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How to Stop Game Cloning

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This video blog series features legal insights and strategies for social media and game companies, presented by Jim Gatto, leader of Pillsbury's Social Media & Games team. This four part video series brings a fresh perspective on intellectual property in social media, social and online gaming, gamification, virtual currency, gamblification and more.

Watch the video here:

Thank you for watching the video. For a copy of the transcript, click here.


Around the Virtual World: May 13-17, 2013

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A weekly wrap up of interesting news about virtual worlds, virtual goods and other social media.

 

 

 

What's the Matter With Zynga?
This was supposed to be a story about a guy building a highly anticipated mobile game. Instead, it's a story about a multi-billion-dollar Internet company that is almost certainly headed for disaster.

Video game maker drops gun makers, not their guns
In the midst of the bitter national debate on gun violence, gun manufacturers and videogame makers are delicately navigating one of the more peculiar relationships in American business.

Atari Asks For More Time To Assemble Asset Sale
Atari Inc. sought an extra 90 days to put together a Chapter 11 plan without the threat of rival plans being submitted, saying it needs more time to put together a sale of its well-known brands and intellectual property.

Nintendo Scores Fed. Circ. Win In Wii Controller IP Row
The Federal Circuit Monday that Nintendo Co. Ltd.'s imported Wii video system did not infringe Motiva LLC's wireless controller patents, saying Motiva's failure to commercialize its patented technology had nothing to do with Nintendo's subsequent presence in the market.

High Court Seeks SG's Opinion in 'Rock Band' IP Row
The U.S. Supreme Court asked the Obama administration to weigh in on whether the Federal Circuit applied too inflexible a standard when it reversed a finding of inequitable conduct against a patent holder suing Electronics Arts Inc. and others over the "Rock Band" video game.

Homeland Security cuts off Dwolla bitcoin transfers
Immigration and Customs Enforcement confirms an "ongoing investigation" that led to Dwolla cutting off bitcoin transfers to Mt. Gox.

 

Game Business & Legal Affairs Conference

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VGBA.pngSean F. Kane will be a featured panelist at the upcoming Video Game Bar Association's inaugural Game Business & Legal Affairs conference. The conference will provide an in-depth analysis of the prevalent and pertinent legal and business issues within the video game industry.

Sean will be serving as a panelist during the "Adventures in Finance" session which will take place on Tuesday, May 21st at 9:00am.  Working capital drives development, and this panel looks at the finance landscape, including new trends and legal details for crowdfunding, raising venture capital, structure of exits, and where tax credits for development and research can be maximized across an organization.

The panel will include the following:

 

MODERATOR

Steve Goldstein, Chair, Interactive Entertainment and Video Games Practice at Stubbs Alderton & Markiles

 

PANELISTS

Justin Bailey, VP of Business Development at Double Fine Productions

Sean F. Kane, Attorney at Pillsbury Winthrop Shaw Pittman

Mark Stevens, Partner at Fenwick & West

Around the Virtual World - January 28 - February 1, 2013

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A weekly wrap up of interesting news about virtual worlds, virtual goods and other social media.

 

 

Kabam Hits Profitability in 2012 on Revenue of $180 Million
Kabam doesn't have to report earnings since it's privately held, but that didn't stop it from saying today that it was profitable last year on gross revenue of $180 million.

Maryland attorney general launches Internet Privacy Unit
The Maryland attorney general's office on Monday launched a new Internet Privacy Unit designed to address the problem of privacy in the Internet age and to update "gaps" in companies' online privacy policies.

iOS games earn 3.5 times the revenue of Android games in Q4
Even though Android app revenue grew much faster in the last quarter of 2012 than iOS app revenue, iOS apps still earned over three and a half times the amount that Android apps brought in, according to App Annie's Index.

Axl Rose's 'Guitar Hero' Suit Too Late, Judge Rules
A California judge Thursday tentatively dismissed the remainder of Guns N' Roses frontman Axl Rose's $20 million lawsuit accusing Activision Blizzard Inc. of tricking him into licensing a song for the video game "Guitar Hero III," ruling that Rose's claims were time-barred.

Scratch-Off Maker Drops $1.5B For Video Gaming Co.
Instant lottery leader Scientific Games Corp. has inked a $1.5 billion deal to combine its scratch-off and electronic gaming empire with WMS Industries Inc.'s video gambling operation, the buyer announced on Thursday.

