Online Games & The Law, Part Five: Property Rights
by Shannon Appelcline
Over the last few years I've been writing a series of articles discussing legal issues that game designers should know about. (You should find a complete listing of the six previous articles to date down at the bottom of this column.) I'm not a lawyer, but in running small companies you pick up bits and pieces about everything, because you pretty much have to. So, as I've picked up legal tips I've shared them here. But please note again that I'm not a lawyer; what I offer here is my best lay man's view.
This time around I want to talk about non-IP property rights. At first it seems like something that you don't need to worry about when you're producing online games, but unfortunately ... you do.
I'll be talk about two property rights specifically: the right of publicity and virtual property rights.
The Right of Publicity
This topic came to my attention when the lead of our 1930s Lovecraft Country game asked about the legality of using a period entertainer (now deceased) as a character in the game. And, it turns out that using real, historical personages can be a problem for your game.
At stake is what's called the right of publicity. This is a patchwork right that varies in the United States on a state-by-state basis. It's been developing since 1953 and as you might expect, it's strongest in New York and California, two entertainment capitals. About half of the US recognizes it in some way at this time.
Generally, the right of publicity prevents a "commerical appropriation" of someone's "identity". In other words, you're not allowed to use someone's name or likeness to sell your product. One of the earliest purposes of the right of publicity was to prevent sports card manufacturers from creating trading cards without the permission of the athletes depicted. However, you likewise couldn't advertise your 1980s-era game as "Now with Ronald Reagan!" without getting into trouble.
The right of publicity expires somewhere between 0-100 years after death, again based on your state. So, at least in the United States, you're almost definitely OK as long as you're including anyone who died in 1906 or earlier, and probably OK if you're including someone who died in 1956 or earlier.
Usually creative projects, such as books, have been exempted from the limitations of publicity rights in the United States due to first ammendment protection. A recent case Winter Brothers v. DC Comics sought to change this, due to the unflattering, satirical depiction of the Winter brothers in a comic called Jonah Hex. The court ruled in favor of DC, but only on the basis that the depiction of the brothers in the comic was "transformative". The core question of whether public figures could be used (and advertised) in creative works in the more general case wasn't really addressed.
I say "in the United States" because various European countries have different, and somewhat mystifying laws. Some countries, for example, completely protect familial names which could make it hard to feature historical personages. I've been told, for example, that singer "Lars Hug" had to change his name to "Lars H.U.G." because of Denmark law that prevented him from exploiting the "Hug" family name. Not that the Hugs were anyone notable mind you, and not that the entertainer took their name purposefully.
The right of publicity is, as mentioned, a property right (as bizarre as that might sound). However it's very closely related to a type of IP that we've previously discussed in this column: trademark. Although it's not automatic, real peoples' names can also be trademarked for use.
A recent case that seems to be about a trademarked family name occurred when a Cease & Desist was received by a European game company called Adlung Spiele. It was because of a game that they'd released called Die Fugger, after Jakob Fugger, a 15th century German banker. Unfortunately, there's now a Fugger Bank in existence, presumably related to the long-dead Jakob Fugger himself, and as far as I can tell it was this institute that caused the backlash (though the articles about it are in German, so it's a little hard to say). It so happens that another company is releasing a game about Jakob Fugger right now, called Augsburg 1520, but the guess is that they won't have troubles over the issue because they're not using the Fugger name to market their game.
Overall, the right to publicity is a mess, so you need to be careful if you want to use real people in your games. I can't really say what's going to be legal because the waters are somewhat untested and quite varied, but you're much safer if you use a real person who died at least 50-100 years ago and if you don't feature them in advertising, which includes ads, trade dress, game name, and anything else that might encourage people to buy your game.
Though creative works have usually been given more protection, I'm not convinced that games would currently be given that protection.
So watch yourself.
Virtual Property Rights
An even more wide-open property-related topic is the question of "virtual property rights". And it's one that's even more likely to bite modern-day game developer's in the butt.
Increasingly items in games have value. They're auctioned on eBay. They've given to friends. They're farmed, then sold by Asian companies.
Similarly, an increasing amount of our "real property" is actually virtual. I've owned tens of thousands of shares of stocks, bonds, and mutual funds over the last dozen years, yet I've never seen a certificate for any of them. Most of my money exists solely in banks' computers as ones and zeroes, not as real greenbacks.
So what's the difference between my virtual game property and my virtual real property? Technologically, not a lot. The only real difference is intent, and that gets muddied as those aforementioned farmers and eBay sellers increasingly develop value from their in-game items.
The Cyberlaw Wiki has some interesting discussions on whether virtual property rights should exist or not by providing arguments for and against and analogies. I suggest reading it for some arguments pro and con.
Bruce Boston offers some good discussions of virtual property in his blog where he says, "I think the short answer to the question is simple, virtual property is owned by whomever the contracts that are agreed to by both the players and the game companies, say owns that property." I'd generally agree with that.
I can only find one legal precedent on the issue. In 2003 Li Hongchen v. Hongyue in, of all places, China was decided in favor of virtual property rights. After Li Hongchen's in-game property was stolen by hackers as a result of a loophole in the game code, the game company was ordered by a court to return the items to him. It was at the time described as the first virtual property rights case in China and, possibly, the world.
Unless more precedents come down that shake up what we know, I think the current answer to virtual property rights is actually pretty simple: make sure that it's covered in your TOS or other licensing agreements.
And, be very aware what can happen if you decide to cede property rights to your players. You could suddenly become responsible for their be able to continue accessing their property, and that could be a huge liability for your company. Second Life believes they have a good answer with the DMCA, but personally those are grounds that I'd be very leery of walking upon.
Yes, property rights can affect you in the world of online gaming. The right of publicity could prevent you from using a real person's name or likeness, while granting virtual property rights could be a huge landmine.
As always, you should be aware, and walk in with both eyes open.
Over on Gone Gaming this week, I again posted something of relevance to this column. It's a summary of my main ideas regarding strategic game design, that I started posted here in TT&T #101. I've also updated it a bit, particularly the way that I look at activity and victory.