Filed under: Features
LGJ: 3D Dot Game Infringement
by Mark Methenitis 
{ 28 days ago }
Each week Mark Methenitis contributes Law of the Game on Joystiq ("LGJ"), a column on legal issues as they relate to video games:
If you're like me, then you've likely been following Joystiq's coverage of 3D Dot Game Heroes and thinking "I really, really hope this gets translated and released in the US." After all, if you're a gamer like me then you love the idea of a 3D homage to the 2D games you grew up with. Of course, it's less likely that you're a lawyer like me, and so it's also less likely that you read through the comments and had an immediate reaction to the countless cries of copyright infringement in the game. Those repetitive, vocal cries have brought me to this column, which aims to answer the big question: is 3D Dot Game Heroes copyright infringement?
Let me start off by saying the analysis here is just my opinion, and a court could always find otherwise. Where this discussion really needs to start is what elements seem to be infringing. Now would be a good time to view the trailer or some screenshots, if you haven't yet. The main complaints I've heard, and can see from the trailer, are the environments (both overworld and dungeon) bear a striking resemblance to the Zelda universe (The Legend of Zelda and Link to the Past, specifically), while the hero characters bear a striking resemblance to those from the Final Fantasy and Dragon Warrior past. Some of the monsters also bear quite a resemblance to Zelda baddies. And, of course, the music is certainly inspired by classic Zelda music. So, case closed, right? Well, no, that's not how copyright infringement works.
Let me start off by saying the analysis here is just my opinion, and a court could always find otherwise. Where this discussion really needs to start is what elements seem to be infringing. Now would be a good time to view the trailer or some screenshots, if you haven't yet. The main complaints I've heard, and can see from the trailer, are the environments (both overworld and dungeon) bear a striking resemblance to the Zelda universe (The Legend of Zelda and Link to the Past, specifically), while the hero characters bear a striking resemblance to those from the Final Fantasy and Dragon Warrior past. Some of the monsters also bear quite a resemblance to Zelda baddies. And, of course, the music is certainly inspired by classic Zelda music. So, case closed, right? Well, no, that's not how copyright infringement works.
LGJ: Fan sequel? Still not legal.
by Mark Methenitis { 3 months ago }
Each week Mark Methenitis contributes Law of the Game on Joystiq ("LGJ"), a column on legal issues as they relate to video games:
Lots of news has been popping up lately about fan-made sequels to some of the most beloved games of bygone days, Chrono Trigger and Star Fox being just two of the more notable examples. As most of you have likely noticed, these games follow a pretty predictable pattern: a bunch of fans put in a ton of work on a sequel to their favorite game, those fans tell other fans until that project ends up getting noticed by the blog-o-sphere, and then the lawyers of the original game maker eventually squash the project to an often loud outcry from the fan community. It's the 21st century re-telling of the fan fiction legal drama, and when it comes to copyright law, the story really hasn't changed.
This all relates back to those rights that make up copyright, which we've discussed on a number of occasions in this very column. In fact, the primary right is the control over derivative works, the very same right that is often cited in the machinima realm. In short, the holder of a copyright has the right to control works based on the work protected by copyright, such as sequels and prequels. That would seemingly address all fan sequels, correct? If the issue were that cut and dry, I likely wouldn't be taking the time to write a column on it.
Lots of news has been popping up lately about fan-made sequels to some of the most beloved games of bygone days, Chrono Trigger and Star Fox being just two of the more notable examples. As most of you have likely noticed, these games follow a pretty predictable pattern: a bunch of fans put in a ton of work on a sequel to their favorite game, those fans tell other fans until that project ends up getting noticed by the blog-o-sphere, and then the lawyers of the original game maker eventually squash the project to an often loud outcry from the fan community. It's the 21st century re-telling of the fan fiction legal drama, and when it comes to copyright law, the story really hasn't changed.
This all relates back to those rights that make up copyright, which we've discussed on a number of occasions in this very column. In fact, the primary right is the control over derivative works, the very same right that is often cited in the machinima realm. In short, the holder of a copyright has the right to control works based on the work protected by copyright, such as sequels and prequels. That would seemingly address all fan sequels, correct? If the issue were that cut and dry, I likely wouldn't be taking the time to write a column on it.