Around the Virtual World - November 26-30, 2012

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A weekly wrap up of interesting news about virtual worlds, virtual goods and other social media.

 

 

Social Casino Games Market Now Worth $1.6 Billion
The social gaming market is moving fast, as more companies take advantage of the growing online phenomenon. According to a new study by internet games research firm SuperData, the global social casino games market will reach $1.6bn in 2012 and grow to $2.4bn by 2015.

Nintendo's Wii, 3DS Targeted in Texas Patent Suit
Nintendo Co. Ltd. was sued Friday by a Texas company that claims the Japanese-gaming giant's Wii and 3DS gaming systems infringe one of its patents.

USPTO Head Defends Software Patents Amid Smartphone Wars
Patents on software are vital to the American economy and calls to abolish them are wrong,
U.S. Patent and Trademark Office Director David Kappos said in a speech Tuesday that also belittled claims that the smartphone wars show the patent system is broken.

Buy Virtual Goods in Zynga Games, Give Non-Virtual Money to Charity
Buying a $1 virtual horse for your virtual farm in FarmVille or a $15 tower for your castle in CastleVille might go farther than you think for the next couple of weeks. Those virtual goods are being turned into tangible cash -- cash that Zynga will be donating to Toys for Tots.

 

Around the Virtual World - November 12-16, 2012

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A weekly wrap up of interesting news about virtual worlds, virtual goods and other social media.

 

 

 

Beyonce Still Can't Nix Video Game Suit, Appeals Court Says
A New York intermediate appeals court on Thursday affirmed a lower court ruling that pop singer Beyonce could not nix a suit alleging she violated a contract by abruptly pulling the plug on a multimillion-dollar video game development deal.

Video Game Co.'s Award Doubled To Over $9M In IP Battle
A North Carolina federal judge on Wednesday more than doubled a $4.5 million jury award Epic Games Inc. won against another video game developer, finding Silicon Knights Inc. deliberately copied code for Epic's game engine and then initiated "a prolonged coverup."

Consumers find social media increasingly trustworthy
In line with ING's ambition to be at the forefront of developments in social media, ING is today presenting the study 'Impact of social media 2012 (#SMING12)' based on a survey among 1,500 Dutch consumers. The survey shows that consumers find social media increasingly trustworthy. 65% said they find the information posted on online media to be trustworthy. 40% of consumers find posts made on social media to be trustworthy.

HoneyBaked Granted Social Media Discovery in EEOC Suit
A magistrate judge in Colorado has granted HoneyBaked Ham Co.'s request for discovery of social media accounts, text messages and emails of a class of women in the U.S. Equal Employment Opportunity Commission's' sexual harassment suit against the company.

Around the Virtual World - October 15-19, 2012

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A weekly wrap up of interesting news about virtual worlds, virtual goods and other social media.

 

 

Video game tax break makes Quebec an industry hub
Sixteen years after Quebec's government made a conscious decision to make the province a hub for multimedia firms and put up the money to stoke their growth, the effort has spawned a thriving industry of about 50 companies publishing video games and 30 others making the tools that support them. Total employment in the sector tops 8,000 workers.

Zynga Claims Ex-Staff Member Took Trade Secrets to Rival
Online game developer Zynga Inc. on Friday went after a former manager in California court, accusing its onetime employee of breaching a contract by defecting to a competitor with valuable trade secrets concerning Zynga's product line and business strategies.

Beyonce's Deadline Claim Attacked in Video Game Suit
Pop singer Beyonce can't disavow a multimillion-dollar video game development contract because she kept negotiating long past the cutoff deadline she cited as her reason for pulling out of the deal, the developer's attorney told a New York state appeals court Wednesday.

NJ Moves Ahead With Sports Betting Law Despite Legal Battle
Forging ahead with legalized sports betting despite a lawsuit brought by professional sports leagues and the NCAA, New Jersey said Monday that it would begin accepting applications from racetracks and Atlantic City casinos to offer such gambling.

Zynga revs up mobile ads with Honda campaign
The "It Starts With You" advertising promo will offer in-game rewards to Words With Friends and Scramble With Friends players.

Investors Steering Dollars Away From Social Games Ever Since Zynga's IPO
Zynga's public offering 10 months ago marks the peak for social gaming investments, with venture capital moving sharply away from the sector ever since.

