Bloggey Kong - Video Game Law Blog

Tecmo Japan Settles Overtime Suit, Readies for Merger

2008-09-05T12:54:00.003-05:00

In an effort to tidy up its legal affairs, Tecmo has settled with two employees who claimed approximately $77,000 is unpaid overtime wages due to Tecmo's illegal "flexible hours" work schedule. In addition, the employees alleged that the company then covered it up with false accounting paperwork. The parties reached a judicial settlement.

"Flexible Hours" Tec' Mo' From Workers

Good to see a game company pay the fair amount for the hard work of their employees - too bad it took the legal system to make it happen.

SL User Files Suit Against LL, Other Avatar for TM Infringement of SLART

2008-09-03T17:20:00.005-05:00

Richard Minsky, Second Life artist and owner of the trademark "SLART," has sued Linden Labs, Philip Rosedale (head of LL), Mitch Kapor (head of the board for LL), and an avator named Victor Vezina, claiming trademark infringement, TM dilution, and fraud. Apparently, Victor Vezina is using the SLART trademark without Minsky's approval and after LL would do nothing to protect his mark, he filed suit. For now, Minsky's claims are just claims...but the implications about TM enforcement in SL are huge. If he can win here, what will stop all of the other companies with valid TMs from suing LL for not removing infringing material?

SLART, a Sleeping Fart

Another interesting part was LL's reaction of trying to get Minsky to drop the rights to the mark by offering perks, such as a feature in the SL magazine. LL holds the mark to SL Art, which is different enough from SLART to warrant a unique TM. They were hoping to fold Minsky's mark into their own, but he refused.

Why not make the case that the mark is generic? Many people refer to art in SL as SLART, so it seems unfair for one user to hold dominion over the word (USPTO just cannot keep up!). I know that for many, SL is their livelihood and protecting their IP there is of the utmost importance, but this seems a bit ridiculous. And, I would love to hear the justification for the $1000/day "injury"...

Connecticut Court Dismisses WWE Suit Against THQ, Jakks

2008-09-02T13:06:00.002-05:00

A Connecticut State Court dismissed all of WWE's claims against THQ and Jakks, the developer and licensee respectively, of WWE video games. WWE alleged bribery, anticompetitive behavior, conflicts of interest, and other dastardly deeds. The court dismissed the claims after reviewing the record: there is no antitrust injury and therefore no cause of action, and all of the federal claims were dealt with in the Federal Court's dismissal of the issue. WWE was hoping to nullify its licensing agreement as a result of the lawsuit, but it will not happen this time. WWE is appealing.

WWE gets the Smackdown

Sounds like WWE wants more money.

ESA Applauds the Capture of Pirates

2008-08-29T14:03:00.003-05:00

The ESA would like to give a shout out to the justice system for actually catching some software pirates. Both of these criminals were found guilty of criminal copyright infringement for their extensive pirating practices. Kifah Maswadi, a distributor of consoles with 70 Nintendo games pre-loaded, got "fifteen months in prison, three years of supervised release, and fifty hours of community service, and must pay $415,900 in restitution." Bam! Kevin Fuchs, a key figure in certain warez sites, got eight months in prison, and eight months of home confinement. Still Bam!, (but not as much).

Yar! Me Ships Going Down

It is good to see that the targets of these federal investigations are not average joe six-chips, but legitimately harmful targets: like targeting the drug lords and not the poor man on the street just trying to get by...

Hillcrest Labs Sues Nintendo Over Waggle Technology

2008-08-21T12:36:00.002-05:00

Oh, Nintendo...sued again....This is time, it is Hillcrest Labs, claiming that the Wii's motion sensing and graphical interface technology infringes on their patents. HL licenses it technology to other peripheral manufacturers, like Logitech, but did not fully disclose its licensing arrangements. As of the time of the story, Nintendo had not been served.

Hey Nintendo! Waggle This!

