Video Games

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

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

Last week, Bloomberg’s Lee Pacchia interviewed Law Law Land’s Steve Smith about the Supreme Court case of Schwarzenegger v. Entertainment Merchants Association, which will decide whether a California law barring the sale of violent video games to minors violates the First Amendment. Steve’s views on the subject, of course, are no secret. But we think his podcast makes
Continue Reading Steve Smith Discusses California’s Anti-Video Game Law on Bloomberg News

As comedian Myq Kaplan says, “There’s a spectrum of dorkery from people who use words like dorkery and those who do not.” When Starcraft II was released on July 23, I was one of the millions of uberdorks around the world whose preorder instantly made it the fastest and best-selling computer game of 2010. As an additional testament to my dorkery, I soon thereafter identified a myriad of legal issues with the game.

Number one, the game destroys graphics cards (especially in laptops) because Activision-Blizzard forgot to include a framerate cap. This small oversight caused thousands of graphics cards like mine to overheat and die during game play. Huge potential for a class-action lawsuit? Possibly, but not very interesting, academically.

Number two, the game has a gigantic, mechanized soldier unit based on Arnold Schwarzenegger called the “Thor” (yielding the optimal blend of dorkery and machismo). But alas, as any Arnold aficionado can immediately tell, the Thor is voiced by a sound-alike and not the actual Governator. This made me wonder: did Arnold license his right of publicity forStarcraft II, or does the First Amendment give Activision-Blizzard the right to use Arnold’s likeness without his permission?
Continue Reading Leggo My Likeness, Part Deux: Does Starcraft II Violate Arnold Schwarzenegger’s Right of Publicity?

The Madden NFL series of video games is the latest victim of the rash of lawsuits attacking video games for allegedly using celebrity likenesses without permission. Earlier this month, a retired Cincinnati Bengal and Tampa Bay Buccaneer named Michael, a.k.a “Tony,” Davisbrought a class action lawsuit on behalf of 6,000 retired NFL players, accusing publisher EA Sports of using likenesses of retired NFL players in its games without permission. Our regular readers know all about the ubiquity of these right of publicity cases, and in particular, how they’ve emerged in the video game context. And the script is usually familiar: video game portrays well-known celebrity’s image or likeness, celebrity gets mad, and it’s off to the courthouse. But this case is particularly interesting, because the plaintiffs’ claims don’t actually involve EA using their names or likeness.
Continue Reading Now Starting at Quarterback, a Thinly-Veiled Version of Your Childhood Sports Hero

Over the last five years or so, numerous state legislatures have passed laws banning the sale of violent video games to minors. In every case, the law was stricken down as unconstitutional under the First Amendment. Seemingly undeterred by such minor facts as judicial unanimity about the constitutionality of such legislation, California too passed a law banning the sale of violent video games to anyone under the age of 18. It used words such as “cruel” and “depraved” to define what was “violent.” And just like every court of appeal that had considered similar laws from other states, the Ninth Circuit Court of Appeal struck down California’s law without hesitation.

But on April 26, 2010, the U.S. Supreme Court granted review. The Supreme Court’s action has caused a furor because the Supreme Court usually does not review cases where the already-existing appellate case law has been entirely consistent across all jurisdictions. It usually only reviews cases where there is a split among the appellate courts. Here, there is no split. Which raises the obvious question — why does the Supreme Court want to review the California law?
Continue Reading The Definition of a Very Slippery Slope: California’s Video Game Law

The lawsuit between Activision and the founders of Infinity Ward, Jason West and Vince Zampella, over the Call of Duty: Modern Warfare franchise may be a war, but it is anything but modern. It exemplifies the classic, time-honored struggle between the artist and the sponsor who funds the artist’s work. Whether it is the author versus the publisher, the actor versus the studio, the player versus the team owner or the musician versus the record label, the struggle has always been the same. Who is responsible for the success of an artistic enterprise? The artist who created the work or the investor who gave the artist the means by which to create?
Continue Reading An Old-School Battle Over Modern Warfare