Fashion Industry Puts On Its Game Face
As fashion houses are presented with the ever-challenging goal of achieving and maintaining brand recognition, many are now attempting to engage consumers in both the real and virtual worlds. Gaming represents one nontraditional avenue that has undergone recent growth, as brands find value in connecting with existing and potential consumers through interactive online means.

 

Around the Virtual World - July 30 - August 3, 2012

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A weekly wrap up of interesting news about virtual worlds, virtual goods and other social media.

 

 

PokerStars Pays $731M, Acquires Full Tilt In DOJ Settlement
PokerStars will pay a total of $731 million and absorb fellow online gaming site Full Tilt Poker in order to settle the government's wide-ranging fraud allegations against the poker site, the company said on Tuesday.

FSU focuses on social media, university updates its policies
Florida State administrators want to make sure their student-athletes understand the importance of protecting their brand and the university's image each time they click into a social-networking page.

UK to Start Legally Enforcing Video Game Ratings
Europe's PEGI rating system this week became the single system for video game ratings in the United Kingdom. The change means customers shopping for video games in the UK will no longer see the government's BBFC ratings on titles. Instead, all games will carry a PEGI (Pan-European Game Information) rating designed to help consumers make informed decisions about which games they're buying. 

Around the Virtual World - July 2-6, 2012

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A weekly wrap up of interesting news about virtual worlds, virtual goods and other social media.

 

 

Twitter Drops LinkedIn Partnership

LinkedIn announced via a blog post on Friday that Twitter would no longer be partnering with the business-networking site to sync updates from one site to the other. This ends a partnership that began in 2009. LinkedIn users can still create updates on the site and click a button to share to Twitter as well, but the reverse is no longer possible.

Two Major Gaming Deals Just Went Down 

Two pretty major announcements hit the gaming press Friday. And they have the potential to pretty much completely change the gaming industry. First off, Vivendi is selling off its majority stake in Activision Blizzard. It's unlikely they're going to find anybody to just buy the whole thing: AB is valued at $13 billion, and there's a very, very short list of companies who could afford it and who would be interested.

What Sony's $380M purchase of Gaikai means for future gaming hardware

Sony Computer Entertainment has been known for its iconic PlayStation hardware, including the PS3 console the PlayStation Portable, now called Vita. But does its future lie in proprietary hardware, or in a delivery platform that brings PlayStation games to any connected device? That's one possible implication of a $380 million acquisition of Gaikai, a Silicon Valley provider of gaming delivered through the cloud.

Health-care apps for smartphones pit FDA against tech industry

Three tries. More than two years. And roughly $150,000. That's what it took for MIM Software to get the Food and Drug Administration's clearance for a smartphone application that physicians can use to view MRIs and other medical images. 

Xbox Class Sues Microsoft For Blocking Online Access

A California Xbox video game system owner filed a class action in Washington federal court on Friday accusingMicrosoft Corp. of breaching contracts with consumers by blocking access to its Xbox Live online service without issuing refunds for their subscriptions, purchases and credits.

Usher Wants a Virtual You to Dance at His Concert

Pop star Usher is looking for new backup dancers -- virtual ones -- for his upcoming London concert, which will be live-streamed June 11 from Hammersmith Apollo. Starting Friday, fans can create digital avatars of themselves to win the chance of becoming a choreographed dance square during Usher's performance of "Scream." American Express teases the interactive element in the above video, shared first with Mashable.

Game Cloning Can be Stopped!

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MC900250090.jpgA federal court recently found copyright infringement based on a developers copying of aspects of the popular Tetris game, even though the code itself was not copied. This ruling confirms that IP can be used to effectively prevent certain cloning practices that are prevalent with online games. While this case focused on copyright infringement, a passing note by the court highlights how patents can be instrumental to a comprehensive IP strategy as well.

In this case, Tetris sued Xio Interactive Inc. over its game Mino. Mino is a falling block game which incorporates game-play rules similar to Tetris, as well as utilizing a similar playing area and geometric block combinations. In its opinion, the court stated that game developers are free to use others' ideas, but not the expression of those ideas. The court noted that the idea-expression dichotomy in the video game world is "simple to state- copyright will not protect an idea, only its expression - but difficult to apply, especially in the context of computer programs."

The court summarized the law by stating generally that game mechanics and rules are not entitled to copyright protection, but courts have found expressive elements copyrightable, including game labels, design of game boards, playing cards and graphical works. Significantly however, the court noted that game mechanics and other functional game features can be patented.

