The Space Quest Historian, a gaming commentator and streamer with a particular interest in the famous “Space Quest” game franchise, asked me for some comments related to Activision’s ownership and activities in relation to it. I sent him an email discussing the matter generally and he was nice enough to use it in a video. It’s at the bottom of this post.
A few comments:
- This is a great video and he got almost everything right. The parts he was a little iffy on we’ll blame on the lawyer who made them too complicated. 🙂
- I want to make one thing absolutely clear. I am not affiliated with Activision, Sierra On-Line, Codemasters, or Assemble Entertainment. I do not and have never represented any of them or any of the other parties involved in the Leisure Suit Larry franchise. (I have represented parties in dealings with one or more of those entities, and I have nothing bad to say about any of them in that context.) I do NOT know what the licensing/ownership status of the Leisure Suit Larry franchise or any particular part of it is. My hypotheticals were just that – hypothetical. I don’t think SQH said otherwise, but it might not be absolutely clear that this was just me speculating
- His opinion on Activision’s moral and ethical considerations in how they handle the various Sierra On-Line properties is just that – his opinion. I am neither agreeing nor disagreeing with it in any particular way, although obviously as an attorney for content creators and rightsholders I have a different perspective.
Anyway, he’s a funny guy and this is an incredibly well-edited video, including projecting relevant bits of my email at the right times. If you’re interested in that sort of thing, this is the sort of thing that will interest you.
(Note: A little NSFW language.)
(This post was originally written for Ron Coleman’s Likelihood of Confusion blog. Please note that while the author is a licensed and experienced attorney, nothing in this post constitutes specific legal advice. It is provided for general educational purposes only. The author has made an offer of pro bono consultation related to the subject matter of this post. This may be considered ATTORNEY ADVERTISING in some jurisdictions.)
If you are into vintage video games, you probably know about “ROM Sites.” ROM sites are websites where you can download the ROM (Read Only Memory) code for classic cartridge or board-level games, such as Nintendo Entertainment System cartridges or arcade cabinet games like “Spy Hunter.” They’re not really different in kind from websites or torrents where you can download more modern software which was available on disk or CD-ROM. They’re just a little more arcane because you have to not only download the ROM code (which has been “ripped,” or copied from the ROM chips to a computer hard drive) but download and run “emulator” software, which allows your modern PC to run code written for much, much older hardware. It’s entirely doable, but requires a little effort and tech know-how.
Recently, Nintendo sued one of the better known ROM sites, loveroms.com, and won a 12 million dollar judgment against them for copyright infringement. Here’s a copy of what was the front page of loveroms.com from the complaint:
Here’s what’s on the loveroms.com front page now:
Apology to Nintendo
Our website, LoveROMS.com/LoveRetro.co, previously offered and performed unauthorized copies of Nintendo games, in violation of Nintendo’s copyrights and trademarks. LoveROMS.com/LoveRetro.co acknowledges that it caused harm to Nintendo, its partners, and customers by offering infringing copies of Nintendo games and has agreed to cease all such activities. To access legitimate Nintendo games online, please visit www.nintendo.com for information about the Nintendo Game Store.
A very sharp young lawyer (well, she’s waiting for her bar results but I have confidence) who goes by LadyLawTM on the Internet invited me to speak on a panel she wanted to do on lootboxes, games, and gambling at TwitchCon this year. I like talking, I like cons, and I Have Opinions, so of course I said yes. It was this past weekend and I thought I’d just share a few of the highlights with you. 🙂
Note: There is a list of all the streamers I met (and whose gamertags I got) at the bottom of this entry. Please check them out! If I missed you, so sorry, please comment and I’ll add you.
First, I am happy to report that our panel was a smashing success. The description is here, and here’s a VOD of our panel!
The USPTO has retracted its approval to publish and issued a rejection based on failure to function as a trademark. This is pretty much the worst thing that can happen to a trademark registration application. It means the mark can’t be registered even on the Supplemental Register or become a potentially registerable mark if it acquires secondary meaning/acquired distinctiveness. The only way to get around this type of rejection is to argue that the finding of failure to function is wrong, and that is not easy to do. Unless the applicant is spoiling for a long, difficult, and expensive fight, the registration application is probably dead.
Back in June, MSE Media, LLC, the management company (I assume) for the rights of bestselling author Michael Scott Earle, filed a trademark registration application for the word mark DRAGON SLAYER. You can see the filing information here:
At the time, there was some controversy, as the author community (especially the Internet/Indie author community) was on High Alert for trademark shenanigans following the “COCKY” word mark lawsuit. However, due to the way trademark registration works, there were a limited number of things that third parties could do at that point. I’ll explain briefly, and then discuss the particulars of the DRAGON SLAYER filing.
Trademarks, as trademark expert Ed Timberlake (of @timberlakelaw and Timberlake Law) is fond of pointing out, are not actually “granted” or “awarded” or “given” by the United States Patent and Trademark Office (USPTO) or its equivalent agencies in other countries. Trademarks are, essentially, earned. And the way you earn them is by forming an association in the minds of consumers between your product or service, and the trademark. (We usually refer to them collectively as trademarks, although linguistically it’s more correct to call the ones associated with a service “service marks.”) Once that happens, the law in most countries automatically starts to protect consumers by proscribing use of the mark by other people in ways that could create a likelihood of confusion in the marketplace.
A few weeks ago I wrote a blog post on corporate entities, including General Partnerships and Limited Partnerships. Here’s what I said about General Partnerships, which I’m going to expand on in this post:
The first thing I should point out is that if you start working with other people, and don’t pick a legal entity, in many cases, the state will pick one for you. And to quote my colleague @indiegamelawyer, it will usually pick the worst possible one. Namely, a general partnership.
A general partnership is the oldest form of legal entity. Once two or more people start engaging in a common business enterprise they can form a general partnership without even realizing it – it happens by operation of law in many jurisdictions. (Alternately, you can formally create one by entering into a partnership agreement.) Basically, everyone participating is a general partner, usually able to contract on behalf of the partnership, usually having an equal right to manage the partnership, and usually liable for all debts incurred by the partnership. The takeaway here is that if you’re going to go into business with someone, you need to form an entity deliberately or you may very well enter into a general partnership without even knowing it and without any control over the form of the partnership.
NOTE: Formally created General Partnerships are usually identified by the word “Partners” or “Partnership” in their names. They are governed either by the law of the state where they form, or by their Partnership Agreements. They are owned and operated by Partners.
Now, what I want to call your attention to in particular is the text in bold in the above quote. “By operation of law” means that the law says when the conditions are met, the partnership forms, will ye, nil ye. You can’t stop it, and you don’t have to do anything other than meet the conditions. What those conditions are will vary by jurisdiction, but in many US states it’s either a part of the common law or the principle has been transferred into a statute (a law passed by a legislature) which works pretty much the same way.