LGJ: And still, they want to take away our games
by Mark Methenitis { 3 months ago }
Each week Mark Methenitis contributes Law of the Game on Joystiq ("LGJ"), a column on legal issues as they relate to video games:
As of late, it seems I've become sort of a policy spokesman for issues concerning the government intervening in the game industry, especially in the wake of my debate with Jack Thompson. However, the discussion over whether violent content can be policed under the First Amendment is getting tired, and the courts have universally declared "no" at this point. Rather than go down that road again, I want to discuss two new ways that the government could attack games; one of which came up in the debate itself.
The first is probably the more mundane of the two, and it's the seemingly frequent specter of imposing political correctness on games. In fact, this issue came up yet again this week as a discussion related to not just Resident Evil 5, but also Left 4 Dead 2 and Call of Juarez: Bound in Blood. Of course, the claims here were racism and cultural insensitivity. The irony is that now that the games themselves are seemingly more inclusive of characters other than white males and large breasted women, the assumption is automatically that use of more diverse settings and characters must have malicious motives, rather than crediting the industry for finally being more inclusive.
The first is probably the more mundane of the two, and it's the seemingly frequent specter of imposing political correctness on games. In fact, this issue came up yet again this week as a discussion related to not just Resident Evil 5, but also Left 4 Dead 2 and Call of Juarez: Bound in Blood. Of course, the claims here were racism and cultural insensitivity. The irony is that now that the games themselves are seemingly more inclusive of characters other than white males and large breasted women, the assumption is automatically that use of more diverse settings and characters must have malicious motives, rather than crediting the industry for finally being more inclusive.
LGJ: If 24 songs = $1.9 million, then 1 game = ?
by Mark Methenitis { 4 months ago }
Each week Mark Methenitis contributes Law of the Game on Joystiq ("LGJ"), a column on legal issues as they relate to video games:
Maybe you heard about the verdict that just came out in one of the music file-sharing cases: $1.9 million for 24 songs. So, what does this have to do with gaming? More than you would probably imagine, since this gets to the root of copyright and statutory damages. In fact, EFF legal scholar Fred von Lohmann posted an interesting piece on whether the penalty is even Constitutional. Whether this is the suit that breaks the back of statutory damages has yet to be seen, but it's something that any media producer or consumer should be keeping an eye on.
Of course, much of that may be getting ahead of the issue of explaining this decision in greater depth so that everyone can understand what the actual problem is. We've talked about copyright infringement and piracy at length on LGJ, and the issue here is what comes after someone is found to have infringed on a copyrighted work: damages. Specifically, we're talking about statutory damages, which something a lot of people may not be very familiar with at all.
Of course, much of that may be getting ahead of the issue of explaining this decision in greater depth so that everyone can understand what the actual problem is. We've talked about copyright infringement and piracy at length on LGJ, and the issue here is what comes after someone is found to have infringed on a copyrighted work: damages. Specifically, we're talking about statutory damages, which something a lot of people may not be very familiar with at all.
LGJ: The Anti-Trust Game
by Mark Methenitis { 4 months ago }
Each week Mark Methenitis contributes Law of the Game on Joystiq ("LGJ"), a column on legal issues as they relate to video games:
I've mentioned before that both in the latter years of the previous administration and under the new administration, certain kinds of enforcement actions were increasing in number. Past commentaries in LGJ have focused on trade, but another one of those areas is anti-trust. What got my attention in this regard was a conversation I had the other day with a partner in the firm who has dealt with a number of anti-trust issues. We were discussing the game industry, and he asked what the price range was on games these days. My response was a range, with the caveat that for pretty much all new PS3 and Xbox 360 games, the price was $60. His thought was that had to be on someone's radar screen to investigate, even if there's no actual anti-trust violation going on.
Given the investigative climate, I would tend to agree, though based on what I know in the industry, I don't think there's any actual collusion going on. Instead, we likely have a case of 'conscious parallelism,' which isn't illegal per se, though a government official looking for their "big break" might just take on this case hoping to see a shift in the law from the higher courts. I'm getting well ahead of myself, though, since a better background in anti-trust needs to be set out before getting into the specifics.
