Category: Intellectual Property Law

Chicago Video Game Law Summit 2016 (CVGLS ’16)

I had the honor of being a speaker on two of the panels at CVGLS 2016, and as always (well, they’re two for two) it was a great time and I met a lot of cool people. First, congrats to Ross (@loadinglaw) and Suzanne (@zedthegamer) for organizing another great summit. Thanks for inviting me and I hope we do it again soon!

To briefly review the panels:

The Changing Scene of eSports

I was on this panel, so it was great. You can find the written materials I referred to several times at this link: MarcWhippleCVGlS2016

Thanks to my fellow speakers Jason Greenglass, Ryan Morrison, and Lydia Picknell. I covered the basics of gambling law in the US and talked about just a few ways you could run afoul of them when developing video games, and why the Daily Fantasy Sports operations like FanDuel and DraftKings were kicking up a lot of dirt that might land on us. Jason and Ryan talked about the legal aspects of eSports, player contracts, et cetera, and Lydia talked about them from the perspective of a player/coach/owner. (Yes, she’s a female eSports team coach and owner. Fear her!) We had a lot of fun and everybody seemed to enjoy it very much.

Recent Developments in Video Game Law

I was on this panel, so it was great. 🙂

I was on this panel with Greg Boyd (who also moderated, to the extent we let him,) Patrick Sweeney, and Ryan Morrison, again. (Ryan and I were on stage literally all morning and people still stayed!) We covered the basics of intellectual property law, always a hot topic in video game development, as well as advertising and other matters of current interest. We also got into crowdfunding a little bit – just enough to reveal that it is fraught with peril, especially if you want to give backers equity or a right to some of the revenue stream, so you really, really need a lawyer!

Privacy, Harassment, and Free Speech in Video Games

I was not on this panel, but it was still pretty good. 🙂

While this panel covered a lot of important issues, it focused on the problem of harassment in the video gaming world. Lydia told some powerful stories about the things she’d encountered as an eSports professional. Sadly, a lot of the really excellent questions more or less boiled down to, “How can we use the law to make people nicer?” To which the legal answer is ultimately, “We can’t.”

Video Games and the Right of Publicity

I was not on this panel, but it was still pretty good. 🙂

This was probably the legal-iest of the panels, with lots of actual case law and real-world examples of using other people’s likenesses (not just their faces – their names, their voices, you name it) and the trouble it can cause. “Don’t, unless you’ve talked to a lawyer,” was probably the takeaway from this panel.

The History of the Video Game Industry in Chicago

I was not on this panel, but it was still interesting. 🙂

While I won’t try to recount the stories, I will point out something that was said multiple times. One of the developers worked for Bally when they were making arcade games – the typical dev time was a few months! It was very much a pipeline process: electrical engineers and the first game artists would come up with a game, program it, make master copies, and then it went to the assembly line for mass production. What he said was, “If you didn’t finish your game on time, people got laid off.”

That’s still an important concept for developers to keep in mind: the publishers have marketing slots. If you don’t finish your game on time, they lose the slot. Somebody else gets the spot on the shelf or the promoted marketing page on Amazon/Steam/etc. It’s not a question of whether your game is good or it sells: those are equally important but different questions. You have to finish on time or somebody who was going to try to sell your game has no product. That’s never good. If you finish on time and give them the product, you make their lives a lot more pleasant. Even if the game isn’t great (so long as it doesn’t suck) that’s worth a lot for next time. Relationships and reputation are still important, even as assembly lines lose their importance in the world of gaming.

Thanks for reading, and see you next year!

Wow, MAGFEST!

I attended MAGFEST 2016 in National Harbor, MD (just outside Washington, DC) this weekend. MAGFEST is a major computer game conference with an emphasis on music and creativity. And wow was there a lot of creativity on display!

