Gamers Rights Law » video games

New question: Games VS Art

jaymoffitt — Wed, 17 Nov 2010 16:44:41 +0000

What is all the hub-bub about whether games ARE ART? Sure, a painting by a Renaissance artist dead 300 years ago may sell for tens of millions; but a videogame made by living graphic artists sold hundreds of millions(COD)… in the first day. Imagine what it could go for in the 24th century? (OK, maybe that’s stretching it… but I still have a new Dreamcast in the box… and no you can’t have it.)

All the arguments on the net center around whether games are art, so as to be protectible. Mind you, I’ve been to my share of galleries in my time, but I looked around at the numbers… and it would be hard to get together a 16×16 scramble match on a battlefield. And thus the litmus test of videogames, is whether it’s art? So I agree it’s important, but is it relevant, or the correct question, as to whether videogames are protectible speech?

http://www.flickr.com/photos/kiwiwings/2167225968/ Creative Commons 2.0 Attribution License

Here’s some links to good discussions by smart people, near the point but not quite making the point I’m encouraging. Read them (after the jump) and I”ll finish with my own commentary.

Kill Ten Rats blog. (Real art. For comparison’s purpose and because it’s my blog).

Art History of Video Games (Great presentation on a recent seminar of this topic).

Harvard article on copyright (protection as “useful arts”)

Wired Article about controversial Columbine RPG (should offensive games be protected)

Gamasutra article; “Persuasive Games free speech?”

Games vs Art discussion, On Importance.corante (Older article, but very close to the heart of my argument. Especially enjoyed the commentary by Greg Costikyan, “Rothko vs. Pong: If painter Rothko’s minimalism can be protected, why not Pong?”)

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I’m hopeful a good decision will come out of the Supreme Court case. At least it’s given a lot of media attention to the game industry, both good and bad. But I’ve only been trying to point out the discussion should center around “useful arts” and not the word “art”, or the topic “art”, or whether a videogame is “artful” or “artistic”. From Chess to Mancala, Mastermind and Candyland; then later Pong, RBI Baseball, Mortal Kombat, Grand Theft Auto and World of Warcraft, the “art” is just a tangential part of the cerebral joy that is a good game. And it’s not about makes games art, it’s about making games.

Jay Moffitt is a Tennessee attorney. This blog is for entertainment and educational purposes only and does not consitute legal advice or create an attorney/client relationship. Jay Moffitt is not certified as a specialist in this area by Tennessee and Tennessee does not certify specialists in this practice area. All comments will be answered promptly and courteously as long as they are germane to the discussion and do not contain specific game names or incidents

Real ID and the worldwide impact of gaming

jaymoffitt — Sat, 31 Jul 2010 16:29:33 +0000

(Photo courtesy of FoxSpain; Flickr CC attribution license)

Starcraft II will be a worldwide phenomenon. The RealID requirement, since retracted, is causing some ripples across US gaming blogs, and some other places. I’m going to explain why the U.S. is, perhaps, not as important as we like to think…. right after the jump….

Let me give some background. It’s gathered from a couple of very good, well-researched articles by people who are much, much more tuned into the worldwide gaming scene than myself. (Announcement of Starcraft II at an Olympic Stadium in Seoul.) (From MyMim an estimate of first-day sales of 1 million in U.S…. huge… and 3-4 million in Korea.. astounding.) The long story short is that Starcraft II is going to have much more of an impact in Korea and other parts of Southeast Asia than in the U.S. That’s the pure numbers speaking, not my own insignificant opinion.

And if you’re talking “worst-case scenario”, remember, if gamers in the U.S. don’t like the way a game’s forums work, they can refuse to purchase a game. If a government such as China, or some other government with that power, wishes to strictly regulate or prohibit a game, they can (and will). Just look at China and the difficulties of Blizzard’s World of Warcraft in keeping servers open and available there. (See my related post).

Nicholas DeLeon on Crunchgear talks about Blizzard and hypocrisy. (It details the move as more of a “trial balloon”, like a politician would use to gauge public-opinion impact of a policy move.