Once again, patent law is reprimanding the "innovator" for video games. Hillcrest may have valid patents, but it is so suspect how these companies wait years to file suit, after the big N has already made a ton of money. Coincidence? I think not...will the patent thicket ever be trimmed?

Game File-Sharer Ordered to Pay

2008-08-19T16:20:00.003-05:00

The UK Patent Courts have ordered a British woman to pay about 16,000 pounds (approx. $30k) for illegally sharing games over the internet. The woman is paying Topware, makers of Dream Pinball 3D, for her copyright infringement of their protected work. Some believe this could be a landmark case in the VG industry's fight to control piracy.

Not Just Music Anymore!

It will be interesting to see if the industry will begin targeting file sharers a la the music industry. Personally, I do not think it is a great idea. Maybe for a littler guy like Topware, this approach would make sense, but the damage amount is so low, it would probably be a disservice to large game makers to go after individuals like this, only to have their customer base harangue them for it. Then again, you never know...

Ubisoft Sued for Breaching License Agreement to the Tune of $26 Million

2008-08-14T20:42:00.002-05:00

ResponDesign, makers of Yourself!Fitness (thats the name...really?), is suing Ubisoft claiming a breach of their licensing agreement for failure to diligently pursue development of a game utilizing the license. ResponDesign believed that Ubisoft would create a game under their My Coach label that used the technology and software underlying RD's previous Yourself!Fitness (is this just a bad translation?). Instead Ubisoft created a competing product under the My Coach label, told them the licensed game would be called Yourself!Fitness, (which must have really stung!) and didn't even say sorry. Now RD has filed suit in Los Angeles seeking $26 million in damages, mostly from unrealized royalties.

My Suing Coach!

Hate to burst RD's bubble, but if they think they are getting anywhere near this amount they are crazy. Absolute figures aside, this case will be interesting to follow to see if courts will find/infer a right to have a game made when the main inducement for disclosing and sharing IP are proffered royalties. Without seeing the agreement, it is hard to know, but it is likely bad faith for Ubisoft to make a competing product.

Thailand Wants to Prosecute VG Makers for Copycat Murders

2008-08-13T12:03:00.003-05:00

In an extremely weak attempt to curb violence in his country, one Thai official has suggested that video game makers be held liable for copycat crimes committed by players imitating a game. This brilliant suggestion comes on the heels of the murder of a Bangkok cabbie thought to be killed by a GTA-addled maniac. Somchai Jaroen-amnuaysuk of the Welfare Promotion, Protection and Empowerment of Vulnerable Groups Office (now there is a mouth full: where are they for all of the child prostitutes?), said, "When a player copycats a crime he or she sees in the game, the game maker should be prosecuted. Prosecutions will automatically force game makers to act more responsibly." Right...

A Different Copyright!

Why limit the law to murder? The state should be suing Nintendo's Ass! I only ate the mushrooms because I thought they would make me bigger, and now look at me!

East Texas Controller Patent Case Finds for Plaintiff (big surprise), Nintendo Owes $21 Million

2008-05-19T16:49:00.004-05:00

Keeping with the sordid history of patent cases in the Eastern District of Texas, Nintendo has lost its patent infringement legal battle with Anascape to the tune of 21 million bucks over patents relating to controller technology. Microsoft was also named, but settled for an undisclosed amount. It is unknown why Sony was not named as well.

Boohoo, Nintendo!

It is amazing to me how the EDT court system just pumps out these infringement cases. How is it possible that plaintiffs can win 70% of the time? I guess everyone is guilty in Texas...

House of Reps Puts Forth Bill To Require Carding Gamers

2008-05-08T16:36:00.002-05:00

The House of Representatives is considering passing the Video Game Ratings Enforcement Act, a piece of legislation that would require game retailers to check the ID of anyone buying an AO or M rated game. As with almost all video game legislation, this is being done in the name of the children. Pass it for the children Congress!

VGREA, Helping to Stiffen Legislative Standards!

