on a universal level.

Each week Mark Methenitis contributes Law of the Game on Joystiq ("LGJ"), a column on legal issues as they relate to video games:
With its proposal for universal ratings, the FCC is in the news again. Yet, despite its filings having become a gold mine for breaking news, from bigger Slims to the secrets of turntablism, many people are not entirely familiar with what exactly the FCC does -- beyond, of course, Family Guy's take on the organization.

The Federal Communications Commission was created by the Communications Act of 1934 as the successor to the Federal Radio Commission. The FCC was originally tasked with managing all non-governmental use of the radio waves, as well as managing the telephone infrastructure. The initial rationale for managing the airwaves was relatively straightforward: no one could own the air or frequencies, and unless there was someone managing the use of the airwaves, broadcasting would fall into chaos. (Just imagine if there was no system in place to determine and assign broadcast frequencies.)

More importantly, there was a strong hope that the telephone system would work on a national level, and so consolidating management of these two key communication forces made sense. Over time, the organizations control has extended to all uses of the wireless spectrum, as well as all interstate and international telecommunications.

Each week Mark Methenitis contributes Law of the Game on Joystiq ("LGJ"), a column on legal issues as they relate to video games:

There are, in the legal profession, certain kinds of activities that really make a statement after the fact about just how big a company is. One of those activities is using subterfuge in either getting a deal done or in filing with the government. When I say subterfuge, I don't mean with the intent to defraud anyone, but rather with the intent that things be kept a secret. Walt Disney used dozens of companies to acquire the land that would later become Disney World, and now Sony is using alternate entities to file for FCC clearances on the PS3 Slim. Of course, I'm sure many of you are wondering how all this works, and why companies go to all this trouble.

The why is a slightly simpler answer than the how. Put simply: the company doesn't want the public to know. The reasons for the why are pretty varied. In Sony's case, they were trying to preserve the surprise we've talked about in previous LGJ columns. In the Disney case, they were trying to prevent people from either buying up the land they were trying to acquire to then re-sell it to Disney at a huge markup or prevent people from prospectively buying up all the land around the development. While a theme park is an extreme example, the same could apply if, say, Microsoft, decided to build a new campus somewhere other than Redmond.

Each week Mark Methenitis contributes Law of the Game on Joystiq ("LGJ"), a column on legal issues as they relate to video games:

Ever since the Glider opinion was handed down late last year, there's been a resurgence of calls for courts to uphold the first sale doctrine with regard to all software. One such suit, featured in the latest Jurimetrics, concerned ligation over consumers as "owners" versus "licensees," since different copyright rights are granted based on the particular status. The court determined that players were licensees, thus negating certain rights of owners. We've talked about first sale before in LGJ, but generally in the context of retail products. In the context of retail games, no matter where you stand on the "owner" versus "licensee" position, nothing is stopping you from reselling the copy of the game you purchased.

Digital distribution changes this dynamic dramatically, however. As digital distribution mechanisms become more and more popular, it seems inevitable that the courts will have to eventually weigh in further on the owner versus licensee question. In fact, if those who run digital distribution systems wish to steer well clear of potential government involvement in their businesses, inclusion of certain features may mitigate the first sale question so that consumers have more rights and aren't in need of protection in that regard.

Each week Mark Methenitis contributes Law of the Game on Joystiq ("LGJ"), a column on legal issues as they relate to video games:


Lots of news has been popping up lately about fan-made sequels to some of the most beloved games of bygone days, Chrono Trigger and Star Fox being just two of the more notable examples. As most of you have likely noticed, these games follow a pretty predictable pattern: a bunch of fans put in a ton of work on a sequel to their favorite game, those fans tell other fans until that project ends up getting noticed by the blog-o-sphere, and then the lawyers of the original game maker eventually squash the project to an often loud outcry from the fan community. It's the 21st century re-telling of the fan fiction legal drama, and when it comes to copyright law, the story really hasn't changed.

This all relates back to those rights that make up copyright, which we've discussed on a number of occasions in this very column. In fact, the primary right is the control over derivative works, the very same right that is often cited in the machinima realm. In short, the holder of a copyright has the right to control works based on the work protected by copyright, such as sequels and prequels. That would seemingly address all fan sequels, correct? If the issue were that cut and dry, I likely wouldn't be taking the time to write a column on it.

Each week Mark Methenitis contributes Law of the Game on Joystiq ("LGJ"), a column on legal issues as they relate to video games:

As of late, it seems I've become sort of a policy spokesman for issues concerning the government intervening in the game industry, especially in the wake of my debate with Jack Thompson. However, the discussion over whether violent content can be policed under the First Amendment is getting tired, and the courts have universally declared "no" at this point. Rather than go down that road again, I want to discuss two new ways that the government could attack games; one of which came up in the debate itself.

The first is probably the more mundane of the two, and it's the seemingly frequent specter of imposing political correctness on games. In fact, this issue came up yet again this week as a discussion related to not just Resident Evil 5, but also Left 4 Dead 2 and Call of Juarez: Bound in Blood. Of course, the claims here were racism and cultural insensitivity. The irony is that now that the games themselves are seemingly more inclusive of characters other than white males and large breasted women, the assumption is automatically that use of more diverse settings and characters must have malicious motives, rather than crediting the industry for finally being more inclusive.