The court determined that Xio did more than just incorporate Tetris' underlying rules in Mino. In looking at the similarity of the look and feel of the two games, the court stated that "[t]here is such similarity between the visual expression of Tetris and Mino that it is akin to literal copying" regardless of the fact that Xio did not actually copy the underlying Tetris code. For a more detailed discussion of this case, please see our client alert

If you are a game developer and want to maximize your ability to shut down clones, it is critical to have a comprehensive IP strategy that incorporates both patents and copyrights. If you rely just on copyright, a more skillful game cloner can change the expressive elements enough to avoid copyright infringement. But if you patent core mechanics of your novel game, you can prevent others from copying that functionality regardless of how different they make the expressive elements.

For more information on IP protection for games, see IP Protection for Games.

Around the Virtual World - June 11-15, 2012

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A weekly wrap up of interesting news about virtual worlds, virtual goods and other social media.

 

 

Mobile Game Fight Goes Global

A turf war is breaking out in the videogame industry and, for once, it has nothing to do with Nintendo, Microsoft and Sony. This fight is taking place on smartphones with names like Gree Inc. and DeNA Co. --a pair of Japanese firms little known in the rest of the world despite being the two most profitable companies in mobile games--taking on Zynga Inc. and potentially Apple Inc. and Google Inc.

Electronic Arts to focus on freemium gaming

Electronic Arts will shift its business away from premium mobile game sales to focus on the freemium model, calling free-to-play titles "the norm" moving forward. "We started to see that freemium was coming in, and it took us a long time to move over," Electronic Arts Senior Vice President and Group General Manager Nick Earl said in an interview with All Things D. "In all candor, we are behind."

A Little 'Like' Can Mean Big Trouble

Workers of America, be careful what you "like" and post on Facebook. A U.S. district court in Virginia recently found that a sheriff's office employee "liking" a Facebook page was "insufficient speech to merit constitutional protection." Several former employees claim they were let go after the sheriff found out about their support for a political rival through a Facebook "like," among other actions.

YouTube IP Decision Gives 9th Circ. Pause On Veoh Ruling

The Ninth Circuit, which is considering rehearing its finding that Veoh Networks Inc. is shielded from Universal Music Group Inc.'s copyright claims, asked the parties Thursday whether it should adopt the standards set by the Second Circuit in its recent YouTube ruling.

As 'Gamification' Trend Grows, Badgeville Banks $25M.

More businesses are embracing the idea of using game techniques-such as awarding status, access and rewards-to influence behavior both inside and outside their enterprises. Betting that this "gamification" trend will continue, investors have poured $25 million into Badgeville at a pre-money valuation well north of $100 million.

Online Activities to be Recorded by UK ISPs, Draft Reveals

If you were scared that your online activity was being tracked and possibly analyzed, let us inform you that you were very much accurate in your suppositions. No, this is not one of those conspiracy theories you hear on the news so often. The United Kingdom online monitoring law just got published showcasing some disturbing facts. The paper is 123 pages long and is actually a draft of the Communications Data Bill.

Around the Virtual World - May 28-June 1, 2012

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A weekly wrap up of interesting news about virtual worlds, virtual goods and other social media.




App Makers' Privacy Policies Leave Users In The Dark: Panel

Several software developers and privacy advocates at a Federal Trade Commission workshop Wednesday shot down the notion that traditional privacy policies are enough to adequately inform mobile application users of how their information is being collected, stored and used.

Social Media Policies At GM, Target, DISH Network Deemed Unlawful By Labor Official

In an effort to control employees' activities on Facebook and Twitter, some U.S. companies have instituted social media policies that run afoul of labor law and infringe on workers' rights, according to a memo issued Wednesday by the general counsel of the National Labor Relations Board.

Social Gaming and Gambling Converging

Maybe the most social of popular casual games is breeding a new competitor in the social gaming space as bwin.party sets its sights on this growing part of the market. The company is more known for poker, a game played with friends around dining room tables around the world, but it has set aside $50 million to develop a new game studio called Win that will develop social games.

The video games you play with your mind

The gaming controller of the future won't have joysticks or buttons; it'll wrap around your head. A number of companies like San Jose-based NeuroSky are developing affordable, consumer-ready controllers that takes cues from the electrical signals in a wearer's brain to dictate onscreen action. Here, a concise guide to the new smart technology.