One last link, from an English-language Korean site, that explains the anti-anonymity movement in Korea.

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[Note: This inspiration brought on from Entertainment on Saturday's post about point of view.] Second, largely ignored issue about RealID and bloggers. You cannot, as a public blogger, make a realistic argument that total privacy is your utmost goal. You’ve already made yourself known, publicized, and you have no synchronicity of thought with the TRUE anonymous individual. The individual that shuns RealID, doesn’t link their Google page to their Youtube, doesn’t automate their comment-posting ID, and is otherwise paranoid to have any trace of their actual identity linked to their UserID. In this regard a blogger, though myself and others may “argue” a viewpoint about anonymity, do not share a common ground. We are speculating about reasons, as myself (and other attorneys and/or gamers who blog) have decided that being heard is more important than keeping a total anonymous persona. Of course many great gaming bloggers use personas, but as an attorney-blogger (who also collaterally solicits business in the areas of my expertise) we must fully disclose all email and point-of-contact information if requested by any potential client or contact.

Voice acting (in videogames); notes and advice

jaymoffitt — Mon, 12 Jul 2010 14:13:10 +0000

(Photo: http://www.flickr.com/photos/vancouverfilmschool/3650728107/ Creative Commons, attribution required license. )

Some helpful links about voice-acting in videogames, more after the jump…..

People behind the Video game actors (Unreality Magazine)

5 video game voice actors (Edmonton Journal)

Faces behind the Videogame voices (Meodia)

Voices of Video game (Montreal Gazette)

Behind the Voice Actors (Great website for matching up characters with their voices)

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Some more technical articles discussing production and legal concerns

Article on blog discussing dubbing versus subtitling (Dubbing versus subtitling)

http://blogs.voices.com/voxdaily/2009/08/95_podcast_resources_for_voice_actors.html
Resources for voice actors

http://blogs.voices.com/voxdaily/2008/12/voice_overs_tough_legal_questions_answered.html
Great post from this online voice blog; legal questions answered… dated… but still very specific and useful.

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Personal commentary… if you add a voice actor instead of static graphics or word overlays, then you have an additional person to pay, as well as probably another Non-disclosure Agreement(NDA). It all depends upon your budget; and if you must have voice actors supervised or work live with another voice actor; you should probably have an appendix to your employment agreement stipulating the range of dates you might require from him/her.

The Fall of Infinity Ward – And the New Rise of the Personal Service Contract

jaymoffitt — Sat, 15 May 2010 16:01:06 +0000

Photo Credit:

http://creativecommons.org/ns#” about=”http://www.flickr.com/photos/-cavin-/747847877/in/photostream/”> rel=”cc:attributionURL” href=”http://www.flickr.com/photos/-cavin-/”>http://www.flickr.com/photos/-cavin-/> / http://creativecommons.org/licenses/by/2.0/”>CC BY 2.0

(Flickr Creative Commons, attribution required) [You should visit the photo to read to read the narrative, no one was killed in this explosion].

What led to the destruction (total?) at Infinity Ward Studios?(read the other stories tagged Infinity Ward if you’re not familiar with the mass defections). I’m going to give a short history lesson… and instructions to big companies (as if they’re listening… HAHA) on how to gain allegiance.

It’s been detailed in many places, including Activision publications, how Infinity Ward was founded from the ashes of another War title. Those developers formed Infinity Ward. Activision became their biggest company user, and later sole supporter, and later owner. The last title became bigger than Avatar (in gross money terms) and then the bubble went “pop”.

Going back a little earlier into “tech history”, IBM, Xerox, Honeywell (look it up), these ground-breaking companies wore starched shirts, ties, and no one on the outside knew the programmers’ names. Later, names like Jobs, Gates, and then of course West/Zampanella came into being. It goes without saying the stock prices of Microsoft and Apple are dependent upon their leaders, so why would anyone think Infinity Ward would be different? Arguably, they lose their biggest asset from their biggest asset.