I'm going to have to agree with Dale on this one: we already get carded for everything cool anyway, cigarettes, booze, porn, so why not lend video games some street cred and throw that in there too?

United Arab Emirates Cracks Down on God of War, Again

2008-04-17T14:16:00.003-05:00

UAE has decided to crackdown on God of War again. Banning it apparently was not enough, since now pirated copies are not hard to come by, so they are taking to the streets to remove this game which is harmful to their religious and moral beliefs. In fact, one went as far as to say he was shocked by how much the game contradicted Islamic views. Oh, and it has sex.

Don't Worship This God of War!

It just goes to show how much we, the Western gamer, take for granted. People here flip out over the smallest amount of censorship - we don't even know the half of it.

Prison Inmate Sues Game Publishers

2008-04-17T14:07:00.003-05:00

Jonathan Lee Riches, inmate "rich" in intelligence, is seeking restraining orders from game publishers, including Activision, Atari, and Take-Two. Video games offend his sensibilities, AND they contributed to his identity theft, AND promote racial hatred, AND EVEN increase his fear that someone will beat him up and snatch his chain. He also is claiming that he is not granted access to video games in jail, which is a form of discrimination (when this is the most legit part of your claim, you know you are in trouble). This is the same man who "has already filed more than 1,500 lawsuits this year against a wide-ranging array of defendants including Washington Capitals left winger Alexander Ovechkin, Alone in the Dark star Christian Slater, St. Patrick's Day, the 9-11 Commission Report, and Star Wars. He is perhaps best known for suing former Atlanta Falcons quarterback Michael Vick for $63 billion after Vick's illegal dog fighting operation was uncovered."

How Did Someone This Smart Get Locked Up?

Freedom is the name of the game today: some people have it, and some do not.

Afghanistan May Ban Video Games

2008-04-17T13:00:00.002-05:00

The Afghan Parliament, supposedly better than the Taliban, has introduced legislation that directly mirrors the types of legislation passed under the Taliban, namely advocating bans for many of the racier sides of life: no more wearing of jewelry by men, no make-up for women in public, women must wear veils in school and at work, no more pigeon-flying, and most importantly, no more video games. How could W let this happen?

Afghaniban

Don't they believe in freedom? Well, this sure is hell ain't America.

Minnesota Pushes Forward With Futile Legislation

2008-04-14T12:20:00.002-05:00

Minnesota, that bastion for common sense, continues to resist the legal system's mandate that legislation creating penalties for the sale of violent video games is UNCONSTITUTIONAL! The state has filed an appeal to hear the case en banc, meaning all of the Eighth Circuit of Appeals judges will hear the case, instead of just three.

Presenting the Minnesota Golden Dotards!

I was tempted to not even report this story because it is hardly news. As a gamer, I am happy this legislation has not been passed because I am against censorship in general and it could set a precedent for further encroachment. As a lawyer, if this type of legislation does pass, there are going to be a lot of sheepish judges out there who will either have to go back and say they were wrong, or stop the spread of this legislation to cover their proverbial ass. My guess is that they would stop the spread.

Gibson Expands Guitar Hero Suit to Include Harmonix, MTV, Game Retailers

2008-03-30T14:05:00.002-05:00

Gibson, attempting to put pressure on Activision to settle...err, I mean, protecting its intellectual property, has decided to expand its recent Guitar Hero-related patent infringement suit to include Harmonix, MTV Games, and Retailers. Gibson claims that they are just protecting their intellectual property and that their good faith efforts to settle have been rebuffed by the defendants.

Gibson Trolls More!

I do not buy Gibson's reasoning at all. They are trying to force settlement by interfering with Activision's relations with other business partners. Everyone wants a piece of the Guitar Hero pie; Activision even went as far as to say that they thought Gibson was just dissatisfied that Activision was not renewing their licensing contract. Welcome to the world of business!

