Posts In "Video Games"

Video Games

Filmed Without Permission

Last week, KROQ’s Kevin & Bean interviewed Castle actress Stana Katic, who is starring in a new movie called For Lovers Only. The film is a “sexy love story set in Paris” and was “shot in the spirit of the French New Wave” (which sounds to me like a blend of smooth jazz, a Monet painting, and a nude beach).
The fascinating thing about the film is that it was produced by just five people. The small crew drove around France in one car using a handheld camera, and would haphazardly discover new filming locations (ironically, quite similar to the formula for a Jackass movie, though those are more “shot in the spirit of the American love of men being struck in the groin”). So although the script may have been rehearsed the night before, the location was often “TBD.”

Evidently unaware of the contingent of fascinated entertainment lawyers in the audience, Katic never discussed whether the film’s five-person crew obtained clearances or releases for anything or anyone they may have incidentally filmed. But from her description of the production, it seems possible — maybe even likely — that they didn’t. The film is currently available only through iTunes or at European film festival screenings. But although that whimsical approach to filmmaking may make for great promotional interviews on the radio, it could present a problem when filmmakers start looking for major worldwide distribution. Continue reading the full story . . . »


Attention all Kids: You Better Stock Up on Your M-Rated Video Games While You Still Can

On Monday, June 27, 2011, the United States Supreme Court struck down the California video game law on First Amendment grounds . . . barely.

Most of the news reports about the decision called it a 7-2 decision in favor of the First Amendment rights of minors to purchase whatever violent video game they want. But those reports have it wrong. Yes, the justices voted 7-2 to strike down the law. But while the news reports made it seem like a completely lopsided knockout, they missed the fact that those justices who voted to strike down the law were split 5-2 on the substantive reasons for doing so.

Let’s back up and remember what the case is about and why it is important to the entertainment industry and to anyone who values First Amendment protection for (even bad) artistic expression. Continue reading the full story . . . »

Q&A: I Want to Make a Film, Mixing a Commercial Video Game Character With My Own Ideas. Do I Need Permission?

Q: I want to make an independent film about a video game character by mixing the original storyline and characters with my own ideas. I didn’t know if I needed to obtain permission or rights to make it even though its going to be non-profit. I just want to be able to put it on YouTube and stuff. Thanks!

A: Your gracious author is wondering if you somehow stumbled upon his Xbox Live Gamertag and discovered that when he’s not faithfully answering legal questions or playing the role of human punching bag for his two young children, he’s sneaking off to his man hovel (i.e., his living room after everyone’s gone to bed) to play Halo 3 online with his similarly maturity-stunted friends. This mild addiction to a videogame has lead to an introduction to the world of guerilla videogame cinema known as “Machinima.” Continue reading the full story . . . »

A Case to Bring Gamers and Entrepreneurs Together

I’ve always been a fan of spotlighting important legal issues that seem to fall between the cracks. So if net neutrality is “the most important public policy you’ve probably never heard of,” and if last year’s documentary filmmaking allowance was the most important DMCA exception nobody seemed to notice, then the Ninth Circuit’s February 17, 2011 decision in MDY Industries v. Blizzard Entertainment is the most important denial of a motion for rehearing that no one is talking about — especially if, like me, you love video games, justice, and legalese-laden 48-page opinions that read kind of like Conrad’s Heart of Darkness.

The Lawsuit

Admittedly, the premise of this case is pretty ridiculous. But beneath that ridiculous premise, and the pages upon pages of legal minutia, is a pretty important and interesting legal issue that has real influence on your everyday life.

MDY Industries centers on a “bot” (short for robot) program called “Glider.” Using the Glider software allows World of Warcraft gamers to put a WoW character on autopilot, thereby avoiding the laborious chore of “leveling” the character and acquiring weapons and gold. In other words, Glider allows WoW gamers to skip the nascent stages of character development and proceed straight to the joy of being powerful and wealthy — something many WoW gamers will never actually experience in real life. Conceptually, using Glider is similar to “gold farming” — i.e., paying someone in a developing country to acquire virtual money for you. (It would be fascinating to know what effect Glider has had on the hundreds of thousands of gold farmers in the developing world.)