[The rest is stirctly commentary]Let me get into my “modest proposal”. Years ago it started, and runs currently, the “personal service contract” would be the preferred method by which big stars Sinatra, Bruce Springsteen, Mariah Carey, Katy Perry, etc… would be held to perform. It’s a personal obligation, binds personally (with penalties including restrictions on future work in the industry) and compensates fully and fairly. For example, no one ever seriously said, “Springsteen is gone, but the E Street band is still here, so we’re cool with it, K?” You knew the talent, and if you’re a multinational corporation YOU SHOULD KNOW that the lead programmer is the talent. Inspires the troops. Maybe is not (or has been for years) the best programmer…. but is THE COACH, the chief, the leader, and it’s undisputed. (Don’t believe it, just check the couple of dozen pink slips from Infinity Ward people over the last months… and don’t think Activision has not…. and you should look at this when all the court docs come out, and not just now… been throwing some serious money at these other departing IW developers.)

The day of strictly “buying a company” is over; recognize your talent, put them into lucrative personal service contracts, make it public, don’t just “buy the asset”…. BUY THE TALENT. Maybe I’m way off base, but the way all this has rolled out makes me think I am not. Welcome your comments, and as always if someone has REAL proof that it’s shaken out in a different way, I’d love to hear that.

Developers Corner – Perspective and Structure

jaymoffitt — Tue, 02 Feb 2010 14:14:13 +0000

A lot of recent litigation activity lately, and I’ll try to link to it as the week goes on. However this is a long overdue post on how a developer uses perspective (his or her own) to make their world, and how the structure guides the course of that world.

Ten Things a Game Should Have from the Blog “I’m Talking Games”.

Innovation in Games from Keen and Graev’s gaming blog.

Mapping Perfection: talking about user-created maps in games. Escapist Magazine discusses their place and their use.

So, basically, these three articles cover first, the basics a game should have, second, the innovation a game CAN have, and third, the user-created input that a game MIGHT have.

So when will games be ready for a “warranty of implied merchantability for a specific purpose”? Were people hanging around outside Henry Ford’s offices in in 1928 saying their car did not meet their ideas of what the “ideal transportation model” would be? How about 1938? Is this a silly question? Is it a silly question because the software industry feels it is the only industry that can still (after thirty-some years of making money from consumers) say “if it is opened, you can only exchange it for the same software”?

Do you believe there is not a basic standard of usability that a video game must live up to? How about online MMOs? If not now, when?

Comments welcome and expected.

Are lawsuits taking the fun out of gaming?

jaymoffitt — Tue, 26 Jan 2010 16:33:33 +0000

Just a gentle reminder; I was a gamer a long time before I was a lawyer. Every day I (like many of you) read a lawsuit notice that seems so patently absurd that as a fellow lawyer I wince. Lawsuits that I’m sure 10 lawyers may have turned down before 1 took it. Non-lawyers need to remember; a lawsuit can be turned down by 10,20, even 50 lawyers, but if a person feels he/she has been wronged, it only requires 1 lawyer to file a lawsuit for it to become public record, make the papers, and usually make people say “Lawyers will sue over anything.” Mind you, sometimes it is a meaningful cause that only one lawyer is brave enough to take… but sometimes it can be simply ludicruous. Not here to apologize for lawyers in toto (that’s above my pay grade, as the saying goes) but a caution to non-lawyers out there that most attorneys (such as myself) would rather turn down 3-4 chances to file a lawsuit waiting for something that is truly valid and will result in a substantial monetary judgment/settlement for a client.

Here’s some other thoughts about taking fun out of gaming.

Player Perspectives: Is it Time to Quit, a good article from MMOPRG.com My favorite quote is “The MMO Industry doesn’t want you to quit, of course. It makes money by your loyalty to its game styles and brands, just like any other entertainment business.”