I was there as an invited panelist. My presentation, entitled “Third Party Trademarks vs. Your Game, Your Dreams, and Your Money,” was part of the MAGES Legal sequence, and given in collaboration with three great attorneys from well-known law firm Banner & Witcoff. It was an honor to be up there with them. If you’d like to see the materials from my presentation, I’ll have a link here in a day or so, or follow me on Twitter and wait for me to post the link. 🙂

First, heartfelt and grateful thanks to:

Sam Castree of Crawford Intellectual Property Law, for the invite, the Legal panels, logistics, and candy from Russia. Sam, you are aces.

Tasker, Jax and their merry band of LARPers, whose games were fantastic and a great way to enjoy the festival if your ears aren’t quite up to some of the… louder stuff. Brilliant, creative, and engaging people. This is the kind of thing I hope to encourage by assisting creators in dealing with business and legal matters.

The doctor of psychology at the Gaming and Immersion panel whose name, shamefully, I forgot to note, for being open minded to my alternate theories on the psychology of game immersion and loss of self.

My fellow presenters Steve Chang, Ross Dannenberg, and Scott Kelly. I really enjoyed collaborating with lawyers of their caliber, and dinner was great fun.

And the MAGFEST staff for their hard work, friendliness, and overall ability to make 20K gamers behave themselves!

Here are my thoughts on the panels I attended:

The other MAGES Legal Panels – They were all great. You should be very confident in hiring any attorney who presented. Special shout-out to Suzanne Jackiw (@zedthegamer) and Ross Hersemann (@loadinglaw) for being young lawyers with mature advice!

What Games Get Right and Wrong About Reality: Expert’s Perspectives – This was really interesting. The experts knew their stuff and were very personable. Lot of good observations and thoughts on how to do better.

Bootlegs, Counterfeits, and Lies: Fakes In the Video Game Market – Went to this on a whim. Though it was a bit chaotic, the panelists knew their stuff and I learned interesting things. They also responded with good humor when they learned that they had two IP lawyers in the audience. 🙂

The Worst Panel You Will Ever See at MAGFEST – Exactly what it said on the tin. At least for me: it was apparently aimed at long-time MAGFEST insiders/volunteers. Even for them it seemed rather random, chaotic, and obnoxious. I left early.

Video Game Industry Real Talk – I was blown away by how good this panel was. Though young, the panelists were the real deal, knowledgeable and honest about both their successes and their failures. They were having fun, but they were laying it down. If the hopeful indies in the audience were paying attention, they got their money’s worth.

Therapy and Tabletop Role Playing Games – This had a lot of potential, but to be brutally honest the panelists lost control. At one point, an audience member went up on stage and started plugging her book. Now, I’m pretty sure she (and many of the other people who co-opted the talk) had legitimate issues of their own, but it was hard to stay engaged when half the panel was audience members meandering through their ill-defined rambles. The panelists did have some interesting points when they managed to get in a few words.

Therapy and Gaming -Same people put this on as did the prior one. Same objections, plus it seemed a bit redundant. Left a few minutes in.

Brains & Games: Designing Videogames that Incorporate Mental Health and Human Experience – Enjoyed this. This panel had a similar demographic to the prior two, but the panelists maintained control. Good information on using games to implement self-improvement and mental health assistance programs, including a CBT reinforcement game and games to help with grief management.

LARPs by (among others?) Damocles Thread Development – The ones I did were the Fallout “Vault 71” game, the “Not Shady, Just Fierce” werewolf social game, the Witcher “From Novigrad with Love” game, and the “Gaudete Sunday” Victorian Tea Party game. (Best quote: “I did not anticipate that this game would need combat mechanics.”) They. Were. Amazing. I had so much fun. And extra kudos to the storytellers for dealing with huge turnouts as well as anyone could be asked. Even with the crowds things happened, people participated, and a good time was had by all. If you see DTD putting on LARPs at an event, GO.

The Mind’s Eye: Gaming and the Role of Immersion – The moderator lost control of this one, and didn’t seem willing to stop the endless tide of look-how-smart-I-am questions or just outright I’m-just-going-to-pontificate-for-a-whiles. That being said, it was a fascinating subject and the panelists were extremely knowledgable and insightful. Very glad I attended despite the runaway parts.