Harmonix Files, Then Quickly Withdraws, Suit Against Activision Over Royalties

2008-03-14T14:55:00.003-05:00

Harmonix, creators of the Guitar Hero series, filed and then withdrew a suit against Activision, current owner of the Guitar Hero franchise, regarding payment of royalties. Under their agreement, there were two tiers of royalties payment, with the higher rate being used if a subsequent GH game "incorporates, uses, or is derived from Harmonix property." Harmonix believes that GH III does in fact use H's property and as a result, they think they are entitled to the higher rate; the difference between the lower and higher is about $14.5 million. The suit was filed Monday, and withdrawn Tuesday; discussions are to be continued out of court.

Everyone's Gunning For Activision

Activision sure has its hands full these days. Like Biggie said, "Mo Money, Mo Problems."

Activision Takes Gibson to Court Over Guitar Hero Patent

2008-03-14T14:43:00.005-05:00

Activision has begun litigation against Gibson to settle whether the Guitar Hero franchise is infringing against Gibson's patent for a "technology used to simulate a musical performance." Activision is seeking a judgment to remove Gibson's claim for licensing fees. It is interesting that Activision and Gibson are already partners, with Gibson supplying the designs for GH's guitars. Activision thought it had its bases covered by purchasing or licensing many patents already before the release of GH III. Oh! It looks like one of Gibson's periscopes is just peeking its head out of the water right now!

Gibson wants a bigger piece!

This case just goes to show how hard it is for a successful video game company to navigate the patent waters - Gibson's U-Boats are all around! Activision seems to be enjoying the flip-side of success - everyone coming out the woodwork saying, "You owe me!"

Manhunt 2 Cleared for Launch!

2008-03-14T14:34:00.003-05:00

After a grueling battle with BBFC, Rockstar, developer of the Manhunt series, has defeated an appeal to not give Manhunt 2 a rating, which would have effectively banned the game from sale in the UK. Now, the game will be released with an 18 rating- rejoice! Score one for free speech in video games!

Let the Manhunting 2 Begin!

Another victory for gruesome games! It seems like there should be a point where the games get too gory to release, but that point has not been achieved yet. Phew!

MDK Sues Capcom Over Dead Rising

2008-02-27T17:13:00.004-05:00

MDK, perhaps spurred by Capcom's seeking of a declaratory judgment of non-infringement, has sued Capcom claiming that C's popular Dead Rising infringes on the copyrights and trademarks associated with Dawn Of The Dead. Capcom claimed that the scenario of Zombies attacking a mall is an "unprotectable theme". MDK cared to differ offering, "both works are dark comedies [where] the recreational activities of the zombies and absurdly grotesque 'kill scenes' provide unexpected comic relief...both works provided thoughtful social commentary on the 'mall culture' zeitgeist, in addition to serving up a sizable portion of sensationalistic violence."

MDK Sues Capcom: Sensationalistic!

I haven't played Dead Rising, but from a only-judging-a-book-by-its-cover perspecitive, Dead Rising does look a lot like Dawn of the Dead. For copyright infringement, there must be actual copying (showing this could be problematic because surely the theme of zombies being killed in suburbia has been done before). TM infringement on the other hand relies on a likelihood of confusion standard, regardless of whether the idea is copied or not. It seems like there is a great likelihood of confusion, but it will be interesting to see how the courts classify the DotD mark - probably descriptive, and therefore not warranting as much protection as a suggestive, or fanciful term (they may even claim it is generic, but I think that generic term would be something like, Zombie Movie). It seems like Capcom has admitted that there is a likelihood of confusion by including a disclaimer on the box, but then again, the disclaimer may be enough to limit or eliminate any liability.

Activision Shareholders Sue Over No Control Premium

2008-02-27T17:04:00.003-05:00

The Wayne County Employees' Retirement System, a shareholder of Activision, is suing the company because it believes that Activision did not exercise sound business judgment by relinquishing control ownership to Vivendi in their recent/soon-to-be merger without securing a control premium for selling that control. Vivendi will receive a 52% stake in the company.