Respecting your Players at the excellent gaming blog “Eating Bees”. (Yeah, I sometimes wish the Bar would let me name a legal blog something really cool… ain’t gonna happen though). My favorite quote from this insightful article is ” I took this job because I thought the product was worth believing in, and because people are pretty much people no matter what the topic is. But having deep, sincere respect for what it is that my players love is going to fuel me for the long haul.” It’s a reminder there are, and will always be, a lot of developers, moderators, and administrators in the video-game and online game business who treat it as more evangelism than simply business. Thanks to them!

Sunk Costs, Pre-orders, and Game Over at the deep-thinking blog “The Psychology of Videogames”. It talks about the reasoning behind following “good money after bad” in a video-game purchase. My favorite quote is ” Robyn M. Dawes even describes in his book Rational Choice in an Irrational World4 how this is pretty much the same logic that a heroin addict would use to avoid treatment before reaching rock bottom. Yeah. Think about THAT. ”

Maybe I’m alone in thinking of an insidious “long-tail of excessive-lawsuit fever”; known forevermore as Lota Elf. I’d be interesting in hearing from developers if they’ve ever scrapped a cool feature of an online game because of worries over possible litigation, or if an online community administrator decided to shut down an otherwise pleasant community because of one or two “dangerous characters” who were repeatedly threatening lawsuits over one topic or another. Remember, it’s the game that doesn’t get made, or the really cool “wave of the future” mod/add-on/enhancement that we will never miss because we never meet (sorry for the chick-flick reference!).

Go Big or Go Home

jaymoffitt — Sat, 14 Nov 2009 11:48:17 +0000

From a great article in First Monday: The key question in legal analysis of videogame law: “Should cyberspace (or subsets of cyberspace) be treated as distinct “places” for purposes of legal analysis?”

To me the biggest single question in the analysis. Every question in this division (and I say it is a FIRM DIVIDE, or FD) should focus first on that question. The article is great, you should read it, allow me to be egotistical enough to give my thoughts on a couple of outstanding points in the article.

“First, because the characteristics of online spaces and online conduct will often make it inappropriate to apply the rules governing “similar” conduct offline.” That’s why every videogame lawsuit, or every virtual worlds lawsuit, should clearly delineate that there SHOULD BE AND MUST BE a recognition of that gulf between real-world conduct and “in-world” conduct (what I will refer to forever as IWC)

“Second, thinking about cyberspace communities as potentially separate law–making and law–enforcing places will help clarify the profound jurisdictional muddle that cyberspace presents.” My friends in the legal community know I personally get enraged when this is not a primary question. Jurisdiction. It influences which law will apply, where it will go to court, which locality has a claim to “community standards” as is so important in U.S. constitutional law, and also crucial in non-U.S. law.

To me the best part of the article is the authors reach a conclusion or at least a mission statement. “Sovereigns should allow their citizens who wish to travel to online spaces and, while there, to be governed by the rules applicable there, provided that those rules don’t allow the online spaces to become havens for actions causing substantial harm to outsiders.” That seems a very worthwhile goal and perhaps one that can be universally agreed upon.

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The reason this article is so important at this time is that Call of Duty, Modern Warfare 2 came out this week and made $310 million the first 24 hours.

The story in the NY Daily News said in the first line “A bloody video game made more money in one day than any movie ever has.” In fact, “the largest opening in movie history was Warner Brothers’ “The Dark Knight,” which grossed a measly $158.3million over its first three days.”

For an opposing viewpoint to purchasing the game, read Opposition: an Army of Women. Personally, I hope the article was written at least partially as sarcasm.

And finally, the quote: “Go Big Or Go Home!”. Why? Well, this game made headlines, but consider these facts.
In 2008, Videogame Sales topped 21 billion. Full story from Reuters.

Contrast that to films. Last year, according to the MPAA, “The worldwide box office revenues increased by 5.2 per cent in 2008, reaching an all-time high of $28.1 billion.”

