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.
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
