The intersection between law and video games is one that’s both interesting and dynamic. It’s a fascinating crossroad of intellectual property, and unless you have attended law school you probably won’t understand all the minute details that go into it. Paul Bruene works at a large law firm in the Seattle area and while in law school advised students in USC’s video game development program on copyright issues related to their games. Paul is a lifelong video game lover and an attorney, making him a perfect person to ask about all those legal questions related to our favorite games and developers
First, what’s your favorite video game that you think deserves more attention?
I’m a big fan of the Fire Emblem series of tactics games, especially the three (6-8) that came out for the Game Boy Advance. Fire Emblem 7 is my favorite, it was the first one released in North America and was titled just “Fire Emblem,” though it has a Japanese subtitle usually translated “Blazing Blade.”
What makes video game law unique compared to other intellectual property?
Video games, especially modern video games, are alive in a way that’s pretty unique. Almost every major game (and a lot of minor ones too) has all sorts of content that comes after the game is officially released–DLC, loot boxes, expansions, patches, etc. What actually constitutes the IP is always changing. Plus there’s online play, e-sports, mobile gaming, and a host of other parts of the industry that make it really dynamic.
Much of videogames are built on the back of each other whether artistically, mechanically or by genre, does this make trademarking an intellectual property harder for the video game industry?
It’s not really an issue for trademark protection (though it definitely is for copyright). Trademark law protects brand identity, both companies and products. So, for example, Nintendo is a trademark, as is the name “The Legend of Zelda.” There are a few exceptions (like use of real-world brands within virtual worlds), but for the most part trademark law in the video game industry is much the same as any other entertainment industry. Are you using a name to identify your company or as a brand name that you use to market games? If so, chances are you can protect that under trademark law (assuming no one else is using the name, of course)
Unlike other entertainment industries, video games have thousands and thousands of amateur games created and published all around the internet, sometimes on the same platforms as triple A developers. Does this huge amount of content affect video game law?
It can be, especially given the ease with which someone can steal elements from a game and make a quickie ripoff. This is especially an issue in the mobile space, where a lot of developers have had a devil of a time stamping out cheap fake versions of games that use a few visual or audio elements from something more famous. It can be like playing whack-a-mole.
Many large game companies hire in-house lawyers, what would that role look like for a major game developer?
Most in-house lawyers at video game companies would be no different from lawyers at any large company–there would be some that deal with labor issues like drafting employment agreements, some that manage the contracts the company enters into (especially any time they outsource work to an independent contractor), some that deal with the company’s finances, that sort of thing. But a video game company of any size is probably going to want to have a lawyer or two on staff with familiarity with copyright law, especially in an international context. That lawyer (or lawyers) would spend a lot of time making sure that all of the game’s releases were protect-able under the laws of every country that the game is going to be released in
Multiplayer games will often have guest appearances from other companies and intellectual properties (Solid Snake in Super Smash Bros Brawl, or Spawn in Soul Calibur 2) what behind the scenes legal work has to happen for this to become a reality?
I haven’t seen any such agreements firsthand, but what almost certainly happens is that the two companies will enter into a licensing agreement. The owner of, say, Spawn will agree (in writing! Lots of writing) that Namco can use Spawn in Soul Calibur. There may or may not be money involved, but there almost certainly will be lots of conditions and requirements. For example (and again I don’t know for sure that any of these actually are in the agreement), Namco would only be able to use Spawn for the specific purposes agreed to, and they can’t just make a whole Spawn video game, at least not without another license. And that one would definitely involve money changing hands. There might also be limitations on how Spawn is depicted–Spawn’s brand is edgy and cool, and I wouldn’t be surprised if his IP owners would prevent Namco from, say, having an alternative costume of Spawn wearing a frilly tutu.
When third party developers create a game for a bigger company, what if any intellectual property do the third parties own?
Sorry to give you a very lawyer-y answer, but it really depends on what the agreement between the two companies is (and that agreement, to go back to an earlier question, is a great example of what an in-house lawyer would help with). It could be a work-for-hire agreement, where once the developer is done they essentially own nothing, including sometimes the very basic code or assets (say, water graphics) they made for the game. Or it could be more of a distribution agreement, where the developer keeps everything and the bigger company basically just markets and sells the game in return for a percentage of revenues (in that case, a trademark licensing agreement is important–the big company needs the right to use the game’s name in marketing materials). It really depends.
If you could have any video game company as a client, who would you want to work with?
Nice try, you’re not going to trick me into insulting other companies by naming just one. I will say the esports scene presents some really fascinating legal issues, like how much control the game owner gets to have over players. And how will antitrust law apply to video game companies, who arguably have (through copyright) something of a monopoly over use of their game competitively? The NFL doesn’t have a copyright over football, but Riot does over League of Legends. I’d love to work on some esports cases.