The legal fight began more than four years ago, when MDY preemptively sued Blizzard for a declaration of its rights after Blizzard’s counsel visited MDY founder Michael Donnelly at home in October 2006, “threatening suit unless MDY immediately ceased selling Glider and remitted all profits to Blizzard.” Naturally, Blizzard had been very unhappy about Glider and (among other things) the effect Glider was having on WoW’s virtual economy.

From Donnelly’s perspective, his company made $3.5 million by selling a legitimate aftermarket product that made WoW more enjoyable for many gamers. From Blizzard’s perspective, it not only had to spend money dealing with “bot” complaints from its users, but it also lost substantial revenues from gamers who otherwise would have spent many more billable-months in their quests to obtain virtual fame and fortune (e.g., instead of subscribing to WoW for one year, a player might only subscribe to WoW for 6 months, since the player could achieve more in less time). Continue reading the full story . . . »

Next Step: Registering a Trademark for an Inherently Distinctive (and Wonderful) Legal Blog

Time for a teen years confession.

For about two years, starting on August 25, 1997, my life had about four principal components: sleep, eat, school, GoldenEye. For the uninitiated, GoldenEye was a first-person shooter video game for the Nintendo 64, based on the James Bond film of the same name. And it. Was. AwesomeWidely regarded as one of the most successful, beloved, and influential video games of all time, GoldenEye helped prove that pale, unathletic teenagers and drunken frat boys had more in common than they ever previously dreamed — a shared joy incartoonishly shooting their friends in the face.

Playing GoldenEye was its own reward, and I never expected any remuneration for those long, sleepness nights spent playing the game, devouring Oreos by the handful, and listening to Jay-Z’s Hard Knock Life album on repeat (also all true). But it seems I am, in fact, due a “thank you” card from a little-known company called Carl Walther GmbH Sportwaffen. That company — better known simply as Walther — manufactures the PPK pistol, best known as James Bond’s weapon of choice. And no doubt thanks in part to the efforts of obsessive gamers like myself, last month Walther received a rare product configuration trademark from the Trademark Trial and Appeal Board for the design of its iconic gun.

That’s right: the shape of this gun is now a registered trademark.

Traditionally, trademark protection is accorded to company and product names, logos, and slogans. Kodak — a company name. CyberShot — a product line. “The Best a Man Can Get” — a slogan. The distinctive green-rimmed Starbucks logo. In other words, all of the obvious signifiers of the source of a product or service. So the idea that a product can be its own trademark is definitely unintuitive. Luckily for Walther, though, the company hired lawyers. And as any lawyer will tell you, the law cares very little for your wounded intuition.

Continue reading the full story . . . »

Is Playing a Video Game Conduct or Speech? Lessons from Microsoft Kinect

I was in GameStop last week buying my daughter Hawx 2, a T-rated simulated aerial combat video game. As I was standing in line (with all the dads buying M-rated Call of Duty: Black Ops for their under-17 year old sons, while pretending to buy it for themselves), I was drawn to the display of the Microsoft Kinect, the new hands-free controller that is designed to allow the ultra-interactivity of the Nintendo Wii, but without any controller at all. You (and, apparently, one million of your likeminded early adopter friends) stand in front of a 3D camera system, which translates your movements in real life into the movement of your avatar on the screen. No longer is the pushing of a button or the swinging of a controller rendered as the action of your avatar; rather, your actual fingers, hands, arms, face and body are re-rendered as the action of your avatar exactly as you performed them. Ladies and gentlemen, at long last, the future is here (minus the flying cars, hoverboards, food hydrators, and everything else we were promised in Back to the Future, Part II).

I immediately thought of it as acting in a play. The real you is performing the movements from the gallery, while the virtual you is acting them out, in costume and on set, on the stage of your TV. It is like playing cops-and-robbers in the playground, except no one else need be present and no playground is required.

Of course, since I am a lawyer and never turn my lawyer brain off, I immediately recalled the most interesting question that was asked during November 2’s Supreme Court oral arguments in Schwarzenegger v. Entertainment Merchants Association, the decision in which is expected to come down sometime in Spring 2011. Continue reading the full story . . . »