I think you would agree that the two main forms of entertainment are becoming very close in popularity. But can you name a single voice actor from Halo? What about the illustrator/developer for the Mario games? Who is the producer for the Playstation Network? I believe, as do many industry insiders, that gamers rights is a clarion call that many are starting to hear, and that games are becoming more popular because developers are responsive to the needs of their gamer buyers. Is that why the industry is growing so quickly? Or is the lack of this a reason it is not growing even faster? From a legal standpoint, what do you feel will be next “cause” litigated in the courts? Identity theft? Rights to participate in forums? Virtual property theft? Shutdown of longtime games you’ve invested time in money in?

I hope you feel free to comment on these topics. I will reply as quickly as I can to any and all comments.

Updates, important Updates

jaymoffitt — Wed, 04 Nov 2009 15:14:00 +0000

Here are some important legal updates on stories I’ve talked about the last 90 days.

World of Warcraft is shut down in China once again by government authority. Here’s the full story at gamasutra. The most telling information is that even in a government as centralized as China there is sometimes a lack of communication. The size of WOW in China is stunning, fueled by lower subscription costs; according to Gamasutra almost half of WOW 11.5 million subscribers are in China. You can read my previous stories on the travails of running WOW in China here and here.

The PS3 Owner (Estavillo) is appealing the court decision against him. Sony’s Playstation Home won in the lower court, but the story of his appeal is here. My earlier post on the subject talks about the issues of Estavillo v Sony. It’s a good read, especially demonstrating how sympathetic facts can propel a case, even when the existing law does not seem to show a precedent.

Remember the sentimental stories you’ve read about games closing, and classy ways (I’m looking at you, Matrix online) to do that, and not-so-classy ways to close a world? Well here’s a story about a disgruntled customer who isn’t happy with coupons.

And the fourth and final update, a pulse check on Second Life. Yep, it’s ALIVE! (Insert creepy Dr. Frankenstein laugh). Everything in RL(real life) is static, yet Second Life continues to grow.

FTC to take closer look at blogger ethics

jaymoffitt — Tue, 06 Oct 2009 14:07:22 +0000

At present there are no lawsuits, but there have already been Congressional hearings. Here are the most prominent stories about this development.

Blogger Freebies Could be Ad Fraud (Yahoo) This is a very informative article, the main surprising point being “The voluntary guidelines offer broad suggestions for how advertisers can avoid deceptive marketing strategies. These guidelines, however, were last updated in 1980, so the agency wanted to consider new marketing techniques, like blogs.”

Do you know how many smalltime bloggers?(CNet) The article notes “The practice of free products for bloggers, most of whom are not bound by ethical guidelines that journalists have historically followed, has been making headlines for some time now.”

WSJ article about Paid to Pitch

With the new social media the last 5 years, bloggers have taken on a larger role in commentary and influence. As the articles explain, Congressional hearings have taken commentary on possible ethics issues with bloggers. As the top bloggers, including video game sites, have audiences in the millions, they often give reviews on sports games, video games, and computer games. The new FTC oversight will purportedly assist the readers in understanding whether a blog has been given a game, accessory, or software – as that information helps the reader determine whether a reviewer might be biased.

Even though the concept of the rules make sense overall, the difficulty of this is the enforcement. Does the taking of a free console game make the reviewer a criminal if they do not disclose it and give a good review; are they less of a criminal if they take the game and give a bad review anyway? Does that prove they are ethical, or just prove they’ll not get another free game from that company? Other sites have commented on the overall ethics of video game reviews, and it seems murky water for the FTC to be covering. (For some perspective, read this article from a video game publisher about negative reviews)

FTC takes on pay-per-post This article describes the new regulations covering social media. It’s possible, said the article, that the regulations could impact Google adsense words. The main point made by the article seems to be that bloggers are responsible for maintaining some ethical guidelines.

Well, it’s early on these regulations. For now, here’s 3 for the B(usiness)

1. If you’re a video game reviewer for a blog, or in any way give a positive or negative input on a game, you should disclose whether you received the game as a comp or not. Morally and ethically it’s the high ground, and if there’s a worst case scenario you have a good defense against a possible (though extremely unlikely) event of FTC questioning.
2. If you are running a site or online magazine reviewing games, you need to include guidelines for your reviewers that if they receive comps or discounted pricing for games they put forth an opinion on, they must make a clear disclosure of this fact as a condition of their continuing participation.
3. If you are the legal counsel for an online magazine or games blog, you should consult these regulations to make certain your clients are fully protected.