Given the investigative climate, I would tend to agree, though based on what I know in the industry, I don't think there's any actual collusion going on. Instead, we likely have a case of 'conscious parallelism,' which isn't illegal per se, though a government official looking for their "big break" might just take on this case hoping to see a shift in the law from the higher courts. I'm getting well ahead of myself, though, since a better background in anti-trust needs to be set out before getting into the specifics.
LGJ: Supreme Court Decision Doesn't Bode Well
by Mark Methenitis { 5 months ago }
Each week Mark Methenitis contributes Law of the Game on Joystiq ("LGJ"), a column on legal issues as they relate to video games:
The recent FCC v. Fox decision seems to have gone relatively unnoticed in the gaming press. Yes, the case at hand was about broadcast media and the FCC, and yes, the makeup of the court is now certain to change since the decision came down. However, neither of these potentially distracting facts should take away from what this decision really is: yet another expansion of the government's censorship power over the public. If there is anything the gaming public should be paying attention to, given the continued anti-game activism, is successful control over other media. And there are really three major concerns that come from this ruling.
First, I want to make it clear what this ruling is not. The ruling is not an actual victory for game opponents. While it makes some suggestions, the precedent can't be directly applied to the game industry at this time. After all, there is no governmental body to control game releases because those releases are not being made over licensed broadcast spectrum. After all, the government only controls TV broadcasts because the government owns the airwaves. More importantly, this ruling is not purely about censorship or the First Amendment. A significant part of this case is administrative law, and for those same reasons, it's not applicable to the game industry.
First, I want to make it clear what this ruling is not. The ruling is not an actual victory for game opponents. While it makes some suggestions, the precedent can't be directly applied to the game industry at this time. After all, there is no governmental body to control game releases because those releases are not being made over licensed broadcast spectrum. After all, the government only controls TV broadcasts because the government owns the airwaves. More importantly, this ruling is not purely about censorship or the First Amendment. A significant part of this case is administrative law, and for those same reasons, it's not applicable to the game industry.
Massively week in review
by Joystiq Staff { 8 months ago }
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10 things I wish I had known before building an MMO Continuing with our countdown to EverQuest's 10th Anniversary, today marks the first of three special articles containing the retrospective thoughts on MMO development from the team that made it so popular. Today's "10 things I wish I had known before building an MMO" starts off with Steve Klug, Lead Programmer for EverQuest. |
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Massively's EVE Online Apocrypha expansion hands-on Massively got word that EVE Online lead game designer Noah Ward, aka CCP Hammerhead, would be in New York City last week. We jumped at the chance to find out more about the Apocrypha expansion, and Ward was kind enough to give us our own hands-on demo while answering our questions about where EVE Online is heading. |
Massively week in review
by Joystiq Staff { 8 months ago }
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Massively's complete coverage of Warhammer Online Patch 1.2 Dwarf Slayers are just about ready to start hitting the live Warhammer Online servers for all their worth. With the orange tide imminent, I've been running around the test server for the past several days, looking to learn all I could about these wonders of Dwarven kind. Including -- but not limited to -- the underlying cogs of their special mechanic, how they handle PvP and PvE, and most importantly where they hide their booze -- here's a hint: it's underneath something. |
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EVE Evolved: Apocrypha expansion preview As March 10th draws ever closer, EVE Online's Apocrypha expansion is coming more and more into focus. Information on the new game mechanics and content is being released in the form of developer blogs and the official expansion page complete with screenshots and artwork is already up. |
LGJ: The Flash game quandry
by Mark Methenitis { 8 months ago }
Each week Mark Methenitis contributes Law of the Game on Joystiq ("LGJ"), a column on legal issues as they relate to video games:
We're all somewhat familiar with the endless stream of Flash games featuring some famous person: Presidential Paintball, Super Obama World, Whack Britney Spears, Paris Hilton Jail Escape, etc. An interesting question was posed to me the other day about these games: Is there a quarrel over the right of publicity related to Flash games? Obviously, retail games featuring certain public figures, such as professional athletes, are paying for the use of those celebrity likenesses. Flash games, however, are positioned much differently, and it's one of the more complex relationships between differing legal theories I've seen in the gaming sphere.
