Notes from GX4: Video Game Law

GaymerX is a gaming convention designed by and for LGBTQ gamers, with the tagline “Everyone games!” It’s officially a fan-facing event, but many of the panels and talks were geared for game devs just as much as gamers. I took notes, and you can click here for my other GX4 notes.

GaymerX speakers: Please contact me (carolyn at if:

  • I included something you said that should not be included, or
  • I quoted you without attributing (when you would prefer attribution), or
  • I made a factual error (I take notes by hand, and I make no pretense of infallibility!)

Video Game Law

Panelists: E. Lacy Rice (moderator), Spencer C. Martinez, Ben Esplin, and Christian J Martinez

All of the panelists are lawyers with experience in entertainment and video game law. The panel focused more on issues commonly faced by AAA studios than by smaller studios and solo devs, but it raised a number of fascinating questions, particularly relating to augmented reality. Also, someone once sued over Mike Tyson’s head.


Why is video game law such an important field?

  • 63% of households have someone who plays games
  • $23.5 billion got spent in 2015 on games and hardware
  • 56% of games are sold digitally
  • The projected gaming industry revenue for 2016 (including mobile) is $99.6 billion

“Intellectual property” covers creations of the mind. Includes patents, copyrights, and trademarks. (My notes say there are 4 types of IP but then only discuss 3 – I suspect this was an error.)

Patents – Patents protect ideas, inventions, and processes. Must be useful, non-obvious, and novel to qualify.

Copyrights – Copyrights protect original works of authorship. Must be fixed in a tangible medium of expression. The creator’s rights date from creation of the expression, not from when the copyright is registered.

Trademarks – Trademarks are words or symbols identifying the source of goods. The creator’s rights come from usage of the trademarks, not registration of the trademarks. (But registering them is a good idea anyway.)

You can’t copyright an idea – you can only protect the expression of that idea. But merger doctrine covers the situation when the idea and its expression are so much part of one another that they can’t be disentangled.

Scène à faire – Refers to something that is too commonly used to be protectable as IP.

Things to register a trademark for: your game name, your company name, and any slogans or taglines you use.

Ways to get sued: violate the user’s right to privacy (most likely through incautious/unethical data collection) or a celebrity’s right of publicity (deals with people having the right to control the commercial use of their own image).

O’Bannon v. NCAA – Basketball player O’Bannon challenged the NCAA for making money off images of students when the students themselves were forbidden to do so, in the context of games that used their likenesses. Court ruled in favor of O’Bannon.

Solid Oak Sketches v. Take-Two – NBA 2K games included depictions of famous basketball players, complete with their actual tattoos. Solid Oak Sketches had purchased the copyrights to the tattoos and then sued over their use. Court ruled in favor of Take-Two.

Whitmore v. Warner Brothers – Mike Tyson’s tattoo artist Whitmore registered Tyson’s tattoo as “visual art on a 3D object”, aka Tyson’s head, and then sued Warner Bros for depicting it on a different actor in Hangover 2. Settled out of court.

Kirby v. Sega – Lady Miss Kier, the singer from Deee-Lite, sued over the character Ulala in Space Channel 5, on the grounds that it was her. Court ruled in favor of Sega on the grounds that it was sufficiently transformative.

Augmented reality (AR) raises a lot of interesting legal questions. It’s inherently transformative of other works, but it’s also invasive, because there’s no way to execute an AR experience without gathering information from the user. For example, Niantic has a lot of data about people thanks to the location data from Pokemon Go.

Examples of sticky questions:

  • Who’s responsible if an AR game infringes patents by teaching patented methods?
  • Real space vs. AR can create conflicts. Example: Waze sends increased traffic through a neighborhood not designed for it. If the user gets hurt, or someone else does, what liability does Waze have?

Four cases involving some form of game-to-life interaction:

  • Gantt v. Dave & Busters – Gantt injured herself while stepping down from a racecar game. Court ruled in favor of Dave & Busters.
  • American National Property & Casualty Companies v. Hearn – While Hearn’s son was playing DDR, one of his friends deliberately hit him and injured him. Hearn attempted to get money from American National, which is their homeowner’s insurance. Initially decided for Hearn but the link is to an appeal in favor of American National Property.
  • Elvig v Nintendo of America – Lawsuit related to Wii safety straps breaking. Court ruled in favor of Nintendo.
  • Dobson v. Unemployment Compensation Board of Review – While working as a security guard, Dobson was fired for playing a video game on his cell phone. Court ruled in favor of Unemployment Compensation Board of Review.

In the four cases above, the court decided against the player, but regardless of the court’s decision, being a defendant is losing. Lawyers and time are expensive. It’s best to mitigate risk as much as possible and avoid getting sued.

Video games and children is a hot-button topic. Video games are protected as free speech under the first amendment.

It’s okay for video games to be violent when they do not incite specific, plausible violence. An AR game encouraging violence is the scary intersection here.

Pokemon Go players have trespassed in search of Pokemon. It’s easy to imagine a Pokemon Go player breaking and entering to track down a particularly rare Pokemon. Does Niantic have responsibility here?

E-sports are a very complicated topic. A lot needs to be decided here, particularly relating to visas and labor laws.

Game mechanics can be patented but cannot be copyrighted – right now. This is in flux.




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