Shareholders of the Next Biggest Video Game Company Sue Over "Unfavorable Minority Position"

By relinquishing control, the shareholders of Activision are put at a disadvantage...it will be interesting to see how the courts will determine exactly how disadvantaged they are.

DJ Hero Trademark Application Hints at Expanding Activision IP

2008-02-19T19:31:00.004-05:00

Continuing with its line of "Hero" games, Activision has filed an application for a trademark for "DJ Hero." Again, a trademark application does not mean that a game is in development, only that the company is thinking about it.

DJ "Copycat" Hero

As deftly noted by 1up, this would not be the first time that a Western developer has borrowed one of Konami's Music game ideas. But then again, who ever heard of Guitar Freaks anyway?

3D Realms Sued for Copyright Infringement

2008-02-19T17:36:00.003-05:00

Darin Scott and Edward Polgardy filed suit against 3D Realms over the pruported stealing of their idea by 3D Realms for the upcoming Earth No More. Scott and Polgardy claims they pitched an idea to 3D for a game called Earth No More in which a spore has begun transforming and terraforming Earth into a hideous world full of mutated monsters. 3D Realms has a game coming out called Earth No More, in which a spore has begun transforming and terraforming Earth into a hideous world full of mutated monsters. So, I don't get it...what are they suing for? It's not like they copied the idea or anything.

Copy No More

I am very interested in this case. There is no mention yet about whether a NDA was signed or not, and if so, what the implications of that would be. I have thought about pitching an idea for a game to a company before, but I always hesitated because it just seemed so easy to steal the idea. Now I know, it may not be so easy; and in the case, the copying looks blatant.

Australia Bans Another: Dark Sector

2008-02-19T14:30:00.002-05:00

By denying Dark Sector a rating, the Office of Film and Literature Classification in Australia has effectively banned the game down under, it being a crime to own or sell unrated entertainment. The OFLC cited the extreme violence of the game and focused heavily on the blood-spurting animation that accompanies the gameplay.

Down Under Not Down With Dark Sector

Hit the link to see other games that Australia has banned: the list is longer than one might think.

Capcom Files Preemptive Suit Against MDK

2008-02-14T15:49:00.003-05:00

MDK, makers of George Romero's Dawn of the Dead, have been sued preemptively by Capcom to “eliminate any doubt that [Capcom']s ‘Dead Rising’ video game does not infringe on any copyright, trademark or other intellectual property rights” owned by MKR. Apparently, MKR had already sent Capcom, Microsoft, and Best Buy attorneys a draft of a complaint, spurring Capcom into action to receive a Declaratory judgment. MKR also contacted Capcom before the game was released and claimed that it was infringing on their copyrights. Capcom claims that MKR doesn't have the exclusive right to make media associated with a human battling zombies in a mall and believes that the disclaimer on the front of Dead Rising proclaiming that is not affiliated with Dawn of the Dead is sufficient for a court to grant them a declaratory judgment of non-infringement.

Dawn of the Declaratory Judgment

For copyright infringement, it is sufficient if the expression is not lifted, but it seems like the trademark, and more specifically the trade dress, issues of Dead Rising scream "strong likelihood of confusion." I know the first time I saw the box, my first thought was Dawn of the Dead, until I read that disclaimer. Will the disclaimer be enough?

Ubisoft Wins $13.2 Million From Bratz Producers

2008-02-12T18:41:00.000-05:00

Back 2002, MGA, the companies that produces every little girls favorite role-model dolls: Bratz, signed an agreement with Ubisoft for U to handle any games related with the toys. After Bratz blew up, MGA tried to force a renegotiation with Ubisoft by terminating the contract for no apparent reason and proceeded to criticize Ubisoft's handling of the license. Ubisoft sued and won over $13 million.

You Bratz Ever Heard of Courtz?

The dispute was settled through arbitration.