While we've discussed the right of publicity before, it's worth reiterating that the concept is basically the equivalent of a trademark for a famous person's likeness. Think of it like a brand name helping to sell a product. A lot of people will buy a game just because it's made by Nintendo. Similarly, a lot of people might buy a game that appears to be created or endorsed by someone; be that a particular game developer or a celebrity. How many people initially bought Madden Football because of Madden's attachment to it? Probably quite a few. There's certainly a good strategy in using celebrity to sell a product.
We're all somewhat familiar with the endless stream of Flash games featuring some famous person: Presidential Paintball, Super Obama World, Whack Britney Spears, Paris Hilton Jail Escape, etc. An interesting question was posed to me the other day about these games: Is there a quarrel over the right of publicity related to Flash games? Obviously, retail games featuring certain public figures, such as professional athletes, are paying for the use of those celebrity likenesses. Flash games, however, are positioned much differently, and it's one of the more complex relationships between differing legal theories I've seen in the gaming sphere.
While we've discussed the right of publicity before, it's worth reiterating that the concept is basically the equivalent of a trademark for a famous person's likeness. Think of it like a brand name helping to sell a product. A lot of people will buy a game just because it's made by Nintendo. Similarly, a lot of people might buy a game that appears to be created or endorsed by someone; be that a particular game developer or a celebrity. How many people initially bought Madden Football because of Madden's attachment to it? Probably quite a few. There's certainly a good strategy in using celebrity to sell a product.
Massively week in review
by Joystiq Staff { 8 months ago }
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Visualizing Free Realms: An interview with Art Director Rosie Rappaport If you've been following the development of SOE's Free Realms lately, you're probably pretty excited about everything it has to offer. If you haven't been following its development, check out our extensive coverage and exclusive interviews with its developers. Ready for even more exclusive interviews? Good, because just last week Massively sat down with Rosie Rappaport, the Art Director for Free Realms, to chat about the game's distinctive art style and the concept process involved. |
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Massively's pre-launch interview with Runes of Magic With the game set to launch in just about a month from now, we jumped at the chance to have a chat with the folks at Frogster concerning their much-anticipated fantasy MMO. Are they on track with this March launch date? How has beta reaction been so far, and what do they have to say about the growing concern that the game is "nothing more than a cheap WoW clone"? |
Joystiq at the Street Fighter IV Launch Party
by Kevin Kelly { 8 months ago }
For those of you who didn't make it to the Geffen Museum Street Fighter Takeover in downtown Los Angeles, we offer up the gallery below from the event. There were tons of console stations where you could play the game, imported versions of the SFIV Japanese arcade game, a Street Fighter Club rumble pit, a "museum" full of Street Fighter products from over the years, Street Fighter arcade cabinets painted by different artists, plenty of people in costumes, and of course, game producer Ono-san.
LGJ: Jack Thompson's Utah 'game bill'
by Mark Methenitis { 8 months ago }
Each week Mark Methenitis contributes Law of the Game on Joystiq ("LGJ"), a column on legal issues as they relate to video games:
Right on cue, after this week's previous LGJ, Jack Thompson's Utah bill finally made its public appearance. Surprisingly, the bill amounts to only 4 lines of text that will be edited into Utah's existing Truth in Advertising Act, a form of deceptive trade practice regulation. The entire relevant text of the statute is:
So what does this mean for the industry? I believe this bill has far more bark than bite, but it's more complex than a simple analogy. There are some potential consequences for electronic retailers based on this new potential regulation, but it also looks like this provision leaves a number of major loopholes that retailers can take advantage of. As the bill hasn't passed yet, this all may be moot if the Utah legislature opts against the regulation, but it's certainly worth analyzing in the interim.
13-11a-3. Deceptive trade practices enumerated -- Records to be kept -- Defenses.