Each week Mark Methenitis contributes Law of the Game on Joystiq ("LGJ"), a column on legal issues as they relate to video games:

Terra Nova recently posted a note about a Craigslist case that could have some impact on the gaming space. It relates to theories about how players could sue other players, which is something that briefly came up in a World of Warcraft suit two years ago (which settled before going to court). The result of the case was, in no uncertain terms, that a lawsuit under a third-party beneficiary theory could be entirely blocked by a well written Terms of Use. That's not to say that all cases involving third parties are barred, as another World of Warcraft legal battle, the Glider case, was successful; though primarily based on tortious interference. So, while some potential sources of player-versus-player lawsuits may be now foreclosed, I still think there's a range of potential suits that could become prevalent.

Of course, this theorizing requires a basic understanding of third party-beneficiaries, and that goes all the way back to the basics of contracts. In a simple contract, there are generally two parties. A basic sales transaction is probably the simplest contract. Say you go to GameStop to purchase inFAMOUS: You give the clerk your $59.99 plus tax, and he gives you the game and a receipt. That was a basic contract for the sale of goods, and the receipt is evidence of some additional terms of the contract for sale, such as the return policy.

Each week Mark Methenitis contributes Law of the Game on Joystiq ("LGJ"), a column on legal issues as they relate to video games:

Maybe you heard about the verdict that just came out in one of the music file-sharing cases: $1.9 million for 24 songs. So, what does this have to do with gaming? More than you would probably imagine, since this gets to the root of copyright and statutory damages. In fact, EFF legal scholar Fred von Lohmann posted an interesting piece on whether the penalty is even Constitutional. Whether this is the suit that breaks the back of statutory damages has yet to be seen, but it's something that any media producer or consumer should be keeping an eye on.

Of course, much of that may be getting ahead of the issue of explaining this decision in greater depth so that everyone can understand what the actual problem is. We've talked about copyright infringement and piracy at length on LGJ, and the issue here is what comes after someone is found to have infringed on a copyrighted work: damages. Specifically, we're talking about statutory damages, which something a lot of people may not be very familiar with at all.

Each week Mark Methenitis contributes Law of the Game on Joystiq ("LGJ"), a column on legal issues as they relate to video games:

I've mentioned before that both in the latter years of the previous administration and under the new administration, certain kinds of enforcement actions were increasing in number. Past commentaries in LGJ have focused on trade, but another one of those areas is anti-trust. What got my attention in this regard was a conversation I had the other day with a partner in the firm who has dealt with a number of anti-trust issues. We were discussing the game industry, and he asked what the price range was on games these days. My response was a range, with the caveat that for pretty much all new PS3 and Xbox 360 games, the price was $60. His thought was that had to be on someone's radar screen to investigate, even if there's no actual anti-trust violation going on.

Given the investigative climate, I would tend to agree, though based on what I know in the industry, I don't think there's any actual collusion going on. Instead, we likely have a case of 'conscious parallelism,' which isn't illegal per se, though a government official looking for their "big break" might just take on this case hoping to see a shift in the law from the higher courts. I'm getting well ahead of myself, though, since a better background in anti-trust needs to be set out before getting into the specifics.

Each week Mark Methenitis contributes Law of the Game on Joystiq ("LGJ"), a column on legal issues as they relate to video games:

It was about E3 time last year when I gave an overview of our old friend (or enemy) the non-disclosure agreement. After all, it's those NDAs that are responsible for keeping the surprises as surprises. This year's E3, however, was a solid demonstration of the failure of the surprises mentioned last year, with Sony bearing the brunt of the leaked information. While I don't think this is necessarily an indication of the health of the NDA concept, it is a good opportunity to showcase some of the weaknesses of the NDA.

I'm willing to assume that most people have heard the term "iron-clad contract." In that regard, I have some unfortunate news: there's really no such thing. Even a perfectly drafted contract that addresses every possible contingency still requires that the parties hold up their ends of the bargain. Otherwise, you're going to have to go down an enforcement route like litigation. The idea is to make the penalties for violation of the agreement something people want to avoid to encourage compliance with the agreement, and in the game industry context, as well as much of the tech sector, certain kinds of disclosures are simply difficult to deal with.

Each week Mark Methenitis contributes Law of the Game on Joystiq ("LGJ"), a column on legal issues as they relate to video games:

The recent FCC v. Fox decision seems to have gone relatively unnoticed in the gaming press. Yes, the case at hand was about broadcast media and the FCC, and yes, the makeup of the court is now certain to change since the decision came down. However, neither of these potentially distracting facts should take away from what this decision really is: yet another expansion of the government's censorship power over the public. If there is anything the gaming public should be paying attention to, given the continued anti-game activism, is successful control over other media. And there are really three major concerns that come from this ruling.

First, I want to make it clear what this ruling is not. The ruling is not an actual victory for game opponents. While it makes some suggestions, the precedent can't be directly applied to the game industry at this time. After all, there is no governmental body to control game releases because those releases are not being made over licensed broadcast spectrum. After all, the government only controls TV broadcasts because the government owns the airwaves. More importantly, this ruling is not purely about censorship or the First Amendment. A significant part of this case is administrative law, and for those same reasons, it's not applicable to the game industry.