Trademarks, “Fair Use”, Digital Ownership, And Unionizing e-Sports – An Interview With Ryan Morrison, Esq.

Monday, March 14th, 2016

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Video games and the law.

These are two topics that you would not expect to hear in the same sentence. However, with the rise of digital video game downloads, indie game development, streaming video games, and even the rise of e-Sports, the two are becoming more and more intertwined in novel ways.

I recently interviewed Ryan Morrison, Esq., an attorney out of New York who specializes in video game law, and he explained about various topics such as the recent attempts by Sony and Fine Bros. to trademark the terms “Let’s Play” and “REACT” (respectively), what you actually own when you purchase a digital video game from your console’s online store, and why e-Sports should be unionized.

You can follow Mr. Morrison on Twitter and visit his law firm’s website.  He also does weekly video game Q&A’s on Reddit’s r/IAmA under the username VideoGameAttorney.

Nothing in this interview creates an attorney/client relationship, for it contains just general legal information. Your specific facts will almost always change the outcome of your situations, and you should always seek an attorney before moving forward. Mr. Morrison is an American attorney licensed in New York, and THIS CAN BE CONSIDERED ATTORNEY ADVERTISING. Prior results do not guarantee similar future outcomes.


Ryan Morrison

 

Interview by Quentin H.

Operation Rainfall: My name is Quentin H., I’m with Operation Rainfall, and I’m here with Ryan Morrison. Good afternoon.

Ryan Morrison, Esq.: Hello, and thank you for having me.

OR: What role does the law play in general within the world of video games and video game development?

RM: There’s a lot of different areas of law that take place in video games. It’s the same as in any other area of entertainment industry. One I deal with the most and one that is in the news the most is intellectual property, which is mostly copyright, trademarks in video games.

Trademarks protect your brand name, they’re your name, your logo, your slogan. And copyrights protect the long form – your final game, protects your script, protects the artwork in it, and etcetera, etcetera.

OR: We all see the words ‘fair use’, ‘infringement’, ‘parody’, and ‘satire’ thrown around a lot. What does that mean?

RM: ‘Fair use’ is something a lot of people do/say all the time. It’s a very popular internet belief that “Oh, this is fair use”. The truth is, no one really knows what fair use is before a judge says it’s fair use. And yes, you can take a good guess through the factor test you can follow, and you can have a very good idea of what fair use is, but it’s not a right, it’s a defense. So when you’re sued for infringement, you have to go into a courtroom and prove fair use.

And to do that against a company of any significance, it’s going to cost you at least a hundred-thousand dollars [USD]. And it’s not something to just write on and pretend it’s some absolute truth that it protects you when it’s not.

Same with ‘parody’. Parody has to be proven as a defense just the same, and just because your game is free, does not mean it’s fair use. It can still be infringing. Just because you’ve changed things so that you think you’re not [infringing], it doesn’t necessarily mean that. There’s no fine line there, so it really is important that you be as safe as you can be with this.


” You don’t own any of it. So nothing you buy – this goes from your games to your e-books and your Kindle – it’s all just a license. You’re not buying digital goods, in almost all circumstances. ”


OR: What is infringement, exactly?

RM: ‘Infringement’ is where I take your intellectual property [and use it myself] –  your intellectual property being your artwork, your characters, or your games – so [for example] if I made my own Star Wars game, it’d be infringing.

OR: You said that even if they are giving it away for free, it could be potentially infringing on a property. What are the potential consequences if they in fact infringe on another person’s property rights?

RM: A lot of people think you’re owed a ‘Cease and Desist’, which is a letter [telling you] to stop doing it, and that if you stop, then you’re okay. That’s absolutely not true. People can sue you outright. They don’t owe you a cease and desist letter by any means. So for every piece of infringement in some cases, under statutory guidance, you can owe a hundred-and-fifty thousand dollars each.

That can be for every instance of infringing art. So if you take a website and put all the characters from a game you like, each one of those characters can be potentially a hundred-and-fifty thousand dollar fine. You can get up to millions very quickly.

Digital Property Rights, The ESRB, and Sony’s “Let’s Play” trademark attempt on Page 2

About Quentin H.

Likes pina coladas and getting caught in the rain. And video games. Cannot forget those video games. Anime too. Should not forget that either.


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  • Panpopo

    Video games, in terms of streaming and let’s plays, are certainly still the “Wild West” as it is still relatively new. Seeing one of these issues get tackled in court would be fascinating. Very interesting read.

    I think the only reason that e-sports players would consider unionizing is when there is a scandal, such as someone not getting paid or some other abusive situation that would cause an uproar. Tennis for example does not have a union, so it may never happen.

  • Infophile

    RM: Right. Because it’s their product. They should have all the power to say who can do what with it.

    This is actually a very dangerous attitude. Under this logic, a company can sell a car and say that the purchaser is not allowed to get it repaired at any but their own (very overpriced) repair shops. And this very case actually came up, and the right to tinker with what you’ve purchased won out (see: http://www.thelowdownblog.com/2015/11/car-buffs-win-legal-right-to-tinker.html).

    So on this one point, it isn’t a simple case that the seller gets to have all the power over who can do what with their product – at least when it comes to software associated with physical goods. It’s possible that RM was only thinking about digital “licensed” goods here, but that should be clarified.

  • Mr0303

    That was a fascinating read.

    One thing to take away from this is that buying digital games is buying a license to play them and doesn’t provide you with any true ownership. This is why I think the physical releases should remain relevant – they give the consumer some kind of security when buying a game.

    The fair use question is also an important one. YouTube and Twitch usually just give in to the demands of the gaming companies just to avoid the legal trouble and I would imagine that no individual would throw himself at a million dollar lawsuit just to protect his hobby and his right to stream games. That being said one such case could set a precedent. In my opinion when Nintendo attacked the Let’s players they shot themselves in the foot since that content is usually free advertising.