Browse by title
Edited by Gaetano Dimita, Jon Festinger and Marc Mimler
Ross Dannenberg and Josh Davenport
Video game litigation in the United States is neither new nor infrequent, and video game developers can learn valuable lessons from cases won, and lost, by others before them. This article examines the evolution of United States intellectual property law from historically narrow roots to classifying video games as an art form deserving broad free speech protection. This article examines seminal cases in a variety of IP areas, including not only copyrights, but also reverse engineering, derivative works, patents, trademarks, rights of publicity, the Digital Millennium Copyright Act, contracts, and freedom of speech. These cases explore the factual and legal limits of American jurisprudence in video game law, including how one's own expression can be limited by the rights of others, permissible and fair use and of others' IP, and the impact these cases have had in the industry. As video games have leveled up into a multi-billion dollar industry, the law has leveled up, too, and this article is the primer you need to level up with it.
As virtual reality (VR) products increase in popularity, stakeholders in the games industry wanting to promote their VR products, or to leverage VR technology for advertising more generally, need to be aware of the most common legal and regulatory pitfalls, particularly as this is an area in which advertising and consumer protection regulators are likely to take a keen interest. Meanwhile, the regulators themselves will also have to be agile. They face the challenge of having to apply laws and self-regulatory codes which were not drafted with VR technology in mind to new situations, in a fair and rational manner which does not expose them to the risk of judicial review.
Emil Albihn Henriksson
Virtual reality technologies necessitate the collection and processing of more – and more intimate – personal data than other media. This gives rise to some particular considerations under data protection regulations and not least the EU General Data Protection Regulation. The aim of this article is to explore these characteristics particular to VR and to identify some of the issues that these might give rise to under the GDPR.
Edited by Gaetano Dimita, Jon Festinger and Marc Mimler
Scott M. Kelly and Kirk A. Sigmon
The eSports industry has exploded, in no small part due to the ease with which exciting matches may be watched. Many modern video games stream game user inputs to viewers, rather than bandwidth-intensive video. These game input streams can be used by the viewers’ game clients to perfectly reproduce a match in real-time. In World Chess U.S. v. Chessgames Services, a U.S. District Court held that allegedly pilfered chess game moves, as facts, were neither subject to copyright protection nor eligible for ‘hot news’ misappropriation. But might video game input streams (as facts, per the World Chess court) nonetheless be eligible for copyright protection to the extent that the input data corresponds to a copyright-eligible game performance? After all, input streams are significantly more granular and exacting than mere chess game moves: they capture millisecond-by-millisecond input and effectuate perfect reproducibility of gameplay, rather than a mere description thereof. This article explores the copyright issues under U.S. law presented by live streaming of video game inputs and proposes that video game input streams are, to the extent that they are usable to perfectly generate a faithful recreation of a gameplay performance, copyright-eligible and owned by the player of the game.
Kian Hsia and Thijs van den Heuvel
Last year the District Court of Amsterdam ruled that using the portrait of former Dutch soccer player Edgar Davids in the online video game ‘League of Legends’ is unlawful towards Edgar Davids. On the occasion of the World Cup 2014, Riot Games, the developer of the League of Legends, introduced four additional character skins that could be purchased by gamers. For the character ‘Lucian’, gamers could purchase the ‘Striker’ skin, and the Court first considered that Striker Lucian is a portrait of Edgard Davids. Furthermore, the Court considered that Edgar Davids has a reasonable interest to oppose the commercial exploitation of his portrait. The Court concluded that Striker Lucian is a portrait of Edgar Davids and Riot Games is acting unlawfully by disclosing Striker Lucian in the Netherlands. Besides, granting a declaratory decision and injunction, Riot Games was ordered to pay damages.
Andreas Lober, Susanne Klein and Florian Groothuis
The 2012 UsedSoft decision of the Court of Justice of the European Union (‘ECJ’) disrupted the digital distribution of computer programs. Since then, unauthorised sellers of product and game keys often try to utilise the UsedSoft ruling and its principles to justify the resale of key codes. Against this background, we will review the new developments in this area, taking into account recent court decisions in Germany, which are based on European Directives. Furthermore, the impact of the UsedSoft decision on the gaming sector, where game keys are often distributed in digital form only, will be examined. Since the ECJ in its Nintendo decision and the German Federal Supreme Court ‘BGH’) in its World of Warcraft I decision both considered video games to be hybrid products, we will discuss whether and to what extent the Software Directive 2009/24/EC and the InfoSoc Directive 2001/29/EC are applicable. We then apply the findings to the distribution models used in the gaming sector and examine their legality.
Yolanda M. King
In the past several years, a number of tattoo artists and one of their exclusive licensees have filed lawsuits against a variety of businesses for copyright infringement of their tattoos. However, none of these lawsuits have gone to trial. This case review examines a pending tattoo copyright lawsuit filed against a video game maker in 2016, Solid Oak Sketches, LLC v. 2K Games et al, and mentions another more recently filed lawsuit against the same video game maker, Hayden v. 2K Games, Inc. et al.
Sebastian Schwiddessen and Philipp Karius
So called loot boxes are one of the most important monetization methods for many companies in the video gaming, social gaming and social casino gaming industry. After the global skin betting scandal in 2016 and the 2017 loot-box uproar, loot boxes are now under investigation or even subject to legislative measures in several jurisdictions. Since then, numerous regulatory authorities, politicians and other stake holders have issued statements on the matter. From a legal perspective, loot boxes can touch gambling, youth protection, consumer and even financial laws. Characteristic of the 2017 loot-box debate was a black or white view and people taking extreme positions. In particular, gamers and people not familiar with the subject tend to condemn loot boxes as gambling. However, taking a closer look at selected key jurisdictions shows that the application of gambling laws depends on the jurisdiction and on the exact set up of the loot box mechanism. Furthermore, some questions are not conclusively solved yet – not even in those jurisdictions which are regarded as loot-box safe havens. One of these questions is, for instance, the impact of secondary-market trading of loot-box-generated items. This article evaluates the legal situation of loot boxes from a gambling law perspective in selected jurisdictions.