Jay Moffitt is a TN attorney. The statements here are not legal advice, and no attorney/client relationship is created. Jay Moffitt claims no certification in this specialty, and TN does not offer a certification in this area of law. Copyright, Jay Moffitt, 2009. Comments are welcomed and will be answered promptly and courteously.

Developer’s Corner

jaymoffitt — Sat, 03 Oct 2009 15:21:21 +0000

People ask me all the time about the title of this blog. Does this mean the blog is just for gamers?No. The title means it is for lawyers, game publishers, game makers, and game developers who care about gamer’s rights.

Think about it. When there is a movement for “people’s rights”, who is it that makes the money? The politicians.

And whenever someone in Hollywood makes a movie that is “for the people”, who rakes in the profits? The movie-maker.

So today is the first of a regular feature that focuses on the people (publishers, artists, voice-over talent, and developers) who make all the gamers happy.

The Players are Wrong but Listen Anyway This article by a game developer goes into detail as to what type of feedback to gather from the users during the game-making process. This frankly doesn’t rise to the level of a legal duty, but more of a moral duty… that is from a game developer with a sincere wish to make as fair and as entertaining of a game as possible. If you are strictly looking for a legal viewpoint, maybe you could use the forums and feedbacks as a sort of “testing ground” to determine if the beta testers feel the game is working out as a fair and even playing field, depending upon the user’s choice of character, etc. But the developer does a great job of noting these opinions must be taken in the context that most of these early users have an “axe to grind” or may be overly skeptical types that over-critique a supposedly fun experience. A great read for developers or anyone.

Raising Startup Financing This list has a more general feel, as it would apply towards anyone raising money for a financial project. But for a developer with a great idea and some resources to start, the list is a great jumping-off point to investigate financing options.

Developer Links This is an incredible A-to-Z list of links of use to a game developer. Mostly the destinations are esoteric and specific to a developer’s needs, but there are some that might be good general reading. If you have an interest in developing games or even being a beta tester, you should browse the list and spend a couple of minutes to add to your knowledge.

SAG and AFTRA renegotiate their contract structure with Developers Gamasutra has an excellent story about the renegotiation of voice-actor talent. You may have noticed that voice-acting is getting better, and the voice talent are getting paid. And plus they are in a stronger negotiating position than artists, graphic designers, and programmers; who get 100% of their work from the game studios. For the voice-over talent there is always animation, film work, radio, and commercials. Thus they are more of a varying expense than those talents who are specific to the video game industry alone.

Three for the B(usiness). #1 If you don’t get legal advice at the beginning of a large financial venture(oh, but it’s just a video-game), then at least have some resources who can advise you WHEN to get an attorney. There are attorneys who deal specifically with financing, video games, talent agents…. but just make sure you have resources available for when you need them.

#2 Keep an open mind during the alpha, beta, and “gold” process for game dynamics. Listen to the critics, the testers, and the programmers, but most of all listen to your heart. Only you know what kind of game you are trying to write, and just like some books are not for everyone, maybe your beta testers should be playing something else, and upon release your dream will find its “true audience”.

#3 Game talent takes many forms. Keep an eye (and an ear) out for people that will help your final product. Set expectations on salary, benefits, accolades on the team you assemble, and under-promise and over-deliver. You may lose a few at the beginning of the process, but you can build a strong core of people that hopefully continue forward with you, and as any HR professional will tell you, it’s a lot cheaper to keep a good employee than to find one.

Jay Moffitt is a TN attorney. The words do not constitute legal advice, and no attorney/client relationship is created. Jay Moffitt does not claim a certification in this specialty, and TN does not offer a certification in this specialty. Copyright October 3, 2009. Comments will be answered in a timely fashion and with courtesy.