Social media: Bill would limit employers' and schools' access to your Facebook, Twitter account information

The House Energy and Technology Committee on Tuesday took testimony on legislation that would create the Social Network Account Privacy Act. The bill as introduced generally would prohibit employers and schools from requesting that employees and students provide access information related to their social media accounts.

Google Augmented Reality Glasses To Go On Sale Next Year

According to specialists, after the Google Project Glass will hit the market, the manufacturers will start building a wide range of gadgets based on the new technology, from smartphones to tablets featuring transparent displays.


Gamblification! The Hottest Trend in Social Games

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NOW AVAILABLE -- Pillsbury's Social Media, Entertainment & Technology Team recently finalized a white paper on legal issues with social games and gambling. For a copy, click here.

Gamblification! This is not yet a household word but  we use it to describe the intersection of social media and gambling. It is a play on the concepts of gamification and gambling. While gamification relates to using game mechanics for non game purposes, we use gamblification to refer to the use of gambling mechanics for non gambling purposes (ideally!). Given the complexity of the legal issues around this concept, it is not always easy to ensure that one does not cross the line. 

Many social media companies are leveraging gamblification to capitalize on individuals' gambler instincts. One example of this is the use of gambling-like activities in social games.  Many social games are designed based on gambling-related activities, such as Zynga poker.  In this example, the game itself is centered around playing poker for Zynga poker chips. It differs from real gambling in that you buy chips but can not redeem them. Other social games are leveraging gamblification by including minigames or features within non-gambling related social games and MMOs.  For example, some social games include features that enable users to exchange virtual currency for a chance to win one of a number of virtual goods that can be used in game. The apparent randomness of which item a user will obtain (or whether they will obtain one) has an element of surprise that makes it fun for users. Other platforms, such as Virgin Gaming, enable console game players to wager against each other on the outcome of playing a video game.

Other non-game social media sites are using gamblification as well to drive user engagement with offers and promotions. For example, Cash Dazzle is a platform that drives users to engage with a variety of promotional offers in exchange for tokens that can be used to spin a wheel for a chance to win cash prizes.

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Online casino games is  a new battlefield, pitting social game companies against traditional, land-based casino operators and the Indian tribes. The battle is for control of new channels (social and mobile channels) for casino games and other online gambling related activities. This battle is already playing out in a big way. Traditional gambling equipment provider IGT spent $500 million to buy Double Down, a maker of casino games for Facebook. Shuffle Master, Inc., a leading global gaming supplier, has agreed to acquire Ongame Network Ltd., one of the world's largest poker providers to online gaming operators. Betfair, one of the largest players in the European Internet betting exchange, has invested in one of the fastest growing US social game companies.

Gamblification is also driving a need for new types of data that identify the "whales." See Kontangent's post on  "Casino Games are the New Battlefield."

These games and other "gamblified" applications are tremendously popular and the use of gamblification is very likely to increase. There will be huge business opportunities around the gamblification movement that is afoot. However, businesses leveraging gamblification need to be certain that they don't leverage gambling mechanics in a way that crosses the line into illegal gambling.

A variety of factors are relevant to the legal analysis in the US. One is that gambling is largely regulated by state law. In some states there are gambling-specific laws and/or other laws relating to contests, sweepstakes and lotteries. Yet, there is great disparity among the various states regarding what is legal. Add to this historical problem the fact that there is a flurry of new online gambling legislation due to a recent change in position  by the DOJ that has permitted states to legalize online gambling (except for sports betting). 

Additionally, many activities that some online operators believe will avoid triggering gambling laws may not actually be in compliance. Some of the activities use virtual currency as the means by which users get a "seat at the table" or a "spin of the wheel." While many virtual currency based models may be legal, the use of virtual currency alone does not necessarily ensure that there is no risk of running afoul of legal issues. One of the key issues with that is whether the virtual currency has value. In the Zynga poker example, the argument is that because you can not cash out the chips they do not have value, within the meaning of the gambling laws.

The increasing use of gamblification is going to continue to push the envelope of what is and what is not legal. Understanding the complexities surrounding these issues can be challenging for new entrants due to the lack of specific precedent that addresses many of the techniques that are proliferating in the social game and promotional arenas.

Additionally, even if certain "gambling-like" activities are legal, certain state laws may require that the operators go through a licensing process analogous to what land-based casinos currently do.

Around the Virtual World

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A weekly wrap up of interesting news about virtual worlds, virtual goods and other social media.