(1) Deceptive trade practices occur when, in the course of a person's business, vocation, or occupation that person:
(u) (i) advertises that the person will not sell a good or service labeled with an age restriction or recommendation to a person under the age restriction or recommendation; and
(ii) sells that good or service to a person under the age restriction or recommendation.
So what does this mean for the industry? I believe this bill has far more bark than bite, but it's more complex than a simple analogy. There are some potential consequences for electronic retailers based on this new potential regulation, but it also looks like this provision leaves a number of major loopholes that retailers can take advantage of. As the bill hasn't passed yet, this all may be moot if the Utah legislature opts against the regulation, but it's certainly worth analyzing in the interim.
LGJ: More game laws?
by Mark Methenitis { 9 months ago }
Each week Mark Methenitis contributes Law of the Game on Joystiq ("LGJ"), a column on legal issues as they relate to video games:
It's early 2009, we've just elected a new President, and there are quite literally a mountain of problems to be addressed on Capitol Hill. Our economy has been in substantial turmoil for roughly six months, with some problems stretching back for years. Many states are at or near bankruptcy. This economic crisis has, by now, hit every country on the planet to some degree. So, our legislators have spent the last two months rushing to put together proposals to regulate video games. No, no one's undivided attention has been on the economy during this complete mess. Instead, since the start of the year, it seems there has been an explosion of potential new video game regulations, from Jack Thompson's bill in Utah, to New York, to the US Congress, to Australia -- just to name a few. And that's in addition to issues like the FTC's rumblings about DRM, which I've mentioned previously.
While this boom in regulations and potential enforcement may be great news for sites like GamePolitics, it's potentially bad news for game developers and consumers, not to mention the taxpayers who are footing the bill for all of this. Of course, these laws are also coming from a number of different directions and under different theories, so I thought it might be a good time to give a short take on each and predict which directions things could be going.
While this boom in regulations and potential enforcement may be great news for sites like GamePolitics, it's potentially bad news for game developers and consumers, not to mention the taxpayers who are footing the bill for all of this. Of course, these laws are also coming from a number of different directions and under different theories, so I thought it might be a good time to give a short take on each and predict which directions things could be going.
Joystiq interview: Talking Uncharted 2 with Naughty Dog's Evan Wells
by Kevin Kelly { 9 months ago }
When he wasn't busy showing us the best way to get Nathan Drake killed, Naughty Dog co-president Evan Wells was patiently listening to our questions about facial hair, multiplayer plans and the adventurer's latest female companion.Thankfully, he answered everything we lobbed at him (without lobbing any physical objects back). Read on after the break to find out what other secrets Uncharted 2: Among Thieves has to offer.
LGJ: FTC could target EULAs
by Mark Methenitis { 9 months ago }
Each week Mark Methenitis contributes Law of the Game on Joystiq ("LGJ"), a column on legal issues as they relate to video games:
A few weeks back, I mentioned that the FTC was looking into regulating DRM. Well, in part on some discussions at the Game::Business::Law Conference, I have a sneaking suspicion that the FTC likely won't stop with DRM. In fact, I would be willing to guess that within the next few years, the often maligned End User License Agreement ("EULA") may fall into the realm of being regulated as further "consumer protection." Is it necessary? Well, that's a matter of opinion, really. The only certainty is that it will be able to bring in additional revenue for the government, which is certainly short on cash these days.
If the FTC opts to regulate EULAs, I see three probable scenarios to accomplish its goal. Before I get ahead of myself, I should describe what the theoretical goal of consumer protection is: to prevent companies from taking advantage of consumers. Generally, though, it isn't necessarily the average consumer who's seeing the greatest benefit from the regulations. Often it's the most uneducated consumer, which usually means the regulations tone things down to a level of near absurdity.
If the FTC opts to regulate EULAs, I see three probable scenarios to accomplish its goal. Before I get ahead of myself, I should describe what the theoretical goal of consumer protection is: to prevent companies from taking advantage of consumers. Generally, though, it isn't necessarily the average consumer who's seeing the greatest benefit from the regulations. Often it's the most uneducated consumer, which usually means the regulations tone things down to a level of near absurdity.