That’s it! Thanks for reading, and see you next year!

I’ll be at MAGFest in February!

I’ll be giving a panel talk on “Third-Party Trademarks in Video Games.” In other words, if you want to put a Coca-Cola® sign on the street in your game world, can you? Should you? How should you do it if you want to, can, and should? I’ll be at the conference all weekend and am always glad to talk law, technology, pop culture, or the random topic of your choice.

Yay, Taylor Swift! Boo, Taylor Swift! (On the Value of Artist’s Works)

UPDATE: Ms. Swift’s management companies have changed the photography contract significantly. It’s a huge step in the right direction and I applaud them for it. See this article for details:

http://petapixel.com/2015/07/22/taylor-swifts-concert-photo-contract-changed-to-be-more-photographer-friendly/

That being said, this argument still applies to venue and event photography generally, so I’m keeping it up.

(NOTE: This article contains quoted statements, allegations, and documents made and/or provided by third parties. While to the author’s knowledge and belief everything in it is reasonably accurate, no representation is made as to the validity of facts and allegations set forth herein other than those constituting the opinions and assertions of the author. While the author is an attorney, nothing herein should be viewed as legal advice and the reader is advised to obtain their own licensed and qualified counsel before making legal decisions.)

It has recently been in the news that extraordinarily successful recording artist Taylor Swift called out Apple Music for planning to give away access to trial subscribers to free for three months… and not to pay the artists whose music they’d be using for customer acquisition any royalties on what trial members listened to during the trial. Here’s a link to her original open letter to Apple:

http://taylorswift.tumblr.com/post/122071902085/to-apple-love-taylor

For this, she is to be wholeheartedly commended. While she is, as noted, an extraordinarily successful recording artist, she’s still just one person, and she has to answer to her label, etc, for potentially angering the most influential single entity in music distribution today. This action was not without significant risk on her part. But she did it, and she won: Apple soon announced that it would pay artists royalties as appropriate. So everybody was happy.

*cue ominous music*

Until…

Continue reading Yay, Taylor Swift! Boo, Taylor Swift! (On the Value of Artist’s Works)

A Tangent-Free Checklist For Electronically Copyrighting Ebooks.

NOTE: I am an attorney, but nothing in this article should be read as specific legal advice. While the information in this article is accurate to the best of the author’s knowledge and belief at the time of publication, laws and regulations change frequently and individual circumstances vary. Please consult an attorney licensed in your jurisdiction and familiar with the relevant law before making legal decisions.

There are many articles and books on how to file copyright registrations. However, most of them seem to go into a lot of unnecessary depth and/or off on extended explanatory or historical tangents. Which is understandable: Copyright law is pretty complicated, and it’s also very interesting to the sort of person who writes such books and articles. I am the king of unnecessary depth and going off on tangents, and I am casting no aspersions.

But, I thought it might be nice to have a really simple, streamlined checklist for copyrighting an e-book comprising original authorship. So here it is. If you follow these steps, you should be able to easily file a copyright registration for a single work of written fiction or nonfiction written solely by you.

Do not use this list for ANYTHING other than a single work of written fiction or nonfiction written solely by you! (Scripts, by the way, are not works of written fiction or nonfiction for purposes of the copyright law – they are “dramatic works.” If you’re registering a script, this list is not appropriate.) Also, if the work has previously been published in print or in some other work, you should not use this list.

All caveats herein notwithstanding, the Copyright Office’s website is reasonably easy to use, and a person of reasonable intelligence can most likely figure out how to register most kinds of works with the instructions on the site and possibly a little Googling. I am not trying to dissuade such persons. I am only saying that the second you diverge from the parameters I set forth, you can no longer just follow the steps below as I lay them out.

Okay, here we go!

Continue reading A Tangent-Free Checklist For Electronically Copyrighting Ebooks.