Epic Games to make government training games

Of all the companies you'd expect to announce a big government partnership, a major video game studio is probably not at the top of your list. Nevertheless, Epic Games announced Tuesday that it has entered into a "long-term, multi-platform" deal with a division of Applied Research Associates to license the Unreal game engine for government use.

Royal Canadian Mint unveils MintChip virtual currency

Having revealed plans to ditch the Canadian penny last week, the Mint is continuing its assault on physical cash with MintChip, which it describes as the "evolution" of currency. The system brings all the benefits of cash into the digital age, claims a dedicated Web site, providing users with instant, private and secure access to their money.

Social Gaming Key for Advertisers in 2012

Did you know Internet marketers will spend upward of $271 million on social gaming ads in 2012? In-game advertising is the next big trend in the industry, with analysts expecting ad spend on social games to reach $900 million annually in less than three years. The stakes are higher than ever for brands as they budget ad spend on laptops, mobile devices, and consoles.

Gamification Platform BigDoor Raises $5 Million From Foundry Group

White label gamification platform BigDoor has raised $5 million in new funding led by existing investor Foundry Group, bringing BigDoor's total funding to $13 million. BigDoor's gamification platform essentially allows online publishers to add game mechanics to web interactions and engagements. BigDoor helps companies build game-like mechanics and loyalty programs into their sites or apps by enabling points, badges, levels, leaderboards, virtual currency and virtual goods.

Facebook, NRDC, Opower, & 16 Utilities Team Up to Create Social Gaming App

"With an initial reach of 20 million households, the effort is one of the most significant to date, enabling people to take action and become more energy efficient," NRDC said in a statement today. "Leveraging the Facebook platform, the app allows people to quickly and easily start benchmarking their home's energy usage against similar homes, compare energy use with friends, enter energy-saving competitions, and share tips on how to become more energy efficient."

Google Glasses Face Serious Hurdles, Augmented-Reality Experts Say

When Google officially unveiled Project Glass -- the company's bid to develop Terminator-style augmented-reality glasses -- we saw a provocative glimpse of the future. The video Google released yesterday showed us the point of view of someone wearing the glasses, with icons, maps and other graphical overlays appearing over the user's complete field of vision.

Retired NFL Players' Suit Against EA to Continue

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On March 30, 2012 the California federal judge hearing the lawsuit initiated by a putative class of retired NFL players against Electronic Arts Inc. denied EA's motion to dismiss the suit and to strike the complaint.  The Court ruled that the retired players' allegations that EA's unauthorized use of their likenesses in the "Madden NFL" video game was not trumped by First Amendment protection because the video game does not pass the transformative use test.  Specifically, the court held that "[a]lthough EA appears to claim that its mere projection of plaintiffs' likenesses into avatar figures, capable of manipulation by gamers, is sufficient to confer constitutional protection, another way to see this supposed transformation is as a relatively literal, if skilled, translation of plaintiffs' conventional images into the medium of the video game".

This begs the question of what is transformative use?  Generally, the courts have defined transformative use as a use that "adds new material that reflects critically on the original".  Traditional categories of transformative use are for purposes of criticism, commentary, newsreporting and parody.  Therefore, EA's argument relies on its ability to fall within one of these traditional categories or to convince to court to create a new category which is more reflective of the current world and the available technology.   

EA argued in its motion to dismiss the case that it's "Madden NFL" video game should be granted the same First Amendment constitutional protection as any book or movie.  This argument is founded in the recent Supreme Court decision in Brown v. EMA which clearly granted First Amendment protection to video games.  However, the current Court took the position that the transformative use test focuses on the reproduction of the plaintiffs' likenesses, not merely the inclusion of expressive elements in game as a whole.  The decision stated that "[i]f, as EA urges, any expressive elements within the larger work were somehow to 'transform' an otherwise conventional use of a celebrity's likeness, the right of publicity would effectively be eviscerated".

That said, this decision is merely one battle in an ongoing war.  It is not dispositive on whether EA or the putative class of retired NFL players will ultimately be successful in the suit.  Moreover, EA recently was successful in dismissing a similar lawsuit in another jurisdiction alleging the misuse of college players' likenesses in its "NCAA Football" titles.  In this case the Court agreed with EA's argument that its First Amendment protections overruled the publicity rights of players.  Therefore, with these conflicting decisions in the circuits it is uncertain in which way the current state of the law will head.  

If you would like to read more about right of publicity and video games, please see our recent Client Alert.